MBE Rules · Evidence
Marital privileges — testimony vs. confidential communications
The rule
Two distinct privileges: (1) SPOUSAL TESTIMONIAL PRIVILEGE — in a federal criminal case, the witness-spouse alone holds and may refuse to give any adverse testimony against the defendant-spouse; requires a valid marriage at the time of trial. (2) MARITAL CONFIDENTIAL COMMUNICATIONS PRIVILEGE — either spouse may prevent disclosure of confidential communications made during a valid marriage; survives divorce; applies in civil and criminal cases. Neither applies where one spouse is charged with a crime against the other spouse or a child of either.
In plain English
The two are often confused. Testimonial privilege covers ALL adverse testimony but only during the marriage and only in criminal cases (Trammel gives the witness-spouse the choice). Communications privilege covers only what was said in confidence during the marriage but survives divorce and applies broadly.
Memory hook
Testimonial = witness spouse controls, dies with divorce. Confidential = either spouse controls, survives divorce.
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