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What is the Marital Privilege?

Posted by Giovanna A. D'Orazio | Mar 21, 2018

This week it was reported that Donald Trump, Jr. and his wife Vanessa are divorcing.  When news outlets then reported that Vanessa Trump's divorce papers were filed by a criminal defense attorney, people started wondering if she was going to be subpoenaed by Robert Mueller as part of his investigation into Russian involvement in the presidential election.  And, for lawyers, the next thought was, how would the marital privilege work?  

So, what exactly is the marital privilege?  (This article is an overview of the marital privilege in New York State.  It is not intended to give an opinion as to the particular case of Donald and Vanessa Trump.)

The rules of evidence in civil cases in New York are in the New York Civil Practice Law and Rules (CPLR).  The marital privilege is at CPLR 4502(b) and provides “A husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage.”  This is applicable in criminal cases as well via Criminal Procedure Law 60.10.

The privilege only applies to “confidential communication[s]”.  Confidential communications are, of course, made in confidence and are described as those that are “induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship”.  People v. Fediuk, 66 N.Y.2d 881 (1985).  So, basically, the only reason I am telling you this is because we are married.

“Confidential communications” are not going to include every conversation between a husband and wife.  “[D]aily and ordinary exchanges between the spouses” are not protected by the marital privilege.  People v. Parker, 49 A.D.3d 974 (3d Dep't 2008).  “Daily and ordinary exchanges” can include what someone is planning to do or where they are planning to go on a particular day.  Threats are also not protected.

Additionally, if communications are made in the presence of someone else, they are generally not privileged because, if you speak in front of someone else, you're not expecting confidentiality.  People v. Melski, 10 N.Y.2d 78 (1961).

The privilege is often described as meaning that a spouse cannot be “compelled” (i.e., forced) to reveal confidential communications.  That sometimes begs the question, can he or she testify voluntarily?  The answer in New York is no.  The privilege belongs to the spouse who the testimony is against.  So, if that spouse makes a timely objection, the other spouse may not testify, even if they want to.  Melski, footnote 1. 

What if the spouses are now divorced? As long as the communications were made between spouses during a valid marriage, the privilege can be invoked after divorce.  Communications can also be privileged even if there are problems in the marriage: “[t]his presumption [of confidentiality] is not rebutted by the fact that the parties are not living together at the time of the communication, or that their marriage has deteriorated, for even in a stormy separation disclosures to a spouse may be induced by absolute confidence in the marital relationship.”  Fediuk at 883.

All cases are different and the answer to most legal questions is, "it depends on the facts".  So, nothing in this article is intended to constitute legal advice. If you need legal assistance, give us a call.  We are happy to see if we can help.

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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