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Marital Privilege: Shielding Spousal Testimony From Federal Subpoenas

By Spodek Law Group | January 21, 2024
(Last Updated On: January 21, 2024)

Marital Privilege: Shielding Spousal Testimony From Federal Subpoenas

Marriage comes with a lot of legal perks – filing taxes jointly, inheritance rights, medical decision making, and more. But did you know marriage also comes with the ability to shield your spouse from testifying against you in court? It’s true! This legal concept is called “marital privilege” and it’s an important protection for married folks who get caught up in the legal system.

What Exactly Is Marital Privilege?

Marital privilege refers to the legal right of a married person to refuse to testify against their spouse or prevent their spouse from testifying against them in court. There are two types of marital privilege:

  • Spousal Testimony Privilege: This means your spouse can refuse to testify against you in court. They can refuse to answer questions or provide information that might incriminate you.
  • Marital Communications Privilege: This means private communications between spouses are confidential. Neither spouse can be forced to disclose any private conversations or correspondence they shared during the marriage.

The idea behind marital privilege is to promote trust and open communication within a marriage. The law doesn’t want to create a situation where married folks feel like they have to watch what they say or do around their spouse out of fear it could be used against them later.So if you get hauled into court on criminal charges or get slapped with a lawsuit, your darling spouse can’t be forced to snitch on you! Ain’t marriage grand?

When Does Marital Privilege Apply?

There are a few key requirements that must be met for marital privilege protections to kick in:

  • The couple must be legally married at the time of the communication or testimony in question. Marital privilege does not apply to couples who are merely dating or engaged.
  • The privilege only applies in criminal cases and civil cases – it does not provide protection in divorce or child custody disputes.
  • Both spouses must consent to invoking marital privilege. If one spouse wants to testify against the other, the privilege can be waived.
  • Exceptions exist where one spouse is charged with a crime against the other spouse or the spouse’s child. So if you’re on trial for harming your husband or kiddo, your husband can totally testify against you.

The scope of marital privilege varies a bit between federal and state courts. But in general, it prevents spouses from being compelled to disclose private communications or provide testimony that would assist in prosecuting their partner.

Real-Life Examples of Marital Privilege

Marital privilege gets invoked all the time to block spousal testimony that could assist the prosecution. Here are some interesting real-life examples:

  • In 2010, former Detroit Mayor Kwame Kilpatrick tried to invoke marital privilege to prevent his wife from testifying in his perjury and obstruction of justice trial. The judge denied his request, allowing her to provide limited testimony.
  • In mob boss John Gotti’s 1985 trial for racketeering and murder, his wife Victoria refused to testify against him. Prosecutors wanted her to provide inside information on her husband’s criminal dealings but she successfully invoked spousal privilege.
  • When Wall Street hot shot Raj Rajaratnam was prosecuted for insider trading in 2011, his wife Asha used marital privilege to avoid testifying. Prosecutors believed she had key information on her husband’s illegal dealings.

As you can see, marital privilege allows spouses to refuse participation in criminal cases against their partner, even when prosecutors believe they have valuable inside information. It’s a controversial legal privilege but the law takes marriage vows seriously!

Can Marital Privilege Be Waived?

Yes, marital privilege can be waived under certain circumstances if both spouses agree to it or if a judge determines there is good cause to set aside the privilege.For example, if a serious crime has been committed against a spouse or child, the privilege may not apply. The victimized spouse could choose to testify against their partner in interests of justice.Marital privilege can also be waived if it is seen to obstruct justice in very serious criminal cases like terrorism, murder, child abuse, etc. But generally waiving marital privilege is quite difficult and requires the consent of both spouses.So if you’re hoping to compel testimony from an uncooperative spouse, don’t get your hopes up! Blood may be thicker than water but marital privilege can prevent spouses from spilling the tea.

How To Invoke Marital Privilege

Wondering how marital privilege works from a practical perspective? Here’s the typical process:

  • The married person receives a subpoena to testify against their spouse or turn over evidence like private communications.
  • Their attorney files a “motion to quash” the subpoena based on marital privilege. This asks the judge to cancel the subpoena and prevent the person from being compelled to testify.
  • The judge holds a hearing to listen to arguments from both sides. They then decide whether marital privilege applies to this case.
  • If marital privilege is upheld, the subpoena is quashed and the spouse cannot be forced to testify or turn over marital communications. Case closed!

The key is to assert marital privilege and file the motion to quash as early as possible once a subpoena arrives. This prevents spouses from getting dragged into cases unnecessarily.

