Husband Wife Privilege
By claiming the husband - wife privilege, you can prevent your husband or wife from testifying against you in court. But there are important exceptions.
Who or what is covered?In Florida, the husband-wife privilege is a rule of evidence that prevents the use of confidential martial communications as evidence in court.
The privilege applies in both civil and criminal cases. Either spouse can claim the privilege to prevent him or herself, the other spouse, or a third party, from testifying. The privilege has four exceptions:
The privilege does not apply where one spouse brings a civil case against the other spouse.
The privilege does not apply in a criminal case in which one spouse is charged with *a crime committed at any time against the person or property of the other spouse.*
The privilege does not apply in a criminal proceeding in which one spouse is charged with a crime committed at any time against the *person or property of a child of either spouse.*
The privilege does not apply in a criminal proceeding where a spouse, who is a defendant, wants to introduce the communication into evidence.
Waiving the privilegeA spouse can inadvertently waive the privilege by disclosing all, or part, of a confidential marital communication. Waiver can also occur when a spouse consents to the communication*s disclosure by the other spouse. The privilege can also be waived by failing to assert the privilege in court.
When the privilege applies, it *attaches to the conversation or the communication itself, and protects it from exposure in evidence, wheresoever or in whosoever hands it may be.* Thus, a third party can be prevented from testifying about communications that the husband and wife reasonably believed were confidential. Also, evidence of the confidential communication in the form of a letter, email, video, or audio can be excluded.
Valid marriage requiredFor the privilege to apply, there must be a valid marriage. There is no privilege if the marriage was a sham, unconsummated, or otherwise not legally recognized in Florida. Communications between live-in partners, engaged couples, or *common law* spouses are not covered.
When there is a valid marriage, the privilege applies to only to conversations occurring after the marriage is formalized. There is no protection for communications occurring before a couple is formally married. In contrast, for communications occurring during the marriage, the privilege survives even after the termination of the marriage by death or divorce.
*Communications*The privilege covers only *communications which were intended to be made in confidence.* So, a spouse can be made to testify about things that the spouse saw. For example, where a wife sees a husband run a red light, she can be called to testify that the husband ran the red light, despite her and her husband*s objections. Also, the spouse can be made to testify about things that the spouse heard which were not confidential martial conversations. For example, if a spouse overhears the husband tell a friend *hide the stolen truck in your shed* she can be called to testify about her husband*s statement, despite her and her husband*s objections.
*In confidence*Conversations between a husband and wife that were not *in confidence* are also not covered. If a husband and wife know, or should know, that their communication or conversation is not private, the privilege does not apply. Thus, jail phone conversations between a husband and wife are not protected if they had reason to believe that the call was being recorded or monitored. Also, an eavesdropper can testify about an overheard conversation where the husband and wife knew, or should have known, that they could be overheard.
Prevents only in-court testimony/other evidenceThe husband-wife privilege prevents only in-court testimony, or other in-court evidence, of a confidential communication.  A spouse can be interviewed by police about communications covered by the husband-wife privilege. Even though this information cannot be used as evidence in-court, it can be used to develop other incriminating evidence. It can even serve as the basis for a search warrant application.
As the court noted in Trammel v. United States, the privilege does not prevent *the Government from enlisting one spouse to give information concerning the other or to aid in the other's apprehension. It is only the spouse's testimony in the courtroom that is prohibited.*