Also known as: marital privileges · spousal privilege · spousal testimonial privilege · marital communications privilege
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
A privilege that permits one spouse to refuse to give adverse testimony against the other in a criminal proceeding. The privilege belongs exclusively to the witness spouse in federal court and may be waived by that spouse even over the defendant spouse's objection.
A privilege that permits one spouse to refuse to give adverse testimony against the other in a criminal proceeding. The privilege belongs exclusively to the witness spouse in federal court and may be waived by that spouse even over the defendant spouse's objection.
Select any source to read its text and confirm it supports the definition.
A privilege that protects confidential communications between spouses made during a valid marriage from compelled disclosure. A presumption of confidentiality attaches to such exchanges, and the burden rests on the party seeking disclosure to overcome that presumption.
Select any source to read its text and confirm it supports the definition.
A privilege that protects confidential communications between spouses made during a valid marriage from compelled disclosure. A presumption of confidentiality attaches to such exchanges, and the burden rests on the party seeking disclosure to overcome that presumption.
Each sense below has its own examples, sources, and questions.
Ross observed suspicious packages during road trips with Molly. Although Molly objected, Ross elected to testify about those public sightings at her federal trial. The court permitted the testimony because the witness spouse alone controls the testimonial privilege.
Eleanor participated in staged accidents with Joan and later agreed to testify. Joan sought to block the testimony on marital grounds. The court ruled that Eleanor could choose to testify about her own conduct because the testimonial privilege rests with the witness spouse.
Caleb learned of Owen's crop-insurance fraud through private talks and farm observations. Owen objected when the government called Caleb to testify. The court overruled the objection because the testimonial privilege belongs solely to the witness spouse in federal criminal cases.
The witness spouse alone holds the privilege. That spouse may choose to testify against the defendant spouse even without the defendant spouse's consent, though the witness spouse cannot be compelled to testify.
Supporting sources
No. Once the witness spouse elects to testify, the defendant spouse cannot invoke the testimonial privilege to block testimony about observations or nonconfidential statements. Only confidential marital communications remain protected.
Supporting sources
Andrew and Danielle discussed emissions tampering while alone on their private deck. The government later sought to compel Danielle to reveal the exchange at Andrew's trial. The court refused because the setting supported the presumption that the statements were confidential marital communications.
Molly confessed details of a drug scheme to Ross during an argument in their bedroom. The government subpoenaed Ross to recount the statements. The court excluded the testimony because the couple's private setting preserved the marital communications privilege.
Joan described the fraud scheme during open staff meetings at Point Assurance. Eleanor was subpoenaed to recount those statements. The court allowed the testimony because statements made in the presence of third parties fall outside the marital communications privilege.
The testimonial privilege concerns whether a spouse may be forced to take the stand at all and belongs only to the witness spouse in federal criminal cases. The communications privilege protects the content of confidential exchanges made during marriage and may be asserted by either spouse.
Supporting sources
No. The law presumes that communications between spouses are confidential. The party seeking disclosure bears the burden of overcoming that presumption.
Supporting sources
…in custody, as evidence that the stabbing was not in self-defense. The wife did not testify at trial because of the State’s marital privilege. Petitioner argued that admitting the statement would violate his Sixth Amendment right to be confronted with the witnesses against him. The trial court agreed to admit the statement, and…