The Spousal Privileges

• Publication year: 1997
• Pages: 61
• Citation: Vol. 26 No. 1 Pg. 61

26 Colo.Law. 61 Colorado Lawyer 1997.

1997, January, Pg. 61. The Spousal Privileges

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61

Vol. 26, No. 1, Pg. 61

The Colorado Lawyer
January 1997
Vol. 26, No. 1 [Page 61]

Specialty Law Columns
Civil Evidence
The Spousal Privileges
by Martin D. Litt, Susan B. Dussault

Martin D. Litt and Susan B. Dussault are associates with Holme Roberts & Owen LLP in Denver, (303) 861-7000

Persons interested in submitting articles for publication in this column may contact Lawrence Zavadil with Holme Roberts & Owen LLP in Denver, (303) 861-7000

Q: Can a party prevent his or her spouse from testifying for or against the party or from testifying about a communication the party made to the spouse during the course of their marriage

A: Yes. Under certain circumstances, a party can prevent his or her spouse from offering any testimony for or against the party or from disclosing marital communications if the spouse testifies.

Colorado's statutory privileges are incorporated into the Colorado Rules of Evidence ("C.R.E.") through C.R.E. 501.1 CRS § 13-90-107 enumerates many of those privileges, including the two distinct privileges commonly referred to collectively as the spousal privileges. These two privileges are: (1) the "rule of spousal disqualification," under which a party may prevent his or her present spouse from testifying for or against the party without the party's consent; and (2) the "marital communication" privilege, under which a party may prevent examination of his or her present or former spouse as to any communication between them during their marriage.2

The spousal privileges are a product of the common law and have been historically recognized as necessary to protect the "sanctity and tranquility of the marital relationship from the disruption attendant to adverse spousal testimony."3

General Rules

Although the two spousal privileges differ in material respects, there are a number of general rules that apply to both. For example, both of the spousal privileges contemplate the existence of a valid marriage.4 Under the rule of spousal disqualification, there must be a valid marriage at the time of testimony.5 Under the marital communication privilege, there must be a valid marriage at the time of the communication.6

The party asserting the spousal privileges bears the burden of establishing their applicability, including the existence of a valid marriage.7 A common law marriage constitutes a valid marriage for purposes of applying the spousal privileges.8 A sham marriage, however, such as one entered into solely to enable one party to gain admission into the country, does...