Learning Outcomes
After reading this article, you will be able to identify and apply the rules governing spousal immunity and the marital communications privilege. You will understand their scope, who holds each privilege, the main exceptions, and how waiver occurs. You will be able to distinguish these privileges and recognize their application and limits in MBE-style questions.
MBE Syllabus
For MBE, you are required to understand the evidentiary privileges and policy exclusions that may prevent the admission of relevant evidence. This article focuses on:
- The distinction between spousal immunity and the marital communications privilege.
- Who holds each privilege and when each applies.
- The scope, duration, and main exceptions to each privilege.
- How and when these privileges can be waived.
- The effect of divorce or litigation between spouses.
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.
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Which privilege allows a spouse to refuse to testify against the other spouse in a criminal case?
- Attorney-client privilege
- Spousal immunity
- Marital communications privilege
- Psychotherapist-patient privilege
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Which of the following is true about the marital communications privilege?
- It applies only in criminal cases.
- It protects all communications between spouses, regardless of confidentiality.
- It survives divorce for communications made during the marriage.
- It can be waived by only one spouse.
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In which situation does neither spousal immunity nor the marital communications privilege apply?
- One spouse is charged with a crime against the other spouse.
- A spouse is called to testify in a civil case brought by a third party.
- The spouses are still married at the time of trial.
- The communication was made in confidence during the marriage.
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. These privileges 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.
Spousal Immunity
Spousal immunity allows a person to refuse to testify against their current spouse in a criminal case. This privilege is designed to preserve marital peace 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.
- Applies only in criminal cases.
- Covers testimony about events before and during the marriage.
- Can be asserted only during a valid marriage.
- In federal court, the witness-spouse holds the privilege and may choose to testify or not, even if the party-spouse objects.
- The privilege ends with divorce or annulment.
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.
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.
- Applies in both civil and criminal cases.
- Covers only communications made in confidence during the marriage.
- Survives divorce or annulment for communications made while married.
- Either spouse may assert the privilege to prevent disclosure.
- Both spouses hold the privilege; either can prevent the other or a third party from disclosing the communication.
Key Term: Confidential Communication A communication made privately between spouses with the intention that it not be disclosed to others.
Exceptions to Spousal Privileges
Both privileges have important exceptions:
- Neither privilege applies in cases where one spouse is charged with a crime or tort against the other spouse or the children of either.
- Neither privilege applies in suits between spouses (e.g., divorce, child custody).
- Communications made in furtherance of a joint crime or fraud are not protected.
- Spousal immunity does not apply after divorce, but the marital communications privilege may still protect communications made during the marriage.
Waiver of Privileges
- Spousal immunity can be waived by the witness-spouse in federal court; in some states, the party-spouse may also prevent testimony.
- Marital communications privilege can be waived if both spouses consent to disclosure, or if the communication is disclosed to a third party.
- Failure to object to testimony or disclosure may constitute waiver.
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. The wife can be compelled to testify about the assault and the 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.
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.
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.
- The witness-spouse holds spousal immunity in federal court; the privilege ends with divorce or annulment.
- 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 marriage.
- Neither privilege applies in cases involving crimes or torts between spouses or against children, or for communications made in furtherance of joint crime or fraud.
- Privileges can be waived by consent, disclosure, or failure to object.
Key Terms and Concepts
- Spousal Immunity
- Witness-Spouse
- Marital Communications Privilege
- Confidential Communication
