LEGAL WRITING SAMPLE MEMORANDUM

MEMORANDUM OF LAW

QUESTION PRESENTED

What is the law in Virginia regarding the marital communications privilege, when the marital partners are legally separated and the Acommunication@ is of a non-spoken type?

FACTUAL BACKGROUND

Our client is charged with the robbery of the proprietor of a local 7-Eleven store. Two hours after the alleged incident, he arrived at the home of his estranged wife. He displayed $150.00 in small bills and coins in a 7-Eleven moneybag. The parties are now divorced and the prosecution intends to introduce her testimony as to the money and the moneybag.

DISCUSSION OF THE ISSUES

The Virginia Code restates the common law rule which prohibits a spouse from testifying against his or her spouse (without consent) as to any confidential communications made during a valid marriage (19.2-271.2).

A legal separation does not terminate marital rights and privileges and the subsequent termination of the marriage does not destroy the privilege. Menefee v. Commonwealth, 189 Va. 900, 55 S.E. 2d 9 (1949).

In Menefee, supra, the Virginia Supreme Court interpreted the term Acommunication@ to include Aall information or knowledge privately imparted and made known by one spouse to the other by virtue of and in consequence of the marital relation through conduct, acts, signs and spoken or written words@

Our client=s display of the money and moneybag to the his wife would therefore be a Acommunication@ and would be considered privileged in that his legal separation would not affect the marital communication privilege.

CONCLUSION

Virginia law would prohibit our client=s wife from testifying about the money and moneybag as a violation of the marital communications privilege.