Spousal Privilege

Married persons enjoy two spousal privileges, the theory being that spouses should be able to have an honest, open relationship without fear of being compelled to testify against one another (Donley, 2018). Most marriages must be licensed, but common-law marriages--shown by the couple's actions but not legally licensed--are allowed in eight states and recognized in six other states if entered into before legislative deadlines requiring marriage licensure (NCSL, 2020).

Confidential Communications Privilege

Spousal Testimonial Privilege

When applies:



Applicable to permanently or legally separated couples?





Need to be married still at time of trial?


Applies to what communications?









Can use to refuse to testify about events before the marriage?


Who can waive it:








How the privilege can be ended:

Only if were married when the communication was made


No






No


Those communications intended to be confidential, which are 1) made in a private setting, intended to be away from third parties, 2) topics that would normally be private (such as actions, thoughts and feelings, medical history, etc.)




No



Both parties if they consent directly or by not objecting to introduction of the communication in court. Some states allow one party to waive. If the topic deals with a crime against the other spouse or either of their children, it is automatically waived.

Never ends but may be waived.

Only if are currently married at the time testimony is given


No






Yes


Any testimony of one spouse regarding another, including communications, acts, events at any time before or during the marriage






Yes



Testifying spouse








Ends with divorce or separation.

References

Donley, R. M. (2018). Criminal Evidence. Pearson.

NCSL (2020). Common Law Marriage by State. National Conference of State Legislatures. https://www.ncsl.org/research/human-services/common-law-marriage.aspx