"Spousal communication," occasionally called "marital privilege," refers to an evidentiary privilege that protects certain types of communications between spouses during their marriage. It is typically divided into two categories:

  • Communications privilege
  • Testimonial privilege

The purpose of the spousal privilege is to maintain some sense of privacy and sacredness to marriage. As a society, we have chosen not to pry into the bond between husband and wife for the sake of getting to the "truth" of the matter in a courtroom.

What Are the Differences between the Two Categories?

There are some significant practical differences between the two, so it helps to keep them separate in terms of understanding how the privilege works. Moreover, it is worth noting that these rules may vary slightly from state to state.

Communications Privilege – The communications privilege protects the words, ideas, or other expressions of a confidential communication made during a marriage. Both the spouse who made the communication and the spouse who heard the communication hold the privilege, thus either spouse may invoke it and keep testimony about the communication out of court.

The communications privilege starts at marriage, and survives the marriage. There are also three circumstances in which it may not be invoked:

  • Suing each other or each other’s estates
  • Criminal proceedings initiated from one spouse against the other
  • Competency proceedings

Testimony Privilege – This privilege protects the spouse who holds the privilege from being compelled to testify against the other spouse. Under federal law, this only applies to the spouse who is being called to testify; thus, they can choose not to invoke it and testify against the defendant-spouse. However, it is a majority rule, or put simply, more common practice, to allow the defendant-spouse to invoke the privilege.

The privilege applies during marriage, and may extend to times before marriage if the couple is married by the time of trial. However, if the marriage has ended, the privilege will also end.

The testimonial privilege will typically also not apply in many of the circumstances listed above. Additionally, it is worth mentioning that instances of child custody or domestic abuse may suspend the privileges.

Do I Need a Lawyer?

If you are in a situation where you believe your spouse may be called to testify against you, you should consider consulting with an experienced criminal defense lawyer immediately. An attorney will know your local evidence code, and be able to explain to you the nuances of spousal privilege rules.