Can Same-Sex Married Couples Invoke Marital Privilege?

Great question! The short answer is yes. With the 2015 Supreme Court ruling legalizing same-sex marriage across the United States, same-sex married couples are entitled to all the same rights and privileges as heterosexual married couples.This includes the ability to invoke marital privileges to prevent spouses from being compelled to testify against each other in court. It puts same-sex marriages on equal legal footing and gives them the same marital protections.So if you’re married to someone of the same sex, rest assured you can lean on good ole marital privilege if your spouse gets into some legal hot water! Ain’t love grand?

The Purpose and Ethics Behind Marital Privilege

Marital privilege has been around since the 1600s and remains controversial today. Supporters argue it serves several important purposes:Promoting Trust and Honesty in Marriages: Removing fear that private communications could end up in court encourages more openness between spouses. This strengthens marriages.Protecting Privacy: Marriage provides an expectation of privacy that should be upheld. Forcing spouses to divulge private info violates that privacy.Preventing Divorce: Compelling an unwilling spouse to testify could irreparably damage the marriage relationship and promote divorce.Maintaining Family Harmony: Forcing testimony that could implicate a defendant spouse could create animosity between family members and pit them against each other.However, critics argue marital privilege can also undermine justice in serious criminal cases. It blocks judges and juries from hearing all relevant evidence against defendants. This ethical dilemma rages on 300+ years later!

Exceptions – When Marital Privilege Gets Tossed Out

Marital privilege seems like an iron-clad way for spouses to avoid testifying against each other or disclosing private communications, right? Well, not so fast!There are certain situations where marital privilege gets tossed out the window:

  • Crimes Against a Spouse or Child: If you harm or endanger your spouse or child, they aren’t going to protect you! The privilege doesn’t apply for testimony relating to spousal or child abuse.
  • Joint Criminal Activity: If you and your spouse actively participated in the same crime together, you can’t use marital privilege to block testimony against each other. The law won’t allow you to conspire in crime as a loving couple!
  • Sham Marriages: If investigators prove your marriage itself was a total sham or fraud, marital privilege goes poof! So no rushing off to Vegas for a quickie wedding if you’re in legal trouble.

In these scenarios, the public interest in allowing spousal testimony outweighs the value of upholding marital privilege. So while marital privilege is strong, it’s not absolute!

Parting Thoughts

Marital privilege is a fascinating legal concept that pits justice versus privacy in marriages. It remains controversial centuries after it became enshrined in law.On one hand, marital privilege seems outdated in today’s world. Shouldn’t truth and justice prevail above all else? Don’t judges and juries deserve to hear all relevant testimony against criminal defendants, even from reluctant spouses?However, marital privilege also protects the sanctity of marriages from unnecessary legal interference. It reduces incentives for spouses to testify falsely against each other for immunity or reduced charges.Where should the law draw this delicate line between justice and marital privacy? Reasonable minds can disagree! But for now, marital privilege remains firmly rooted in federal and state laws across America.So if you’ve got a nosy spouse who likes sticking their nose in your business, you may want to think twice before tying the knot! Marital privilege means they’ll be shielded from spilling your secrets, even under oath. For better or worse, criminal couples can lean on this ancient privilege to avoid implicating each other. Ain’t love (and criminal conspiracy) grand?


Overview of Marital Privilege – FindLaw
https://www.findlaw.com/criminal/criminal-rights/marital-privilege.htmlMarital Privilege Law and Legal Definition – US Legal
https://definitions.uslegal.com/m/marital-privilege/Judge Limits Testimony by Kwame Kilpatrick’s Wife – Detroit Free Press
https://www.freep.com/story/news/local/michigan/detroit/2016/08/03/carlita-kilpatrick-testify-against-kwame/88048906/The Power of Spousal Privilege – ABA Journal
https://www.abajournal.com/magazine/article/the_power_of_spousal_privilegeRajaratnam’s Wife Refuses To Testify – Financial Times
https://www.ft.com/content/b9d33b8c-2cd6-11e0-833c-00144feab49aWaiving Marital Privilege – Justia
https://www.justia.com/criminal/docs/privilege/marital-privilege/Asserting Marital Privilege in Federal Cases
https://www.justia.com/criminal/docs/privilege/marital-privilege/federal/Same-Sex Marriage Ruling Extends Marital Privilege
https://www.abajournal.com/magazine/article/same_sex_marriage_ruling_extends_marital_privilegeThe History of Marital Privilege Law
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2861&context=journal_articlesExceptions to Marital Privilege Rule

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