The Supreme Court has recognized two types of marital privileges:
- Testimonial privilege
- Communications privilege
In criminal cases, one spouse may refuse to testify against his/her defendant spouse as a witness. As affirmed by the Supreme Court in Trammel v. United States (1980), the witness spouse alone may choose to waive the privilege, regardless of the defendant spouse's objection.
In both criminal and civil cases, communications between spouses during the marriage are privileged. This applies to both words and acts intended to be a private communication. The burden is on the opposing party to prove that particular words and acts were not intended as private communication.
Marital Privilege In General
Marital privilege no longer exists when the spouses are the parties in an action against each other, such as in a divorce proceeding.
When Congress codified spousal immunity, they intended it to be a "rule of privilege covered by this rule [Rule 501] and not by rule 601 of the competency of witnesses," as stated in the Notes of Committee on the Judiciary, Senate Report No. 93–1277 for Rule 501.