Checking Your Privilege, Part 3: Marriage Means You Can’t Convict

Hey Dudes and Dudettes! We’re back with Part 3 of the Lawyers and Liquor look into evidentiary privileges and stuff. You know, those things that you see asserted in the court shows you watch while sitting alone at night in your apartment eating a Hungry Man dinner and pretending your law degree is worth something. Over the last two times, we’ve talked about the idea of an evidentiary privilege, and discussed the Holy Father of privileges, the attorney-client privilege. Today, we’re gonna go in the same direction: privileges that you or your client may have in relation to people they’re probably getting fucked by.

That’s right, today we’re gonna discuss the evidentiary privileges related to marriage. Buckle up, and get the engagement ring salesman on the phone, because essentially if you aren’t married, you need to shut the fuck up about your less-than-legal activities.

There are two types of privileges that come part and parcel with marriage, and surprisingly neither one of them include preferred treatment under the current tax code. Both are pretty firm privileges and, in fact, are things that I suggest people fucking consider when they are both 1) criminals and 2) experiencing cold feet about whether or not to formalize their relationship with their significant other in the eyes of the law. Good news, Sheila from the trailer park whose meth-head lover just won’t take the plunge, you’ve found a selling point the next time you ask why he hasn’t gone to the gumball machine and popped in a quarter for the ring that makes you an honest woman!

And I should really get away from talking about this privilege as being limited to only the husband and wife role, because this is the 21st century, baby! Scumbags of any sexual orientation should be taking this shit into account when they weigh the pros and cons of giving up the free roaming life of an untethered Casanova in favor of marital bliss. Don’t worry, the big old tent of spousal privilege has been opened up to everyone!

Before we get into the specifics of the privileges that come along with being married, though, we need to know what the two types of evidentiary privileges are that come along with being married. First, there’s the Marital Communications Privilege, and then there’s the Testimonial Privilege. I know, once you’re married society as a whole says that you’re supposed to stop messing around with alternative options, but the law didn’t get the fucking memo and, essentially, you and the privileges that come from being a married shitheel are now having an evidentiary menage a trois all over the presiding judge’s desk. You like that shit, don’t you?


Very simply put, boiled down to the most basic form, it’s an evidentiary privilege that says nobody can force your spouse to testify in a civil or criminal case about confidential communications made to your spouse during the course of the marriage. While that shit sounds simple, there’s actually a whole lot to unpack in that one little sentence, so let’s bring out the handy dandy “I’m a dipshit” lawsplainer mode to break it down to all the poor little lawyers and Muggles who aren’t exactly grasping the implicit limitations.

What Are The Limits of the Privilege?

First, let’s recognize the part that says “confidential communications.” Remember last time when I talked about how communications with your attorney aren’t privileged if you discuss that shit in front of third parties? Yeah, that applies here too. You can’t have a knock down drag out fight about Bob’s penchant for strangling hookers at the church dinner and then claim the communication was confidential and privileged. That doesn’t work. The most common definition of the protected communications, then, is “pillow talk;” that shit you and a spouse talk about in the late hours of the night when neither one of you can sleep because the hooker Bob kidnapped is whimpering in the basement. The stuff that we expect people to be able to talk about with their spouse.

Second, the communication has to be in the course of the marriage. Essentially, even confidential communications made in the course of dating are not protected by the privilege. You have to be legally married to your spouse to insist that shit remains between the two of you. Anything said outside of marriage? Well, fuck a whole lot of that. Besides, would you really want to marry someone who won’t take a contempt charge for you? Love is sacrifice, my man.\

Who Holds The Privilege?

The Marital Communications Privilege is also unique in that either spouse can assert it. Say you’re married to Hank when you decide to rob a goddamn bank. You talk to Hank about things related to the bank robbery (but not to plan it, we’ll get to that shit in a second) after the fact. Later, Hank and you get divorced, and you decide you want to testify against him. You can’t. You don’t fucking get to. Because the privilege, like everything in a marriage, belongs to both of the spouses: either or you can assert it to keep the other from testifying or to refuse to testify.

And that divorce thing? Not an issue. Because the Marital Communications Privilege is limited to only those confidential communications made in the course of the marriage, divorce doesn’t affect it at all. It remains in place whether you, or your client, remains married.

When Does The Privilege Not Apply?

