The “Marital/Spousal Privilege” in Washington, D.C.

There are two forms of the so-called “marital” or “spousal privilege” in Washington, D.C. 

The first form – the “marital-communications privilege” – prevents a spouse or domestic partner from testifying at a civil or criminal proceeding about confidential communications between the spouses during the marriage.  D.C. Code § 14-306.

A “domestic partnership” is defined as a relationship between two individuals who have formally registered their partnership in accordance with D.C. Code § 32-702.  See also 29 DCMR 8001.1. 

The second form – the so-called “privilege against adverse spousal testimony” – allows a spouse/domestic partner to refuse to testify for or against the other spouse in a civil or criminal proceeding, regardless of the subject matter of the testimony.  In other words, the spouse/domestic partner is permitted –but not required — to testify against the other spouse/domestic partner. 

There is an exception to the privilege.  Specifically, the spouse/domestic partner can be compelled to testify against the other spouse/domestic partner (1) in a criminal case in which the latter is accused of an offense against the former and (2) the former has already invoked the privilege in a previous case.  In other words, you can only invoke the privilege once in a criminal case. 

The U.S. Supreme Court laid out the rationale for the marital/spousal privilege in Trammel v. United States, 445 U.S. 40 (1980).  In the interest of “fostering the harmony and sanctity of the marriage relationship,” private communications between spouses must remain confidential.  Moreover, partners in marriage should not be pitted against each other in litigation.

The privilege only applies to communications that occurred during the marriage.

The burden is on the person asserting the privilege to prove that it exists.  To assert the privilege, the person should (1) submit an affidavit or other writing stating that he/she will not testify, (2) assert the privilege on the witness stand, or (3) intentionally fail to appear in response to a subpoena. 

Although the privilege cannot be invoked by a boyfriend or girlfriend, Hawkins v. United States, 119 A.3d 687 (D.C. 2015), it does apply to people who are in a common-law marriage.  Coleman v. United States, 948 A.2d 534 (D.C. 2008). 

The court should inform a party about to testify against a spouse/domestic partner of the privilege. Egbuka v. United States, 968 A.2d 511 (D.C. 2009).