By Matthew H. Thomas.
In the spirit of Valentine’s Day, my colleagues on the editorial board suggested that I write about the federal marital communications privilege.
The U.S. Supreme Court has described conversations between a married couple as the “‘best solace of human existence.'” The law on privilege has evolved over time. Today, marital conversations are no longer absolutely privileged.
Federal Rule of Evidence 501
In Federal Rule of Evidence 501, Congress gave the courts the flexibility to develop rules of privilege, to include marital communications privilege. Rule 501 provides in part: “The common law â€” as interpreted by United States courts in the light of reason and experience â€” governs a claim of privilege unless any of the following provides otherwise . . . the United States Constitution . . . a federal statute. . . or . . . rules prescribed by the Supreme Court.” But, in a civil case, Rule 501 provides that “state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.”
Federal common law recognizes two separate marital privileges: (1) the so-called “adverse spousal testimony” or “anti-marital facts” privilege, which permits a witness to refuse to testify against his or her spouse; and (2) the “marital communications” privilege, which allows either spouse to prevent testimony concerning statements privately communicated between them.
However, as discussed below, the privilege is not absolute in the case where one spouse wishes to testify about the other spouse’s criminal acts. In addition, the privilege does not apply in cases in which the testifying spouse is the victim.
The common law that we inherited favored absolute privilege. In 1628, Lord Coke of England observed that “‘it hath beene resolved by the Justices that a wife cannot be produced against or for her husband.'” In Trammel v. United States, the United States Supreme Court rejected the absolute privilege referenced by Lord Coke: “Nowhere in the common-law worldâ€”indeed in any modern societyâ€”is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being.”
Exceptions to Absolute Privilege
The U.S. Supreme Court has interpreted Federal Rule of Evidence 501 to protect privileged marital communication but not to prevent a spouse who wishes to testify, from testifying about criminal acts that the testifying spouse observed and communications made in the presence of third persons.
In Trammel, the defendant, indicted for importing heroin into the United States, moved to prevent his wife from testifying against him. The District Court held that the defendant’s wife could testify to any act she observed during the marriage and any communication made in the presence of a third person, but the court held that communications between the defendant and his wife were privileged and inadmissible.
The Supreme Court in upholding Trammel’s conviction wrote, “[w]hen one spouse is willing to testify against the other in a criminal proceedingâ€”whatever the motivationâ€”their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve. In these circumstances, a rule of evidence that permits an accused to prevent adverse spousal testimony seems far more likely to frustrate justice than to foster family peace . . . the privilege can have the untoward effect of permitting one spouse to escape justice at the expense of the other. It hardly seems conducive to the preservation of the marital relation to place a wife in jeopardy solely by virtue of her husband’s control over her testimony.”
No Privilege Exists if the Testifying Spouse is the Victim
No privilege exists if the testifying spouse is the victim of the defendant-spouse’s crime. In United States v. Seminole, the defendant’s wife, whom the defendant was charged with strangling and assaulting, refused to testify at trial. At the government’s request, the District Court compelled the wife to testify. During her testimony, the wife changed her story and claimed that she was the instigator of the attack. However, the prosecutor impeached the wife’s testimony using her prior statements and the jury convicted.
The Court of Appeals for the Ninth Circuit found that the District Court in Seminole had not erred, noting that it was a “well-established exception to the well- established privilege– if the spouse is the victim of the defendant’s crime, the privilege does not apply . . . 
Perhaps, the Best Solace of Human Existence, But Not Absolutely Privileged
In conclusion, under Rule 501, though conversations of married couples are perhaps the best solace of human existence, they are not absolutely privileged. Confidential conversations are protected. However, a witness-spouse may testify against their defendant-spouse concerning acts the witness spouse observed or statements the witness-spouse heard in the presence of third persons. Further, marital privilege does not apply to the testimony of a witness-spouse who is the alleged victim of a criminal act. In a civil case, state law applies.
Matthew H. Thomas is an Assistant United States Attorney (AUSA) in the Western District of Washington, Tacoma branch, and is a past president of the Tacoma-Pierce County Bar Association.
 Trammel v. United States, 445 U.S. 40, 51 (1980).
 Fed. R. Evid. 501.
 USA v. Seminole, 864 F.3d 1150, 1152 (9th Cir. 2017).
 Id. Trammel, 445 U.S. at 44.
 Id. at 52.
 Id. at 51.
 Id. at 42.
 Id. at 43.
 Id. at 52-53.
 USA v. Seminole, 864 F.3d 1150, 1151 (9th Cir. 2017).
 Id. at 1152.