Privileges and other policy exclusions - Spousal immunity an...

Learning Outcomes

This article explains spousal privileges and related policy exclusions tested on the MBE, including:

• Distinguishing clearly between spousal immunity and the marital communications privilege in typical bar-exam hypotheticals.
• Identifying who holds each privilege, who may assert or waive it, and at what stage of the proceeding it operates.
• Determining whether a fact pattern involves testimony as a whole or only a specific confidential communication, and selecting the correct privilege accordingly.
• Analyzing how timing issues—such as when the marriage began, whether the parties are still married, and when the communication or crime occurred—affect availability of each privilege.
• Applying the major exceptions, including crimes or torts between spouses, offenses against children, suits between spouses, and joint crime–fraud situations.
• Evaluating how divorce, separation, annulment, and sham or invalid marriages terminate or prevent each privilege.
• Recognizing when conduct at trial (such as failure to object or voluntary testimony) results in waiver or loss of protection.
• Eliminating common MBE distractors that confuse spousal privileges with other doctrines, such as attorney–client privilege, hearsay rules, or Fifth Amendment protections.
• Practicing a structured approach for MBE questions: identify the privilege, the holder, the timing, and any exception or waiver before choosing an answer.

MBE Syllabus

For the MBE, you are required to understand evidentiary privileges and other policy-based exclusions, with a focus on the following syllabus points:

• The structure and operation of spousal immunity (adverse spousal testimony) in criminal cases.
• The structure and operation of the marital communications privilege in both civil and criminal cases.
• Who holds each privilege, who may assert or waive it, and when it terminates.
• The principal exceptions: crimes or torts between spouses, offenses against children, and joint crime/fraud.
• The interaction of these privileges with divorce, annulment, and suits between spouses.
• How failure to assert a privilege at trial can result in waiver.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which privilege allows a spouse to refuse to testify against the other spouse in a criminal case?
   1. Attorney-client privilege
   2. Spousal immunity
   3. Marital communications privilege
   4. Psychotherapist-patient privilege
2. Which of the following is true about the marital communications privilege?
   1. It applies only in criminal cases.
   2. It protects all communications between spouses, regardless of confidentiality.
   3. It survives divorce for communications made during the marriage.
   4. It can be waived by only one spouse.
3. In which situation does neither spousal immunity nor the marital communications privilege apply?
   1. One spouse is charged with a crime against the other spouse.
   2. A spouse is called to testify in a civil case brought by a third party.
   3. The spouses are still married at the time of trial.
   4. The communication was made in confidence during the marriage.
4. A wife, still married to the defendant, wants to testify for the prosecution in his federal bank-robbery trial. The husband objects. Which statement is most accurate under federal law?
   1. The husband can block her testimony under spousal immunity.
   2. The husband can block her testimony under the marital communications privilege.
   3. She may testify, but only about events before the marriage.
   4. She may choose to testify despite her husband’s objection.
5. Before marrying, a man tells his fiancée, “I’ve been laundering money at work for years.” They later marry and then divorce. In a later criminal trial, the prosecution calls the ex‑wife to testify to that statement. Which privilege, if any, can block the testimony?
   1. Spousal immunity only
   2. Marital communications privilege only
   3. Both spousal immunity and marital communications privilege
   4. Neither privilege

Introduction

Spousal privileges are policy-based rules that may prevent a spouse from being compelled to testify or from having confidential marital communications disclosed in court. They are tested frequently on the MBE, especially in evidence questions involving criminal cases or disputes between spouses. Understanding the distinction, scope, and exceptions for each privilege is essential for exam success.

There are two distinct marital privileges:

• Spousal immunity (often called the adverse spousal testimony privilege).
• Marital communications privilege (confidential marital communications).

They serve related but different purposes and operate in different ways. On the MBE you must quickly identify:

• Which privilege is being invoked,
• Who is trying to assert it, and
• Whether an exception applies.

Key Term: Spousal Immunity
The privilege in criminal cases that allows a person to refuse to testify against their current spouse, covering testimony about events before and during the marriage, but only while the marriage exists.

Key Term: Witness-Spouse
The spouse who is called to testify and who holds the right to assert or waive spousal immunity in federal court.

