What is the difference between testimonial privilege and marital communications privilege in New York state courts?
Executive summary
New York law treats two distinct marital privileges differently: the marital (confidential) communications privilege protects private communications made during marriage and survives the end of the marriage, while the adverse spousal testimonial privilege (often called the testimonial or spousal testimonial privilege) governs whether one spouse can be compelled to testify against the other and typically lasts only while the marriage exists [1] [2] [3].
1. What each privilege protects and why — intimacy versus testimonial exclusion
The marital communications privilege is aimed at protecting “confidential communications induced by the marital relationship,” shielding private words and acts exchanged in confidence to foster marital harmony; it applies to communications intended to be confidential and is rooted in policy favoring trust between spouses [1] [3]. By contrast, the adverse spousal testimonial privilege bars—or, in some formulations, limits—one spouse from being compelled to give adverse testimony against the other, a doctrine historically justified as preserving marital peace and avoiding placing a spouse in the position of testifying against the other [4] [5].
2. Who holds the privilege and who can invoke or waive it
In New York the communications privilege functions as a protection belonging to the spouse who would be the object of the disclosure: a spouse cannot be compelled, and without the other spouse’s consent is not allowed, to disclose a confidential communication made during the marriage [6] [1]. The testimonial privilege’s ownership and waiver rules vary by jurisdiction, but federal precedent and many modern treatments distinguish the testimonial privilege as one that the witness-spouse can sometimes waive by choosing to testify; New York’s rules, however, treat the marital testimonial protections differently under state statutes and case law [7] [4] [2].
3. Duration: what survives divorce and what dies with the marriage
A key practical split is temporal: the marital communications privilege survives the marriage and continues to protect confidential statements made while the parties were married even after divorce, whereas the adverse spousal testimonial privilege typically terminates with the marriage—former spouses generally cannot invoke the testimonial bar because the marital relationship that grounds it no longer exists [2] [8] [9].
4. Scope and limits — confidentiality, subject matter, and exceptions
The communications privilege is narrow: it protects confidential marital communications but does not cover ordinary business matters, communications disclosed to third parties, or statements not induced by the marital relation; courts require the communication to have been intended as confidential [1] [6] [10]. Both privileges have recognized exceptions—such as communications made to further a crime or fraud, crimes against the other spouse or children, or disclosures in the presence of third parties—and courts will refuse privilege where statutory or common-law exceptions apply [11] [12] [10].
5. Civil vs. criminal proceedings and evidentiary consequences
The marital communications privilege is broadly applied in both civil and criminal proceedings to bar introduction of confidential marital exchanges [5] [3]. The testimonial privilege is more controversial in civil cases and historically has been treated differently across jurisdictions; New York’s evidence rules and CPLR provisions control how and when each privilege operates in state courts [5] [1] [13].
6. Practical implications for litigants and prosecutors — strategy and surprises
For litigants, the surviving nature of the communications privilege means statements made during marriage can remain protected long after separation and thereby influence document and witness strategies; prosecutors and opposing parties must try narrow exceptions like crime-fraud or third-party disclosure to overcome the bar [8] [12] [10]. Conversely, if the issue is compelling a spouse to testify in a live trial, the testimonial privilege’s temporal limitation and the possibility that a witness-spouse may choose to testify can leave defendants without the broad shield sometimes imagined [2] [7].
Conclusion — the core difference, succinctly stated
The core difference in New York is this: the marital communications privilege protects confidential marital communications (narrowly defined and surviving divorce) and belongs to the spouse who would be harmed by disclosure, while the adverse spousal testimonial privilege deals with whether a spouse can be compelled—or can prevent—testimony against the other during the life of the marriage and is subject to different ownership and waiver dynamics and to more jurisdictional variation [1] [2] [6].