Also known as: spousal confidence privilege · spousal confidences privileges · marital communications privilege · spousal communications privilege
Written by attorneys · grounded in primary & secondary sources — see below
A privilege that shields confidential communications exchanged between spouses during their marriage from compelled disclosure in judicial proceedings. The privilege rests on a presumption that such communications are confidential, placing the burden on the party seeking disclosure to rebut that presumption with evidence that the exchange lacked an expectation of privacy.
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Sean Steele faces fraud charges for altering clinic records. Prosecutors subpoena his wife Sylvia Santos to recount a conversation in which Sean admitted the alterations while the couple ate dinner alone at home. Sylvia invokes the privilege. The court sustains the objection because the setting supports the presumption of confidentiality and the government offers no evidence that third parties were present or that the spouses expected disclosure.
Stephen Shaw stands trial for wire fraud. His wife Sophia Singh is willing to testify about packages she saw during road trips and about statements Stephen made to her during a private bedroom argument. The court permits testimony on the road observations but bars questions about the bedroom statements because those statements qualify as confidential marital communications even though Sophia may choose to take the stand.
The confidences privilege protects only the content of private communications made during marriage and survives dissolution of the marriage. The testimonial privilege bars one spouse from being compelled to testify against the other at all and belongs solely to the witness spouse in federal criminal cases.
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The government or opposing party must overcome the presumption that communications between spouses are confidential. The spouse asserting the privilege need not affirmatively prove confidentiality in the first instance.
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Not automatically. The government must present actual evidence that a third party was present and that the communication therefore lacked confidentiality. Mere speculation that a child might have overheard is insufficient to rebut the presumption.
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Yes. Even when the witness spouse elects to testify under Trammel, either spouse may still invoke the separate confidences privilege to block disclosure of private communications made during the marriage.
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No. Communications made at dinner parties attended by colleagues lack the required expectation of privacy and fall outside the privilege, even if identical topics were discussed privately at home on other occasions.
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