Also known as: marital witness privilege · marital-witness privileges · spousal testimonial privilege
Written by attorneys · grounded in primary & secondary sources — see below
A privilege that shields confidential communications between spouses from compelled disclosure in judicial proceedings. The privilege rests on a presumption that private conversations between spouses are confidential, placing the burden on the party seeking disclosure to rebut that presumption. It is distinct from the separate spousal testimonial privilege that allows a witness spouse to refuse to testify adversely against the defendant spouse in criminal cases.
Luis, a city procurement officer, faces a federal investigation for bid rigging. Prosecutors subpoena his wife Carla to testify before a grand jury about statements Luis made at their kitchen table regarding rotating fake bids. Carla refuses, invoking the privilege. The court upholds her refusal because the statements occurred in a private home setting and the government has not shown the conversation lacked confidentiality.
Leo, a quality control director, faces investigation for falsifying test results at a pharmaceutical company. At home he whispers to his wife Mia in their living room that he altered records. Subpoenaed before a grand jury, Mia refuses to disclose the statement. The court sustains her refusal because the conversation occurred privately between spouses and the government has not overcome the presumption of confidentiality despite Leo's separate group chat with coworkers.
Select any source to read its text and confirm it supports the definition.
Both spouses hold the privilege jointly. Either spouse may assert it to prevent compelled disclosure of confidential communications made during the marriage.
Supporting sources
No. The marital communications privilege applies in both civil and criminal proceedings and protects the content of confidential spousal communications regardless of the type of case.
Supporting sources
The presence of third parties who participate in the discussion can rebut the presumption of confidentiality. The government may then compel testimony about the statements made while outsiders were present and actively involved.
Supporting sources
The communications privilege protects the content of specific confidential statements made during the marriage. The testimonial privilege, held only by the witness spouse in federal criminal cases, concerns whether that spouse may be compelled to testify at all against the defendant spouse.
Supporting sources