Published by Table Of Contents
Understanding Marital Privilege in Legal Proceedings
According to LawCornell, a Marital privilege, also referred to as spousal privilege, is a legal principle recognized by courts to protect private communications between spouses and to prevent one spouse from being compelled to testify against the other in judicial proceedings [1].
There are two types of marital privileges: the marital communications privilege and the spousal testimonial privilege. Generally, the common law governs these privileges unless state law applies in civil diversity cases (see: Fed. R. Evid. 501).
Marital Communications Privilege (Confidential Marital Communications)
In both civil and criminal cases, communications made between spouses during the marriage are privileged if the communication is intended to be private and made in reliance on the sanctity of marriage. Even if the marriage is terminated because of divorce or the death of one spouse, this privilege could be asserted.
In most jurisdictions, both spouses hold the privilege. Either spouse can assert it to refuse to testify about private communications or to prevent the other spouse from doing so. However, some states allow only the communicating spouse to assert the privilege. The opposing party bears the burden of proving that specific words or actions were not intended to be private communications.
Exceptions to Marital Privilege
Testimonial privilege has specific exceptions where it does not apply:
- Spousal Consent: If a spouse voluntarily chooses to testify, they are allowed to do so. Marital privilege means they cannot be forced to testify, but they can choose to.
Exceptions to the Marital Spousal Privilege
- Marriage to Invoke Privilege: If the marriage was intended to invoke the privilege for an already known crime committed before marriage, the privilege is not applicable.
- Crimes Against Spouse or Family: The marital privilege does not apply if the crime is committed against the spouse, their children, or other family members. It also does not protect against crimes involving third parties that occur alongside offenses against the spouse.
- Bigamy: In cases of bigamy, spouses may be compelled to testify regardless of their willingness.
- Child Neglect or Spousal Abandonment: For serious domestic violence-related crimes, such as child neglect or spousal abandonment, the privilege does not protect the defendant from spousal testimony.
Waiving Marital Privilege: Key Points
According to SCLG, holding marital/spousal privilege means certain actions can lead to “waiving” that privilege, effectively nullifying it [2].
Waiving Spousal Testimonial Privilege
First of all, you waive your spousal testimonial privilege in a given court proceeding by choosing to testify against your spouse in that proceeding. In other words, if you testify against your spouse in a particular court case, you may not then claim the marital privilege to avoid giving different or further testimony in that same case.
Waiving Confidential Marital Communications Privilege
The confidential marital communications privilege is waived if you:
- Disclose a significant part of the privileged communication.
- Consent to someone else disclosing the privileged communication.
Understanding the Limits of Marital Privilege
According to CDL, either spouse can assert marital privilege, but it only protects “communications” [3]. Non-communicative observations, such as one spouse witnessing the other’s conduct, are not covered. For instance, a court ruled that an ex-wife’s testimony about overhearing a verbal agreement for a drug sale between her husband and another man was an observation, not a protected communication. Therefore, her testimony was not privileged.
Similarly, another court allowed an ex-wife to testify about her ex-husband hiding drugs in her bra, determining that this act was not a communication and thus not privileged. In both cases, the testimony occurred after the marriages ended, highlighting that the spousal communication privilege only protects confidential communications made during the marriage.
A privilege objection will likewise fail if either spouse fails to keep the communication confidential. Where one spouse shares a previously confidential communication with his best friend, he has destroyed the confidentiality required to claim the spousal communications privilege.
Related Articles:
See all personal injury and accident lawsuits our lawyers have covered so far.
Get a Free Lawsuit Evaluation With Our Lawyers
The Litigation Group at Schmidt & Clark, LLP is an experienced team of trial lawyers that focuses on the representation of plaintiffs in lawsuits. We are handling individual litigation nationwide and are currently accepting new legal challenges in all 50 states.
If you or a loved one was involved with these matters, you should contact our law firm immediately for a free case evaluation. You may be entitled to a settlement by filing a suit and we can help.
References:
1. https://www.law.cornell.edu/wex/marital_privilege
2. https://www.shouselaw.com/ca/defense/evidence-code/marital-privilege/
3. https://www.criminaldefenselawyer.com/resources/criminal-defense/felony-offense/can-spouses