What is Marital (Spousal) Privilege?

Between spouses, there is a marital privilege that prevents someone from testifying against their spouse in certain situations. This is in thanks to the Federal Rules of Evidence (FRE) and most states’ laws. These rules don’t mean that your husband’s attorney can object to every question you might be asked. Understanding these marital privileges and when they apply can be an important component of a personal injury claim.

In federal court, FRE 501 says that common law governs the issue of privilege. The United States Supreme Court has ruled that “marital privilege” embodies two distinct concepts. Testimonial privilege and a confidential communications privilege are mirrored by state evidentiary laws. But what’s the difference between these two concepts?

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Spousal Witness Privilege

Can you be forced to testify against your spouse?

Spousal witness privilege is the narrower of the two parts of marital privilege. Under this privilege, a person cannot be forced to testify against his or her spouse in a criminal proceeding. This privilege applies to testimony about events that happened during the marriage, as well as events before the two were married, if they are married during the trial. If the spouses divorce, neither can claim the privilege and could be forced to testify.

When is there no privilege?

It is important, however, to understand that only the spouse testifying holds this privilege. If a husband or wife wants to waive this privilege, testifying against spouse will be allowed and the other spouse will not be able to prevent the testimony. With small differences between states, the law for the most part recognizes that neither spouse can claim the testimonial privilege in a case involving their children or a criminal proceeding by one against the other.

Spousal Communications Privilege

The second part of marital privilege is much broader in what it protects. Under both state & federal law, this privilege will prevent either spouse from testifying about marital communications between them. It applies in civil and criminal cases and either spouse can claim the privilege, even after divorce or death of the other spouse. This means that a husband can prevent his wife from testifying even if she wants to take the stand and vice versa.

Although this privilege is broad, the parties still have to prove that a “marital communication” between the spouses is involved, instead of something one spouse simply witnessed the other do, which is not covered by the privilege. Similarly, the parties also have to prove that the communication occurred in private. Courts have found that the privilege can be waived even by children simply being within earshot.

What if you want to keep those chats private?

Spouses who want to avoid testifying about marital communications will also have to prove that they did not waive the marital privilege. A husband or wife can waive the privilege by talking about the private conversation with someone else after the fact or by placing the marriage at issue in a court case.

For example, courts often find that the communication privilege is waived when one spouse is claiming a loss of consortium due to the other spouse’s injury. The reasoning is that if the spouse is going to claim the marriage suffered as a result of the accident and injuries, the other party should be able to inquire into those facts. Also, like the testimonial privilege, there are also cases where this privilege cannot be invoked, such as a civil lawsuit by one spouse against another or a case involving their children.

Have you been injured in an accident?

If you’ve been injured in an accident, contact us for a free case evaluation. Not only may you be eligible to file a claim for medical costs, emotional distress and further damages, but your spouse may also have a claim for loss of consortium. We work on a contingency-fee basis. Fill out our free case evaluation form to see if you are eligible for a claim. An experienced auto accident attorney at Morris Bart will assist you in the evaluation process. Initial consultations are FREE. We have office locations throughout Louisiana, Mississippi, Alabama, and Arkansas. Call us at 1-800-537-8185 today!

February 8, 2019 | Categories: Legal Tips, Personal Injury |