History Main / SpousalPrivilege

* In ''Series/TheSopranos'', Adrianna gets this idea from a late-night crime show and proposes to Christopher so she can't testify against him. Unfortunately, some clarification from an actual lawyer points out the flaws in this plan.

# Marital confidences privilege: Any private conversation between spouses during the marriage, even if the two are later divorced, is not admissible as evidence, unless both allow its admission. There are exceptions to this; for example if ''both'' spouses are parties to a criminal conspiracy they can't invoke privilege to hide their conversations in furtherance of it. This is roughly equivalent to the attorney-client privilege or the priest-penitent privilege, with the unique twist that both parties have to agree (in the other two, the attorney/priest must reveal what was said in confidence if the client/penitent allows it).

* In the ''Series/{{Castle}}'' episode "Den of Thieves," they interview the wife of Esposito's allegedly DeadPartner, whom they suspect of the murder of the week. She points out that either he's really dead, in which case he didn't do it, or he's not, in which case they're still married and she can't be compelled to testify against him.

Currently, in U.S. federal courts (other nations' courts and State courts frequently have a different, typically lesser, degree of protection), two spousal privileges exist:

** In "Living Proof", the wife, after being told that her husband is a war criminal and likely murderer, she, in a state of shock, relates how her husband came home covered in blood (which she presumed was from the assault on him), then invoked spousal privilege and told the police they couldn't act on the information in that conversation. Brenda complies and tries to find probable cause to search for traces of blood, [[spoiler:but in the end, they get around the spousal privilege by establishing that the husband used a fake name on his marriage certificate, thus nullifying the legality of the marriage and spousal privilege]].

* In ''Series/BoardwalkEmpire'', Nucky marries Margret partly so she cannot testify against him in his trial for the murder of her first husband.

** In another episode, [=McCoy=] tries to claim that spousal privilege has been nullified because a third party was present when a man divulged some pertinent information to his wife. Unfortunately, said third party was the couple's marriage counselor, [[ConfessInConfidence which falls under "doctor-patient" privilege]]. [=McCoy=] then tries to claim that ''that'' privilege is void because of the presence of a third party, but the judge tells him he can't have it both ways.

** It also plays a role in the 2009 season finale "The Drowned and the Saved", and many others.

* This happened on an episode of ''Series/MurderOne''.

--->'''Brenda''': I couldn't get your wife to testify against you, but I knew ''you'' could.

* ''Series/TheCloser'' used variations on both types, on different occasions.
** In the first instance, the wife claims spousal privilege so she can't be forced to testify against her husband, which Brenda tells her doesn't apply in this case, though in the end, she testifies of her own will [[spoiler:as part of a plea deal, as she had committed the murder at her husband's instigation]].
** In the second instance, the wife, after being told that her husband is a war criminal and likely murderer, she, in a state of shock, relates how her husband came home covered in blood (which she presumed was from the assault on him), then invoked spousal privilege and told the police they couldn't act on the information in that conversation. Brenda complies and tries to find probable cause to search for traces of blood, [[spoiler:but in the end, they get around the spousal privilege by establishing that the husband used a fake name on his marriage certificate, thus nullifying the legality of the marriage and spousal privilege]].

* A major plot point in ''Literature/BrightonRock''.

'''George Sr.:''' Really? ''[{{facepalm}}s]'' ...I have the worst f''[[[SoundEffectBleep bleep]]]''ing attorneys.

* On ''Series/OneLifeToLive'', David blackmails Dorian into marriage so that neither of them can be forced to testify against each other regarding their obstruction of justice regarding Victor Lord's murder [[note]] It's a very common SoapOpera trope for people who despise each other to enter into such an arrangement [[/note]] It's a classic example of HollywoodLaw; spousal privilege applies to things discussed ''during'' the marriage. Even married, what each of them knew about the other before the wedding is fair game.

* There is a [[StarWars Luke/Mara]] fanfic, where the New Republic wants to prosecute Mara for her crimes while serving as Emperor Palpatine's agent. Their only witness is Luke. Now, being a Jedi Master, he's not supposed to lie... so he marries her, and thus gains the right not to testify.

* A plot point in Creator/AgathaChristie's ''Witness for the Prosecution'', though, as the story was originally written in 1925, the relevant legal clause was spousal ''incompetency'' (e.g., total inability of the wife to testify against her husband regardless of her own will) rather than ''incompellability''. That's why Romaine, wishing to testify against Leonard, has to assert that she is ''not'' his spouse (claiming to be legally married to another man), though it's left unclear whether this really was the case and whether it could realistically be proven in the court at the time.

** It also plays a role the 2009 season finale "The Drowned and the Saved", and many others.

** The "Criminal Hatred" episode had a homosexual rapist stop his husband testifying this way. [[spoiler: The husband still provides evidence that convicts the rapist for the death of one of his victims.]] Provides a funny moment when the ADA prosecuting the case lists off every reason he can think of to consider the marriage invalid; when Benson asks him if he would challenge a ''straight'' marriage that way, his response has to be seen to be believed.

