“Marital Privilege, When Husband & Wife Commit Crimes”

By: Mark Eiglarsh


Suppose Dick was indicted in Federal Court for robbing a bank and suppose the Government gave immunity to Dick’s wife, Jane, in exchange for her testimony against Dick at trial. Jane is prepared to testify that one night Dick came home and emptied onto their bed a large duffle bag containing approximately $250,000 in cash and when she asked Dick where he obtained the cash Dick replied, “I just robbed a bank.” Jane will admit that she has spent a significant portion of the stolen funds knowing them to be unlawfully obtained. Prior to trial, Dick’s attorney files a motion to prevent Jane from testifying against her husband applying the Marital Communication Privilege to prevent Jane from testifying against Dick. How should the judge rule?


The Supreme Court has held that the Marital Communication Privilege bars the testimony of one spouse against another if the witness-spouse’s sole knowledge of the information is derived from a marital conversation between the spouses. The Court’s rationale is that society has an interest in protecting the privacy of marriage and invasion of that privacy endangers the family relationship.

However, there is one exception to the Marital Communication Privilege, “crime-fraud.” The “crime-fraud” exception to the Marital Communication Privilege allows testimony by one spouse against the other when one spouse commits a crime and the other spouse thereafter actively participates in the fruits thereof, or engages in overt acts to cover up the commission of the crime. Courts have further held that when a husband and wife conspire or otherwise actively participate in a crime for financial gain, they become partners in crime, and statements made in furtherance of the criminal activity may, by the consent of the witness-spouse, be used against the other. According to the Court rationale behind the “crime-fraud” exception, “[w]hen one spouse is willing to testify against the other in a criminal proceeding, whatever the motivation, their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve.” Additionally, the Court explained that “[a] rule of evidence that permits an accused to prevent adverse spousal testimony seems far more likely to frustrate justice than to foster family peace.”


Accordingly, Jane’s willful spending of the stolen cash qualified her as an accessory to the robbery. Therefore, her election to testify against her husband after being offered immunity should not be rendered inadmissible under the “crime-fraud” exception to the Marital Communication Privilege.

About the Author

Mark Eiglarsh is a former prosecutor who concentrates his practice on State and Federal criminal defense and forfeiture matters. An “AV Rated” attorney, Eiglarsh teaches litigation skills at the University of Miami School of Law. Mark can be contacted at the Law Offices of Mark Eiglarsh, at (305) 674-0003 and/or via e-mail at Mark@EiglarshLaw.com. His web address is www.EiglarshLaw.com.

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