Tuesday, January 31, 2012

Evidence: Spousal Privilege vs. Privilege for Confidential Marital Communications

The following question was asked on the Facebook page @ http://www.facebook.com/barexaminstruction:

When is spousal privilege invoked and when is marital privilege invoked? I know what is protected and when it is lost or not. Just confused as to when which is used.


The first thing you’ll want to note regarding the spousal privilege is that it only applies in criminal cases. If an MBE questions involves a civil action, such as a tort, then spousal privilege does not apply. The privilege states that a married person may not be called to testify against the spouse in a criminal trial. Because the status of spouse ends at divorce, this privilege only applies throughout the time that a valid marriage exists, but, if a valid marriage exists, the witness-spouse can claim the privilege for communications that took place prior to entering into the marriage. Importantly, for MBE purposes, you should note that the privilege belongs to the witness-spouse. This means that if the witness-spouse wants to testify against the other spouse in a criminal proceeding, the witness-spouse can do so, but the witness-spouse cannot be compelled to do so.

In contrast to the spousal privilege, the privilege for confidential marital communications applies in both civil and criminal proceedings. And, unlike in the spousal privilege, communications that occurred prior to the marriage do not apply; this privilege only covers those communications that occurred during the marriage. And, in further contrast to the spousal privilege, this privilege will not terminate upon divorce. In other words, communications after the marriage will not be privileged, but even if there has been a divorce, either former spouse can claim this privilege after the divorce for communications made prior to the divorce. Finally, for this privilege to apply, the communications must have been made in reliance upon the intimacy of the marital relationship. (This is very similar to the attorney/client privilege analysis; look to see whether the communication, when made, was intended to remain private.)


  1. Can observing your spouse drunk count as communications made in reliance upon the intimacy of the marital relationship?

  2. That's an interesting question. My instinct tells me no, as the intent to keep private such an act appears to be lacking, but a factor might be where the observation takes place. If the observation takes place in a public place, then the element of reliance upon intimacy of the marital relationship appears to be lacking. But, perhaps more importantly, communications generally consists of a conversation (or a letter) between the spouses, and it would be a stretch to claim that how one acts while drunk is intended as a communication to the other spouse.

  3. Observations are not protected under the marital protection privilege. However, they are protected under the spousal immunity privilege.

  4. Easily the best explanation of the two concepts I've read. Thanks.