Privileged Spousal Communication: Pennsylvania Criminal vs. Civil Court Admissibility

Pennsylvania maintains a statute which provides that in a criminal proceeding neither a husband nor a wife can be called as a witness against each other to testify as to the nature of confidential communications between each other unless it is waived.  This is a key criminal defense concept especially in cases involving drugs, guns and DUI where frequently a person is arrested in their home or their car.  There is a very good possibility that person’s will be present and therefore a possible witness in a criminal prosecution.

Spousal privileged communication is waived when a Defendant spouse (the person on trial) or his attorney fails to object the non-defendants spouse’s testimony (aka the witness spouse) if the opposing party attempts to offer it into evidence. Either party, however, may waive the privilege if they communicate the nature of the conversation to a third party. Either spouse can also waive the communication on their own.

There is a difference, however, between the admissibility of spousal communication in criminal and civil court. In a civil proceeding (personal injury, medical malpractice, contract dispute) the spousal privilege may not apply if the intent of the party seeking to maintain the privilege is using it to protect a fraudulent transaction. This interpretation of spousal privilege in civil proceedings is well established in Pennsylvania jurisprudence and dates back to the 1940’s. The party seeking the testimony from “witness spouse” bears the burden of proving by a preponderance of the evidence that the communication falls within an exception to this Pennsylvania law. Again, these exceptions would include the furtherance of some type of civil fraud or if the spouse communicated the nature of the conversation to a third party. This is all assuming that the spouse wasn’t willing to testify against his or her partner.

Recently, however, in Pennsylvania the prosecution has attempted to extend spousal privilege to a criminal case under the theory that the crime-fraud exception in civil cases should also apply to criminal proceedings. The Pennsylvania Superior Court, however, has chosen to not make this extension and so spousal privilege continues to apply in criminal proceedings. The court in this recent decision specifically said that it would not extend the privilege due to the original public policy behind spousal communication which is the maintaining of harmony between spouses which ultimately benefits society. Again, however, this assumes that this communication was never made public or at the very least communicated to a third party.

There are exceptions, however, even to criminal cases and one of the factors that the court will use is the reasonable expectation of the communicating party that the conversation would remain confidential. In a situation where a spouse confessed that he had harmed the child especially the child of his partner courts in Pennsylvania have found that this is not privileged communication. Further, the witness spouse owns the privilege and therefore can either refuse to give testimony or can waive it.

Spousal privilege is an important concept in Pennsylvania criminal defense and if you have more criminal defense questions I encourage you to subscribe to my monthly newsletter, watch my videos, or download a copy of my books.