Spousal privilege during a criminal trial: What is it?

Objection! We’ve all heard it in countless television shows and movies that feature a courtroom scene.

Whether in real life or TV, defense attorneys commonly raise objections during trial, for instance, to prevent a witness from answering a question that could be damaging or unfair to the defendant.

Raising an objection is part of many rules of evidence, the so-called rulebook attorneys must follow during a criminal trial proceeding.

Another part of the rulebook involves the use of spousal privilege. But what is it and why is it beneficial?

Spousal, or marital privilege as it’s also referred to, basically keeps information discussed between two married parties confidential.

The law recognizes two types: the communications privilege and testimonial privilege.

Communications privilege

The communications privilege prohibits disclosure at trial of any confidential conversations between two parties while they were married. It can be invoked by either spouse even after the parties divorce, given that the communication in question occurred with the parties were married.

The privilege, however, only protects information discussed during the marriage, not prior. Further, the privilege only protects actual communications between the parties. An observation by one spouse, for instance, is not considered a communication and thus not protected.

Testimonial privilege

The other type of privilege is known as testimonial privilege, or spousal immunity. This type of privilege prevents a spouse from being forced to testify against the other spouse on trial. Similar to the communications privilege, it can be invoked even after a divorce.

This privilege, however, isn’t applicable in certain circumstances. For example, the privilege will not apply if one spouse is facing criminal charges relating to the other spouse.

Individuals who wish to find out more information as they may relate to specific situations are encouraged to consult with a criminal defense attorney.

There may be additional exceptions or nuances in state law that could deviate from these basic definitions.