Spousal privilege safeguards certain communications between married partners from being disclosed in court. When it comes to white-collar cases, understanding how spousal privilege operates can help to inform your case strategy.
In New York and throughout the U.S., this privilege is designed to preserve marital harmony and safeguard the trust that underpins marital relationships. It can be difficult to manage legal challenges and marital challenges simultaneously. The law – somewhat surprisingly to many – honors that with certain safeguards in criminal cases.
Types of spousal privilege
In the United States, there are two primary types of spousal privilege: testimonial privilege and communications privilege.
Spousal testimonial privilege allows one spouse to refuse to testify against the other in criminal proceedings. It typically applies when one spouse is a defendant and the other is called to testify for the prosecution in a criminal context. Importantly, this privilege belongs to the testifying spouse. In other words, the spouse called to the stand can choose to invoke this privilege or waive it. This privilege is only valid during the marriage, meaning that it ceases to apply if the couple divorces before trial.
Marital communications privilege protects private communications made between spouses during the course of their marriage. Unlike the testimonial privilege, the marital communications privilege survives even after a marriage ends, safeguarding confidential exchanges made during the marriage. Both spouses hold this privilege, meaning that one spouse cannot unilaterally disclose the contents of a confidential communication if the other does not consent. This privilege can be especially relevant in white-collar cases where a spouse may have disclosed sensitive information about finances, business dealings or other pertinent matters that could be used against the defendant.
When spousal privilege may not apply
Spousal privilege is not absolute. Courts may limit or deny the privilege in cases involving joint criminal activity between spouses, as spousal privilege is not intended to shield criminal collaboration. Additionally, spousal privilege does not protect non-confidential or public interactions. If a conversation occurred in front of a third party, it is generally not considered privileged. Similarly, communications that do not concern the marital relationship, such as general business advice or administrative matters, may not qualify.
Anyone who is facing criminal charges and who is concerned about spousal privilege should strongly consider seeking legal guidance to better understand their rights and the limitations of this area of law.
