Marital Privilege – Understand the Processes

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 a privilege.

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:

NRS49.295Husband and wife: General rule of privilege; exceptions.

1. Except as otherwise provided in subsections 2 and 3 and NRS 49.305:
   1. 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.
   2. 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.
2. The provisions of subsection 1 do not apply to a:
   1. Civil proceeding brought by or on behalf of one spouse against the other spouse;
   2. 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;
   3. Proceeding brought by or on behalf of a spouse to establish his or her competence;
   4. Proceeding in the juvenile court or family court pursuant to title 5 of NRS or NRS 432B.410 to 432B.590, inclusive; or
   5. Criminal proceeding in which one spouse is charged with:
      1. 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.
      2. Bigamy or incest.
      3. A crime related to abandonment of a child or nonsupport of the other spouse or child.
3. 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:

NRS49.305Husband 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.

NRS49.385Waiver of privilege by voluntary disclosure.

1. 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.
2. This section does not apply if the disclosure is:
   1. Itself a privileged communication; or
   2. 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 is discarded.

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.