Spousal Privilege

American law recognizes two distinct spousal privileges, which are frequently confused on exams. The spousal testimonial privilege (also called the anti-marital-fact privilege) prevents one spouse from being compelled to testify against the other in a criminal case. Under the federal rule established in Trammel v. United States, the witness-spouse holds the privilege — meaning the witness-spouse can choose to testify or refuse. The privilege exists only during the marriage; once the marriage ends, either spouse can be compelled to testify about events that occurred during the marriage.

The marital communications privilege protects confidential communications made between spouses during the marriage. Unlike the testimonial privilege, this privilege survives the end of the marriage — communications made during the marriage remain privileged even after divorce. The communication must have been made in confidence, meaning in private without the known presence of third parties. Both spouses hold this privilege, meaning either can prevent disclosure. The privilege applies in both civil and criminal cases.

Both privileges have important exceptions. Neither applies in cases where one spouse is charged with a crime against the other spouse or against the children of either spouse. The marital communications privilege does not cover statements made in furtherance of joint criminal activity. The testimonial privilege does not apply when the spouses are in a sham marriage entered into to create the privilege. Most jurisdictions do not recognize the spousal privileges for unmarried partners, regardless of the length or nature of the relationship. The privileges reflect a policy judgment that the marital relationship deserves protection even at the cost of excluding relevant evidence.