Also known as: marital confidence privilege · marital confidences privilege · marital confidences privileges · marital communications privilege · spousal communications privilege · confidential marital communications
Written by attorneys · grounded in primary & secondary sources — see below
A privilege that shields from compelled disclosure the content of private communications exchanged between spouses during a valid marriage. The privilege rests on a presumption that such communications are confidential, and the party seeking disclosure bears the burden of rebutting that presumption.
Monica Morgan's husband privately admitted at their kitchen table that he had ignored a safety warning on a construction project. Federal prosecutors later subpoenaed Monica to recount the admission before a grand jury. Monica refused, invoking the privilege. The court upheld the refusal because the conversation occurred in private with no third parties present and the government offered no evidence rebutting the presumption of confidentiality.
Megan Moore's husband was indicted for obstruction. Prosecutors offered Megan immunity and she agreed to testify about what she saw at company meetings and about a private bedroom conversation in which her husband described shredding files. The husband objected to all testimony. The court permitted Megan to testify about the meetings because those observations were not confidential marital communications but barred questions about the bedroom statements.
Select any source to read its text and confirm it supports the definition.
Communications between spouses made in private during marriage are presumed confidential. The government must overcome that presumption by showing the communication was not intended to remain private, such as by proving third parties were present or that the speaker expected the statement to be relayed to others.
Supporting sources
The witness spouse alone holds the privilege against adverse spousal testimony. The defendant spouse cannot prevent the witness spouse from testifying if the witness spouse is willing, though the defendant spouse may still block disclosure of confidential marital communications.
Supporting sources
No. Statements made in the presence of third parties lack the required confidentiality. The privilege applies only to communications made with a reasonable expectation of privacy, so dinner-party disclosures fall outside its protection even if the same topic was discussed privately at home on other occasions.
Supporting sources
No. The defendant spouse may invoke only the marital communications privilege to bar testimony about confidential statements. The witness spouse controls whether to testify at all, and observations or statements made outside the marital confidence remain admissible.
Supporting sources
…privileges, including a husband-wife privilege which would have codified the Hawkins rule and eliminated the privilege for confidential marital communications. See proposed Fed. Rule Evid. 505. In rejecting the proposed Rules and enacting Rule 501, Congress manifested an affirmative intention not to freeze the law of privilege. Its purpose rather…