Legal Definitions - marital privilege

Marital privilege is a legal principle designed to protect the sanctity of marriage by allowing spouses to keep certain information confidential in court proceedings. It prevents private spousal communications from being revealed and, in some cases, stops one spouse from being forced to testify against the other. This privilege is actually composed of two distinct legal protections:

• Marital Communications Privilege
• Spousal Testimonial Privilege

Marital Communications Privilege

This privilege protects confidential conversations that occur between spouses during their marriage. For the privilege to apply, the communication must have been intended to be private and made in reliance on the trust and intimacy of the marital relationship. This protection applies in both civil and criminal cases.

A key aspect of the marital communications privilege is its enduring nature: it can be asserted even after the marriage has ended, whether through divorce or the death of a spouse. In most jurisdictions, both spouses hold this privilege, meaning either spouse can prevent the confidential communication from being disclosed in court. The burden is typically on the party trying to introduce the communication to prove it was not intended to be private.

Examples of Marital Communications Privilege:

• Example 1 (Civil Case): Sarah and Tom, who are married, have a private conversation in their home about a new business strategy Tom is developing. Later, Tom's business partner sues him for alleged financial mismanagement and attempts to compel Sarah to testify about the details of that private conversation. Sarah can invoke the marital communications privilege to refuse to disclose what was said, as it was a confidential discussion between spouses during their marriage.

  Explanation: This example illustrates how the privilege protects private discussions between spouses. The conversation was intended to be confidential and occurred during their marriage, making it protected even in a civil lawsuit.

• Example 2 (Post-Divorce Scenario): Years after their divorce, Mark is on trial for a white-collar crime that occurred while he was still married to Lisa. The prosecution seeks to introduce a diary entry Lisa made during their marriage, quoting a private confession Mark made to her about the crime. Lisa can assert the marital communications privilege to prevent the diary entry from being used as evidence, because the confession was a confidential communication made during their marriage, even though they are now divorced.

  Explanation: This demonstrates that the marital communications privilege continues to apply even after the marriage has ended, protecting confidential discussions that took place when the couple was married.

Spousal Testimonial Privilege

Also known as spousal immunity, this privilege applies specifically in criminal cases. It allows a spouse to refuse to testify against their partner. This means the prosecution cannot force a person to take the stand and give evidence that could incriminate their spouse.

Unlike the marital communications privilege, the spousal testimonial privilege only applies while the couple is currently married. If the marriage ends, this privilege expires. However, it can cover events that occurred both before and during the marriage. In most jurisdictions, the *witness spouse* holds this privilege, meaning they have the choice to testify or not, even if the defendant spouse objects. In a minority of jurisdictions, the defendant spouse holds the privilege and can prevent their partner from testifying.

Examples of Spousal Testimonial Privilege:

• Example 1 (Criminal Case - Pre-Marriage Events): David is accused of a robbery that took place several years ago, before he met and married Emily. The prosecution discovers that Emily was present at the scene of the crime as a bystander and wants her to identify David as the perpetrator. Because David and Emily are currently married, Emily can invoke the spousal testimonial privilege and refuse to testify against him, even though the events she witnessed occurred before their marriage.

  Explanation: This shows that the privilege protects a spouse from being compelled to testify against their partner in a criminal case, even if the events in question happened before they were married, as long as they are married at the time of the trial.

• Example 2 (Witness Spouse's Choice): A woman named Maria is called to testify against her husband, Carlos, who is accused of drug trafficking. Maria knows details about Carlos's activities because she overheard conversations and saw evidence during their marriage. In a jurisdiction where the witness spouse holds the privilege, Maria can choose to testify against Carlos if she wishes, or she can invoke the spousal testimonial privilege and refuse to do so, even if Carlos would prefer she didn't testify.

  Explanation: This highlights that in most places, the decision to testify or not rests with the witness spouse, allowing them to choose whether to invoke the privilege or waive it.

Exceptions to Marital Privilege

There are specific situations where marital privilege does not apply:

• If the private communication was revealed to third parties, it loses its confidential nature.
• When spouses are suing each other (e.g., in a divorce proceeding or a civil dispute between them).
• When one spouse is charged with a crime against the other spouse or their children. In such cases, the law prioritizes protecting victims over marital confidentiality.

Example of an Exception:

• Example (Crime Against Spouse/Child): John is on trial for physically assaulting his wife, Susan, and their young daughter. During their marriage, John had privately confessed to Susan that he struggles with anger management and has a history of violent outbursts. Even though this was a private communication between spouses, Susan cannot invoke marital privilege to avoid testifying about John's violent behavior or his confession if it pertains to the charges of assault against her and their child. The law allows for such testimony to ensure the safety and protection of family members.

  Explanation: This illustrates a critical exception where the privilege is set aside when one spouse is accused of a crime against the other spouse or their children, ensuring that victims can seek justice and protection.