Spousal Privilege: When Spouses Have Confidential Communications Are They Admissible in Court?

People most frequently hear about the attorney-client privilege, meaning anything you tell your attorney, in confidence, shall be held in the strictest of confidence by your attorney. Absent your expressing a future intent to harm yourself or someone else, the attorney will assert the privilege if called upon to disclose those communications.

In Illinois, a similar privilege exists between spouses. Section 115-16 of the Criminal Code of Procedure, for example,provides that neither a husband nor wife “may testify as to any communication or admission made by either of them during the marriage, except in cases in which either is charged with an offense against the person or property of the other.” The purpose of this privilege is to promote marital harmony and stability and promote free communication and full disclosure between spouses.

Two elements must be met before the communication between spouses falls within the privilege. First, the communication must be an utterance or other expression intended to convey a message. Second, the message must be intended by the communicating spouse to be confidential in that it was conveyed in reliance on the confidence of the marital relationship. See People v. Trzeciak, 2013 IL 114491.

The above-mentioned elements become especially critical in domestic violence cases where a spouse attempts to assert the privilege, claiming that statements he or she made were confidential and thus inadmissible. The Illinois Supreme Court has found that such statements are not protected by the privilege and are therefore admissible in court. See People v. Trzeciak, 2013 IL 114491.

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