Spousal privilege

The spousal privilege, is comprised of two separate privileges, the marital confidences privilege and the spousal testimonial privilege.

The marital confidences privilege is a form of privileged communication protecting the contents of confidential communications between husband and wife. This privilege applies in civil and criminal cases. When applied, a court may not force one spouse to testify against the other concerning confidential communications made during marriage. This means that a third party may not be present during the communication (the presence of a third party would destroy the confidential nature of the communication), and both parties must intend that the communication be confidential. The privilege is usually restricted to confidential communications made during marriage and does not include communications made before the marriage or after divorce. However, the privilege generally survives divorce; that is, a person cannot testify about confidential communications with an ex-spouse that were made during the marriage. Either spouse can invoke this privilege, either refusing to testify against their spouse or preventing their spouse from testifying against them. Finally, courts may require that the communication relate specifically to the marriage.

The spousal testimonial privilege can prevent any party in a criminal case from calling the defendant's spouse to testify against the defendant about any topic. Under the Federal Rules of Evidence, this privilege attaches to the witness spouse; that is, the defendant's spouse can refuse to testify against the defendant, but the defendant may not prevent his spouse from testifying against him. This privilege does not survive the marriage; that is, after divorce, there is no right to refused to testify against a defendant ex-spouse. This privilege may be restricted to testimony about events that occurred after the marriage, although in some jurisdictions it may apply to testimony about events occurring prior to the marriage (giving rise to a questionable incentive to marry a witness in order to prevent her from testifying against you).

Both rules are suspended in the case of divorce proceedings or child custody disputes, and in cases where one spouse is accused of a crime against the other spouse or the spouse's child. Courts usually do not permit an adverse spouse to invoke either privilege during a trial initiated by the other spouse or in the case of domestic abuse. They may also be suspended where both spouses are joint participants in a crime, depending on the law in the particular jurisdiction.

Marital privilege is based on the policy of encouraging spousal harmony, and preventing people from having to condemn or being condemned by their spouse.