Marital Confidences and Spousal Testimonial Privileges

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Spouses may be able to claim two separate privileges that protect them from testifying at trial: the marital confidences privilege and the spousal testimonial privilege.

Marital Confidences Privilege

The marital confidences privilege is a form of privileged communication protecting the contents of confidential communications between a married couple. Sometimes referred to as the marital communications privilege, it is based on the policy of encouraging spousal harmony, and preventing people from having to condemn, or being condemned by, their spouses. The privilege may be invoked in either criminal or civil proceedings. The marital confidences privilege only applies to communications made during marriage and cannot be invoked for communications before marriage, or after divorce. The privilege survives divorce so one spouse may prevent an ex-spouse from testifying.

The elements of the marital confidences privilege are as follows:

  1. Confidential communication
  2. Between married people
  3. Relating to the marriage (only some courts apply this third prong)

Thus, the privilege may be broken if either of the first two elements is lacking. For instance, if the confidential communication is disclosed to a third party the confidentiality will be broken. In order for the confidential communication prong to be proven, both spouses must intend the communication to be confidential.

Spousal Testimonial Privilege

The spousal testimonial privilege is also based on the policy of encouraging spousal harmony. This privilege permits a spouse to refuse to testify in a criminal proceeding against his or her spouse. The testifying spouse holds this privilege and the defendant spouse may not claim the privilege on behalf of an existing spouse. The privilege ceases to exist when the marriage is terminated.

The elements of the spousal testimonial privilege are as follows:

  1. Existing marriage
  2. Criminal case against spouse
  3. Spouse is called to testify

Exceptions to these privileges

In certain actions such as domestic abuse or child abuse, the court will not permit one spouse to use either privilege against another spouse.

See Evidence