Spousal Privileges
“Honey, the Judge Says We’re History!”*
By Sally A. Roberts
History of the Marital Privilege
At common law, the marital privileges have developed along two lines. The first to
develop, the adverse testimony privilege, has generally been thought to have “flowed from two
tenets of medieval jurisprudence: first, that the wife has no legal identity independent of her
husband’s, and second, than an accused could not testify on his own behalf.”[1] When it applies,
the adverse testimony privilege protects spouses from being compelled to testify against each
other, on any subject, while they are validly married.[2]
The confidential communications privilege, by contrast, shields only communications
made in confidence during a valid marriage but, unlike the adverse testimony privilege, it may be
asserted even after the marriage has terminated. [3] The privilege, which first appeared in the
1850s as a reaction to the shrinking scope of the adverse testimony privilege [4], stemmed from
many state legislatures’ recognition of the need for explicit protection of confidential marital
communications.[5] Consequently, this privilege can be successfully asserted only when there
exists a marriage valid at the time the communication is made.[6] The burden of showing the
existence of such a valid marriage rests on the person seeking to invoke the privilege.[7]
The Public Policy Behind Recognizing Spousal Privileges
Privileges differ from most evidentiary rules because privileges exclude relevant
evidence that would aid in the search for truth since society considers the protection of some
relationships to be more important than the search for the truth.[8] The law of privileges,
therefore, is based upon policy considerations that exist independently from the usual evidentiary
concerns of the accuracy and reliability of evidence. Because privileges limit the admissibility of
evidence, the courts or the legislatures must consider the privileges to be necessary to protect
some other compelling interest. As a result, a variety of justifications have been developed to
explain the existence of privileges, and they are, consequently, quite controversial.[9]
The Federal Rules of Evidence were developed so that “the truth may be
ascertained.”[10] However, even though testimonial privileges hinder this objective, they are
recognized as exceptions to the truth-finding process because they preserve a public interest that
outweighs any benefit that the evidence may have provided.[11]
The two privileges have related but distinct purposes. “The adverse testimony privilege
embodies society’s desire to protect viable marriages from the potentially irreparable rifts that
may result from compelled disclosure or commentary before a tribunal. The confidential
communications privilege, by contrast, provides assurance that all private statements between
spouses -- aptly called the ‘best solace of human existence,’[12] will be forever free from public
exposure. Concerned with the impact that testimony would have on marriage, courts have
illustrated the policy that the sanctity of marriage transcends the disadvantages the privilege may
impose on the justice system.[13] John Henry Wigmore observed that there is “a natural
repugnance in every fair-minded person to compelling a wife or husband to be the means of the
1
other’s condemnation, and to compelling the culprit to the humiliation of being condemned by
the words of his intimate life partner.[14]
Spousal Disqualification or Incompetency
“Competency” is a threshold measure of a witness’ ability to provide reliable testimony.
The degree of reliability required to accept a witness as competent has changed over the
centuries.[15] The early common law considered a spouse incompetent to testify, either for or
against the other spouse. [16] This result was the product of combining the common law rule
disqualifying a party from testifying on his own behalf with the legal fiction that a husband and
wife were one person.[17] The spousal disqualification doctrine that regarded a spouse to be
incompetent to testify as a witness in any capacity was ingrained in both American and English
common law. [18] As Blackstone stated in his Commentaries on the Laws of England (17651769), “If they [the married couple] were admitted to be witnesses for each other, they would
contradict the maxim of law, Nemo in propria causa testis esse debet [No one ought to be a
witness in his own cause].”[19]
In 1933, the United States Supreme Court abolished the rule disqualifying spouses from
testifying in federal court on each other’s behalf.[20] In Funk, the Court noted a major change in
the common law in that defendants are no longer disqualified from testifying on their own
behalf.[21] Thus, “a refusal to permit the wife upon the ground of interest to testify in behalf of
her husband, while permitting him, who has the greater interest, to testify for himself, presents a
manifest incongruity.”[22] According to the Court in Funk, any risk of bias or interest on the
part of the witness-spouse could be reduced through the use of cross-examination, thus making
the issue of bias an issue of credibility rather than competency to testify.[23] However, a
privilege remained that prevented either spouse from providing adverse testimony against the
other.[24]
Spousal Privileges in Federal Court
In most situations, federal courts look to the body of federal common law to determine
privileges, but in civil actions and diversity proceedings, privilege is determined according to
state law. In Doe v. Handman,[25] Jane Doe commenced the lawsuit in the District of
Connecticut, and the Court thereafter granted Handman’s motion for a transfer of venue to the
Southern District of New York. The New York District Court ruled that the remaining claims
were subject to Connecticut law. Doe moved for a reconsideration of the denial of a protective
order which would have barred deposing her husband. In denying the Motion, the court
explained that only Doe’s husband could request the protective order and Doe’s husband, the
witness spouse, did not assert the privilege.
