The content of communications and conversations can sometimes be used as evidence in both civil and criminal legal trials. In some situations, a communication or conversation may be considered to be privileged by a judge.

If a communication or conversation is determined to be privileged, it means that the content of that communication or conversation is not allowed to be used as evidence in a legal trial. Privilege typically applies to verbal conversations and sometimes it applies to nonverbal communications such as writings, observations, head nods, finger points, winks, and arm waves.

The “marital communications privilege”, or “spousal privilege”, is a specific type of a privileged conversation, communication or observation. This privilege applies to the conversations, communications and observations made between married couples before or during their marriage. If judge determines that a spousal privilege applies, it means that the conversation, communication or observation is considered to be inadmissible evidence.

The jury cannot use inadmissible evidence when they are determining the outcome or verdict of a court trial. Spousal privilege may keep one spouse from testifying in court about the conversations or interactions made between the married couple.    

There are two different types of spousal privilege: the spousal testimony privilege and the spousal communications privilege. Spousal testimony privilege and spousal communications privilege may be used in different situations and apply to different types of communications between spouses.

What is the Spousal Testimony Privilege?

The spousal testimony privilege is the first type of spousal privilege. Spousal testimony privilege can prevent a married person from testifying in a court trial against their spouse. In some states, this type of spousal privilege makes a conversation or a communication between spouses not admissible as evidence in both civil and criminal court trials.

The spousal testimony privilege typically only applies to the witness spouse (the spouse that is not the subject of the legal trial). This means that the witness spouse will not have to give evidence to the court and jury about their spouse.

The spousal testimony privilege applies to verbal conversations between the spouses. This type of privilege may also apply to the observations that the witness spouse made about their spouse, such as their mood or their physical appearance which includes their outfits or the condition of their clothing.

The spousal testimony privilege only applies to the observations and conversations made between the spouses before or during their marriage. In some situations, a judge may determine that the spousal testimony privilege does not apply to a conversation or observation.

In the event that a married couple has divorced before the court trial begins, the witness may be required by the judge to testify against their ex-spouse about the conversations and observations that they had with their spouse during the course of their marriage.

Typically, the spousal testimony privilege will not apply to communications made during the marriage if the witness spouse is required to provide testimony to the court about crimes of domestic violence or child abuse. The spousal testimony privilege does not typically apply in situations where one spouse sues another spouse in a civil court lawsuit.  

What is the Spousal Communications Privilege?

The spousal communications privilege is the second type of spousal privilege. The spousal communications privilege applies to both spouses, not just the witness spouse. And, unlike the spousal testimony privilege, the spousal communications privilege does not require that the spouses be married at the time of the legal trial. This means that the right to the spousal communication privilege does not end when a married couple gets a divorce.  

The spousal communications privilege does protect conversations and communications made during a legal and valid marriage from being used as evidence in a trial. In addition, the conversation or communication must have also been made in between the spouses in private and not shared by either spouse with a third-party.

Similar to the spousal testimony privilege, the spousal communications privilege does not apply in cases of domestic violence, child abuse or in civil lawsuits filed between the spouses.    

Do I Need to Hire an Attorney If I Am Facing Marital Communications Privilege Issues?

You may be able to claim that a communication, conversation, or observation made between you and your spouse or ex-spouse is privileged, without the advice of an attorney. However, there are many complicated requirements that must be met in order to claim spousal privilege.

If you or your spouse have been accused of a crime, or if you have received a subpoena to testify as a witness in a criminal trial, you should speak to a criminal defense lawyer to learn more about your rights and your defenses and help you determine if privilege applies in your case.

If you or your spouse have filed for a divorce, a divorce lawyer can also advise you of your rights and obligations regarding the marital communications privilege.