Also known as: spousal confidential communication privilege · marital communications privilege · confidential marital communications privilege
Written by attorneys · grounded in primary & secondary sources — see below
A privilege protecting the content of confidential communications between spouses made during a valid marriage from compelled disclosure in judicial proceedings. The law presumes such communications are confidential when made privately during the marriage. The burden rests on the party seeking disclosure to overcome that presumption rather than on the asserting spouse to prove an expectation of secrecy.
Leo described to his husband Marco during a late-night bedroom talk how he had ordered an associate to destroy client files. No third parties were present. When prosecutors later subpoenaed Marco to repeat the statements at Leo's obstruction trial, Leo invoked the privilege. The court sustained the objection because the private setting triggered the presumption of confidentiality that the government failed to rebut.
Mark told his wife Lena at their kitchen table that he had ignored an engineer's warning about faulty concrete in a building project. The conversation occurred with no one else present. When a grand jury subpoenaed Lena to disclose the admission, she refused. The court upheld the refusal because the marital communications privilege shielded the statement and the government offered no evidence that Mark intended it to be shared.
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Communications between spouses made privately during marriage are presumed confidential. The party seeking disclosure must overcome that presumption rather than requiring the asserting spouse to prove secrecy.
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The communications privilege protects the content of confidential statements made during marriage and may be asserted by either spouse. The testimonial privilege concerns whether a spouse can be forced to take the stand at all and belongs only to the witness spouse in federal criminal cases.
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No. Disclosures made in the presence of third parties at dinner parties or staff meetings are not confidential and fall outside the privilege. Separate private conversations on the same topic remain protected if they occurred without third parties present.
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Either spouse may assert it. The privilege protects the content of the communication itself and is not limited to the witness spouse who holds the separate testimonial privilege.
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…329 (1936); 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…