Under Nevada Law, no person can refuse to be a witness, refuse to disclose
any matter, refuse to produce any object or writing, or prevent another
from doing the same. NRS 49.015. This is true, unless you are granted
In order to preserve the confidential nature of certain types of conversations,
the legal world has characterized certain communications as “privileged”
so that the parties cannot be made to testify regarding the content of
confidential communications. For example, privileges commonly apply in
the following scenarios:
- Communications between a lawyer and client.
- Communications between a doctor and patient.
- Communications between legally married spouses.
This article specifically addresses the third category of communications,
those which occur between spouses. Nevada codifies privileges in Chapter
49 of the Nevada Revised Statutes (NRS) and the so-called Marital Privilege
is codified in NRS 49.295, which reads:
NRS 49.295 Husband and wife: General rule of privilege;
Except as otherwise provided in subsections 2 and 3 and NRS 49.305:
- A husband cannot be examined as a witness for or against his wife without
his consent, nor a wife for or against her husband without her consent.
- Neither a husband nor a wife can be examined, during the marriage or afterwards,
without the consent of the other, as to any communication made by one
to the other during marriage.
The provisions of subsection 1 do not apply to a:
- Civil proceeding brought by or on behalf of one spouse against the other spouse;
- Proceeding to commit or otherwise place a spouse, the property of the spouse
or both the spouse and the property of the spouse under the control of
another because of the alleged mental or physical condition of the spouse;
- Proceeding brought by or on behalf of a spouse to establish his or her
- Proceeding in the juvenile court or family court pursuant to title 5 of
NRS or NRS 432B.410 to 432B.590, inclusive; or
Criminal proceeding in which one spouse is charged with:
- A crime against the person or the property of the other spouse or of a
child of either, or of a child in the custody or control of either, whether
the crime was committed before or during marriage.
- Bigamy or incest.
- A crime related to abandonment of a child or nonsupport of the other spouse or child.
- The provisions of subsection 1 do not apply in any criminal proceeding
to events which took place before the husband and wife were married.
Consider the following common scenario. A husband is driving and his wife
is in the passenger seat. They are involved in a collision. The husband
looks at his wife and states, “I think it was my fault.” Later,
liability is disputed in the matter and the wife is afraid that she will
be forced to disclose her husband’s apparent admission. In this
case, the wife cannot be forced to testify against her husband because
the communication is privileged.
Both the husband and wife are holders of this privilege. Even if the wife
wants to testify against her husband, he can invoke the Marital Privilege
and prevent her from testifying regarding their private, marital conversation.
Of course, there are exceptions to Marital Privilege and ways that the
privilege can be waived. NRS 49.305 and NRS 49.385 set forth those exceptions:
NRS 49.305 Husband and wife: Exception for insanity. When
a husband or wife is insane, and has been so declared by a court of competent
jurisdiction, the other shall be a competent witness to testify as to
any fact which transpired before or during such insanity, but the privilege
of so testifying shall cease when the party declared insane has been found
by a court of competent jurisdiction to be of sound mind, and the husband
and wife shall then have the testimonial limitations and privileges provided
in NRS 49.295.
NRS 49.385 Waiver of privilege by voluntary disclosure.
- A person upon whom these rules confer a privilege against disclosure of
a confidential matter waives the privilege if the person or the person’s
predecessor while holder of the privilege voluntarily discloses or consents
to disclosure of any significant part of the matter.
This section does not apply if the disclosure is:
- Itself a privileged communication; or
- Made to an interpreter employed merely to facilitate communications.
The exception to the privilege found in NRS 49.305 is rarely used, but
the waiver discussed in NRS 49.385 is a common way the Martial Privilege
Returning to our scenario, consider that is talking with her friends one
day, telling them about the collision, and they she shares her husband’s
admission with third parties. Even if unintentional, the wife waived the
Marital Privilege. By sharing their conversation with individuals with
whom she shares no privilege, the wife has destroyed the Privilege and
exposed her husband liability. If the wife had been telling her therapist
about the incident instead of her friends, the Marital Privilege would
still be preserved because, according to NRS 49.385, the privilege remains
intact if the disclosure is made within the context of another privileged
conversation (in this case between a therapist and client).
Finally, imagine if both the husband and wife are injured in the car accident.
The husband begins a personal injury claim against the other vehicle claiming
the other driver caused the accident. The wife also wishes to pursue a
personal injury claim against the at-fault party. However, as a passenger,
she will have choose whether to pursue a claim against the other vehicle’s
driver or her own husband.
In this scenario, as laid out by NRS 49.295(2)(a), the husband cannot stop
his wife from testifying regarding the content of their conversation in
a “civil proceeding brought by or on behalf of one spouse against
the other spouse.” Thus, the wife could pursue a claim against her
own husband and use his admission of fault to establish liability.
In conclusion, note that the Marital Privilege, like others, is created
by statute, and is, therefore, subject to interpretation of that statute.
The Privilege can used as a both a sword and shield depending upon the
circumstances. In order to avoid unintentional waiver, communications
made within the context of a claim must be closely monitored. The failure
to do so could result in the loss of claim or lawsuit.