In a marriage, spouses often confide with one another and communicate privately. When involved in a criminal case, the law of evidence provides a right called the marital privilege. Marital privilege, or sometimes called spousal privilege, allows for two evidentiary privileges to be afforded to married couples – testimonial and communication privilege. In different ways, these two privileges mean that a spouse could potentially not testify against their spouse or release communications.
Invoking the Testimonial Privilege
What must be noted, is that testimonial privilege does not immediately apply to all spouses. A spouse can choose whether they want to testify against their spouse. Marital privilege acts as an exception to the rule of having to testify when called upon. As such, testimonial privilege affords a spouse the right to not testify against their partner. On the other hand, communications privilege allows spouses to not disclose confidential communications (between the spouses) as evidence in a criminal case. It must be noted that communications privilege allows for either spouse to stop the other from disclosing information. Communications, in this case, refers to both written and oral information.
Testimonial privilege only applies to those who are married. Once a couple is divorced, they no longer enjoy the privilege to not testify against their former spouse. Furthermore, California has determined that for several crimes, a spouse cannot invoke their testimonial privilege, and these include bigamy and child neglect. Similarly, communications privilege only applies to confidential information that was shared between spouses while they were married. If one spouse reveals information to their partner prior to getting married, that information is not covered by this privilege. If a spouse requires more information regarding what kind of information and testimony is privileged between their partner, they should consult an experienced attorney.