Marital privilege

Marital privilege, or spousal privilege, is a law of evidence that protects one spouse from being compelled to testify against the other.

Courts, in disregard of marital unity, have weakened this privilege in the past hundred years. Most notably, the U.S. Supreme Court in 1980 abrogated the centuries-old right of someone to prevent his spouse from testifying against him. See Trammel v. United States, 445 U.S. 40 (1980). As a result, in federal court today someone is allowed to testify against a spouse if the witness wants to (or is compelled to by a grant of immunity).

A similar, but independent, privileged protects communications made between spouses, which are intended to be confidential, from being disclosed in court:

“  |  Communications between the spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged; but wherever a communication, because of its nature or the circumstances under which it was made, was obviously not intended to be confidential it is not a privileged communication. See Caldwell v. State, 146 Ala. 141, 143; 41 So. 473; Parkhurst v. Berdell, 110 N. Y. 386, 393; 18 N. E. 123; Truelsch v. Miller, 186 Wis. 239, 249; 202 N. W. 352. And, when made in the presence of a third party, such communications are usually regarded as not privileged because not made in confidence. Jacobs v. United States, 161 Fed. 694; Cocroft v. Cocroft, 158 Ga. 714; 124 S. E. 346; cf. Linnell v. Linnell, 249 Mass. 51, 143 N. E. 813, with Freeman v. Freeman, 238 Mass. 150; 130 N. E. 220.  |  ”

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Wolfle v. United States, 291 U.S. 7, 14-15 (1934)