When this is used in fiction, it tends to be ... [[HollywoodLaw broadly]] used to say that the other spouse ''can't'' be a witness, even if they want to be (note that it was true for some time in the past in some jurisdictions (including UK), but definitely not anymore, except in some strict interpretations of [[UsefulNotes/{{Islam}} Sharia law]]).

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[[folder: Fanfic ]]

[[folder: Film ]]

* In ''Film/ASongIsBorn'', Gangster Tony Snow wants to marry his moll girlfriend Honey Swanson just so she can't testify against him about a murder he committed.

[[folder: Literature ]]

[[folder: Live Action TV ]]

* In ''Series/TheSopranos'', Adrianna gets this idea from a late night crime show and proposes to Christopher so she can't testify against him. Unfortunately, some clarification from an actual lawyer points out the flaws in this plan.

** In another episode, [=McCoy=] tries to claim that spousal privilege has been nullified because a third party was present when a man divulged some pertinent information to his wife. Unfortunately, said third party was the couple's marriage counselor, which falls under "doctor-patient" privilege. [=McCoy=] then tries to claim that ''that'' privilege is void because of the presence of a third party, but the judge tells him he can't have it both ways.

** "Greed": In the climax, the two villains confess the whole plot to their respective spouses ''precisely'' to abuse spousal privilege, something with which they openly mock the detectives. The physical evidence isn't enough to conict either, and their spouses can no longer testify to what they heard. Their overconfidence eventually backfires when [[spoiler:investigations dig up a prior marriage license they hadn't gotten annulled, making their ''current'' marriages null and void]].
** Another episode involves a serial rapist giving trophies from his victims (usually, jewelry) as gifts to his wife. He would ask her to wear the gifts during sex. She thought nothing of it until presented with all the evidence of the rapes. She agrees to testify, but is forbidden from giving any details regarding what her husband would have her do with the gifts, as the defense attorney argues that giving gifts to a spouse counts as private communication and is inadmissible as evidence. The prosecutor is limited to asking only details as to when and which gifts were given. During the trial, the wife gets upset that she's not being asked more and breaks down, revealing the truth. The judge declares a mistrial, and the husband goes free, until [[spoiler:one of his earlier victims helps his wife shoot him "in self-defense"]].

** In the first instance, the wife claims spousal privilege so she can't be forced to testify against her husband, which Brenda tells her doesn't apply in this case, though in the end she testifies of her own will [[spoiler:as part of a plea deal, as she had committed the murder at her husband's instigation]].
** In the second instance, the wife, after being told that her husband is a war criminal and likely murderer, she, in a state of shock, relates how her husband came home covered in blood (which she presumed was from the assault on him), then invoked spousal privilege and told the police they couldn't act on the information in that conversation. Brenda complies, and tries to find probable cause to search for traces of blood, [[spoiler:but in the end, they get around the spousal privilege by establishing that the husband used a fake name on his marriage certificate, thus nullifying the legality of the marriage and spousal privilege]].

* {{Averted}} by ''Series/TheWholeTruth''--due to an exception, in the second episode the husband testifies against his wife.

[[folder: Real Life ]]

** One episode revolves around the concept that two villains had married their victims ''precisely'' to abuse spousal privilege, something with which they openly mock the detectives. Their overconfidence eventually backfires when [[spoiler:investigations dig up a prior marriage license they hadn't gotten annulled, making their ''current'' marriages null and void]].

# Marital confidences privilege: Any private conversation between spouses during the marriage, even if the two are later divorced, is not admissible as evidence, unless both allow its admission. There are exceptions to this; for example if ''both'' spouses are parties to a criminal conspiracy they can't invoke privilege to hide their conversations in furtherance of it. This is roughly equivalent to the attorney-client privilege or the priest-penitent privilege, with the unique twist that both parties have to agree (in the other two, the attorney/priest must testify if the client/penitent allows it).

# Marital confidences privilege: Any private conversation between spouses during the marriage, even if the two are later divorced, is not admissible as evidence, unless both allow its admission. There are exceptions to this; for example if ''both'' spouses are parties to a criminal conspiracy they can't invoke privilege to hide their conversations in furtherance of it.

If they are on opposite sides of the lawsuit, such as in divorce proceedings, child custody, or when one is the plaintiff and the other is the defendant, all spousal privilege is suspended.

'''George Sr.:''' Really? ''[facepalms]'' ...I have the worst f''[[[SoundEffectBleep bleep]]]''ing attorneys.

'''George Sr.:''' Michael, listen to me! These guys, the SEC, they have been after me for years. If I had put you in charge, you would be wearing one of these orange jumpsuits too.

->'''George Sr.:''' Don't worry, Michael. ''[conspiratorial whisper]'' They can't convict a husband and wife ''for the same crime!''\\
'''Michael:''' Yeah, that's not true. At all.\\
'''George Sr.:''' Really? ...I have the worst f[[SoundEffectBleep ---]]ing attorneys.