Marital privilege laws exist at the state level as well as the federal level, and vary by state. State marital privilege laws are similar to the federal law. It is also referred to as husband-wife privilege.
Federal Rule of Evidence 501 provides that “the privilege of a witness [or] person . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” The Supreme Court has recognized two privileges that arise from the marital relationship. The first permits a witness to refuse to testify against his or her spouse. This is the testimonial privilege. The witness spouse alone holds the privilege and may choose to waive it.
The second privilege, called the marital communications privilege, provides that “[c]ommunications between the spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged . . . .” The privilege (1) extends to words and acts intended to be a communication; (2) requires a valid marriage; and (3) applies only to confidential communications, i.e., those not made in the presence of, or likely to be overheard by, third parties. Recognizing that the privilege obstructs the truthseeking process, courts have construed it narrowly, particularly in criminal proceedings, because of society’s strong interest in the administration of justice. The government bears the burden of showing that the communication was not intended to be confidential.
Federal law recognizes exceptions “where one spouse is charged with a crime or tort against the person or property of the other or against a child” of either. Most states also have a statute stating that if one spouse is the victim of abuse by the other spouse, the victim's testimony can be compelled and spousal privilege cannot be asserted.
Typically, a person who has a privilege against disclosure waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This rule does not apply if the disclosure itself is privileged. Disclosure of communications for the purpose of receiving third-party payment for professional services does not waive any privilege with respect to such communications.
In some states, a claim of privilege is not defeated by a disclosure which was:
- Compelled erroneously; or
- Made without opportunity to claim the privilege.
This rule provides that a claim of privilege is not lost forever if a judge erroneously compels disclosure of confidential information or the disclosure was made without an opportunity to claim the privilege, e.g., a husband who discloses a confidential communication to the police before his spouse has an opportunity to invoke the privilege. Under these circumstances, the spouse could still come to court and claim the privilege.