Marital Privilege

The Supreme Court has recognized two types of marital privileges:

1) Testimonial privilege: in criminal cases, one spouse may refuse to testify against his/her defendant spouse.  The witness spouse alone may choose to waive the privilege.

2) Communications privilege: 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 otherwise.

The marital privilege no longer exists when the spouses are the parties in an action against each other, such as in a divorce proceeding.

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