Key Term: Party-Spouse
The spouse who is a party in the case (usually the criminal defendant) and who may benefit from, but typically does not control, the spousal immunity privilege in federal court.

Key Term: Marital Communications Privilege
The privilege protecting confidential communications made between spouses during a valid marriage from disclosure in any proceeding, civil or criminal.

Key Term: Confidential Communication
A communication made privately between spouses during marriage with the intention that it not be disclosed to others.

A good way to think about the difference:

• Spousal immunity → “Can I be forced to testify at all against my spouse in a criminal case?”
• Marital communications privilege → “Can anyone disclose this particular private conversation we had while married?”

Spousal Immunity

Spousal immunity allows a person to refuse to testify against their current spouse in a criminal case. This privilege is designed to protect the marital relationship and applies only while the marriage exists.

Key Term: Spousal Immunity
The privilege of a person to refuse to testify against their current spouse in a criminal case, as either a witness or a defendant.

Key features under federal law (the rule to apply on the MBE unless the question clearly says otherwise):

• Applies only in criminal cases.

  • It is a privilege against giving adverse testimony “against” a spouse in a criminal proceeding. It does not apply in civil actions.

• Covers testimony about events before and during the marriage.

  • If the couple is married at the time of trial, the witness-spouse may refuse to testify even about events that occurred long before the marriage.

• Operates only while the marriage exists.

  • The privilege can be asserted only during a valid marriage and only at the time of the testimony.
  • If the spouses are divorced or the marriage is annulled before trial, spousal immunity no longer applies, even to events that occurred during the marriage.

• Held by the witness-spouse in federal court.

  • In federal court, only the witness-spouse decides whether to testify.
  • The party-spouse cannot prevent a willing spouse from testifying in a criminal case. This is the rule from Trammel v. United States and is controlling for the MBE.

• Covers broad testimony.

  • It covers any testimony against the spouse (observations, acts, and communications), not just confidential conversations.
  • It does not block physical evidence (e.g., producing documents or objects).

• The privilege ends with divorce or annulment.

  • Once the marriage is terminated, the witness-spouse may be compelled to testify about events that occurred before or during the former marriage (subject to other privileges, such as the marital communications privilege).

Remember that some states (a minority) give the privilege to the party-spouse or to both spouses, allowing the defendant-spouse to prevent adverse testimony. If a question clearly describes such a state statute, apply its rule; otherwise, assume the federal witness‑spouse rule.

Key Term: Witness-Spouse
The spouse who is called to testify and who holds the right to assert or waive spousal immunity in federal court.

Key Term: Party-Spouse
The spouse who is the defendant in the criminal case and may benefit if the witness-spouse chooses not to testify, but ordinarily cannot compel that choice in federal court.

Marital Communications Privilege

Marital communications privilege protects confidential communications made between spouses during a valid marriage. This privilege applies in both civil and criminal cases and survives the end of the marriage.

Key Term: Marital Communications Privilege
The privilege protecting confidential communications made between spouses during marriage from disclosure in any proceeding.

Key features:

• Applies in both civil and criminal cases.

  • It can be invoked in any type of proceeding—civil, criminal, or otherwise—so long as the requirements are met.

• Covers only confidential communications made during the marriage.

  • There must be a communication (spoken or written words, or sometimes intentional expressive conduct).
  • The communication must be made during a valid marriage. Communications made while merely engaged, or after divorce, are not covered.
  • The communication must be confidential—intended to be private between the spouses.

Key Term: Confidential Communication
A communication made privately between spouses with the intention that it not be disclosed to others; the presence of unnecessary third parties usually destroys confidentiality.

• Does not cover all knowledge or observations.

  • The privilege does not prevent a spouse from testifying about:
  • Things simply observed (e.g., “I saw him come home with blood on his shirt”), or
  • Acts not communicative in nature (e.g., spouse hiding money).
  • It protects the content of the communication, not every fact a spouse knows.

• Survives divorce or annulment for communications made while married.

  • Even after divorce, either former spouse may assert the privilege to block disclosure of confidential communications made during the marriage.

• Held by both spouses.

