## Facts

- Jake Keller Neal was indicted for bank robbery and homicide under 18 U.S.C. § 2113(a) and (e) arising from an April 29, 1981 robbery of Midland Federal Savings and Loan in Englewood, Colorado, during which a teller was assaulted and later died.
- During the investigation, an FBI agent, without seeking a warrant, monitored and tape-recorded three telephone conversations between Neal and his wife, Marcia Neal (December 10, 1981).
- The agent obtained Marcia Neal’s cooperation by promising immunity from prosecution and suggested questions for her to ask Neal, intended to elicit incriminating statements.
- The decision to monitor and record was made at the field-agent level; there was no evidence of higher-level authorization.
- The parties agreed the government could introduce the conversations’ contents only through (1) Marcia Neal’s testimony, (2) the agent’s testimony, or (3) the tape recordings.
- Neal moved to suppress the conversations’ contents based on the marital communications privilege recognized under Federal Rule of Evidence 501.

## Issues

1. Whether confidential telephone communications between spouses are protected by the marital communications privilege when the government records them through warrantless monitoring with one spouse’s cooperation.
2. Whether one spouse’s consent to government monitoring waives the other spouse’s privilege in confidential marital communications.
3. Whether the government may prove privileged marital communications through a third-party listener or recordings rather than through the spouse’s testimony.

## Decision

- The court granted Neal’s motion to suppress the evidence.
- The marital communications privilege barred admission of the substance of the three spouse-to-spouse conversations.
- The government could not introduce the communications’ contents through Marcia Neal, the FBI agent, or the tape recordings.

## Legal Principles

- Under Federal Rule of Evidence 501, the marital communications privilege protects confidential communications made between spouses during a valid marriage.
- The privilege is grounded in common-law policy protecting marital confidences and is distinct from Fourth Amendment reasonable-expectation-of-privacy analysis.
- Fourth Amendment “consensual monitoring” cases do not control the admissibility of privileged marital communications; constitutionally permissible acquisition does not eliminate a separate evidentiary privilege.
- A cooperating spouse’s consent to monitoring does not, by itself, waive the nonconsenting spouse’s privilege in confidential marital communications.
- The privilege bars disclosure of the communication’s substance regardless of the method of proof, including testimony by the spouse, testimony by a third-party overhearer, or recordings.

## Conclusion

The court suppressed the taped and overheard spousal telephone communications, holding that the marital communications privilege protected their confidential substance and could not be defeated by the wife’s cooperation with warrantless government monitoring or by introducing the same content through recordings or third-party testimony.


United States v. Neal, 532 F. Supp. 942 (D. Colo. 1982)