Also known as: marital confidence privilege · marital confidences privileges · marital communications privilege · spousal communications privilege
Written by attorneys · grounded in primary & secondary sources — see below
A privilege that shields confidential communications between spouses made during marriage from compelled disclosure. Courts presume such communications are confidential when made in private marital settings. The government bears the burden of rebutting that presumption by showing the exchange was not intended to remain private.
Maya Malik faces fraud charges for altering clinic records. Prosecutors subpoena her spouse Mason McCarthy to recount a conversation Maya had with him over dinner at home about the falsified entries. Mason refuses to answer. The court sustains the refusal because the exchange occurred in a private marital setting and the government offered no evidence that the spouses expected others to overhear.
Michelle Murphy stands trial for coordinating a drug distribution scheme. Her spouse Miguel Mendoza observed suspicious packages during road trips and later confronted her in their bedroom about the activity. Miguel is willing to describe the packages but refuses to repeat the bedroom statements. The court permits testimony about the packages yet bars questions about the private conversation because the bedroom exchange meets the criteria for protection.
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Either spouse may assert the privilege to block disclosure of confidential marital communications. The privilege is distinct from the adverse spousal testimonial privilege and survives even when the witness spouse is willing to testify about other matters.
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The government must prove that the communication was not intended to be private, such as by demonstrating the presence of third parties or a clearly nonprivate setting. Speculation that others might have been present is insufficient.
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Yes. The privilege applies to any confidential exchange between spouses regardless of the topic, including statements concerning criminal conduct.
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The confidences privilege protects the content of private communications made during marriage. The testimonial privilege concerns whether a spouse may be compelled to testify at all and in federal court belongs solely to the witness spouse.
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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…