When it comes to the protection of communications within the marital relationship, there are two forms of spousal privileges that are recognized in Pennsylvania: testimonial privilege and marital communications privilege.

Testimonial privilege

Testimonial privilege may only be claimed while spouses are legally married.

This privilege is often raised when a spouse is compelled to testify against a defendant-spouse. With this privilege, the witness-spouse cannot be compelled to testify, but the witness-spouse can choose to waive the privilege and proceed with testimony related to the defendant-spouse’s communications. 

For testimonial privilege, the topic of the conversation between spouses does not have to be confidential. A witness-spouse does not waive the privilege by sharing the nature of the information that was originally communicated to them by the defendant-spouse with third parties. However, the privilege is limited as there are clearly outlined exceptions in criminal cases.

The law provides that testimonial privilege does not prevent testimony related to the following:

1. desertion and maintenance;
2. domestic violence;
3. a criminal charge of bigamy; or
4. in a criminal proceeding for murder or other applicable violent crimes.

Marital Communications Privilege

While testimonial privilege only applies to married parties, there are some confidential communications that may still be protected even if the parties get divorced. A second type of protection exists for parties that are or were previously married called the marital communications privilege.

With this privilege, neither spouse is permitted to testify to confidential communications made by the other, as both spouses hold the marital communication privilege. This means that either spouse may invoke the privilege to protect confidential statements and the privilege will apply, unless it has been waived by the other spouse.

Though parties can be divorced and still claim this privilege, it only extends to knowledge that was gained during the marriage. All knowledge acquired before the marriage or after a divorce is not protected. The privilege applies to oral statements, written materials, and even some expressions and gestures if the court finds that they were intended to convey a message which was induced by the confidential nature of the marital relationship. However, there are certain communications that may not be protected similar to the exceptions in testimonial privilege. For example, the privilege does not prevent testimony about murder, domestic violence, or other serious violent crimes.

Unlike testimonial privilege, for the marital communications privilege to be invoked, it is essential that the communication was made in confidence with the intention that it would not be divulged. Essentially, the communication must have been gained during the marital relationship and made in the confidence which that intimate marital relationship inspires. Courts have held that communications between spouses are presumed to be confidential unless proven otherwise. This presumption in favor of confidentiality is based upon the desire to protect the unity of marriage and intimacy that arises from a marital relationship. 

Like other witness privileges, spousal privileges recognize the social value of the relationship between the witness and defendant and guards this relationship by protecting the confidential and intimate conversations between them.