A Functional Approach to the Spousal Evidentiary Privileges

Most U.S. jurisdictions deem testimony regarding what one spouse tells the other in private inadmissible in most circumstances and most do not allow a person to be compelled to testify against his or her spouse. Although confidential communications and what a spouse knows about the other are both relevant and quite probative, triers of fact do not get to consider them. The scope, character, and very existence of these exceptions to the general principle of admitting everything into evidence have been questioned by legal commentators for centuries, but they remain in force in most U.S. jurisdictions. This paper reviews the justifications for the spousal evidentiary privileges and argues for recasting the spousal evidentiary privileges in functional terms.