Husband-Wife Privilege Lawyers

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 What Is a Privileged Conversation?

The law treats certain conversations between certain individuals in some types of relationships to be confidential. This means that the individual who participated in the conversation cannot be compelled to disclose in a court of law what was said during that conversation.

The law protects communications, both oral and written, between the following pairs of individuals:

  • Married couples;
  • Attorneys and their clients;
  • Doctors and their patients;
  • Religious advisors and advisees, priests and penitents; and
  • Therapists and their patients.

The privileges for certain types of communications are governed by state laws. This means the exact protections of the privilege will depend on the law of the state.

It is important to note that federal courts have their own rules governing privileged communications that may differ from state rules.

What Is the Husband-Wife Privilege?

The content of conversations may sometimes be used as evidence in both civil cases and in criminal trials. In certain instances, a communication or conversation may be considered to be privileged by a court.

If a conversation or communication is determined to be privileged, the content of that conversation or communication cannot be used as evidence in a legal case. Privilege usually applies to verbal conversations.

In certain situations, the privilege may also apply to nonverbal communications, including:

  • Writings;
  • Observations;
  • Head nods;
  • Finger points;
  • Winks; and
  • Arm waves.

In most marriages, there are many pieces of private information that are shared between the spouses. The husband-wife privilege is a term that is used in evidence law to describe two separate privileges that are available for spouses in a court trial.

The husband-wife privilege may also be referred to as the spousal privilege or the marital privilege. The two privileges included in the husband-wife privilege are the husband-wife communications privilege and the husband-wife testimonial privilege.

The purpose of the husband-wife privilege is to protect the sanctity of marriage as well as the private communications that are made between the spouses. It is also intended to prevent the spouses from being forced to testify against one another.

It is important to note that the husband-wife privilege is available in both criminal and civil cases. This means that if a spouse is a defendant in a court case, the husband-wife privilege will prevent confidential communications from being used as evidence against them or their spouse.

For example, if a spouse is on trial as a defendant in a criminal case, their spouse may refuse to testify against them by claiming or asserting the husband-wife testimonial privilege. If spousal communications are deemed privileged and, therefore, inadmissible, the court or jury cannot use them as evidence when determining the outcome or verdict in a trial.

What Information Is Covered by the Husband-Wife Communications Privilege?

As noted above, there are two privileges included in the husband-wife privilege, the communications privilege and the testimonial privilege. The spousal communication privilege applies in both criminal cases and civil cases.

It can be asserted by either of the spouses in order to protect any confidential communications that were made during the marriage. It is important to note that the privilege begins at the time of the marriage.

This means that the privilege cannot be asserted in order to protect communications that were made before the parties were married. The spousal communications privilege also survives the marriage.

This means that a divorced spouse can still assert the communications privilege to prevent their ex-spouse from revealing confidential communication. The spousal communications privilege, however, does have some limits regarding when it can be asserted.

There are certain situations in which a court will not permit a spouse to assert the spousal communications privilege, including:

  • When one spouse is suing the other spouse;
  • When one spouse initiated a criminal proceeding against the other spouse, for example, in domestic abuse cases;
  • When one spouse is accused of a crime against the child of the other spouse, for example, a child abuse or child neglect case;
  • When the communication between the two spouses was made in the presence of a third party;
    • In these cases, the third party will be able to testify, and the confidentiality of the communication may be questioned;
  • If the competency of the spouse is in question; or
  • If the confidential communication was made in order to commit a crime or in furtherance of a crime.

What Information Is Covered by the Husband-Wife Testimonial Privilege?

The husband-wife testimonial privilege is more restricted than the husband-wife communications privilege. The testimonial privilege, unlike the communications privilege, can only be asserted by one of the spouses.

Only one of the spouses, either the witness spouse who is being called to testify or the party spouse who is on trial, can assert the privilege. In the majority of states, the privilege is held by the party spouse.

In addition, in contrast to the communications privilege, the testimonial privilege will only last as long as the marriage. Because of this, when a marriage ends, the witness spouse is permitted to testify freely regarding any communications that were made during the marriage.

If the two individuals are currently married, however, the testimonial privilege can be used to protect communications that were made before and during their marriage. In addition, similar to the communications privilege, the testimonial privilege cannot be asserted in cases where the spouses are adverse to one another or if they were joint participants in a crime.

The exceptions to the husband-wife testimonial privilege are the same exceptions as those for the husband-wife communications privilege.

Can Either Spouse Waive the Husband-Wife Privilege?

As noted above, whether or not a spouse may waive the husband-wife privilege will depend on which of the privileges is being asserted and which spouse holds the privilege. With the communications privilege, both spouses hold the privilege.

This means that the testifying spouse is not able to waive the privilege against the assertion of the other spouse. If, however, the defendant’s spouse does not properly assert or object to the other’s testimony, the privilege may be waived.

In addition, if either of the spouses shared confidential communication with a third party, the privilege is also waived. With the testimonial privilege, whether or not one of the spouses can waive the privilege will depend on the laws of the jurisdiction.

In most states, the husband-wife testimonial privilege is held by the party spouse. In these states, the privilege can only be waived if the marriage has been terminated or if the party spouse reveals the confidential communication.

There are, however, some states in which the witness spouse holds the privilege. In these states, the witness spouse may waive the privilege and testify freely regarding any confidential communications made before, during, or after the marriage.

Should I Hire an Attorney for Help with the Husband-Wife Privilege?

If you are involved in a situation where you need to assert the husband-wife privilege, you are likely involved in a civil or criminal court case, possibly as a defendant. If you are involved in a criminal case, you should consult with a criminal lawyer as soon as possible in order to ensure that the confidentiality of your marital communications is protected.

If you are involved in a civil case, you may want to consult with a family lawyer. Your local family lawyer can help with any family laws that you need clarification or advice on, including the husband-wife privilege.

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