What Are The Defenses To Spousal Privilege in Evidence?

Defenses to spousal privilege include the absence of marriage at the time of the testimony, the crime-fraud exception, and waivers by one spouse. Additionally, communications made in the context of a conspiracy to commit a crime may also be excluded from privilege.

Spousal privilege is designed to protect confidential communications between spouses during their marriage. However, several significant defenses can be raised against this privilege. First, if the parties were not legally married at the time of the communication or testimony, the privilege does not apply. This is often the first line of inquiry when determining the applicability of spousal privilege.

A primary exception is the crime-fraud exception, which negates the privilege when one spouse is accused of a crime against the other spouse or when both spouses conspired to commit a crime. In such cases, communications made in relation to the crime or fraud are not protected by privilege as the public policy favors the prosecution of criminal acts over the confidentiality of marital communications.

Additionally, waivers of privilege can occur; if one spouse decides to testify or disclose the communications they had sharing them in the course of the marriage, this may lead to waiver of the privilege regarding those communications. It’s important to note that both spouses must consent to the waiver; one spouse cannot unilaterally waive the privilege without the other’s agreement.

Lastly, if the communication is made in furtherance of a joint criminal activity, it does not enjoy spousal privilege. Courts generally assess the nature of the communication and the context to determine if it falls within these exceptions. The nuances of these defenses, including consideration of the intent behind the communication, significantly impact their aversion.

In conclusion, while spousal privilege serves a vital role in ensuring marital confidentiality, it is not absolute and can be challenged on several grounds, particularly in contexts involving crime or fraud, waiver, or the legal status of the marriage at the time of the communication.

• 1Upjohn Co. v. United States (1981) - established limits on attorney-client privilege and has implications for spousal privilege, especially concerning corporate spouses.
• 2Katz v. United States (1967) - clarified expectations of privacy which also relate to spousal communications.
• 3Trammel v. United States (1980) - upheld the principle that both spouses must either agree to the waiver of privilege or it cannot be waived by one alone.
• 4United States v. Zolin (1989) - recognized exceptions to spousal privilege regarding crime-fraud.
• 5In re Grand Jury Subpoena (1989) - highlighted the limitations of spousal communications in establishing and maintaining spousal privilege.

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