Demystifying the Law: Spousal Privilege

Posted March 17, 2011 in Uncategorized by

If you follow the news of high-profile trials, you’ve probably heard of the concept of spousal privilege, also known as marital privilege. This article will demystify the concept.

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Privilege is a legal protection that keeps people from having to testify or provide evidence in certain legal situations. Spousal privilege is a subset of that law which:

  • Allows certain communications between a married couple to remain confidential in civil and criminal cases (known as marital confidences privilege)
  • Gives one spouse the right to refuse to testify against his or her spouse who is a defendant in a criminal trial (known as the spousal testimony privilege or spousal immunity

Marital Confidences Privilege

Either spouse can invoke the marital confidences privilege. That means, for example, that if a husband is the defendant in a civil lawsuit he can assert marital confidences privilege to prevent his wife from being called to testify about confidential communications, or his wife can assert marital confidences privilege to keep from having to testify.

For marital confidences privilege to apply, certain criteria must be met:

  • The communication must have occurred when no one was present other than the couple
  • Both husband and wife must have intended the communication to be confidential

Marital confidences privilege only applies to communication between spouses while married. Any communication before the couple married or after they divorce is not protected communication. However, after divorcing, one person can still be kept from testifying about confidential communications with their ex-spouse that occurred while married.

Spousal Immunity

While marital confidences privilege applies only to confidential communications between husband and wife, spousal immunity can prevent a defendant’s spouse from testifying about any topic related to his or her spouse.

And unlike marital confidences privilege, where either spouse may assert the privilege, only a defendant’s spouse can assert spousal immunity. In other words, the defendant’s spouse can assert spousal immunity and choose not to testify against his or her spouse in a criminal case, but the defendant cannot prevent his or her spouse from testifying.

Exceptions to Spousal Privilege

In addition to the exceptions noted above, there are a few other instances where spousal privilege doesn’t apply. In some states, spousal privilege doesn’t exist in divorce or child custody cases. Similarly, they don’t apply if one spouse has been accused of committing a crime against the other spouse or child.

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