§39.01 INTRODUCTION

• Jurisdiction: North Carolina

§39.01. INTRODUCTION

There are two spousal privileges. Under the spousal testimonial privilege, a spouse may not be compelled to testify against a defendant-spouse in criminal prosecutions. A second privilege involves confidential communications between spouses and applies in both civil and criminal cases. There are exceptions to both. Some jurisdictions recognize both privileges while others have adopted one or the other.¹ The validity of the marriage is determined by the law of the place of the marriage.²

As drafted by the Supreme Court, proposed Federal Rule 505 recognized only the testimonial privilege.³ However, Congress deleted all the proposed privilege rules when it substituted the general federal rule on privileges (Rule 501).⁴ Nevertheless, federal cases recognize both privileges.⁵ There is no federal parent-child privilege.⁶

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Notes:

^[1] See Glover v. State, 836 N.E.2d 414, 417 (Ind. 2005) ("This spousal testimonial privilege is not recognized in Indiana law.").

^[2] See United States v. Jarvison, 409 F.3d 1221, 1225 (10th Cir. 2005) ("It is often assumed without discussion by courts that, in cases arising on an Indian Reservation within a State, the substantive law of the State is controlling in such situations. However, the because the Navajo Nation retains sovereign authority to regulate domestic relations laws, including marriage of its Indian subjects, Navajo law is dispositive as to the validity of the marriage in question."); United States v. Lustig, 555 F.2d 737, 747 (9th Cir. 1977) (neither the marital communications privilege nor the testimonial privilege applies where the marriage is not valid under state law, though the couple have lived together as man and wife for years); Glover v. State, 836 N.E.2d 414, 418 (Ind. 2005) ("It is undisputed that Glover's marriage to Dhaliwal was valid under Kentucky law and at the time of the alleged communication had not been voided or annulled.").

^[3] See 56 F.R.D. 244, 245 (1973).

^[4] For a discussion of the congressional action, see supra § 37.02 (discussing Federal Rule 501).

^[5] See United States v. Miller, 588 F.3d 897, 904 (5th Cir. 2009) ("The marital privilege encompasses two distinct privileges."); United States v. Jarvison, 409 F.3d 1221, 1231 (10th Cir. 2005) ("Federal courts recognize two marital privileges: the first is the testimonial privilege which permits one spouse to decline to testify against the other during marriage; the second is the marital confidential communications...