Question: What is marital privilege?
Answer: A rule of evidence that prevents a court from requiring a spouse to testify as to confidential marital communications, but does not bar the spouse from testifying if the spouse chooses to do so.
At common law, 2 rules restricted spousal testimony. First, a “testimonial” privilege allowed either spouse to prevent the other from testifying against him or her. This privilege was not limited to confidential communications, but was available only to spouses who were married at the time of trial. A second common law rule disqualified husbands and wives from testifying on behalf of their spouses. This competency rule was the product of the early common law disqualification of parties from testifying in their own causes, and also the notion that husband and wife were one.
The marital privilege is grounded in significant part not on a policy of promoting disclosure, but on concern for the health of the ongoing relationship between husband and wife and the policy of preventing further conflict between them by forcing one to testify against the other. However, there are limits to marital privilege. The privilege does not prevent a spouse from testifying when the offense was committed by one spouse against the other. The courts have also held that a spouse’s testimony concerning attempts to coerce the spouse is not within the marital privilege.