This privilege remains in effect through death or divorce and the confidential communication can’t be divulged without consent of the other spouse

Alfonso Gambone
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A Philadelphia criminal defense lawyer representing accused persons throughout Pennsylvania and New Jersey.

When is communication between spouses admissible?

Our criminal defense practice which focuses on matters in Philadelphia, Pennsylvania and its surrounding suburban counties of Montgomery, Delaware, Bucks, and Chester, covers a variety of criminal offenses.

The majority center around illegal drugs, narcotics, guns, firearms, and drunk driving (DUI/DWI). The issue of the admissibility of evidence is critical to any criminal defense and it’s important to understand that this isn’t’ a trial issue. The criminal defense lawyer must address evidence admissibility at the pre-trial level through a Motion to Suppress and/or a Motion to Exclude evidence because it violates a person’s Constitutional Rights under Pennsylvania and/or the United States Constitution. I have written a number of articles and books on illegal searches and seizures, but this short article focuses on marital or spousal privilege. Spousal privilege obviously no longer applies to just heterosexual couples; same sex marriages can now utilize this legal principle as well.

The Public Policy Behind Spousal Privilege

In Pennsylvania confidential spousal communication privilege prevents a husband or wife from testifying against their spouse as to any communication which was made during the marital relationship. This privilege remains in effect through death or divorce and the confidential communication can’t be divulged without consent of the other spouse under 42 Pa. CSA § 5914. The reason behind this privilege isn’t any type of Constitutional Right but rather a public policy in the Commonwealth that confidential spousal communication should be preserved to maintain marital harmony, which will ultimately benefit society. Communication between spouses therefore, is presumed to be confidential and the party opposing application of the rule disqualifying that testimony will bear the burden of overcoming this presumption.

Only Communication Made During Marriage

Keep in mind that spousal privilege only applies to communication between spouses during the marriage. Whether the communication is privileged depends upon its nature and the character of the communication. Generally however, during a criminal proceeding, neither a husband nor a wife is competent or permitted to testify to confidential communications made by one to the other unless the privilege is waived by the defendant spouse.

While spousal communication applies to oral, written, expressions, and even gestures, it does not apply to acts which a spouse may observe. In Pennsylvania, spousal communication privilege only applies to communication. Keep in mind that communication must be gained through the marital relationship and so, it wouldn’t apply if the knowledge was gained prior to marriage or after it. Even if the spouses are separated, they are still legally married and, at least I would argue that, privilege applies to any communication between spouses.

The admissibility of spousal communication is a critical issue especially in cases involving illegal drugs and firearms where there is often communication about movements and transactions of money, paraphernalia, and other incriminating pieces of evidence.

Spousal Privilege Exceptions

While spousal privilege is very broad, there are exceptions to it. The public policy behind this communication is marital harmony and so a situation where a spouse attempted to intimidate a wife and, for instance, a victim child, would not be covered by the privilege. Any case involving child abuse is not covered by privilege of any kind, including, but not limited to, physicians, psychologist, counselors, or therapists. The only exception would be communication between a client (the defendant) and his or her lawyer, as well as a priest or minister who heard this individual’s confession.

For more information on criminal defense strategies in Pennsylvania and New Jersey, I encourage you to keep reading my blog and visit my free download section to obtain copies of my books, videos, and other resources.

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