Skip to main content

What Is The Marital Privilege Against Being Forced to Testify Against Your Spouse - Part 7

Posted by attorney Theodore Robinson

An interesting issue is whether a written communication from one spouse to another that somehow gets into a third party's hands should be admissible against the original writer. In most instances, it will depend greatly upon how the third party came into possession of the writing. If it was given to the third party by the other spouse, then it should remain privileged and remain out of evidence. For example, if a wife writes a letter to her husband admitting she actually caused the death of their child and apologizes for her actions and the husband gives her letter to a Detective, the letter remains privileged and only the wife can waive her privilege, so it stays out of evidence against her at trial. However, if a third party comes into possession of such a letter without the other spouse giving it to the police, then it will depend upon how the third party came into possession of the writing. If it was done illegally through an illegal interception, then it may be subject to suppression, similar to the way an illegal eavesdropping may be subject to suppression before trial. It almost always comes down to the original rule that the only one who can waive the privilege is the one who made the original confidential communication with the expectation of it remaining confidential due to the strength of the bonds of matrimony. Of course, this is subject to the overall rule that both spouses must waive the privilege for the communication to be entered into evidence, However, that usually means the spouse who heard the confidential communication either wants to testify about it or is being compelled through Subpoena to do so, and the other spouse restricts that testimony by not also agreeing to allow it to go forward.

Author of this guide:

Was this guide helpful?

Filed under: Subpoena

Recommended articles about Lawsuits and disputes

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer