Also known as: spousal communication · marital communications privilege · spousal privilege
Written by attorneys · grounded in primary & secondary sources — see below
A privilege that protects confidential communications exchanged between spouses during a valid marriage from compelled disclosure in judicial proceedings. The privilege rests on a presumption that such communications are confidential, placing the burden on the party seeking disclosure to overcome that presumption. It is distinct from the spousal testimonial privilege and may be asserted by either spouse even after the marriage ends.
Stella Shapiro and her husband discussed a business plan in their kitchen with no one else present. When the government later subpoenaed the husband to reveal those statements, the court applied the presumption of confidentiality and required the government to show the discussion was not private. Because no evidence rebutted the presumption, the communications remained protected from disclosure.
Sasha Stone observed her husband loading packages during road trips and later confronted him in their bedroom about the activity. At trial the government called Sasha, who was willing to describe the road observations but reluctant about the bedroom statements. The court permitted testimony on the observations while barring questions about the private bedroom exchange under the communications privilege.
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Sophia Singh and her wife discussed sensitive financial matters at home after their marriage was recognized under federal law. When a subpoena sought to compel disclosure of those talks, the court applied the marital communications privilege without regard to the spouses' gender. The privilege shielded the confidential exchanges because the couple had treated them as private.
Either spouse may assert the privilege to prevent disclosure of confidential communications made during the marriage. The privilege belongs to both spouses and survives the end of the marriage.
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No. Communications lose protection when made in the presence of others or in non-private settings such as business meetings or dinner parties attended by colleagues. Only statements intended to remain confidential between the spouses qualify.
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The communications privilege protects the content of confidential spousal statements and may be asserted by either spouse. The testimonial privilege against adverse testimony belongs solely to the witness spouse, who may choose to testify even over the defendant spouse's objection.
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No. The privilege covers only verbal or written communications made in confidence. A spouse's personal observations of events or conduct fall outside its scope and may be the subject of testimony if the witness spouse is willing.
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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…