Of course, while the whole point of the Marital Communications Privilege is to let spouses speak freely and foster a healthy marriage, there are probably more than a few of you who are thinking “oh shit, this could get bad!” I mean, what is one spouse wants to testify as to the abuse they suffered, or to show their innocence in their spouse’s plots?

Never fear. There are generally accepted exceptions to the exercise of this privilege. Among them are, as mentioned before, the whole “has to be confidential” part of this. Others include where the spouses are suing each other, where one spouse is accused of committing a crime against the other spouse, or when you’re trying to have your dear old lovebird tossed in the looney bin. Additionally, the whole “crime-fraud exception” (the communication was in furtherance of planning or committing a crime or fraud) also applies here, or when the spouse seeking to waive the privilege is testifying in their own defense in a criminal trial.

So no, once again, the Marital Communications privilege isn’t absolute. Here’s the Cheat Sheet take-away for it:

Applies In: Civil or Criminal Cases.

Protects: Confidential communications from one spouse to the other made in the course of the marriage, even after divorce or death.

Doesn’t Protect: Communications before marriage and non-confidential communications.

Held By: Either Spouse.

Waived: Crimes by one spouse against another, Civil actions between spouses, communications made in furtherance of a crime or fraud, for a spouse to testify in their own defense, and tossing Earl in the mental hospital.


Okay, so the Marital Communications privilege covers shit in the course of the marriage, and only the course of the marriage. But then there’s this other one out there called the Testimonial Privilege that’s sort of the same, except it totally fucking isn’t. It’s actually easier to point out the differences between the two than it is to define it separately. This, by the way, is why you had to learn them both in your evidence class back to back.

The first difference is there’s a break between the Federal law of evidence and the states in this one as to who the privilege actually belongs to. Federally, and in a minority of states, the spouse who is seeking to testify can waive the privilege and air all of their dirty laundry to the judge and jury if they damn well please. The idea here is the privileges are really meant to protect the institution of marriage, and if your spouse is willing to send your ass to jail it’s likely safe to say the marriage is fucking over, Susan. A majority of states, however, take the opposite view and say that the Testimonial Privilege belongs to the non-testifying spouse exclusively, and therefore can be asserted even if Susan has simply had enough of your shit.

It’s also much fucking broader than the Marital Communications Privilege in what is protected. Remember the Marital Communications Privilege covers only communications made to your spouse in the course of the marriage. The Testimonial Privilege, however, covers a whole lot of shit, including communications, telephone conversations, observations about the other spouse, etc. This is a really fucking broad scope of shit. Oh, it doesn’t have that “only communications made during the course of the marriage” thing. Anything that happened in the course of the relationship, including shit that happened before you got married, falls in the scope of privileged information under the Testimonial Privilege. The key factor is that after the communication was made or the thing happened, you got fucking married.

And, you know, in recognition of that the time that the Testimonial Privilege can be asserted is pretty fucking limited, too. Unlike the Marital Communications Privilege, which survives divorce, the Testimonial Privilege only lives for so long as the marriage lasts. In other words, if your client is charged while married, but tried after divorce, then the ex-spouse is free to testify about shit before the marriage and shit that isn’t covered by the Marital Communications Privilege.

Hey, hey you fucking criminals. Now’s a good time to go buy your spouse some flowers and give them a foot rub.

Of course, again, there are exceptions. Except for, like, California, this Testimonial Privilege only really applies in criminal cases and doesn’t apply in civil matters. This one, again, is waived where there is a lawsuit between the spouses, where the alleged crime was by one spouse against the other, or, again, making Earl a ward of the state.

Here’s your cheat sheet for Testimonial Privilege:

Applies In: Primarily Criminal Cases

Covers: Observations, words, and acts from prior to the marriage through the course of the marriage.

Doesn’t Cover: Jack shit after the marriage ends.

Waived By: Divorce or Death (end of the marriage), crimes against the spouse, tossing Earl in the looney bin.

Held By: Federal and Minority Rule – Testifying Spouse; Majority Rule – Non-Testifying Spouse

What’s My Take Away Here?

If you’re going to be a felonious scumbag, you better put a ring on it and be a loving goddamn spouse. Also, if you’re not married then don’t go fucking talking about your legal matters to your boyfriend or girlfriend unless you’re ready to have one hasty ass wedding when you get arrested. Civilly? Just don’t admit to liability to your significant other unless you’ve put a ring on it.

It’s shitty, but it’s the legally safest thing to do.

Lawyers are so fucking romantic, aren’t we?