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Spousal privilege (also called marital privilege or husband-wife privilege) is a term used in the law of evidence to describe two separate privileges: the communications privilege and the testimonial privilege. Both types of privilege are based on the policy of encouraging spousal harmony, and preventing spouses from having to condemn, or be condemned by, their spouses.
The spousal communications privilege or confidences privilege is a form of privileged communication that protects the contents of confidential communications between spouses during their marriage from testimonial disclosure. The privilege applies in civil and criminal cases.
Both the witness-spouse and the party-spouse hold the spousal communications privilege, so either may invoke it to prevent the other from testifying about a confidential communication made during marriage.
The communications privilege begins on marriage, and cannot be invoked to protect confidential communications between now-married spouses that occurred prior to their marriage. Unlike testimonial privilege, the communications privilege survives the end of a marriage, and may be asserted by a spouse to protect confidential communications that were made during the marriage—even after divorce or death.
The spousal communications privilege may not be invoked if the spouses are suing each other or each other's estates in a civil case; if one of the spouses has initiated a criminal proceeding against the other; or in a competency proceeding regarding one of the spouses. These three scenarios are identical to the limitations which also apply to limit the spousal testimonial privilege. Two further scenarios apply to defeat the attachment of the spousal communications privilege: if the confidential communication was made in order to plan or commit crime or fraud, or if a defendant-spouse wishes, in a criminal trial, to testify in her own defense, about a confidential marital communication. In these five cases, a court will not allow either spouse to assert the privilege to block the testimony.
Spousal testimonial privilege (also called spousal incompetency and spousal immunity) protects the individual holding the privilege from being called to testify by the prosecution against his/her spouse/the defendant. A minority of states apply testimonial privilege in both criminal and civil cases. For example, under California Evidence Code ("CEC") §970, California permits the application of testimonial privilege to both civil and criminal cases, and includes both the privilege not to testify as well as the privilege not to be called as a witness by the party adverse to the interests of the spouse in the trial.
Under U.S. federal common law, the spousal testimonial privilege is held by the witness-spouse, not the party-spouse, and therefore does not prevent a spouse who wishes to testify from doing so. The rationale of this rule is that if a witness-spouse desires to testify against the party-spouse, there is no marital harmony left to protect through the obstruction of such testimony. This common law principle is the view in a minority of U.S. states. A majority of U.S. jurisdictions, however, do not follow U.S. federal common law; in most states, the party-spouse, and not the witness-spouse, is the holder of spousal testimonial privilege.
Spousal testimonial privilege covers observations, such as the color of the clothing the party-spouse was wearing on a certain day, as well as communications, such as the content of a telephone conversation with the party-spouse.
The witness-spouse may invoke testimonial privilege regarding events which occurred (1) during the marriage, if the spouses are still married; and (2) prior to the marriage if he is married to his spouse in court proceedings at the time of trial. If, by the time the trial occurs, the spouses are no longer married, the former spouse-witness may testify freely about any events which occurred prior to, after, or even during the marriage. Spousal testimonial privilege, in other words, only lasts as long as the marriage does.
Spousal testimonial privilege may not be invoked if the spouses are suing each other or each other's estates in a civil case; if one of the spouses has initiated a criminal proceeding against the other; or in a competency proceeding regarding one of the spouses.
Both rules may be suspended depending on the jurisdiction in the case of divorce proceedings or child custody disputes, but are suspended in cases where one spouse is accused of a crime against the other spouse or the spouse's child. Courts generally do not permit an adverse spouse to invoke either privilege during a trial initiated by the other spouse, or in the case of domestic abuse. The privileges may also be suspended where both spouses are joint participants in a crime, depending on the law of the jurisdiction.
While spousal communications in England and Wales are no longer privileged, section 80 of the Police and Criminal Evidence Act 1984 (as amended) gives spouses or civil partners of defendants protection against being compelled by the prosecution to testify, except in limited circumstances.
A spouse or civil partner of a defendant is almost always considered a competent witness for either side, and may choose to testify for or against their spouse. A defendant may, when relevant, compel their spouse or civil partner to testify on their behalf. The prosecution however, may only compel the testimony of the defendant's spouse or civil partner in cases of domestic abuse or violence or sexual offences towards persons under 16. When the spouse or civil partner is a co-defendant to the charges, they may not be compelled to testify.
Note that while this gives special recognition to spousal relationships and civil partnerships, the law does not provide for a privilege and it is never possible to exclude evidence solely on the basis that it was a private conversation between a married couple.
In Australian law, both the common law privilege of confidentiality between married people and the privilege of spouses not to testify against each other were assumed to have continued with the "reception" of English law.