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In Pennsylvania Criminal Matters, What is Spousal Immunity and Marital Privilege?

The spousal privilege is often something of a trope in television procedural dramas. All too often in these apparently dangerous television worlds a crime, like murder, is committed but prosecutors are stymied due to the key witness’ refuses to testify. One of the more common scenarios is where the witness is married to the accused. The spouse, or the defendant’s attorney, then invokes some form of a generic spousal privilege to prevent the spouse from testifying.

However, the exact nature of this privilege is rarely explained by these shows and can often appear as something of a deus ex machina plot element. In fact, in many popular shows the privilege is often misstated or presented in an overly expansive manner. The attorneys of Young, Marr & Associates are dedicated to educating & defending the rights of the accused. This post will examine the similarities and differences between spousal privileges and immunities.

What Is Spousal Privilege?

The spousal privilege is actually two different and distinct privileges: communications privilege and the testimonial privilege.

Communications Privilege

The communications privilege protects the contents of communications between spouses that are reasonably believed to be confidential. This privilege applies in both criminal and civil matters. The criminal version of the privilege reads, “in a criminal proceeding neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other, unless this privilege is waived upon the trial.” 42 Pa. Cons. Stat. § 5914.  The privilege begins at the time that the marriage was formed and protects only those communications that, “would not have been made except for the absolute confidence of the [m]arital relationship,” Commonwealth v. Darush, 420 A.2d 1071, 1076 (Pa. Super. Ct. 1980).

Being Arrested - In Pennsylvania Criminal Matters, What is Spousal Immunity and Marital Privilege?

Therefore the communications privilege cannot be invoked to protect confidential communications that occurred prior to marriage. However, the communications privilege does survive the end of a marriage meaning that statements made during the marriage are protected even if the marriage is terminated due to divorce or death. The communication privilege is held by both spouses meaning that either spouse may invoke the privilege to protect confidential statements.

However there are limitations on the invocation of this privilege. This privilege cannot be invoked if the communication was made in furtherance of a fraud. Therefore if a husband and wife are engaged in an alleged tax-fraud scheme, their communications are unlikely to be protected by this privilege. Furthermore while conduct can often express a message, in Pennsylvania the communications privilege does not apply to conduct within a marriage unless the conduct could be considered a confidential communication.

Testimonial Privilege

In contrast to the communication privilege, the testimonial privilege does not protect the content of the communications but rather protects the individual holding the privilege from being compelled to testify against his or her spouse by the prosecution. In Pennsylvania the spousal testimony privilege applies in both civil and criminal matters. The law states that, “except as otherwise provided in this subchapter, in a criminal proceeding a person shall have the privilege, which he or she may waive, not to testify against his or her then lawful spouse.” 42 Pa. Cons. Stat. § 5913. Therefore, if you confess to committing a crime, like assault, to your wife where the attendant circumstances would suggest a confidential communication, you would likely be able to prevent her from testifying in court.

There are limited exceptions to this general rule. For instance divorce proceedings, a suit between spouses, and instances of fraud can render this privilege ineffective. Furthermore, a spouse may testify to exculpate him or herself from criminal wrongdoing.

Banging Gavel - In Pennsylvania Criminal Matters, What is Spousal Immunity and Marital Privilege?

Why Do Courts Protect Marital Communications in Criminal Matters?

Some would undoubtedly wonder why such a privilege is permitted when it could result in disqualifying otherwise relevant evidence that could lead to a criminal conviction. In short, certain societal institutions are considered to be so central and sacred to the functioning of society, that they are protected despite collateral effects. Since at least the 1930s the spousal privilege has been considered, “…so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice.” Wolfle v. U.S., 291 U.S. 7 (1934).

Our Pennsylvania Criminal Defense Attorneys Can Fight For You

The attorneys of Young, Marr & Associates are tireless advocates for those accused of a crime. Drawing on the experience of former criminal prosecutors on our legal team we can formulate a legal strategy that is likely to reduce or dismiss the charges that you face.  Invoking your rights, such as the spousal privilege, may be part of the legal strategy devised by our experienced defense attorneys. To schedule a consultation with an experienced criminal defense attorney, contact us 7 days a week by calling (609) 755-3115 or contact us online.



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Commonwealth v. "H" (DUI case)

Client was charged with three separate DUI cases calling for mandatory minimum imprisonment of 90 days on each case. Client was advised to seek immediate intensive alcohol counseling. Client was sentenced to 1 year of house arrest after serving 3 days in the county prison.


Commonwealth v. "C" (Felony drug/Firearms case)

Client was charged with felony Delivery of drugs and illegal gun possession and was facing a mandatory 3-6 year prison sentence in the State prison system. Client was sentenced to one year of house arrest.


Commonwealth v. "S"

Client was charged with simple assault, domestic. After a hearing where evidence and testimony was presented, the entire case was dismissed by Judge Leonard Brown.


State of New Jersey v. "H"

Charges for young man charged with second degree aggravated assault were downgraded to third degree and he was accepted into the County Pretrial Intervention program with charges to be dismissed and record expunged after one year of misconduct free behavior.


We have decades of experience dealing with local police departments, prosecutors, and judges throughout southeastern Pennsylvania and New Jersey.

Anyone facing charges involving a criminal offense can expect to experience a heightened degree of emotional turmoil, for themselves, as well as their family members. Our team of highly qualified criminal law attorneys and expert legal support staff are committed to providing each of our client’s with the compassion and understanding they deserve, as well as an aggressive plan for representation at an affordable price.

As former prosecutors, we have a balanced and in-depth understanding of the criminal justice system and how the prosecution prepares cases. In addition, we have long-standing experience dealing with local police departments, prosecutors and judges throughout southeastern Pennsylvania and New Jersey.

At Young, Marr and Associates, when we say “experience matters,” we mean it. Our lawyers, which include two former prosecutors and a former senior deputy district attorney bring more than three decades of criminal law experience, handling more than 10,000 criminal cases. It is precisely that experience that allows us to achieve outstanding results for our clients facing DUI, traffic, felony and misdemeanor charges in state, federal and juvenile courts.