Privileged Information at Trial: Spousal Privileges for Same-Sex Couples

Learn about the effect of the Supreme Court’s same-sex-marriage decisions on rules of evidence relating to matrimony.

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The Supreme Court case of United States v. Windsor struck down a core component of the Defense of Marriage Act (DOMA) and established that same-sex spouses are entitled to the same federal rights as any other spouses. Then, in 2015’s Obergefell v. Hodges, the Court held that same-sex couples have an equal right to marry. Neither case did a tremendous amount to alter the criminal law landscape, but they’re relevant to a couple rules of evidence that affect married couples in criminal trials.

Because of these decisions—particularly Obergefell—the marital privilege rules discussed below presumably extend to same-sex spouses. (Even before that decision, in early 2014, U.S. Attorney General Eric Holder announced new Department of Justice (DOJ) policies on same-sex marriage; one policy was to honor assertions of marital privileges involving legal same-sex marriages.)

Privileges Against Disclosure

Privileges refer to rules of evidence that generally protect certain kinds of information from disclosure. They apply to private communications made in the course of certain relationships. Privilege holders can refuse to testify, or prevent someone else from testifying, without being held in contempt of court. Privileges reflect the legislature’s determination that the privacy of certain relationships is more important even than revealing the complete truth at trial.

There have traditionally been two evidence privileges between spouses. These were designed to preserve the marital relationship and to foster open and honest communications between members of a married couple.

The Spousal Testimony Privilege: Spouses Don’t Have to Testify Against Each Other

In most jurisdictions, spouses need not testify against each other. The spousal testimony privilege applies when two people are legally married at the time of trial, regardless of whether they were married when the events at issue took place. The decision of whether the spouse will testify usually rests with the spouse who would potentially be called to the stand. Hardly any states give the spouse on trial the ability to prevent the other spouse from testifying. The purpose of this privilege is to preserve marital harmony (such as it may be).

Take April and her husband Chad, for example. April sees Chad throw a handgun into a river. At Chad’s trial for attempted murder, the prosecution subpoenas April to testify about what she saw. In most states, it’s up to April whether to testify; in just a few states Chad would be able to prevent her from testifying. These rules would typically apply even if April and Chad weren’t married at the time of the handgun toss, provided that they were married at the time of trial. But even if they were married at the time of Chad’s actions, there is likely no spousal privilege if they are legally separated when April is called to testify.

The Spousal Communication Privilege: Confidential Conversations Are Strictly Privileged

A separate privilege shields private conversations between spouses from disclosure in court. The communications are confidential if the spouses speak under conditions suggesting that they intend the information to be private. The spouses must be legally married at the time of the communication for the privilege to apply; whether they are still married at the time of trial is generally irrelevant. Each spouse has the power to prevent the other from testifying regarding this kind of confidential communication. This privilege is designed to encourage frank and open communications during the marriage.

In our above example, assume that April and Chad are married at the point that Chad sees April run into the house and vigorously wash her hands. She exclaims to him, “I’m trying to make sure there’s no gunshot residue on my hands!” The couple is still married at the time of April’s trial for assault with a firearm. The prosecution subpoenas Chad to testify about what he saw and heard when April ran into the house. In most states, because of the spousal testimony privilege, Chad is the one to decide whether to testify. If he chooses to, he can testify to seeing April run into the house and wash her hands. But, the spousal communication privilege allows April to prevent Chad from testifying regarding her gunshot residue statement.

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