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Federal Law on Spousal Privilege
Federal (and many state) courts recognize two types of spousal privilege:
Spousal testimonial privilege, barring testimony against a spouse in a criminal trial, and
Marital communications privilege, barring testimony about confidential communications between spouses.
Spousal testimonial privilege
This type of spousal privilege has been recognized throughout history and pre-dates our Constitution and even our country. It arises from the notion that married spouses are one entity and so are not competent to testify against themselves through their other (if not better) half. Under this type of spousal privilege, one spouse cannot be compelled to give testimony against his or her spouse who is a defendant in a criminal trial or the subject of a grand jury proceeding. The accused spouse may claim the privilege or the other spouse may claim it on behalf of the accused spouse. The spouses must be married at the time that the privilege is asserted; so an ex-spouse can be compelled to give testimony about a defendant to whom he or she was previously, but is no longer, married.
Exceptions to the spousal testimonial privilege exist where a spouse:
is charged with a crime against the other spouse
is charged with a crime against a child of either spouse
is charged with a crime against a third party in the course of committing a crime against the other spouse
is asked to testify about matters pre-dating the marriage, or
is charged with human trafficking for immoral purposes (such as prostitution)
In each of these situations, even current spouses may be compelled to testify against an accused spouse in a criminal trial or grand jury proceeding.
Marital communications privilege
Neither spouse can be compelled to testify as to private, confidential communications between them in either criminal or civil proceedings. But, only communications that the spouses intend to be, and maintain as confidential are protected. Not every statement between spouses is confidential or a communication. The same exceptions listed above apply to this type of spousal privilege. With respect to the marital communications privilege, as long as there was a valid marriage at the time of the confidential communication between the spouses, the privilege may be raised by either spouse even after the marriage has ended.