Also known as: marital communication privilege · marital communications privileges · spousal communications privilege
Written by attorneys · grounded in primary & secondary sources — see below
A privilege that protects confidential communications between spouses during a valid marriage from compelled disclosure in judicial proceedings. The privilege presumes confidentiality for private spousal exchanges and places the burden on the opposing party to rebut that presumption. Either spouse may assert the privilege to block testimony about the content of such communications.
Marcus Mitchell, a construction supervisor, told his wife Madison Meyers during a private conversation at their kitchen table that he had ignored an engineer's safety warning. Prosecutors later subpoenaed Madison to recount the statement before a grand jury. Madison invoked the privilege to refuse disclosure. The court upheld the refusal because the exchange occurred in a domestic setting with no third parties present.
Michelle Murphy faced federal charges for wire fraud. Prosecutors offered immunity to her husband Marcus Mitchell and called him to testify about observations he made during joint business trips. Marcus was willing to describe the trips but reluctant to recount private hotel-room discussions. The court permitted testimony on the nonconfidential observations while barring questions about the private exchanges.
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Either spouse may assert the privilege to prevent disclosure of confidential marital communications. The privilege is distinct from the spousal testimonial privilege and survives even when the witness spouse is willing to testify.
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Communications between spouses in private domestic settings are presumed confidential. The government bears the burden of showing that the communication was not intended to remain private, such as by proving the presence of third parties.
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No. The privilege protects only the content of confidential verbal or equivalent communications. A spouse may testify about observations made in nonprivate settings or in the presence of others because those facts fall outside the privilege.
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Yes. The marital communications privilege generally survives the end of the marriage and may still be invoked to block disclosure of communications made while the marriage was intact.
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…Note, 10 So. Cal. L. Rev. 94 (1936); Note, 20 Minn. L. Rev. 693 (1936). [^maj-5]: This Court recognized just such a confidential marital communications privilege in Wolfle v. United States , 291 U. S. 7 (1934), and in Blau v. United States , 340 U. S. 332 (1951). In neither case, however, did the Court adopt the Wigmore view that the…