Marital Communications Privilege

Also found in: Dictionary, Thesaurus.

Marital Communications Privilege

The right given to a Husband and Wife to refuse to testify in a trial as to confidential statements made to each other within and during the framework of their spousal relationship.The marital communications privilege is a right that only legally married persons have in court. Also called the husband-wife privilege, it protects the privacy of communications between spouses. The privilege allows them to refuse to testify about a conversation or a letter that they have privately exchanged as marital partners.

The marital privilege is an exception to the general rule that all relevant evidence is admissible at trial. Similar privileges exist for communications between priest and penitent (one who has confided in the priest), attorney and client, and doctor and patient. Privileges exclude evidence from trial in order to advance some social goal. With the marital privilege, the goal of free and open communication between spouses, which is believed to strengthen and further the marital relationship, is given greater weight than the need for evidence (the information exchanged by the spouses) to resolve a legal dispute.

The marital communications privilege originated at Common Law. It was made formal in the English Evidence Amendment Act of 1853, which said that neither husbands nor wives could be forced to disclose any communication made to the other during the marriage. In the United States, the privilege came to be recognized in state and Federal Rules of Evidence. By the twentieth century, the U.S. Supreme Court said that it was "regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice" (Wolfle v. United States, 291 U.S. 7, 54 S. Ct. 279, 78 L. Ed. 617 [1934]).

The marital communications privilege is available in most jurisdictions. Most jurisdictions offering it allow a witness spouse to choose whether to testify; some automatically disqualify evidence from a spouse.

The privilege is not absolute. Because its effect is to deny evidence at trial, courts generally interpret it narrowly.

The most important condition for its use is a legal marriage. Courts will not permit its use by partners who merely live together or by those who have a Common-Law Marriage or a sham, or false, marriage. Moreover, the communication must have taken place while the marriage existed, not after a Divorce. Generally, the determination of whether a marriage is legal depends on state law.

The privilege also cannot be claimed in certain situations, such as where one spouse is subject to prosecution for crimes committed against the other or against the children of the couple. In addition, the presence of third persons at the time of the communication usually eliminates confidentiality and thus destroys the privilege, although courts have granted exceptions for the presence of children.

Many jurisdictions make the distinction of which spouse "holds," and may therefore assert, the privilege—the defendant spouse or the witness spouse. In these jurisdictions, the spouse who holds the privilege may waive it and testify against the other spouse.

Further readings

Pappa, Kristina K. 1995. "Note: Evidence—Privileged Communications." Seton Hall Law Review 25.


Attorney-Client Privilege; Privileged Communication; Testimony.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
References in periodicals archive ?
any other privilege, the confidential marital communications privilege
(69) Importantly, the confidential marital communications privilege also
However, because the confidential marital communications privilege
marital communications privilege was concerned, however, same-sex
an expansion of the confidential marital communications privilege would
applies retroactive recognition of the marital communications privilege.
Accordingly, the ACCA held that the military judge abused his discretion in allowing the wife to testify in contravention of the marital communications privilege. Applying the four-factor test of United States v.
The marital communications privilege has undergone a similar analysis with regard to introducing evidence derived from privileged information.
The marital communications privilege has three prerequisites.
(1) There are two spousal privileges recognized in common law, the adverse spousal testimony and the marital communications privileges. These collectively will be referred to as spousal privileges.
Trial counsel and military judges must be aware of the shifting burden of production for the marital communications privilege. Once an accused establishes that a communication was made in private during a marriage, the burden shifts to the government to overcome the presumption of confidentiality McCollum provides a useful list of factors for determining whether the presumption of confidentiality has been overcome Defense counsel must assert the privilege early and often ant use the common-sense arguments from McCollum in attacking government efforts to overcome the presumption of confidentiality.
(65.) See Rose, supra note 20 at 59 (discussing the CAAF's recent treatment of the marital communications privilege).