DTCI: Marital Privilege — A State Law Refresher

By Samantha A. Huettner

Editor’s note: This article is part one of a two-part series exploring marital privilege at the Indiana state and federal level.

In 2014, marital privilege became a hot topic after a New Jersey grand jury indicted former Baltimore Ravens running back Ray Rice on third-degree aggravated assault charges for allegedly assaulting his fiancee in an elevator. Rice and Palmer married the day after Rice’s indictment. Questions emerged about whether and to what extent the prosecutor could compel Palmer, Rice’s new spouse, to testify against him at trial. The general consensus was that the prosecutor would have an uphill battle because of marital privilege.

Marital privilege exists at the state and federal level, although the rules and law governing it differ by forum. The privilege aims to foster marital health and harmony, freeing spouses to communicate without concern that their intimate communications could be used against them. Hawkins v. United States, 358 U.S. 74, 77 (1958); 8 Wigmore, Evidence, § 2228 (McNaughton rev. 1961). Marital privilege is grounded in medieval law and has seen various iterations over the centuries. Historically, two common-law rules restricted spousal testimony: “testimonial privilege” and the “competence rule.” Testimonial privilege allowed either spouse to prevent one from testifying against the other. 8 Wigmore, supra, § 2227. This privilege was not limited to confidential communications but was available only to spouses who were married at the time of trial. Shepherd v. State, 277 N.E.2d 165, 167 (1971). The competence rule, on the other hand, was based on the now-abandoned legal principle that a wife was an extension of her husband, and “what was inadmissible from the lips of the defendant-husband was also inadmissible from his wife.” Trammel v. United States, 445 U.S. 40, 44 (1980).

“Indiana long ago abolished the rule of absolute spousal incompetence in favor of a narrow privilege encompassing only confidential communications and information gained by reason of the marital relationship.” State v. Roach, 669 N.E.2d 1009, 1011 (Ind. Ct. App. 1996). This narrow privilege is called the “marital communications privilege.” The privilege is statutory: “Except as otherwise provided by statute, the following persons shall not be required to testify regarding the following communications: …(4) Husband and wife, as to communications made to each other.” Indiana Code § 34-46-3-1. Such doctrine is distinct from the earlier testimonial privilege in several ways. Marital communications privilege, for example, is limited to confidential communications protecting only communications between individuals who have entered into a legally recognized marriage and survives the termination of the marriage. Holt v. State, 481 N.E.2d 1324, 1326 (Ind. 1985).

Marital communications privilege is restricted to confidential communications gained by reason of the marital relationship; the marital relationship does not protect every communication between spouses. Dixson v. State, 865 N.E.2d 704, 713 (Ind. Ct. App. 2007), trans. denied. Only those communications passing from one spouse to the other because of the confidence resulting from their marital relationship receive such protection. Id. Marital communications privilege is narrower than the privileges attaching to communications to attorneys, physicians, and clerics. The marital privilege 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. Glover v. State, 836 N.E.2d 414, 421 (Ind. 2005).

Indiana recognizes certain well-established exceptions to the marital communications privilege, including: (1) lawsuits between spouses (including divorce, custody, and protection order cases); (2) where a spouse’s testimony concerns disclosures by the other spouse not made in reliance upon the marital relationship but because the disclosing spouse was in need of his mate’s assistance and attempted to coerce his spouse by force and fear; (3) where the communication between spouses was intended to be transmitted to a third person; (4) where one spouse discloses a threat made by the other; and (5) where acts and communications to the spouse were made in the presence of third parties. Dixson, 865 N.E.2d at 713.

Civil and criminal practitioners must be mindful of marital privilege issues, which can manifest in many types of cases. As society continues to evolve, it is likely that marital privilege will continue to evolve, too.•

Samantha A. Huettner is an attorney with Huettner Law, a full-service Indiana law practice based in Indianapolis, and is a member of the Defense Trial Counsel of Indiana. Opinions expressed are those of the author.