“The Connecticut legislature has codified the spousal privilege in criminal cases and only
the witness spouse can elect to invoke the privilege. See Conn. Gen. Stat. § 54-84a (1994).
Beginning with Spitz’s Appeal in 1884, Connecticut case law has extended the privilege for
spousal testimony to civil cases. [Appeal of Spitz, 56 Conn. 184 (1887)] However, to suggest
that either spouse could invoke the privilege would fly in the face of the statute and the
Connecticut legislature. See, e.g., State v. Saia, 172 Conn. 37, 43 (1976) (explaining that
Connecticut has restricted the privilege against adverse spousal testimony by only allowing the
witness to invoke it). It also would conflict with the federal courts’ interpretation that the
2
spousal privilege can only be applied in criminal cases. See Trammel v. United States, 445 U.S.
40, 45 (1980). .... In Connecticut, only the witness spouse can invoke the privilege against
adverse spousal immunity in civil cases. See DeGruttola v. Britt, 1996 Conn. Super. LEXIS 50.
Therefore, under both Connecticut state law and federal precedent, Doe cannot assert the
privilege for her husband.”[26]
In federal court, the Federal Rules of Evidence govern the court’s application of the
privileges. In 1973, the Supreme Court submitted proposed Rules of Evidence to Congress.[27]
There was intense congressional debate on the privilege section.[28] One of the major issues of
concern was that the proposed Federal Rules of Evidence failed to include some privileges, such
as the physician-patient and the confidential marital communications privileges. This was
controversial because some legislators thought it was irrational to provide a spouse with the
protection of the adverse testimonial privilege if the marriage was already in jeopardy, especially
when the non-defendant spouse was willing to testify. Another issue of concern was that the
proposed privileges would apply in diversity cases, as well as other cases where state law
provided the rules for decision, thus abrogating state privilege laws.[29] The proposed rules
would have narrowed the existing privileges and restricted judicial development of privileges by
freezing federal privilege law and denying federal court the power to create new privileges.[30]
Ultimately, Congress rejected all of the proposed rules concerning testimonial privileges,
enacting instead a single rule stating that the privilege “shall be governed by the principles of the
common law as they may be interpreted by the courts of the United States in the light of reason
and experience.”[31] As a result, both the adverse testimony privilege and the confidential
communications privilege survive in federal court. Many states retained both as part of the
common law of privileges, while others enacted statutes codifying one or both into written laws
of evidence.[32]
In federal court, the adverse spousal testimonial privilege has traditionally been limited to
criminal cases.[33] The Second Circuit has held that the adverse spousal testimony proceeding
does not apply in a civil forfeiture proceeding, and that the confidential marital communication
privilege was waived when a spouse, in asserting the innocent owner defense to a forfeiture, had
already provided significant testimony concerning marital communications.[34]
Adverse Testimonial Privilege
In Hawkins v. United States, the Court held that the testimonial privilege prevented one
spouse from testifying adversely against the other regardless of whether the testimony was
voluntary or compelled by the government.[35] Over twenty years later, in Trammel v. United
States, the Court held that the testimonial privilege, as applied in the federal courts, should vest
in the witness-spouse alone, thereby allowing the witness-spouse to voluntarily provide adverse
testimony against the defendant-spouse.[36] The Court reasoned that when one spouse is willing
to provide adverse testimony against the other spouse, “their relationship is almost certainly in
disrepair; there is probably little in the way of marital harmony for the privilege to preserve.”[37]
Marital Communications Privilege
The Supreme Court expressly recognized the communications privilege in 1934.[38] In
Wolfe, the government sought to introduce into evidence a letter written by the petitioner to his
3
wife. Although the privilege would normally protect this type of communication, the
government argued that the petitioner’s utilization of his personal stenographer to write the letter
prevented the marital communications privilege from attaching. The government sought to
introduce the contents of the letter not through the testimony of the wife, but through that of the
stenographer, who had kept her notes. The government argued that communications between
spouses are not privileged if proof of the content of the communications can be made by a
witness who is neither the husband nor the wife. The Court agreed, holding that the privilege did
not prevent disclosure of the contents of the letter. According to the Court, disclosure to the
stenographer was voluntary and unnecessary. Thus, the petitioner’s decision to reveal the
communication to a third party destroyed any privilege that would have otherwise attached to the
communication.[39]
The confidential communications privilege, straightforward when applied to professional
relationships, is more complicated in the marital context. Difficulties occur when defining
communications between spouses. Unlike professional relationships, marriages do not consist
entirely, or even primarily, of oral and written communications.[40] By virtue of lengthy and
intimate companionship, spouses communicate using a great variety of nonverbal signals.
