August 28, 2019 Feature

Marital Privileges

They can be confusing and contradictory, but the privileges are here to stay.

Caroline Rule

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Marriage is perplexing, and the marital privileges even more so. Contradictory views determine when they apply and what they protect. In many states, statutes, rather than case law, govern, but federal law leaves it to the courts, which sometimes results in conflicting decisions among the circuits.

There are two quite different and separate safeguards for spouses. One is the confidential marital communications privilege, which, with some exceptions, allows a spouse to refuse to testify about, or produce documents evidencing, any confidential communication made during a marriage and allows the other spouse to prevent that testimony or document production.

As the U.S. Supreme Court explained in the seminal case Trammel v. United States, 445 U.S. 40 (1980), referencing an early saccharine view of marriage, this privilege protects “information privately disclosed between husband and wife in the confidence of the marital relationship—once described by this Court as ‘the best solace of human existence.’” Id. at 51 (quotation omitted).

The confidential marital communications privilege aims to nurture the marital relationship and foster the ability of spouses to speak freely with each other, without concern that their private communications will come back to haunt them. It survives dissolution of a marriage, continuing to protect communications that were made during the marriage.

The other privilege is the adverse spousal witness privilege, which applies in criminal proceedings and allows one spouse to refuse to testify against the other spouse. This privilege belongs only to the non-defendant spouse, however. Unless the defendant can invoke the confidential marital communications privilege, she cannot prevent her spouse from testifying against her if he decides to do so. This form of the privilege applies only while the marriage exists. And numerous states have repealed the adverse spousal witness privilege entirely.

Paradoxically, in the antiquated common law, the adverse spousal witness privilege belonged only to the defendant, who could use it to prevent his spouse from testifying against him. That obverse of current law grew out of two precepts of medieval jurisprudence—that a defendant could not testify on his own behalf and that, because husband and wife were one and the wife had no separate legal existence, the wife was disqualified from testifying on the husband’s behalf.

In 1980, in Trammel, the Supreme Court reversed the course of this privilege and held that “the existing rule should be modified so that the witness-spouse alone has a privilege to refuse to testify; the witness can be neither compelled to testify nor foreclosed from testifying.” Id. at 53.

Illustration by Jon Krause.

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