Intro to the Federal Rules of Evidence - 21

E. HUSBAND-WIFE PRIVILEGE

1. Spousal Immunity
a. Rationale
To promote marital harmony: requiring one spouse to testify against the other tends to break up the marriage.
b. Privilege not to testify in criminal cases
i) Federal Courts – privileges belongs to witness-spouse
Trammel v. U.S., 445 U.S. 40 (1980)
ii) State courts – privilege belongs to party-spouse
c. Immunity may be asserted only During marriage
This immunity applies only if the parties are still married at the time of a trial, but applies to statements made before the marriage took place.
d. Exceptions
Crimes against the other spouse or the children of either.

2. Privilege for Confidential Marital Communication
a. Rationale
To promote marital harmony by encouraging the exchange of confidences between spouses.
a. Privilege not to testify in civil/criminal cases
b. both spouses as holders
c. privilege may be asserted after divorce
It applies even if the parties are no longer married by the time of the trial. But it covers only statements made during the marriage
d. Exceptions
Suits between spouses (e.g., a divorce suit), prosecution for crimes against other spouse/ the children of either, communications made for the purpose of planning or committing a crime.