Spousal privilege, or marital privilege, is a legal protection that prohibits compelling one spouse to testify against another.
While many people think spousal privilege is a “blank check” to suppress evidence of a crime, the reality is that in both the concept and practice, it is much more complex and has several criteria that apply to be valid. If you think spousal privilege applies to your case, you should discuss your options with a criminal defense attorney.
In the meantime, here is a general summary of spousal privilege, what it allows, and when it does and does not apply.
What Is Spousal Privilege?
The law provides what is known as “privilege,” which protects certain types of communications from being used against a criminal defendant in a court of law. Privilege is an exception to the requirement that all people must testify in a court of law if called to do so.
The most famous form of privilege is probably “attorney-client privilege,” which protects communications between an attorney and a defendant. Close behind that is the concept of spousal privilege.
In most cases, spousal privilege allows a spouse to avoid testifying or providing evidence against the other spouse regarding communications between the two. The protection is grounded in a legal concept that predates the US Constitution that an officially married couple is a single legal entity.
Privilege is not, however, a constitutionally guaranteed right, and with any potential testimony, the privilege weighs against the importance of the testimony.
While the legal reason behind spousal privilege is important, there is a social reason behind the court recognizing spousal privilege. That reason is that although it is not a legal concept, a court compelling one spouse to testify against the other would severely damage the institution of marriage.
Do All Marriages Have Spousal Privilege?
Whether a marriage relationship falls under spousal privilege for state-level cases depends on the state in question. While all states have some form of spousal privilege, how that gets interpreted and applied can differ. Spousal privilege is defined, per state, with exceptions to privilege.
State Privilege Issues
In addition, how a state regards legal marriages factors into the privilege question. In Minnesota, for example, common-law marriages are not recognized. Minnesota does, however, recognize common-law marriages that are legal in other states. There is, though, some information you must provide to prove your common law marriage in another state was legal. Those include:
- Property documents
- Bank statements
- A statement testifying to the relationship
- Witness that testifies a couple is married under common law
Gay marriage laws are treated the same way. States that do not recognize gay marriage do not have to extend privilege to couples in that state and can treat a gay relationship like any other non marital relationship.. Because of a 2015 US Supreme Court ruling, however, they must extend marital privilege for gay marriages conducted in other states.
Waivers for Spousal Privilege
Whenever a spouse has communications or could testify against the other spouse, the court must weigh protecting marriage against a need for evidence. In some cases, where testimony or communications are vital to making a case against a defendant, a judge might decide that the weight of the evidence surpasses the importance of spousal privilege. In those cases, a prosecutor can compel a spouse to testify or allow a spouse to testify, and spousal privilege will not apply.
There are other criteria that, if met, constitute a waiver of spousal privilege:
- Spouses must assert spousal privilege, or they lose their right to assert it
- It is waived if neither spouse objects to the other providing testimony or to communications between spouses being admitted
- When a third party is given permission by one spouse to describe confidential communications between that spouse and the other spouse that the first spouse let them see
- When a privileged communication is discussed with someone besides the spouses or their lawyers
Types of Federal Spousal Privilege
There are two basic types of spousal privilege: testimonial and communications.
Spousal Testimonial Privilege
With spousal testimonial privilege, one spouse cannot provide testimony against another spouse without both spouses consenting. This type of privilege applies to bench trials, jury trials, and other legal proceedings. There are exceptions to testimonial spousal privilege when a spouse faces the following:
- Charges of domestic abuse
- Charges against a child
- Charges for crimes committed against someone else while committing a crime against the other spouse
- Legal testimony pertaining to criminal acts that predate the marriage
- Human trafficking charges
- Crimes committed after a marriage ends
Spousal Communications Privilege
A spouse cannot testify about private communications between them and the other spouse under the communications privilege. The spousal communications privilege only applies to communications that would normally be assumed to be confidential. Most exceptions, or waivers, pertaining to spousal communications privilege involve whether the communications were confidential or with the spouse directly.
For example, if a person overhears their spouse discussing their role in a crime or planning a crime, spousal privilege would not apply to the first spouse because their communication was not direct.
Likewise, if the defendant discusses their role in a crime in front of their spouse in a busy restaurant, a judge would have to determine if spousal privilege applied. The argument would be that a public discussion is not confidential in any normal circumstance.
Spousal Privilege in Minnesota
Minnesota recognizes spousal communications and testimonial privilege. It does not have any laws that preclude any marriage from claiming privilege. Spouses must claim their privilege, however, for it to apply.
Can Spousal Privilege Help Your Case?
Spousal privilege in Minnesota applies to most marriages in most circumstances but must be asserted by the spouses in question. Spousal communications privilege and testimonial privilege prevent a spouse from providing privileged information or communications against the other spouse.
Likewise, any legal marriage can qualify for spousal privilege, and a spouse cannot be compelled to testify against the other spouse. To talk to an attorney about spousal privilege, contact CJB Law today.