  • Both spouses hold the privilege. Either spouse may assert it to prevent disclosure of a protected communication:
  • To block the other spouse from testifying about it; or
  • To block a third person (e.g., lawyer, interpreter) who overheard or recorded the communication in a privileged setting.

This is much broader in time than spousal immunity, but narrower in subject matter (only confidential communications made during the marriage).

Distinguishing the Two Privileges on the MBE

A common MBE trap is mixing up the two privileges. Use this checklist:

• Type of case?

  • Criminal only → spousal immunity may apply.
  • Civil or criminal → marital communications privilege may apply.

• What is being blocked?

  • Entire testimony by current spouse in a criminal case → spousal immunity.
  • A particular private conversation during marriage → marital communications.

• Timing of marriage?

  • Must be married at time of testimony for spousal immunity.
  • Must be married at time of communication for marital communications; divorce does not destroy the privilege.

• Who controls the privilege?

  • Spousal immunity → witness-spouse (federal).
  • Marital communications → either spouse.

Exceptions to Spousal Privileges

Both privileges have important exceptions that are tested frequently:

• Crimes or torts between spouses.

  • Neither privilege applies in cases where one spouse is charged with a crime or tort against the other spouse.
  • Examples: assault on spouse, intentional infliction of emotional distress suit by one spouse against the other.

• Offenses against children of either spouse.

  • Neither privilege applies when one spouse is charged with a crime or tort against:
  • A child of either spouse, or
  • A child in the household (depending on jurisdiction; the bar exam will specify).
  • This includes child abuse, child neglect, or sexual offenses against a child.

• Suits between spouses.

  • Neither privilege applies in civil actions between the spouses themselves, such as:
  • Divorce, annulment, property division, support, and child custody; or
  • Contract or tort suits one spouse brings against the other.

• Communications in furtherance of a joint crime or fraud.

  • Communications made to plan or commit a joint crime or fraud are not protected, even if they are otherwise confidential marital communications.
  • This is analogous to the crime-fraud exception to attorney–client privilege.
  • Example: spouses planning a joint bank robbery or tax evasion scheme.

• Invalid or sham marriages.

  • No privilege arises from a marriage that is void or voidable (e.g., bigamous marriages, or marriages entered solely to create a privilege may be denied protection if the jurisdiction treats them as invalid).

• Termination of marriage and spousal immunity.

  • Spousal immunity automatically ends if the couple is divorced or the marriage is annulled before the testimony is offered.
  • The marital communications privilege, however, may still protect confidential communications made during the former marriage.

Waiver of Privileges

Waiver of Spousal Immunity

• Who can waive?

  • In federal court, the witness-spouse can choose to testify or to invoke the privilege.
  • If the witness-spouse voluntarily testifies against the defendant-spouse, that testimony is not barred by spousal immunity.

• Effect of taking the stand.

  • Once the witness-spouse chooses to testify against the spouse in that proceeding, spousal immunity has been waived for that proceeding; the witness can be cross‑examined like any other witness.

• Party-spouse cannot waive (federal).

  • The defendant-spouse cannot waive or invoke spousal immunity on the witness’s behalf under federal law, though some states follow a different rule.

Waiver of Marital Communications Privilege

• Who must consent?

  • Because both spouses hold the privilege, the general rule is that both must consent to disclosure for complete waiver.
  • One spouse’s voluntary testimony about the privileged communication may waive their own protection, but the other spouse can still object to future disclosure of that communication by others.

• Disclosure to third parties.

  • Sharing the communication with a third party who is not necessary for the communication (e.g., a friend, neighbor) usually destroys confidentiality and thus the privilege.
  • Disclosures to necessary third parties (e.g., interpreters, necessary aides) do not defeat confidentiality.

• Failure to object.

  • If a spouse or their lawyer fails to object when a confidential marital communication is offered in evidence, a court may treat this as waiver by consent for that proceeding.

Worked Example 1.1

A wife is called to testify in a federal criminal trial against her husband for a robbery committed before their marriage. The prosecution asks her about conversations she had with her husband during the marriage about the robbery. The wife wishes to refuse to testify.

