§ 39.05 KEY POINTS

• Jurisdiction: North Carolina

§ 39.05. KEY POINTS

The spousal testimonial and confidential communication privileges need to be distinguished. Some jurisdictions have both privileges while others have one or the other. Federal courts recognize both.

Type of case. The testimonial privilege applies only in criminal prosecutions; the confidential communication privilege applies in civil and criminal cases alike. If the witness-spouse elects to testify as permitted by the testimonial privilege in some jurisdictions, the confidential communication privilege is still applicable.

Effect of rule. The testimonial rule precludes a spouse from testifying at all; the confidential communication privilege precludes a spouse from testifying only about communications (which may include acts, depending on the jurisdiction).

Scope and...