Marital Communications Privilege

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The right given to ahusband and wifeto refuse to testify in a trial as to confidential statements made to each other within and during the framework of their spousal relationship.

The marital communications privilege is a right that only legally married persons have in court. Also called the husband-wife privilege, it protects the privacy of communications between spouses. The privilege allows them to refuse to testify about a conversation or a letter that they have privately exchanged as marital partners.

The marital privilege is an exception to the general rule that all relevant evidence is admissible at trial. Similar privileges exist for communications between priest and penitent (one who has confided in the priest), attorney and client, and doctor and patient. Privileges exclude evidence from trial in order to advance some social goal. With the marital privilege, the goal of free and open communication between spouses, which is believed to strengthen and further the marital relationship, is given greater weight than the need for evidence (the information exchanged by the spouses) to resolve a legal dispute.

The marital communications privilege originated at common law. It was made formal in the English Evidence Amendment Act of 1853, which said that neither husbands nor wives could be forced to disclose any communication made to the other during the marriage. In the United States, the privilege came to be recognized in state and federal rules of evidence. By the twentieth century, the U.S. Supreme Court said that it was "regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice" (Wolfle v. United States, 291 U.S. 7, 54 S. Ct. 279, 78 L. Ed. 617 [1934]).

The marital communications privilege is available in most jurisdictions. Most jurisdictions offering it allow a witness spouse to choose whether to testify; some automatically disqualify evidence from a spouse.

The privilege is not absolute. Because its effect is to deny evidence at trial, courts generally interpret it narrowly.

The most important condition for its use is a legal marriage. Courts will not permit its use by partners who merely live together or by those who have a common-law marriage or a sham, or false, marriage. Moreover, the communication must have taken place while the marriage existed, not after a divorce. Generally, the determination of whether a marriage is legal depends on state law.

The privilege also cannot be claimed in certain situations, such as where one spouse is subject to prosecution for crimes committed against the other or against the children of the couple. In addition, the presence of third persons at the time of the communication usually eliminates confidentiality and thus destroys the privilege, although courts have granted exceptions for the presence of children.

Many jurisdictions make the distinction of which spouse "holds," and may therefore assert, the privilege—the defendant spouse or the witness spouse. In these jurisdictions, the spouse who holds the privilege may waive it and testify against the other spouse.

further readings

Pappa, Kristina K. 1995. "Note: Evidence—Privileged Communications." Seton Hall Law Review 25.


Attorney-Client Privilege; Privileged Communication; Testimony.