Marital Privilege

June 14, 2017

Can your spouse testify against you?. The answer is sometimes, yes.

The United States Court of Appeals for the Sixth Circuit (Tennessee’s circuit) has decided that one cannot invoke marital privilege as to confidential communications in child abuse cases. In recognizing that most states and federal circuits have created a child abuse exception, the Sixth Circuit adopted that exception to the rule.

There are two types of marital privilege. First, a spouse cannot be compelled to testify adversely against his or her spouse. The privilege is held by the testifying spouse. The defendant spouse cannot invoke it.

In the second type, a defendant can invoke the privilege as to confidential communications with his or her spouse with several conditions. The defendant and spouse must be married and the privilege applies only to utterances by one spouse to convey a message to the other confidentially. Exceptions occur when the couple is separated or when one commits an offense against the other.

In quoting the public policy behind this exception from a Tenth Circuit case, the court said,” it would be unconscionable to permit a privilege grounded on promoting communications of trust and love between marriage partners to prevent a properly outraged spouse with knowledge from testifying against the perpetrator of such a crime.”