Spousal Privilege in Criminal Cases, frequently called marital privilege, protects communications between spouses. Similarly, spousal privilege also applies in civil cases, however it is slightly different. Privilege is an exception to the rule that anyone can be compelled to testify under a court order or a subpoena. In addition to spousal privilege, other examples of privilege are attorney-client privilege, doctor-patient privilege and priest-penitent privilege.

What Does Spousal Privilege in Criminal Cases Cover?

There are two different types of spousal privilege that apply in criminal cases. They are testimonial privilege and communications privilege.

Testimonial Privilege

In criminal cases, a spouse can refuse to testify against their spouse regarding things that s/he observed during the course of their marriage. This is called testimonial privilege, and it applies to the witness spouse’s observations, rather than communications with the spouse. Testimonial privilege applies in criminal cases, and not in civil cases.

Importantly, the witness spouse can choose to waive testimonial privilege without consulting their spouse. In a 1980 case called Trammel v. United States, the U.S. Supreme Court upheld waiver of testimonial privilege by the witness spouse. In that case, a wife testified about her observations of her husband’s drug operation as well as about communications she had with her husband in the presence of a third party. In exchange for her testimony, the wife received immunity from the federal prosecutors and was not charged criminally as a co-conspirator. The U.S. Supreme Court reasoned that spousal testimonial privilege was different from spousal communications privilege and thus could be waived by the testifying spouse.

Communications Privilege

Communications privilege applies to words and actions between spouses that are intended to be confidential communications. The New York courts have held that not all communications between spouses are privileged and confidential communications. Confidential communications are those that are “induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship”. People v. Fediuk, 66 N.Y.2d 881 (1985). Daily and ordinary communications between spouses, such as communications about errands and plans for the day are not considered privileged. People v. Parker, 49 A.D.3d 974 (3d Dep’t 2008).

Who Can Break Spousal Privilege in Criminal Cases?

Spousal privilege in criminal cases can be broken by either the witness spouse or by any spouse or third party seeking to break the spousal privilege. Witness spouse can break testimonial spousal privilege. A spouse or a third party can break spousal communications privilege by establishing that the communications between spouses were not meant to be confidential or that there is an exception to spousal privilege.

In order to break the communications privilege between spouses, the burden is on the party opposing communications privilege to establish that the communications between parties were not meant to be confidential.

Can a Spouse Be Compelled to Testify Against Another Spouse?

Yes, a spouse can be compelled to testify against another spouse if an exception to testimonial spousal privilege in criminal case applies. Similarly, a witness spouse can choose to testify against the defendant spouse, as the witness spouse is able to break testimonial spousal privilege.

What Are the Exceptions to Spousal Privilege?

Spousal testimonial privilege is not absolute. There are a number of exceptions to spousal testimonial privilege, specifically, they are:

• Matters that are subject of testimony predate the existence of a valid marriage;
• Spouse commits a criminal act against witness spouse or a child of either spouse;
• Marriage is not recognized as a valid marriage in the jurisdiction where the testimony is compelled.

Similarly, communications that are considered to be “daily and ordinary” would not be covered under spousal communications privilege.

Questions on Spousal Privilege in Criminal Cases

If you have questions on spousal privilege in criminal cases, please contact us to schedule your initial consultation.