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

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 now entitled to the same federal rights as any other spouses. Windsor doesn’t do a whole lot to alter the criminal law landscape, but it does present an opportunity to discuss spousal privileges for same-sex couples in criminal trials.

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 are two privileges between spouses, 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 apply even if April and Chad weren’t married at the time of the handgun toss, provided that they are married at the time of trial. But even if they were married at the time of Chad’s actions, there is 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 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 testimonyprivilege, 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 spousalcommunication privilege allows April to prevent Chad from testifying regarding her gunshot residue statement.

Does the DOMA Decision Provide More Same-Sex Couples With Spousal Privileges?

The Windsor decision holds that that the federal government must acknowledge same-sex marriages and provide federal rights accordingly. It does not create a fundamental right of marriage for gay and lesbian couples, nor does it prevent a state from refusing to acknowledge a same-sex marriage lawfully performed in another state. That means that Windsor doesn’t change evidentiary privileges for same-sex partners. Here is how that will play out, in state courts and in federal courts.

Privileges in state courts post-Windsor

When litigants ask a state court to apply a marital or spousal privilege in a given case, the judge will first need to determine whether there is (or was) a legal marriage. When a couple has been legally married in one state, but is in court in another, most of the time, the trial state will acknowledge the validity of the sister state’s marriage. But when it comes to same-sex marriage, the outcome may be different. That’s because Windsor left intact one key part of DOMA: States are free to refuse to acknowledge a same-sex marriage performed in another state. So, for example, a same-sex spouse married in Massachusetts, who is a witness in a Texas court, could find the court unwilling to recognize the marriage and thus unwilling to apply the spousal privileges. But what if the spouse is a witness in a trial held in a state that has not taken a position regarding same-sex marriage? It’s likely that the court would acknowledge the marriage, but not certain.

Privileges in federal trial courts post-Windsor

The spousal privileges may be invoked in trials that are held in federal courts, but the threshold question for a federal trial judge will be the same as that faced by her state court counterpart: Is this (or was this) a valid marriage? The federal court judge will apply the privilege rules of the state in which the court is located—this means that the judge will analyze the question just like the state court judge discussed above. The Massachusetts spouse in the example above will definitively have both privileges available only when the federal trial court is located in a state that recognizes the marriage. But if the court is in a state that explicitly does not, the privileges will not be available; and if the state has not passed a law (or held an initiative) on the subject, the result is less certain.

What is clear is that it will take a broader Supreme Court ruling—one forcing the states to offer marriage to same-sex spouses—for these evidentiary privileges to apply to all couples who choose to marry.

For more information on how the Windsor decision on the Defense of Marriage Act affects other legal rights and responsibilities, see The Supreme Court’s DOMA Decision.