Thursday, August 9, 2012

MBE Fast Fact: Privileges

There are quite a few important distinctions between the spousal privilege and the privilege for confidential maritial communications. One to note is that in criminal cases (and the spousal privilage only applies to criminal cases), the witness spouse holds the privilege exclusively. What this means is that, though the witness spouse can refuse to testify (thereby invoking the privilege), if the witness spouse chooses to testify, he/she can do so.  There is no need for the witness spouse to obtain consent from the accused spouse (the defendant in the case). 

The only instance in which the witness spouse will have to obtain the consent of the accused spouse is when the communications were intended as confidential when made, as those communications fall under the privilege for confidential marital communications.  Both privileges apply in a criminal case, so first determine whether the communications in question were intended to be confidential.  If they were, then the accused spouse can forbid the witness spouse from testifying, provided the other requirements for that privilege have been satisfied. If not, then it is entirely within the discretion of the witness spouse as to whether to testify.


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