What is Spousal Privilege in Criminal Cases?

What is Spousal Privilege in Criminal Cases?

Hey there! If you’re reading this, you probably want to understand more about spousal privilege in criminal cases. I don’t blame you – it can be a confusing legal concept. As a law student myself, I know I had trouble wrapping my head around it at first. But stick with me here, and hopefully by the end of this article you’ll have a solid grasp of the basics of spousal privilege.

First off, what is spousal privilege? Well, it refers to a rule that allows married people to refuse to testify against their spouse in court. There are two types of spousal privilege:

• Spousal communications privilege – This means married couples can refuse to disclose private communications they’ve had with each other during the marriage.
• Spousal testimonial privilege – This means a spouse can refuse to testify against the other spouse entirely in court.

The idea behind spousal privilege is to encourage open communication between spouses and also avoid forcing spouses into the difficult position of having to testify against each other. Makes sense, right? We want marriages to be built on trust and good communication.

Now, spousal privilege can apply in both civil and criminal cases. But it’s most commonly used in criminal cases, so that’s what we’ll focus on here. Keep in mind that the details of spousal privilege can vary between different states and federal courts. But we’ll cover the basics.

Spousal Communications Privilege

Let’s start with spousal communications privilege. This privilege applies to confidential communications made between spouses during a valid marriage. The idea is that spouses should be able to communicate openly and honestly with each other without worrying that their private conversations could later be revealed in court.

For this privilege to apply, a few conditions must be met:

• The communication must have been made during a valid marriage. Communications before or after the marriage don’t count.
• The communication must have been intended to be confidential. So no privilege if you were chatting with your spouse about robbing a bank in front of a police officer!
• The communication must stay confidential – meaning neither spouse has shared it with a third party. Once the cat’s out of the bag, no taking it back!

If these conditions are met, then generally either spouse can invoke the spousal communications privilege to avoid testifying about private communications made during their marriage.

This privilege also continues even after a marriage ends due to divorce or death. So neither spouse could later be compelled to testify about confidential communications made during the marriage, even if they hate each other now.

However, there are some exceptions where the spousal communications privilege won’t apply:

• In a civil case where the spouses are suing each other
• In a criminal case where one spouse is charged with a crime against the other spouse or their child
• If one spouse waives the privilege (decides to testify about the communications)

The policy here is that the need for truth outweighs protecting the marriage when spouses are directly adverse to each other in court. And one spouse can’t use the privilege to prevent the other spouse from voluntarily testifying if they want to.

Spousal Testimonial Privilege

Now let’s talk about spousal testimonial privilege. This broader privilege allows a spouse to refuse to testify against the other spouse entirely in a criminal trial.

The witness-spouse is the one who holds this privilege and can decide whether to invoke it. So if the prosecution calls Wife to testify against Husband, Wife can refuse and doesn’t have to give any testimony implicating her spouse.

The idea here is to avoid forcing spouses to condemn each other in court. That could seriously undermine the marriage relationship.

However, unlike spousal communications privilege, the spousal testimonial privilege only applies during a valid marriage. Once a couple divorces, the privilege goes away and the ex-spouse can then be compelled to testify against their former spouse.

There are also exceptions where the spousal testimonial privilege won’t apply:

• In civil cases between the spouses
• In criminal cases where one spouse is charged with a crime against the other spouse or their child
• If the witness-spouse waives the privilege and chooses to testify

So again, forcing spouses to testify against each other is seen as more important than protecting the marriage when the spouses are directly adverse in court or engaged in abuse.

Policy Considerations

Spousal privilege involves balancing competing public policy interests. On one hand, we want to encourage marital harmony and avoid putting strain on marriages. But we also want courts to have access to all relevant factual information to properly administer justice.

There are good-faith arguments on both sides of this debate. Some people argue that spousal privilege isn’t needed anymore now that society sees spouses more as individuals. Others counter that it still serves an important purpose in preserving marital relationships.

There have also been critiques that spousal privilege may allow some criminals to avoid accountability through abuse of the privilege. Though defenders note that there are still exceptions allowing testimony in cases of spousal crime or abuse.

Reasonable minds can disagree on where exactly to draw the line here. The current law of spousal privilege reflects our society’s attempt to balance these competing considerations. But the debate continues on how best to strike that balance.

Putting it All Together

Phew, we covered a lot of ground here! Let’s recap the key points:

• Spousal privilege is a legal rule allowing spouses to refuse to testify against each other in court
• There are two types: spousal communications privilege and spousal testimonial privilege
• Spousal communications privilege covers confidential communications made during a valid marriage
• Spousal testimonial privilege allows refusing to testify against your spouse entirely
• There are exceptions if spouses are adverse parties or in cases of abuse
• Spousal privilege balances competing policy goals of preserving marriages vs. truth-seeking

I know that was a lot of information to digest! The law around spousal privilege can be complex for sure. But I hope this article helped provide a solid baseline understanding. Let me know if you have any other questions!