“Privilege” has a special meaning under the law: protection from being forced to testify about communications between yourself and a person with whom you have a special relationship, such as a spouse.
Updated May 16, 2023
Marriage has its privileges. But "privilege" has a special meaning under the law: protection from being forced to testify about communications between yourself and a person with whom you have a special relationship, such as a spouse. However, the spousal privilege is not absolute and comes with several exceptions and conditions.
What is a Privilege?
A "privilege" under the law is an exception to the universal rule that no one may refuse to give testimony or other evidence in a legal proceeding. This general rule promotes the interests of justice by ensuring fair trials on all of the available evidence.
A privilege, which is not a constitutional right, allows a person to object to their own or other's testimony about communications within certain confidential relationships. By contrast, the right not to give testimony against oneself is a constitutional right ("taking the Fifth," in common parlance). Exercising a constitutional right is not a "privilege," and there are few exceptions to it.
Privileges are granted by state and federal law in order to protect certain important relationships. Among the best-known privileges are the attorney-client privilege and the doctor-patient privilege. The spousal relationship is granted a similar privilege.
Protecting marital relationships versus the need for evidence
Courts and the federal and state governments recognize the spousal privilege in order to protect marital relationships from the harm that would befall them if spouses could be forced to testify against each other. However, this goal must be balanced against the competing need to avoid the harm caused when evidence is withheld from trials. Balancing these competing needs has resulted in various exceptions to, and underlying requirements for, the spousal privilege.
Waiver
Privileges have to be properly asserted and, if they are not, may be waived. A spouse may waive (or lose the right to assert) the privilege by failing to object to the other spouse's testimony when offered. Either spouse may also waive the privilege by communicating a confidential spousal communication to a third party. And, the spouse wishing to assert the privilege may waive it by offering testimony about the subject of a confidential spousal communication through a third-party witness. It is up to the spouses to protect their privileged communications, and either spouse may waive the privilege by his or her conduct or other communications.
Federal Law on Spousal Privilege
Federal (and many state) courts recognize two types of spousal privilege:
- Spousal testimonial privilege, barring testimony against a spouse in a criminal trial, and
- Marital communications privilege, barring testimony about confidential communications between spouses.
Spousal testimonial privilege
This type of spousal privilege has been recognized throughout history and pre-dates our Constitution and even our country. It arises from the notion that married spouses are one entity and so are not competent to testify against themselves through their other (if not better) half. Under this type of spousal privilege, one spouse cannot be compelled to give testimony against his or her spouse who is a defendant in a criminal trial or the subject of a grand jury proceeding. The accused spouse may claim the privilege or the other spouse may claim it on behalf of the accused spouse. The spouses must be married at the time that the privilege is asserted; so an ex-spouse can be compelled to give testimony about a defendant to whom he or she was previously, but is no longer, married.
Exceptions to the spousal testimonial privilege exist where a spouse:
- is charged with a crime against the other spouse
- is charged with a crime against a child of either spouse
- is charged with a crime against a third party in the course of committing a crime against the other spouse
- is asked to testify about matters pre-dating the marriage, or
- is charged with human trafficking for immoral purposes (such as prostitution)
In each of these situations, even current spouses may be compelled to testify against an accused spouse in a criminal trial or grand jury proceeding.
Marital communications privilege
Neither spouse can be compelled to testify as to private, confidential communications between them in either criminal or civil proceedings. But, only communications that the spouses intend to be, and maintain as confidential are protected. Not every statement between spouses is confidential or a communication. The same exceptions listed above apply to this type of spousal privilege. With respect to the marital communications privilege, as long as there was a valid marriage at the time of the confidential communication between the spouses, the privilege may be raised by either spouse even after the marriage has ended.
Privilege protects only confidential "communications"
Either spouse may assert the spousal privilege. But the privilege protects only"communications." Statements that are not communications between the spouses, such as observations by one spouse about the conduct of the other, are not privileged. For example, a court ruled that an ex-wife's testimony that there had been a verbal agreement for a drug sale between her husband and another man that she overheard during the marriage was not a "communication" as the ex-husband argued, but rather the ex-wife's observation about events. As a result, her testimony was not privileged.
And, another court ruled that a defendant's act of hiding drugs in his ex-wife's underwear during the marriage was not a "communication" and, thus, not privileged. The ex-wife was allowed to testify about her ex-husband tucking a bag of cocaine into her bra over his objections. In both of these cases, the spouses were no longer married at the time the testimony was offered. The spousal communication privilege continues after a marriage ends, but it only covers confidential communications during the marriage. The court in each case ruled that there was no "communication."
A privilege objection will likewise fail if either spouse fails to keep the communication confidential. Where one spouse shares a previously confidential communication with his best friend, he has destroyed the confidentiality required to claim the spousal communications privilege.
Valid marriage required
In order to assert either spousal privilege, a valid marriage must exist. When it comes to the spousal testimony privilege, the defendant and the witness spouse must be married at the time that the privilege is asserted. As to the spousal communications privilege, the spouses must have been legally married at the time of the confidential communication between them.
A marriage not recognized in the jurisdiction of the trial will not support a claim of spousal privilege. A defendant in a criminal case in Alaska argued that the woman he identified as his common law wife could not be compelled to testify against him in the criminal proceeding. Alaska did not recognize common law marriage, so the defendant lost his argument and his "wife" had to testify. The court ruling against the defendant also noted that the relationship had ended as of the date that the defendant asserted the spousal privilege so, even if Alaska had recognized common law marriage, that marriage was over by the time he objected to the ex testifying and the objection was properly overruled.
The validity of the marriage is determined by state law. So, spouses in common law marriages in states recognizing such marriages may not be compelled to give testimony against each other or disclose confidential communications between them.
State Law on Spousal Privilege
Every state in the U.S. recognizes one or both of the types of spousal privilege recognized by federal courts and discussed above. Many states have statutes identifying the privilege and when it may be raised. Many states also recognize the same exceptions to the privilege as the federal courts do. However, there are differences from state to state; for example, some states have many more exceptions to the privilege.
In all state court cases and many federal court cases, state law will govern whether a spousal privilege exists.
Privilege Laws Vary From State to State; Check With A Lawyer
If you have questions about spousal privileges in your state, consult with a lawyer experienced in the laws in your area.
