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What is Marital Privilege? PDF Print E-mail
Written by B. Clark, Esq.   
Monday, 11 February 2013 21:00

"....fostering the harmony and sanctity of the marriage relationship"

Marital privilege is not a commonly used criminal law procedure but almost every person has heard that a wife can not testify against her husband and like wise a husband can not testify against his wife.  Although, people’s basic understanding of spousal is correct, there are many details that most people are not aware of as it relates to marital privilege.   In the U.S. Supreme Court case, Trammel v. United States, the Supreme Court said the justification for having spousal privilege is it perceived role in fostering the harmony and sanctity of the marriage relationship.

 

What exactly is Marital Privilege?

It is important to know there are two types of spousal privileges.  First there is spousal testimonial privilege which provides that a spouse may not be compelled to testify against a defendant-spouse in a criminal prosecution. Spousal testimonial privilege can only be used in criminal cases.  When applying this privilege it must be determine that there is a valid marriage and if there is a valid marriage all testimony, including testimony concerning events that predated the marriage, is excluded. A second privilege involves confidential communications between spouses and applies in both civil and criminal cases.  In this situation a husband or wife can not be compelled to testify about a both words and acts intended to be a private communication. Federal court and most states recognized both privileges, while some states have one or the other.

Exceptions to Marital Privilege

In most states only the witness spouse has to the right use the privilege.  This means if a wife choose to testify against her husband and her testimony can not be bar by her husband. In other states both spouses may assert the privilege.  If the spouse is accused of an offense which involves a crime against the other spouse or their children, the privilege typically does not apply. Also, the marital privilege no longer exists when the spouses are the parties in an action against each other, such as in a divorce proceeding.



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Last Updated on Sunday, 17 February 2013 14:25