Also known as: spousal communication privilege · spousal communications privileges · marital communications privilege · spousal privilege
Written by attorneys · grounded in primary & secondary sources — see below
A privilege that protects confidential communications between spouses from compelled disclosure in judicial proceedings. The privilege rests on a presumption that private exchanges between spouses during a valid marriage are confidential, placing the burden on the party seeking disclosure to rebut that presumption. It applies to the content of those communications and is distinct from the separate spousal testimonial privilege.
Spencer Silver faces federal charges for directing an associate to destroy records. Prosecutors subpoena his wife Sophia Singh to recount a late-night bedroom discussion in which Spencer described the plan. No third parties were present. The court sustains the objection because the setting triggers the presumption of confidentiality and the government offers no rebuttal evidence.
Samuel Soto is prosecuted for hacking a competitor. His wife Sierra Santos is willing to testify about strategy meetings she attended at the company and about a separate home conversation in which Samuel described the plan. The court allows testimony about the meetings because third parties were present but bars questions about the home conversation.
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Sasha Stone is indicted for insurance fraud. Prosecutors subpoena her spouse Sebastian Santos to describe private evening discussions at home about the scheme. Because the couple is legally married, the court recognizes the communications as protected and excludes testimony about those exchanges even though Sebastian is willing to testify.
Either spouse may assert the privilege to block disclosure of confidential marital communications. The privilege is not limited to the communicating spouse.
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The communications privilege protects only the content of confidential statements made during the marriage. The testimonial privilege allows a witness spouse to refuse to testify at all against the defendant spouse in a criminal case.
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The government must demonstrate that the communication was not made in private or was intended to be shared with others. Third-party presence or public disclosure of the same information rebuts the presumption.
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The privilege generally survives divorce and continues to protect communications made while the marriage was intact.
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No. The privilege covers only verbal or written communications. A spouse's personal observations of facts remain outside its protection.
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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…