What Is the Spousal or Marital Privilege? - FindLaw Blotter
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What Is the Spousal or Marital Privilege?

Katherine Russell, the wife of deceased Boston bombing suspect Tamerlan Tsarnaev, is assisting in the FBI's investigation, Reuters reports. But could the spousal or marital privilege somehow come into play?

Federal agents gathered potential evidence Monday at Russell's parents' home in Rhode Island, where the 24-year-old widow has been living. Her lawyers are reportedly negotiating how much access investigators will have with their client.

But whatever information the authorities are seeking, Russell may try to use the marital privilege to bar that information at trial. So what exactly is the spousal or marital privilege?

Two Different Privileges

"Marital privilege" and "spousal privilege" really refer to two different kinds of legal privileges. These two privileges are:

  1. The spousal testimony privilege, which allows spouses to decline to testify against one other in a criminal trial; and
  2. The marital communications privilege, which prevents communications between spouses during a marriage from being entered into evidence.

State and federal laws are not always in sync on how these privileges apply.

Spousal Testimony Privilege

Historically, the spousal testimony privilege allowed a spouse in a criminal trial to deny his spouse from testifying against him. But many states, and the U.S. Supreme Court, now hold that the spouse who might act as a witness is the one who holds the power to testify or not.

This privilege lasts only as long as the marriage does, and a divorced spouse may testify about any events that occurred before, during, and after the marriage without disrupting the spousal testimony privilege.

Marital Communications Privilege

Unlike the spousal testimony privilege, this privilege lasts long after the marriage is over -- but it only applies to communications that occurred during the marriage. It is also available in civil as well as criminal court.

Using the marital communications privilege makes it possible for either spouse to object to presenting evidence of communications between the two which happened during the course of their marriage.

This privilege is similar to other confidential communications like the priest-penitant privilege, and it is destroyed when communication is shared or overhead by a someone outside the marriage.

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