Also known as: adverse spousal testimony privilege · spousal privilege · marital privilege
Written by attorneys · grounded in primary & secondary sources — see below
An evidentiary protection in federal criminal prosecutions that vests solely in the witness spouse the choice whether to testify against the defendant spouse. The witness spouse may elect to testify even without the defendant spouse's consent but cannot be compelled to do so. The defendant spouse may prevent testimony only as to confidential marital communications.
Select any source to read its text and confirm it supports the definition.
Preston Pratt faces federal charges for skimming resort tips. His wife Pamela Phillips states she is willing to testify about joint-account deposits and on-site observations. Preston objects claiming spousal privilege. The court overrules the objection because Pamela alone holds the testimonial privilege and may choose to testify about nonconfidential matters.
Pierre Poulin is prosecuted for labor violations. His wife Pilar Pena is subpoenaed but invokes the privilege and declines to testify about farm operations she observed. The court sustains her refusal because the testimonial privilege belongs to her alone and the government cannot compel her testimony.
Penelope Price is tried for hacking offenses. Her husband Pavel Petrov receives immunity and agrees to testify about company meetings he attended. Penelope moves to bar all testimony. The court denies the motion except as to any confidential home conversations because Pavel controls the testimonial privilege.
Pamela Phillips is charged with insurance fraud. Her spouse Preston Pratt volunteers to describe staged accident photos he helped create and public conversations about the scheme. Pamela objects to all testimony. The court permits testimony on the nonconfidential observations because Preston alone decides whether to testify.
The witness spouse alone holds the privilege. The defendant spouse has no power to prevent the witness spouse from testifying if the witness spouse chooses to do so.
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The testimonial privilege allows the witness spouse to refuse to testify at all against the defendant spouse. The marital communications privilege protects only confidential statements made between spouses during the marriage and may be asserted by either spouse.
…in custody, as evidence that the stabbing was not in self-defense. The wife did not testify at trial because of the State’s marital privilege. Petitioner argued that admitting the statement would violate his Sixth Amendment right to be confronted with the witnesses against him. The trial court agreed to admit the statement, and…
…rules, which are common in the law of evidence. See 8 J. Wigmore, Evidence (J. McNaughton rev. 1961) (discussing, inter alia , marital privilege, attorney-client
…Majority opinion Opinion of Mr. Chief Justice Burger We granted certiorari to consider whether an accused may invoke the privilege against adverse spousal testimony so as to exclude the voluntary
…Comment, Rule 23 (2) of the Uniform Rules of Evidence. [^conA-2]: We are not dealing here with the quite different aspect of the marital privilege
…rights relating to support and property division under HRS chapter 580 (1985 and Supp. 1992); (12) the benefit of the spousal privilege
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No. The defendant spouse may block only testimony about confidential marital communications. Nonconfidential observations and statements made in the presence of third parties remain admissible if the witness spouse is willing to testify.
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The witness spouse may still invoke the testimonial privilege and refuse to testify even after receiving immunity. If the witness spouse waives the privilege and chooses to testify the defendant spouse cannot prevent that testimony except as to confidential communications.
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Yes. Observations made in public settings or in the presence of third parties and information obtained through independent roles are not protected by the marital communications privilege and may be the subject of voluntary testimony by the witness spouse.
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