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Spousal Privilege Does Not Apply to Criminal Behavior

By Kevin Schlosser
May 30, 2006

While it is often thought that the marital privilege prohibits a spouse from testifying at all against, or relating to communications with, the other spouse, there are a number of well-accepted limitations on the scope and application of this statutory privilege. Based on long-standing exceptions and limitations, the privilege is often unavailable in many contexts in both criminal and commercial litigation.

New York's marital privilege is codified in CPLR 4502(b), which provides in full: '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.' (There are statutory exceptions to the marital privilege in cases involving child abuse. See Prince, Richardson on Evidence ' 5-402 (11th ed., Farrell 1995).) The Court of Appeals has noted that '[t]he privilege, which is '[d]esigned to protect and strengthen the marital bond ' encompasses only those statements that are 'confidential,' that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship.” People v. Mills, 1 N.Y.3d 269, 276, 772 N.Y.S.2d 228, 232 (2003).

Thus, within the very definition and underlying purpose of the privilege are inherent limitations. For example, 'daily and ordinary exchanges' between spouses are not protected because the privilege encompasses only communications 'which would not have been made but for the absolute confidence in, and induced by, the marital relationship.' People v. Melski, 10 N.Y.2d 78, 80, 217 N.Y.S.2d 65, 67 (1961).

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