Can my then girlfriend’s statement beused if we are now married?

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Can my then girlfriend’s statement beused if we are now married?

My then girlfriend gave a statement in a criminal matter; since then w’ve been married for 3 years. Can her statement be used in court? Can she invoke the marital privilege?

Asked on February 25, 2011 under Criminal Law, Georgia

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

What you are referring to here is the "marital communications privilege" (aka "the husband-wife privilege"). This is a right that only legally married persons have in court.  It protects the confidentiality of communications between spouses.  This privilege allows them to refuse to testify or otherwise give evidence (written or spoken)regarding communications that they have privately exchanged as marital partners.  While the privilege is available in most (but not all) jurisdictions - some jurisdictions allow a witness spouse to choose whether to testify; some automatically disqualify evidence from a spouse. 

However, since the effect of invoking the privilege is to exclude evidence, judges tend to interpret it narrowly as a genral rule.  In addition, the privilege is not absolute.  For example, there must be a formal legal marriage - a sham or false marriage, or a common law marriage does not qualify for the privilege.  Moreover, the communication must have taken place while the marriage existed, not before or after.  The privilege also cannot be claimed where one spouse is subject to prosecution for crimes committed against the other or against the children of the couple.  Additionally, the presence of a third person(s) at the time of the communication typically eliminates confidentiality thereby destroying the privilege.

The above is just a generalized summary.  Whether or not the privilege is recognized, and under what specific facts, varies from jurisdiction-to-jurisdiction.  For further information, you should consult directly with a criminal defense attorney in your area.


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