One of the most ancient legal privileges is the spousal privilege. Pennsylvania law still recognizes that a husband and a wife may refuse to testify against each other in a criminal proceeding – the privilege belongs to the witness spouse.
Pennsylvania also recognizes that where “confidential communications” have been made by one spouse to the other, neither spouse may testify in any civil or criminal proceeding, unless the other spouse waives the privilege. Communications between spouses are presumed to be confidential unless proven to be otherwise.
As with all rules, exceptions exist. Where a spouse seeks to avoid testifying about facts that he or she observed, he or she has no privilege if the charges include murder or serious sex crimes. The privilege also does not apply to cases involving certain kinds of domestic violence.
In all such cases, a spouse can be subpoenaed and required to testify about facts that he or she observed. However, in all cases, both criminal and civil, unless the non-witness spouse waives the spousal privilege, spouses can never testify against each other about their confidential communications. The blanket protection given to confidential communications arises from social respect for the intimacy and privacy of marriage.
The extent of the spousal privilege was recently tested in a case where a husband drove across the four-lane highway and struck another car, killing its driver. The husband was injured and had no recollection of the accident.
During the investigation, the husband’s wife called the police and voluntarily shared information regarding the husband’s former drug use, his current participation in a methadone program, and his treatment for bipolar disorder, depression, and dementia. She disclosed the names of the prescription drugs that the husband was taking for his psychiatric conditions.
At the time of trial, the wife refused to cooperate further and refused to testify. The court first determined that the legal issues were not related to confidential communications because the wife was simply refusing to testify about all of her knowledge and observations. However, because the husband was not charged with murder, serious sex crimes, or domestic violence, the wife was entitled to exercise her privilege to refuse to testify. When she did so, her former statements were not admissible at trial.
The privileges between attorneys and clients, health care providers and patients, counselors and clients, and clergy and parishioners are all similar to the spousal privilege and are all subject to different exceptions. The entire body of law surrounding witness privileges focuses on the social values placed on the relationships and on the need to protect the privacy and trust inherent in those relationships.