Legal Definitions - spousal privilege

Spousal privilege is a legal principle that protects certain communications and testimony between married individuals from being disclosed in court. It is designed to encourage open and honest communication within a marriage and to prevent spouses from being forced to testify against each other. This privilege actually consists of two distinct types:

• Spousal Communications Privilege
• Spousal Testimonial Privilege

Let's explore each one:

Spousal Communications Privilege

This privilege protects confidential conversations that occur between spouses during a valid marriage. The idea is to ensure that private statements made between a husband and wife remain private, even if legal proceedings arise later. It applies in both civil and criminal cases. For this privilege to apply, the communication must have been intended to be private, made while the couple was legally married, and not shared with anyone outside the marriage. Importantly, this protection generally continues even after the marriage ends, meaning a former spouse cannot be compelled to reveal confidential discussions from when they were married.

Examples:

• Example 1: Business Dealings

  During their marriage, Sarah confided in her husband, Mark, about a risky business strategy she was considering for her company, asking for his private opinion and advice. Years later, after they have divorced, Sarah's company is sued by a competitor, and Mark is called as a witness. The opposing lawyers want him to reveal what Sarah told him about her business strategy. However, because their conversation was a confidential communication made during their marriage, Mark can invoke the spousal communications privilege to refuse to disclose what Sarah told him.

  This illustrates the spousal communications privilege because the conversation was private, occurred during a valid marriage, and remains protected even after the marriage ended.

• Example 2: Personal Confession

  While legally married, David confessed to his wife, Emily, that he had made a significant financial error several years prior that could have legal repercussions. He shared this information with her in confidence, seeking her emotional support. Later, David is investigated for financial misconduct related to that error. Even if Emily is subpoenaed to testify, she cannot be forced to reveal David's confidential confession because it falls under the spousal communications privilege.

  This demonstrates the privilege protecting a confidential disclosure made between spouses during their marriage, preventing it from being used in a legal proceeding.

Spousal Testimonial Privilege

This privilege allows one spouse to refuse to testify against the other spouse in a criminal case or related proceedings. It also allows the spouse who is the defendant to prevent their current spouse from testifying against them. The purpose is to protect the marital relationship from the strain and conflict that would arise if one spouse were forced to help prosecute the other. Unlike the communications privilege, this privilege only applies while the couple is still legally married. If the marriage has ended (through divorce or annulment), this privilege no longer applies, and a former spouse can be compelled to testify.

Examples:

• Example 1: Witnessing a Crime

  Michael is accused of a crime, and his wife, Lisa, was present during the incident. The prosecution wants Lisa to testify about what she saw. Because they are currently married, Lisa can invoke the spousal testimonial privilege and refuse to testify against Michael. Michael can also invoke the privilege to prevent Lisa from testifying against him.

  This shows the spousal testimonial privilege in action, where a current spouse cannot be compelled to give testimony that would harm their partner in a criminal case.

• Example 2: Post-Divorce Testimony

  Sophia is arrested for a crime she allegedly committed while she was married to her ex-husband, Robert. They divorced six months ago. Robert has information that could be crucial to the prosecution's case against Sophia. Because their marriage has ended, Robert cannot invoke the spousal testimonial privilege, nor can Sophia prevent him from testifying. He can be compelled to provide testimony against her.

  This highlights that the spousal testimonial privilege does not survive the dissolution of the marriage, meaning an ex-spouse can be forced to testify.