Duhaime's Law Dictionary


Husband-Wife Privilege Definition:

A special right that married persons have to keep communications between them secret and even inaccessible to a court of law.

Related Terms: Client-Solicitor Privilege, Priest and Penitent Privilege, Erunt animae duae in carne una

Also known as the marital privilege or the spouse-witness rule.

Similar to the client-solicitor privilege.

A special right that married persons have to keep communications between them secret to the extent of being shielded from giving testimony of the conversation in a court of law.

A privilege against adverse spousal testimony vested in both spouses or in a defendant-spouse alone.

While this privilege may have been varied in some states, it has always been held to be lifted where one spouse commits a crime on the other.

In United States v. Allery, the following words can be found in the reasons for judgment of Justice Heaney of the United States Court of Appeals:

"Three types of marital privilege were recognized at common law: (1) incompetency, where a spouse is determined to be incompetent to testify in civil or criminal proceedings for or against the other; (2) anti-marital facts, whereby one spouse could prevent the other from testifying against the other although otherwise competent; and (3) marital confidential communications, which prohibits testimony concerning intra-spousal, confidential communications arising from the marital relationship....

"The general rule that one spouse cannot be a witness against the other in criminal cases has been followed in federal courts (in the United States) on the policy grounds that such a privilege is necessary to foster family peace, not only for the benefit of husband, wife and children, but for the benefit of the public as well.

"However, criticism of the privilege for anti-marital facts as a mechanism for the suppression of truth and agitation for its abolition has been widespread among commentators.

"The rule is subject to the well-established exception where one spouse commits an offense against the other (which) ... has been broadly interpreted to include any personal wrong done to the other, whether physically, mentally or morally injurious."

In United States v. Weinberg, Justice Hamley of the United States Court of Appeals described the husband-wife privilege as follows:

"The basic principles may be briefly stated. The federal courts recognize that confidential communications between husband and wife are privileged. This privilege may be exercised by a witness called to testify before a grand jury.... (T)his privilege includes within its protection information obtained by the witness from his or her spouse, providing the information was privately conveyed. Marital communications are presumptively confidential. It is therefore necessary for the party seeking to avoid the privilege to overcome the presumption."

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