Spousal immunity and marital communications - Next Generation Bar Exam

1. What is the scope of the spousal testimonial privilege?

   It allows refusal to give any adverse testimony during a valid marriage, including about premarital events. In federal court, it applies only in criminal cases.

2. Under Trammel v. United States, who holds the federal spousal testimonial privilege in criminal cases?

   The witness-spouse. The witness-spouse may refuse to testify against the defendant-spouse but cannot be prevented from testifying.

3. A husband is charged with assaulting his wife. He invokes the marital communications privilege to exclude a threat he made to her in private. How should the court rule?

   Admit the statement under the exception for crimes against the spouse. The marital privileges do not apply when one spouse is charged with a crime against the other.

4. What is the effect of divorce on the marital communications privilege?

   It survives divorce for communications made during the marriage. Unlike the testimonial privilege, it protects communications permanently.

5. What does the marital communications privilege protect?

   Confidential communications between spouses made during the marriage. The communication must be intended to be confidential.

6. When does the spousal testimonial privilege end?

   When the marriage ends by divorce or annulment. The privilege protects the existing marriage.

7. In what types of cases do both marital privileges generally not apply?

   Cases in which one spouse is charged with a crime against the other spouse or a child of either. Courts also do not apply them in suits between the spouses.

8. What is the status of communications made in the presence of third parties under the marital communications privilege?

   They are not protected, because they are not confidential. Presence of children old enough to understand may destroy confidentiality.

9. The defendant's wife wishes to testify against him in a federal drug prosecution about drugs she saw him sell before the marriage. What is the effect of the testimonial privilege?

   It does not bar her testimony, because she holds the privilege and chooses to testify. Under Trammel, the defendant-spouse cannot prevent the witness-spouse from testifying.

10. Who holds the marital communications privilege under the prevailing view?

    Both spouses. Either spouse may prevent the other from disclosing a confidential marital communication.

11. During marriage, a husband privately told his wife he embezzled funds. After divorce, the government calls her to repeat it. Which privilege may he assert?

    The marital communications privilege. The communication was confidential and made during the marriage, so the privilege survives divorce.

12. What is the status of communications made in furtherance of a joint crime between spouses under the prevailing federal view?

    They are not protected by the marital communications privilege. The partners-in-crime exception reflects that such communications do not merit protection.

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