How does New York law define and limit spousal privilege in criminal prosecutions?
Executive summary
New York law recognizes a statutory marital (spousal) privilege that protects confidential communications between spouses and a related testimonial privilege that can prevent a spouse from being compelled to testify against the other in criminal proceedings; both are rooted in CPLR §4502 and related criminal procedure principles [1] [2] [3]. The protections are significant but far from absolute: New York courts construe the privilege narrowly when communications are non‑confidential, part of criminal collaboration, relate to abuse or child protection, or amount to ordinary business or fraud, and judges have developed exceptions through case law [4] [5] [6] [7].
1. What the statute says — the baseline rule
CPLR §4502(b) codifies the marital communications privilege in New York by providing that “a husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage,” a rule the courts apply in both civil and criminal contexts to protect confidential marital confidence [1] [2] [8].
2. Two related privileges — communications vs. testimonial
New York recognizes two distinct concepts: the marital communications privilege (protecting confidential interspousal communications) and the spousal testimonial privilege (which can prevent a spouse from being compelled to testify in criminal cases); the testimonial privilege is generally limited to criminal proceedings and is treated differently from communications privilege in many courts [3] [8].
3. Who controls the privilege and when it attaches
The privilege is not a free‑for‑all: New York precedent treats the privilege as protecting the communicating spouse from compelled disclosure and—critically—courts have held that the privilege “belongs to the spouse who the testimony is against,” meaning the objecting spouse can bar disclosure of confidential marital communications [1]. The presumption of confidentiality attaches automatically to communications made in reliance on the marital relationship, even amid separation, unless the communication is shown not to have been intended as private [1].
4. Core judicial limits — non‑confidential and business communications
New York courts routinely reject claims of privilege for “ordinary” business or non‑confidential conversations and will scrutinize whether the words or acts were intended to be private; courts have declined to let the marital cloak frustrate enforcement of judgments or shield evidence of commercial dealings and routine records [4] [2].
5. Criminal exceptions — joint participation, accessory conduct, and abuse
A major limitation in criminal prosecutions is that communications relating to joint criminal activity or where spouses are joint participants are not protected; courts have developed doctrines that vitiate the privilege when one spouse is an accessory after the fact or when communications further a criminal venture, and New York decisions have applied exceptions where marital confidences form part of criminal collaboration [5] [9] [6]. Separate lines of authority also carve out exceptions for testimony in cases involving threats, violence, or crimes against children—situations where policy overrides marital secrecy [6] [7].
6. Procedural application and contested lines
In practice, judges decide privilege disputes through motions and in‑camera review, weighing whether the communication was confidential, whether an exception (e.g., joint participation, fraud, business records) applies, and whether statutory or public‑safety interests trump the privilege; federal and state decisions in New York‑related matters show courts sometimes applying different tests depending on whether the proceeding is civil, criminal, or a grand jury matter [10] [3] [2].
7. What the reporting and practitioners emphasize
Practice guides and firm advisories stress two pragmatic points: first, the privilege can be waived or lost in specific factual scenarios (such as when communications are used to further a crime), and second, litigants should not assume blanket protection—defense strategies must account for narrow judicial constructions and well‑established exceptions that expose marital communications to scrutiny [6] [5] [4].