Privileges

Question 1

Spousal Immunity

Answer 1

Spousal immunity may only be invoked in criminal cases.

When privilege of spousal immunity is invoked, a married person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution.

A married person may not be compelled to testify against his spouse in any criminal proceeding.

However

Privilege not to testify may be asserted only by the testifying spouse who cannot be compelled to testify against spouse BUT cannot be foreclosed from testifying against spouse if she chooses.

Privilege lasts only during marriage and terminates upon divorce.

Privilege can be asserted as to matters that took place before marriage.

Question 2

Confidential Marital Communications

Answer 2

The privilege for confidential marital communications protects communications between spouses made:

1. while married and
2. in reliance on the intimacy of the marital relationship.

In any civil or criminal case, Both spouses jointly hold the privilege, and either spouse may prevent the other from disclosing the confidential communication made between spouses or refuse to disclose the communication.

Cannot be asserted as to communications made before marriage.

Divorce will not terminate privilege retroactively, but communications after divorce not privileged.