Articles Tagged with Spousal Privilege

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Family4-200x200Spousal privilege is the legal and policy doctrine that accords confidentiality between spouses with an aim to encourage martial harmony and to protect families. There are two types of spousal privilege: (1) testimonial privilege and (2) communications privilege. Each privilege applies in finite circumstances and requires an inquiry into the status of the marriage.

Testimonial Privilege

Testimonial privilege is asserted in criminal cases. In this scenario, one spouse is called to testify against another spouse in a criminal proceeding. The spouse who is being called to the stand can assert testimonial privilege and refuse to testify against the defendant spouse. At the same time, this privilege is not absolute. The witness spouse may choose to waive his or her privilege and testify anyway. This can occur even under the objection of the defendant spouse.  In different jurisdictions, there are exceptions to testimonial privilege including in the case of marital rape. For the testimonial privilege to apply, the defendant spouse and the witness spouse must be married at the time the privilege is asserted.

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Divorce2-200x200There are two different types of spousal privilege in the North Carolina rules of evidence.  These privileges refer to a spouse’s right to refuse to provide certain evidence.  The two privileges are commonly referred to as spousal testimony and marital communications.

The first type of privilege is referred to as spousal testimony.  The spousal testimony privilege only operates to protect the witness-spouse in criminal cases.  This means that only the witness-spouse can invoke the privilege not to testify against defendant-spouse.  On the other hand, the witness-spouse can choose to waive his/her privilege and testify against his/her spouse.  This privilege applies while the couple is married and ends with a couple’s divorce.  NCGS 8-57 lays out specific circumstances where the spouse may be compelled to testify, but those exceptions are extremely limited (ex. prosecution for bigamy, prosecution for abandonment or child support).

The other type of privilege is commonly called marital communications.  This privilege applies to all cases, criminal and civil, and protects both spouses during and after the marriage.  What does that mean?  Any confidential communication made during a marriage is safeguarded by the privilege.  However, the communication must be made in private with the expectation of remaining private.  The privilege applies to the communication even after the marriage ends.  Furthermore, both spouses have the right to refuse disclosure of the communication meaning one spouse cannot waive and disclose the marital communication while the other spouse invokes the privilege.  The marital communication privilege also protects certain conduct as confidential martial communication.

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