Page 1 - Marital Privileges

Marital Privileges

CAROLINE RULE
The author is a partner with Koselanetz & Find, LLP, New York City.

Marriage is perplexing, and the marital privileges even more so. The other privilege is the adverse spousal witness privilege,
Contradictory views determine when they apply and what they which applies in criminal proceedings and allows one spouse to
protect. In many states, statutes, rather than case law, govern, refuse to testify against the other spouse. This privilege belongs
but federal law leaves it to the courts, which sometimes results only to the non-defendant spouse, however. Unless the defendant
in conflicting decisions among the circuits. can invoke the confidential marital communications privilege,
There are two quite different and separate safeguards for she cannot prevent her spouse from testifying against her if he
spouses. One is the confidential marital communications privi- decides to do so. This form of the privilege applies only while the
lege, which, with some exceptions, allows a spouse to refuse to marriage exists. And numerous states have repealed the adverse
testify about, or produce documents evidencing, any confidential spousal witness privilege entirely.
communication made during a marriage and allows the other Paradoxically, in the antiquated common law, the adverse
spouse to prevent that testimony or document production. spousal witness privilege belonged only to the defendant, who
As the U.S. Supreme Court explained in the seminal case could use it to prevent his spouse from testifying against him.
Trammel v. United States, 445 U.S. 40 (1980), referencing an That obverse of current law grew out of two precepts of medieval
early saccharine view of marriage, this privilege protects “in- jurisprudence—that a defendant could not testify on his own be-
formation privately disclosed between husband and wife in the half and that, because husband and wife were one and the wife
confidence of the marital relationship—once described by this had no separate legal existence, the wife was disqualified from
Court as ‘the best solace of human existence.’” Id. at 51 (quota- testifying on the husband’s behalf.
tion omitted). In 1980, in Trammel, the Supreme Court reversed the course
The confidential marital communications privilege aims to of this privilege and held that “the existing rule should be modi-
nurture the marital relationship and foster the ability of spouses fied so that the witness-spouse alone has a privilege to refuse
to speak freely with each other, without concern that their pri- to testify; the witness can be neither compelled to testify nor
vate communications will come back to haunt them. It survives foreclosed from testifying.” Id. at 53.
dissolution of a marriage, continuing to protect communications Even though courts have described both spousal privileges as
that were made during the marriage. advancing marital harmony, the Court distinguished the adverse

Published in Litigation, Volume 45, Number 4, Summer 2019. © 2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not 1
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.