Answer:
The wife may assert spousal immunity and refuse to testify against her husband about any events, including those before marriage, as long as they are still married at the time of trial. She may also assert the marital communications privilege to prevent disclosure of confidential communications made during the marriage. However, if the marriage ends before trial, spousal immunity no longer applies, but the marital communications privilege may still protect confidential communications made during the marriage.

Worked Example 1.2

A husband is on trial for assaulting his spouse. The prosecution calls the wife to testify about a private conversation during the marriage in which the husband confessed to the assault.

Answer:
Neither spousal immunity nor the marital communications privilege applies. There is an exception to both privileges when one spouse is charged with a crime against the other spouse. The wife can be compelled to testify about the assault and the confidential communication.

Worked Example 1.3

Before marrying, a man tells his girlfriend, “I have been embezzling from my employer for years.” They later marry. After they divorce, the man is prosecuted for embezzlement. The prosecution calls the ex‑wife to testify to the statement.

Answer:
Spousal immunity does not apply because the couple is divorced at the time of trial; the privilege ends with the marriage. The marital communications privilege also does not apply because the statement was made before the parties were married. The ex‑wife may be compelled to testify about the statement, subject to any other applicable rules (e.g., hearsay).

Worked Example 1.4

During their marriage, spouses A and B privately discuss plans to rob a jewelry store together. Later, only A is prosecuted for the robbery. B is called to testify about the planning conversations and wants to refuse.

Answer:
Spousal immunity may allow B, if still married to A at trial, to refuse to testify at all against A in the criminal case. However, as to the specific conversations about planning the robbery, the marital communications privilege does not apply because the communications were made in furtherance of a joint crime. The joint crime/fraud exception removes protection from those communications. If B chooses to testify, the conversations can be admitted; B cannot use the marital communications privilege to exclude them.

Worked Example 1.5

A defendant is being tried for armed robbery. His wife is called by the prosecution to testify about what he was wearing when he left the house that morning. Both the defendant and his wife object to her testimony.

Answer:
Spousal immunity applies because this is a criminal case and they are still married. Under federal law, the privilege belongs to the witness‑spouse. The wife may choose not to testify against her husband, and she cannot be compelled if she invokes spousal immunity. The defendant cannot force her to testify, but he also cannot force her to assert the privilege. The marital communications privilege does not apply because her observation of his clothing is not a confidential communication.

Exam Warning

On the MBE, carefully distinguish between spousal immunity (which applies only in criminal cases and only while married) and the marital communications privilege (which applies in both civil and criminal cases and survives divorce for communications made during marriage). Do not confuse who holds each privilege or when each applies. Always ask: (1) What type of case is this? (2) Are we dealing with testimony in general or a specific communication? (3) When did the marriage exist relative to the communication and the testimony?

Revision Tip

Remember: Spousal immunity is lost after divorce or annulment, but the marital communications privilege may still protect communications made during the marriage, even after the marriage ends. Spousal immunity is broad in subject matter but narrow in time; the marital communications privilege is narrow in subject matter but broad in time.

Key Point Checklist

This article has covered the following key knowledge points:

• Spousal immunity allows a person to refuse to testify against a current spouse in criminal cases only.
• In federal court, the witness-spouse holds spousal immunity; the party-spouse cannot compel or prevent the witness’s testimony.
• Spousal immunity covers testimony about events before and during the marriage, but only while the spouses are married at the time of testimony.
• The marital communications privilege protects confidential communications made during marriage in both civil and criminal cases.
• Both spouses hold the marital communications privilege; it survives divorce for communications made during the marriage.
• Neither privilege applies in cases involving crimes or torts between spouses or against the children of either spouse.
• Communications made in furtherance of a joint crime or fraud are not protected by the marital communications privilege.
• Spousal immunity does not apply after divorce or annulment, but the marital communications privilege may still protect earlier confidential communications.
• Spousal immunity is waived by the witness-spouse’s decision to testify; marital communications privilege can be waived by consent or failure to object, and loss of confidentiality (e.g., disclosure to unnecessary third parties) usually destroys the privilege.
• On MBE questions, always identify which privilege is at issue, who holds it, and whether an exception or termination applies.

Key Terms and Concepts

• Spousal Immunity
• Witness-Spouse
• Party-Spouse
• Marital Communications Privilege
• Confidential Communication