Silence, a pointed finger, or a shrug can all send messages as clear as the spoken word. Even the
manner in which a spouse walks around the house, can convey meaning to her partner. Normally,
the confidential communication privilege extends only to utterances and not to acts.[41]
In United States v. Estes, the Second Circuit commented: “Testimony concerning a
spouse’s conduct can be precluded upon the spouse’s challenge only in the rare instances where
the conduct was intended to convey a confidential message from the actor to the observer. ....
The counting, hiding and laundering of the money conveyed to confidential message .... Acts do
not become privileged communications simply because they are performed in the presence of the
actor’s spouse. .... Nor does it appear that the essential qualities of communication and
confidentiality flow automatically from the fact that the act seen by the other spouse is one that
connotes criminal conduct. ... Lydia’s testimony concerning the handling and disposition of the
money, much of which was done by Lydia herself, was properly heard by both the grand and
petit juries.”[42] The Second Circuit reversed Estes’ conviction and remanded the case on the
basis that the lower court should have excluded his wife’s testimony concerning his confession to
the crime.
In addition, the presumption of privacy or marital communication is negatived by the
presence of a third person or by the intention that the information conveyed be transmitted to a
third person.[43] Additionally, courts in forty-seven states and the District of Columbia have
held that the presence of a third party destroys any privilege that might attach to a
communication between spouses.[44]
Exceptions to the Marital Privilege
There are exceptions to the confidential communications privilege. Most jurisdictions
recognize the partner-in-crime exception, which suspends the privilege for communication
relating to crimes jointly committed by the spouses.[45] A second exception, adopted from
English common law, exists for crimes or torts committed by one spouse against the other. Most
jurisdictions refuse to apply the privilege in cases where one spouse is accused of committing a
4
crime or tort against the other. The exception is defined differently among the jurisdictions [46]
In Connecticut, the privilege is suspended only for crimes of bodily injury or violence by one
spouse against the other.[47]
Federal circuits are divided over whether the privilege should apply if the husband and
wife were both involved in the illegal activity. The Seventh and Tenth Circuits adopted a
partner-in-crime exception, explaining that these marriages are unworthy of legal protection.[48]
The Second and Third Circuits disagreed, reasoning that such marriages may be the only
redeeming feature of these couples’ lives.[49]
Criticism of the Marital Privilege
Many commentators have criticized the communications privilege, [50] with
some authors arguing that courts should abandon the privilege entirely.[51] Opponents of the
privilege argue that it blocks the truth-seeking process while failing to adequately promote
marital harmony. The argument is also made that the privilege is unnecessary considering the
fact that most married couples are unaware of its existence.[52]
Despite criticism of the rule, the marital communications privilege is quite prevalent.
The privilege is codified in forty-nine states, and the District of Columbia.[53] Connecticut,
however, has not codified the marital communications privilege, but Connecticut courts do
recognize the privilege, and the Connecticut Supreme Court has found that it is a “fixture of
[Connecticut] common law.”[54]
Confusion in the Courts
The evolution of spousal privilege law has understandably caused some confusion in the
federal courts. In an opinion which was overturned by the Second Circuit, and then resulted in
the granting of certiorari by the Supreme Court, a federal district court in New York noted that
privilege law is no longer categorical or simple.[55] In particular, there are differences between
which spouse can invoke a spousal privilege when considering the testimonial privilege as
opposed to the communication privilege.[56] Defendants can no longer unilaterally prevent their
spouses from adversely testifying; however, the defendant has the right to keep out evidence
pertaining to any marital communications regardless of whether the spouse wishes to testify.[57]
Additionally, while the communication privilege survives the marriage, the testimonial privilege
is extinguished at the time the relationship is considered beyond preservation. However, both
privileges hinge upon the spouses’ involvement in a valid marriage.[58]
Connecticut Law on Spousal Privileges
Connecticut Code of Evidence
Evidentiary privileges are governed by § 5-1 of the Connecticut Code of Evidence, which
provides: “Except as otherwise required by the constitution of the United States, the constitution
of this state, the General Statutes or the Practice Book, privileges shall be governed by the
principles of the common law.”[59]
Competency
Spouses are competent witnesses for or against each other, although they may refuse to
testify. [60] “At early common law, the husband, the husband or wife of a party was disqualified
5
as a witness and prevented from testifying either for or against the party in any case, either civil
or criminal. See 81 Am. Jur. 2d, Witnesses § 148; McCormick Evidence (2d ed.), § 66.
