§ 39.01   Introduction [573]

 

There are two spousal privileges.  The spousal testimonial privilege provides that a spouse may not be compelled to testify against a defendant-spouse in a criminal prosecution.  A second privilege involves confidential communications between spouses and applies in both civil and criminal cases.  Some jurisdictions have both privileges, while others have one or the other.

 

§ 39.02   Spousal Testimonial Privilege  [573-77]

 

The spousal testimonial privilege is sometimes known as the anti-marital fact privilege. “The modern justification for this privilege against adverse spousal testimony is its perceived role in fostering the harmony and sanctity of the marriage relationship.” Trammel v. United States, 445 U.S. 40, 44 (1980).

 

                        [A]       Type of Case

 

Unlike the confidential communication privilege, the testimonial privilege applies only in criminal cases.

 

                        [B]       Scope & Duration of Privilege

 

The testimonial privilege is determined as of the time of trial.  If there is a valid marriage, the privilege applies and all testimony, including testimony concerning events that predated the marriage, is excluded.

 

                        [C]       Holder

 

In some jurisdictions, both spouses may assert the privilege.  In others, only the witness-spouse holds the privilege.

 

                        [D]       Exceptions

 

If the charged offense involves a crime against the other spouse or their children, the privilege typically does not apply. Moreover, some federal courts have engrafted a "joint participant" in crime exception onto the common law privilege.

 

                        [E]       Waiver

 

Failure to object to a spouse’s testimony at trial waives the privilege, as does voluntary disclosure to a third party.  The privilege may also be waived by the holder or spouse testifying.

 

§ 39.03   Spousal Communication Privilege   [577-81]

 

The second spousal privilege concerns confidential communications.  The purpose of this rule is to promote marital discourse, an instrumental rationale.

 

                        [A]       Type of Case

 

Unlike the testimonial privilege which applies only in criminal prosecutions, the confidential communication privilege applies in both civil and criminal cases.

 

                        [B]       Scope & Duration of Privilege

 

The privilege applies only to communications made during coverture.

 

                        [C]       Holder

 

It could be argued that only the communicating spouse should be able to assert the privilege.  Nevertheless, the privilege often is held to extend to both spouses

 

                        [D]       Communications

 

The privilege applies to confidential communications and includes acts intended as communications.  Whether the privilege extends to conduct in addition to communications depends on the jurisdiction

 

                        [E]       Confidentiality

 

The spousal privilege applies only to communications that are intended to be confidential.

 

                        [F]       Exceptions

 

As with the testimonial privilege, the communication privilege does not apply in prosecutions for crimes against the spouse or their children.  Like the testimonial privilege, a joint crime exception has been carved out by the federal courts.

 

                        [G]       Waiver

 

Failure to object at trial to disclosure of a privileged communication waives the privilege.  It may also be waived by offering the testimony of a witness concerning the privileged communication.  In addition, voluntary communication to a third party is a waiver.

 

§ 39.04   Parent-Child Privilege   [581-82]

           

Although some courts and legislatures have recognized a parent-child privilege, most have not.