The spousal privilege, also referred to as the “marital privilege” or the “husband-wife privilege,” is a rule of evidence. It provides that spouses have the right to prevent each other from testifying in legal proceedings about communications between them that have taken place during their marriage.
There are generally two kinds of spousal privilege as follows:
The privilege may apply in all of the legal proceedings that are part of both civil and criminal cases. It means that any communication made between spouses during their marriage cannot be the subject of testimony in a legal proceeding if the spouses intended the communication to be private and it was made in reliance on the sanctity of marriage. Of course, there are exceptions.
Specifically, In most states, both spouses hold the privilege and have the right to exercise it. Either spouse can exercise the privilege in two ways. They can refuse to testify themselves about privileged communications between the spouses, or they can prevent the other party from testifying about privileged communications.
Marital privilege and other privileges are exceptions to the general rule that all relevant evidence is admissible in a legal proceeding. There are other well-known privileges that cover communications between priest and penitent or a person who has confided in the priest, attorney and client, and doctor and patient.
A privilege means that a person who holds it may prevent the other party from testifying about their communications in a legal proceeding. So, in effect, privileges may exclude evidence that is otherwise relevant in order to advance some societal benefit.
With marital privilege, the goal of free and open communication between spouses, which is believed to strengthen and further the marital relationship, is given greater weight than the need for evidence in a legal proceeding.
The rationale for the existence of the spousal privilege is to respect and maintain the privacy of the marital relationship. As a society, we have chosen not to pry into the bond between husband and wife for the sake of getting to the “truth” of issues in a courtroom.
Is the Spousal Privilege the Same in All States?
Again, the privilege is not the same in all states. For example, In New York State, the marital communications privilege is contained in a state code. This code provides that a husband or wife may not be required or, without consent of the other spouse if they are still living, allowed to disclose a confidential communication made by one to the other during their marriage.
This law is interpreted as protecting from disclosure the private communications made by spouses between themselves. The New York law further provides that communications made by spouses between themselves are assumed to be confidential and are, therefore, subject to the privilege.
In Connecticut, the spousal privilege is more complicated. There are two types of spousal privilege as follows:
- The adverse spousal privilege: This allows the spouse of a criminal defendant to either testify or not against their defendant-spouse if they are married at the time of the defendant-spouse’s trial. The non-defendant spouse may choose to testify and may do so even if the defendant-spouse objects to it;
- The marital communications privilege: This privilege protects confidential communications made during the marriage, even if the spouses have divorced by the time of the trial. A spouse is not required to testify to a confidential communication made during the marriage, and is not allowed to testify to such a communication if the other spouse objects.
The privilege against disclosing marital communications is not available in a legal proceeding relating to child protection. In these proceedings, either spouse may testify about anything relevant to the case.
In Connecticut, the spousal privilege is limited by statute in criminal proceedings. A spouse’s testimony against the other spouse may be compelled just like that of any other witness for the following:
- The spouses jointly participated in criminal conduct;
- One spouse threatened, inflicted, or tried to inflict bodily injury, sexual assault, or other violence on the other; or
- A spouse threatened, inflicted, or tried to inflict bodily injury, sexual assault, or other violence on the minor of either spouse or on any minor child in the custody of either spouse.
We can see from the examples of New York and Connecticut that the law of spousal privilege can be different in different states.
What Happens to the Privilege if the Spouses Divorce?
If the marriage ends in divorce or because of the death of one of the spouses, the privilege can still be claimed for communications made during the marriage. The spousal privilege is available in most states, and most states that offer it allow a spouse who is asked to testify to choose whether to do so. In some cases, the spouse can object to testimony from their partner. Some states automatically disqualify evidence from a spouse.
What Are the Differences Between the Two Categories?
There are some significant practical differences between the communications and the testimonial privileges, so it helps to keep them separate for the purpose of understanding how they work. Again, it is important to note that each state defines the spousal privilege for its courts and the rules may vary slightly from state to state.
- The Communications Privilege: The communications privilege protects the words, ideas, or other expressions of a confidential communication made between spouses during a marriage. Both the spouse who initiated a communication and the spouse who received it hold the privilege. Either spouse may assert the privilege and keep the other from testifying about the communication in legal proceedings, such as:
- If the spouses sue each other or each other’s estates;
- If there are criminal proceedings initiated by one spouse against the other;
- In competency proceedings;
- If a married person claims loss of consortium, this is considered to involve a claim of harm to the marriage. Thus, any communications as to the health of the marriage are assumed to have been waived by the filing of a consortium claim.
- For this reason, a person who has claimed loss of consortium may be compelled to testify about communications regarding divorce or accusations of infidelity. They may also be required to produce notes from couples therapy. Again, this is in the event that a married person sues for loss of consortium;
- The Testimony Privilege: This privilege protects the spouse who holds the privilege from being compelled to testify against the other spouse. Under federal law, this only applies to a spouse who is called to testify.
As a practical matter, this means that a spouse who is called to testify against their spouse who is a defendant in a criminal proceeding may choose not to invoke it and testify against their defendant-spouse. In this case, their defendant-spouse cannot stop them.
However, it is more common practice in most states to allow the defendant-spouse to invoke the privilege and stop their spouse from testifying against them.
The privilege applies during marriage and may extend to times before marriage if the couple is married by the time of trial. However, if the marriage has ended, the privilege ends with it.
The testimony privilege typically also does not apply in many of the circumstances listed above. Additionally, it is worth mentioning that in legal proceedings involving child custody or domestic abuse, the privileges may be suspended.
Can Spousal Privilege Be Broken?
There are exceptions to spousal privilege. Again, it does not hold in the following cases:
- The private communication has been revealed to third parties;
- One spouse sues the other, e.g., in a divorce proceeding;
- In a legal proceeding in which one spouse is charged with a crime against the other or their children, for example, in a domestic violence or domestic abuse case.
A judge must decide whether to recognize an exception to the marital privilege in a particular case. If the issue were to arise, a judge would hold a hearing and give each spouse the opportunity to present their evidence and arguments on the issue.
Do I Need a Lawyer?
If you are in a situation where the testimony of your spouse or your own testimony about your spouse may be required in a legal proceeding, you want to consult a trial lawyer.
A trial lawyer is the one who has the most familiarity with the rules of evidence. LegalMatch.com can connect you to a lawyer who can explain the law of spousal privilege in your state and advise you about the best options in your situation.