Connecticut, however, has provided by statute that ‘any person on trial for crime shall be a
competent witness .... If such person has a husband or wife, he or she shall be a competent
witness but may elect or refuse to testify for or against he accused.’ Conn. Gen. Stat. § 54-84. ....
Moreover, § 54-84 gives the witness spouse the option of testifying against an accused spouse.
As this court said of the substantially similar predecessor to his section, § 8800 of the 1949
Revision: ‘[O]ur statute does not render the wife an incompetent witness against her husband but
permits her to testify or to refuse at her option.’ State v. Volpe, 113 Conn. 288, 292 (1931). ...
The common-law restriction against adverse marital testimony was founded on the legal unity of
the spouses and the policy of preventing discord between them. Spitz’s Appeal, 56 Conn. 184,
186 (1887). The jurisdictions which, like Connecticut, have statutorily limited this restriction on
adverse spousal testimony by allowing only the witness spouse to invoke a privilege to refuse to
render such testimony have done so apparently to determine whether the marriage can or should
be saved by a refusal to testify.”[62]
Criminal & Civil Marital Privileges
Connecticut courts acknowledge two types of marital privilege: the adverse spousal
testimonial privilege and the marital communications privilege.[63] The adverse spousal
testimonial privilege, in the criminal context, is codified in General Statutes § 54-84a. That
statute makes clear that the privilege not to testify lies solely with the witness spouse and cannot
be invoked by the party spouse. A marital privilege in the civil context was acknowledged by the
Connecticut Supreme Court in Appeal of Spitz, holding that “marital privilege against adverse
spousal testimony does not apply to actions at law in which the husband and wife have
conflicting interests and are opposing parties, as petitions for divorce or suits by the wife seeking
protection against the husband, and has no application to suits in equity relating to the wife's
separate estate.”[64]
The marital communications privilege permits an individual to prevent his or her spouse
or former spouse from testifying as to any confidential communication made by the individual to
the spouse during their marriage.[65] “Because the marital communications privilege is not
addressed squarely by either the federal constitution, state constitution, General Statutes or
Practice, it is governed by the principles of common law. See Conn. Code. Evid. § 5-1.”[66]
“Our conclusion, recognizing the existence of a privilege for confidential marital
communications, aligns us with every other jurisdiction in the country. … Connecticut is unique
among its sister states, which each have a statute or a rule of evidence expressly providing for the
privilege. …Even when the marital communications privilege is a product of legislative fiat,
however, courts have continued to recognize the strong common-law roots of the privilege.”
“Although Connecticut has never ruled whether either spouse can invoke the privilege or only
the communicating spouse can do so, the proper holder would seem to be the communicating
spouse, since the privilege is based on the policy of encouraging free expression.”[67]
_______________________________________________
6
Bio:
Sally A. Roberts, a graduate of Harvard and the Washington College of Law, clerked for Chief
Presiding Judge Joseph Dannehy on the Connecticut Appellate Court. She is an associate at
Brown Paindiris & Scott, LLP, where she practices in the area of civil litigation, with an
emphasis on civil rights cases (including police misconduct), medical malpractice, products
liability and personal injury.
Notes:
*
Steven, N. Gofman, “Honey, the Judge Says we’re History”: Abrogating the Marital
Privileges via Modern Doctrines of Marital Worthiness, 77 Cornell L. Rev. 843 (1992).
1.
Note, Development in the Law – Privileged Communications, 98 Harv. L. Rev. 1450,
1564 (1985) (citing Trammel v. United States, 445 U.S. 40, 44 (1980); but see Privileged
Communications, supra, at 1564-65 (discussing Wigmore’s contrary view that the privilege
arose from the sixteenth-century English law prohibiting petit treason against the head of the
household).
2.
Trammel, supra note 1, at 44.
3.
See Pereira v. United States, 347 U.S. 1 (1954) (finding that a divorce did not terminate
the confidential communications privilege for communications made during the marriage, but a
divorce removed any bar of incompetency of a wife to testify in a criminal prosecution against
her husband.)
