Confidential conversations with your spouse are protected, and the government cannot force you to disclose them.

This is the concept of spousal privilege (also called “marital privilege.”) Of course, there are exceptions to this rule, and we’ll explain what those are, but it’s important to first review the two primary types of spousal privilege under federal law.

  1. Confidential communications privilege – Protects private conversations between spouses from being disclosed in court.
  2. Testimonial privilege – Allows a spouse to refuse to testify against their partner in legal proceedings.

If you find yourself under pressure from an investigator or any authority figure demanding that you disclose information about your partner, speaking with an experienced federal defense attorney can be a game-changer. They can review the specifics of your case with you and advise you on the best route forward.

Robert M. Helfend of the Helfend Law Group is a Super Lawyers and National Trial Lawyers Top 100 rated federal defense attorney that has defended cases in federal courts since 1984. Call 800-834-6434 today for a free case review.

What is spousal privilege?

Nobody should be forced to testify against their spouse, nor reveal information that was shared in confidence between partners. This is the concept of spousal privilege.

Generally speaking, spousal privilege falls under two categories: marital communication privilege and spousal testimony privilege.

Confidential marital communications privilege

This privilege ensures that private communications between spouses during their marriage are protected from being disclosed in court. It’s based on the principle that marital partners should communicate freely without fear that their conversations will be used against them later.

This privilege is held by both spouses, meaning that either the witness-spouse or accused-spouse can invoke it to prevent disclosure of confidential communications. Importantly, it remains in effect even after the marriage ends, safeguarding private exchanges made during the marriage from being exposed post-divorce or death.

However, the privilege for confidential marital communications cannot be used to shield discussions intended for planning a crime or fraud. It also does not apply if a spouse or child is a victim in the case, nor in cases where the communication wasn’t intended to be confidential.

Spousal testimony privilege

This aspect of spousal privilege allows a married person to refuse to testify against their spouse in court.

It’s grounded in the idea of preserving marital harmony. If a spouse is willing to testify, it’s presumed that the marital harmony is already disrupted.

Under federal law, the privilege is generally held by the witness-spouse, not the spouse who is a party to the case. This means that it’s the testifying spouse’s choice to waive the privilege and provide evidence, and the spouse who is party to the case cannot force their spouse not to testify.

The privilege applies to information observed during the marriage and is valid as long as the marriage exists. However, it doesn’t apply if the spouses are engaged in legal actions against each other, in criminal proceedings initiated by one spouse against the other, or in competency hearings. The privilege is designed to last only as long as the marriage itself, emphasizing the protection of marital unity over the court’s need for evidence.

Exceptions to spousal privilege protections under federal law

As we briefly mentioned above, federal spousal privilege protections have a number of exceptions. Here are some of the most common.

Planning a crime or fraud

The spousal communications privilege cannot be invoked if the confidential communications between spouses were made with the intent to commit a future crime or fraud. This exception is predicated on the principle that the law should not protect communications that further criminal objectives.

Spousal or child abuse

Privileges generally do not apply in cases where one spouse is charged with a crime against the other spouse or their children. This exception is crucial for ensuring that justice can be served in domestic violence and child abuse cases.

Non-confidential communications

It’s important to emphasize that spousal privilege doesn’t mean that all communications in a marital relationship are off limits. Communications that were not intended to be confidential, such as those made in the presence of a third party (generally speaking, children who are present are not considered to be third parties) or where there was an expectation they would be relayed to others, are not protected.

Termination of marriage

The testimonial privilege does not extend beyond the end of the marriage. A former spouse is generally free to testify about matters that occurred before, during, or after the marriage once the marital union has legally ended.

Does spousal privilege apply to grand juries?

Spousal privilege generally applies in court proceedings, including trials. However, its application in grand jury proceedings is more nuanced.

In the context of a grand jury, the primary purpose is to determine whether there is enough evidence to charge someone with a crime, not to determine guilt or innocence. Grand juries operate under a level of secrecy and have broad powers to compel evidence and testimony. The rules that apply in a regular court trial do not always apply in the same way to grand jury proceedings.

The application of spousal privilege in grand jury proceedings can be complex and varied based on the specifics of the case, the jurisdiction and the particular laws that are being applied.

This means that the extent to which spousal privilege applies in grand jury proceedings can be subject to legal interpretation, and if you or someone you know is facing this situation, it’s best to seek legal advice to understand how the privilege might apply to your specific circumstances.

Federal cases are complex and intimidating. You don’t have to navigate the complexities of the legal system alone.

For dedicated support and expert advice tailored to your unique situation, contact Robert M. Helfend. With a proven track record and a commitment to excellence, Robert is ready to stand by your side. Reach out now to schedule your free case evaluation – 800-834-6434.

Published March 14, 2024.