1. Around the World

1.1. United States

In the United States , federal case law dictates the privileges' permissible and prohibited invocation in federal trials,^[1] while state case law outlines their scope in state courts.

Communications privilege

A spousal communications privilege applies in civil and criminal cases.

Both the witness-spouse and the party-spouse hold the spousal communications privilege, so either may invoke it to prevent the witness-spouse from testifying about a confidential communication made during marriage.

The communications privilege begins on marriage, and can be invoked to protect confidential communications between now-married spouses that occurred prior to their marriage.^[2] Unlike testimonial privilege, the communications privilege survives the end of a marriage, and may be asserted by a spouse to protect confidential communications that were made during the marriage—even after divorce or death.

The spousal communications privilege may not be invoked if the spouses are suing each other or each other's estates in a civil case; if one of the spouses has initiated a criminal proceeding against the other; or in a competency proceeding regarding one of the spouses. These three scenarios are identical to the limitations which also apply to limit the spousal testimonial privilege. Two further scenarios apply to defeat the attachment of the spousal communications privilege: if the confidential communication was made in order to plan or commit crime or fraud, or if a defendant-spouse wishes, in a criminal trial, to testify in their own defense, about a confidential marital communication. In these five cases, a court will not allow either spouse to assert the privilege to block the testimony.

Testimonial privilege

A minority of states apply testimonial privilege in both criminal and civil cases. For example, under California Evidence Code ("CEC") §970, California permits the application of testimonial privilege to both civil and criminal cases, and includes both the privilege not to testify as well as the privilege not to be called as a witness by the party adverse to the interests of the spouse in the trial.^[3]

Under U.S. federal common law, the spousal testimonial privilege is held by the witness-spouse, not the party-spouse, and therefore does not prevent a spouse who wishes to testify from doing so.^[4] The rationale of this rule is that if a witness-spouse desires to testify against the party-spouse, there is no marital harmony left to protect through the obstruction of such testimony. This common law principle is the view in a minority of U.S. states. A majority of U.S. jurisdictions, however, do not follow U.S. federal common law; in most states, the party-spouse, and not the witness-spouse, is the holder of spousal testimonial privilege.

Spousal testimonial privilege covers observations, such as the color of the clothing the party-spouse was wearing on a certain day, as well as communications, such as the content of a telephone conversation with the party-spouse.

The witness-spouse may invoke testimonial privilege regarding events which occurred (1) during the marriage, if the spouses are still married; and (2) prior to the marriage if he is married to his spouse in court proceedings at the time of trial. If, by the time the trial occurs, the spouses are no longer married, the former spouse-witness may testify freely about any events which occurred prior to, after, or even during the marriage. Spousal testimonial privilege, in other words, only lasts as long as the marriage does.

Spousal testimonial privilege may not be invoked if the spouses are suing each other or each other's estates in a civil case; if one of the spouses has initiated a criminal proceeding against the other; or in a competency proceeding regarding one of the spouses.

Both rules may be suspended depending on the jurisdiction in the case of divorce proceedings or child custody disputes, but are suspended in cases where one spouse is accused of a crime against the other spouse or the spouse's child. Courts generally do not permit an adverse spouse to invoke either privilege during a trial initiated by the other spouse, or in the case of domestic abuse. The privileges may also be suspended where both spouses are joint participants in a crime, depending on the law of the jurisdiction.

1.2. England and Wales

Testimonial privilege

Spouses are, in general, both competent to give evidence in civil cases, and can be compelled to do so.^[5] This was established in section 1 of the Evidence Amendment Act 1853 and extended in the Evidence Further Amendment Act 1869 to proceedings instituted in consequence of adultery, the position on compulsion being clarified in Tilley v Tilley (1949).^[6]

In criminal cases, however, the common law long held that wives were not in general competent to give evidence against their husbands (i.e. for the prosecution). This derived from a view of husbands and wives as one person, which extended the defendant's protection against self-incrimination to their wife.^[7] A wife could however give evidence for the prosecution where her husband was accused of personal violence against her.^[7]

Section 4(1) of the Criminal Evidence Act 1898 made spouses competent witnesses in many more circumstances, including giving evidence for the defence. It was initially assumed that the Act also meant spouses could be compelled to give evidence, but the House of Lords disagreed in Leach v R (1912).^[7]

Distinguishing Leach, the Court of Criminal Appeal held in R v Lapworth (1930) that spouses were nevertheless compellable witnesses for the prosecution in cases of personal violence, on the basis that the common law position prior to the 1898 Act had not been unaffected by its entry into law.^[7] However, in Hoskyn v Metropolitan Police Commissioner (1978) the House of Lords overruled Lapworth, ending the personal violence exception in favour of spouses being competent but not compellable witnesses for the prosecution in all cases.^[7] In reaching this view, judges were swayed by the special status of marriage, and the "natural repugnance" that the public would feel at seeing a wife give evidence against her husband in a wide range of scenarios.^[5]

This lasted only until the entry into force of section 80 of the Police and Criminal Evidence Act 1984, which restored the ability of the prosecution to compel the testimony of the husband or wife of the accused (later amended to include civil partners) where the defendant has been charged with "assault on, or injury or a threat of injury to" the spouse or a person under 16, or a sexual offence toward a persons under 16.^[5] In addition, under the 1984 Act, the defence can almost always compel testimony,^[5] and as set out in section 53 of the Youth Justice and Criminal Evidence Act 1999, spouses will generally be competent to offer their testimony voluntarily.^[8] However, where the spouse or civil partner is an active co-defendant to the charges, they may only testify for the defence (and cannot be compelled to testify by either side).^[5] No privilege extends to couples who are neither married nor in a civil partnership,^[8] a source of major criticism.^[5]

Communications privilege

The existence of a communications privilege in the common law is disputed. Its existence was assumed by late nineteenth century writers, but Sir Wilfred Greene noted in Shenton v Tyler [1941] that having researched the subject he found no evidence to support this view.^[9] Rather, any such privilege was the result of statute, and, in particular, section 3 of the Evidence Amendment Act 1853 which provided that "no husband shall be compellable to disclose any communication made to him by his wife during the marriage, and no wife shall be compellable to disclose any communication made to her by her husband during the marriage". This provision was based on the Second Report of the Commissioners on Common Law Procedure, who referenced the "inviolability of domestic confidence".^[6] It was then repeated in section 1 of the Criminal Evidence Act 1898,^[10] which served to confirm its applicability to the criminal law.

The provision made in the 1853 Act was both limited – it did not extend to third party disclosure or prevent voluntary disclosure – and asymmetric, as it did not stop the speaker from being compelled to disclosure any communications, only the listener.^[6] As a result, in its Report on Privilege in Civil Proceedings published in December 1967 the English Law Reform Committee recommended its abolition in civil cases, which was done in the Civil Evidence Act 1968 and for criminal cases in the Police and Criminal Evidence Act 1984.^[6] The 1984 Act also repealed section 43(1) of the Matrimonial Causes Act 1965 (evidence as to marital intercourse).^[11]

1.3. Australia

In Australian law, both the common law privilege of confidentiality between married people and the privilege of spouses not to testify against each other were assumed to have continued with the "reception" of English law.^[12]

On 30 November 2011, the High Court of Australia decided that neither privilege existed in common law.^[13][14] However, a form of spousal privilege in regards to criminal trials is preserved by the Evidence Acts.