4.
See Privileged Communications, supra note 1, at 1565.
5.
See 8 J. Wigmore, Evidence in Trials at Common Law, § 2333, at 645 (J. McNaughton,
rev. ed. 1961).
6.
See Privileged Communications, supra note 1, at 1565 & n.16. See also, In re Witness
Before Grand Jury, 791 F.2d 234 (2d Cir. 1986) (citing Trammel in support of its denial of both
marital privileges to a marriage held moribund, nonviable, and non-vital even though the spouses
had not even entered into a legal separation).
7.
Id.
8.
See Kimberly A. Connor, A Critique of the Marital Privileges: An Examination of the
Marital Privileges in the United States Military Through the State and Federal Approaches to
the Marital Privileges, 36 Val. U.L. Rev. 119, 131 (2001).
9.
Id.
10.
Fed. R. Evid. 102.
7
11.
See Maria A. La Vita, When the Honeymoon is Over: How a Federal Court’s Denial of
the Spousal Privilege to a Legally Married Same-Sex Couple can Result in the Incarceration of a
Spouse who Refuses to Adversely Testify, 33 N.E.J. on Crim.& Civ. Con. 243, 246 (2007).
12.
Trammel, supra note 1, 445 U.S. at 51 (quoting Stein v. Bowman, 38 U.S. (Pet.) 209, 223
(1839).
13.
See When the Honeymoon is Over, supra note 8.
14.
See Wigmore, supra note 5, at 217.
15
See Michael W. Mullane, Trammel v. United States: Bad History, Bad Policy, and Bad
Law, 47 Me. L. Rev. 105, 124 (1995).
16.
See A Critique of the Marital Privileges, supra note 8, at 134.
17.
Id.
18.
Id.
19.
See Amanda H. Frost, Updating the Marital Privileges: A Witness-Centered Rationale,
14 Wis. Women’s L.J. 1, 7 (1999).
20.
Funk v. United States, 290 U.S. 371 (1933).
21.
Id. at 381.
22.
Id.
23.
Id. at 380.
24.
Id. at 373; see also Griffin v. United States, 336 U.S. 704, 714-715 (1949) (“The Funk
case … did not criticize the phase of the common-law rule which allowed either spouse to
exclude adverse testimony by the other, but left this question open to further scrutiny.”).
25.
See Doe v. Handman, 2000 U.S. Dist. LEXIS 12940 (S.D.N.Y. 2000).
26.
Id. at *6. (Citations omitted.)
27.
See A Critique of the Marital Privileges, supra note 8, at 136.
28.
Id.
30.
See generally, Edward J. Imwinkelried, An Hegelian Approach to Privileges Under the
Federal Rule of Evidence 501: The Restrictive Thesis, the Expansive Antithesis, and the
Contextual Synthesis, 73 Neb. L. Rev. 511 (1994).
8
31.
Fed. R. Evid. 501.
32.
See Updating the Marital Privileges, supra note 14, at 9.
33.
See, e.g., United States v. 281 Syosset Woodbury Road, 71 F.3d 1067 (2d Cir. 1995).
34.
Id.
35.
358 U.S 74, 77-79 (1958).
36.
445 U.S. 40, 53 (1980).
37.
Id. at 52.
38.
Wolfle v. United States, 291 U.S. 7, 14 (1934).
39.
Id.
40.
See Updating the Marital Privileges, supra note 14, at 11.
41.
United States v. Estes, 793 F.2d 465, 467 (2d Cir. 1986)
42.
Id. at 467.
43.
Pereira v. United States, 347 U.S. 1 (1954).
44.
See Mikah K. Story, Twenty-First Century Pillow-Talk: Applicability of the Marital
Communications Privilege to Electronic Mail, 58 S.C.L Rev. 275, 280 (2006).
45.
See Updating the Marital Privileges, supra note 14, at 10.
46.
Id.
47.
Conn. Gen. Stat. § 54-84a (exception to privilege applies when one spouse “received
personal violence from the other”).
48.
See, e.g., United States v. Clark, 712 F.2d 299, 302 (7th Cir. 1983) (“The public interest in
discouraging a criminal from enlisting the aid of his or her spouse as an accomplice outweighs
the interest in protecting the marriage.”)
49.
See In re Grand Jury Subpoena United States, 755 F.2d 1022, 1025-28 (2d Cir. 1985); In
re Malfitano, 633 F.2d 276 (3d Cir. 1980) (Court reversed wife’s contempt citation for failing to
testify).
