spousal privilege

Privilege for Confidential Marital Communications (Evid §917)

·        Valid marriage at time of communication (holder of privilege has burden of proof)
·        Communication between spouses (written or oral)
·        Confidentiality:  No knowledge of third parties overhearing.  Reasonable expectation of confidentiality must have existed, and the parties must have intended nondisclosure.  Opponent of privilege has burden of showing lack of confidentiality.
·        Asserting the privilege:  Either spouse can assert the privilege to prevent disclosure by anyone, including third parties or the other spouse (§980).  If neither spouse asserts the privilege, the judge has the power to do so on the court’s own motion, but is not required to do so.
·        If communication is, in whole or part, in the aid of a crime or fraud (§981).  However, the privilege not to be called as a witness and not to testify against one’s spouse does not contain this exception, and thus a spouse may refuse to take the stand or testify against another spouse, even if the communication was in the aid of a crime or fraud.  Opponent of the privilege has the burden of proof.
·        Evidence that the spouses communicated (the privilege protects only the content of the communication, not whether or not the communication happened).
·        Criminal proceedings
·        Privilege can be waived by holder if voluntary.  Waiver by one spouse does not impair other spouse’s right to claim privilege.  No waiver if disclosure made under another privilege (i.e. attorney-client).
Spouses also have a privilege not to testify against another spouse (§970), and not to be a witness against another spouse (§971).  A valid marriage is required, but confidentiality is not required.  Other requirements are the same.

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