50.
See Twenty-First Century Pillow-Talk, supra note 27.
9
51.
Id.
52.
Id.
53.
Id. at 281 & n.40.
54.
State v. Christian, 267 Conn. 710, 730 (2004).
55.
See In re Grand Jury Subpoena, Koecher, 601 F. Supp. 385, 390-91 (S.D.N.Y. 1984),
rev’d sub nom. In re Grand Jury Subpoena, United States, 755 F.2d 1022 (2d Cir. 1985), cert.
granted sub nom. United States v. Koecher, 474 U.S. 815 (1985), vacated as moot, United States
v. Koecher, 475 U.S. 133 (1986).
56.
See When the Honeymoon is Over, supra note 8, at 253.
57.
Id.
58.
Id.
59.
Id.
60.
See Conn. Code Evid. § 5-1, Commentary: A spouse may elect to testify for or against an
accused spouse, unless the circumstances compel spousal testimony. CGS § 54-84a. See, e.g.
CGS § 46b-213a (h) (Uniform Interstate Family Support Act; CGS § 46b-115cc (d) (Uniform
Child Custody Jurisdiction and Enforcement Act); CGS § 46b-129a (3) (child abuse); CGS § 52146 (wife compelled to testify as to necessaries provided by husband), for other exceptions.
61.
Connecticut Trial Evidence Notebook, Competency C.32; C. Tait, Connecticut Evidence
(3d ed. 2001) § 6.8.1.
62.
State v. Saia, 172 Conn. 37, 43 (1976) (Citations omitted).
63.
See, e.g., Baeder v. Fourth of July Celebration Comm., Inc., 2007 Conn. Super. LEXIS
204 (J.D. Hartford; Jan. 24, 2007; Lois Tanzer, J.).
64.
Appeal of Spitz, 56 Conn. 184, 186 (1888).
65.
State v. Christian, 267 Conn. 710, 725 (2004).
66.
Id. at 730-31 (Footnotes omitted).
67.
Id. at 725 n.7.
10
For Further Reading on Spousal Privileges
Competency of One Spouse to Testify in Federal Criminal Prosecution of Other, 3 L. Ed. 2d 1607
Robert Harper, Superior Court Considers Spousal Privilege as it Relates to Observations: Wife’s
Testimony Raises Issues of Confidential Communication, 3 Lawyers J. 3 (July 13, 2001)
Maria A. La Vita, When the Honeymoon is Over: How a Federal Court’s Denial of the Spousal
Privilege to a Legally Married Same-Sex Couple can Result in the Incarceration of a Spouse who
Refuses to Adversely Testify, 33 N.E.J. on Crim.& Civ. Con. 243 (2007)
J.E. Macy, Conversations between Husband and Wife Relating to Property or Business as Within
Rule Excluding Private Communications Between Them, 4 A.L.R. 2d 835
Kimberly A. Connor, A Critique of the Marital Privileges: An Examination of the Marital Privileges
in the United States Military Through the State and Federal Approaches to the Marital Privileges, 36
Val. U.L. Rev. 119 (2001)
Mikah K. Story, Twenty-First Century Pillow-Talk: Applicability of the Marital Communications
Privilege to Electronic Mail, 58 S.C.L Rev. 275 (2006)
Bruce I. McDaniel, Marital Privilege under Rule 501 of Federal Rules of Evidence, 46 A.L.R. Fed.
735
Amanda H. Frost, Updating the Marital Privileges: A Witness-Centered Rationale, 14 Wis. Women’s
L.J. 1 (1999)
Michael W. Mullane, Trammel v. United States: Bad History, Bad Policy, and Bad Law, 47 Me. L.
Rev. 105 (1995)
Edward J. Imwinkelried, An Hegelian Approach to Privileges Under the Federal Rule of Evidence
501: The Restrictive Thesis, the Expansive Antithesis, and the Contextual Synthesis, 73 Neb. L. Rev.
511 (1994)
Steven, N. Gofman, “Honey, the Judge says we’re History”: Abrogating the Marital Privileges via
Modern Doctrines of Marital Worthiness, 77 Cornell L. Rev. 843 (1992)
Milton C. Regan, Jr., Spousal Privilege and the Meaning of Marriage, 81 Va. L. Rev. 2045 (1995)
Note, Privileged Communication: The Development of Evidentiary Privileges in American Law, 98
Harv. L. Rev. 1450 (1985)
11