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Spousal Privilege in Michigan: What's Left of It?

The spousal privilege is a rule of evidence where the "holder" spouse of the privilege may refuse to reveal confidential communications with the other spouse during the marriage as a witness in court. The idea is to prevent marital discord in forcing one spouse to cause harm to the other by compelling their testimony. The spousal privilege has two components: the confidential communication privilege that protects disclosing communications during the marriage and the testimonial privilege that can keep a spouse off the witness stand altogether. The extent of the privilege and the "holder" (the spouse that can assert it) depends on whether it is a civil proceeding or a criminal proceeding.

According to MCL 600.2162(3), the spousal privilege (both the testimonial privilege and confidential communication privilege) DOES NOT APPLY in any way to the following types of proceedings:

1. In a suit for divorce, separate maintenance or annulment.

2. In a prosecution for bigamy.

3. In a prosecution for a crime committed against the child of either spouse.

4. In a prosecution for a crime committed against an individual younger than 18 years old.

5. In a cause of action for a personal wrong or injury caused by one spouse to the other.

6. In a cause of action for one spouse neglecting or refusing to provide suitable support to the other spouse or children.

7. In a case of desertion or abandonment.

8. In a case where the separate property of a spouse is the subject matter in controversy or where both spouses are adverse parties in a suit regarding a claim or interest of a title to property.

In a civil proceeding not excluded from the spousal privilege, the holder spouse is the SPOUSE NOT TESTIFYING and can assert the privilege to keep the other spouse from testifying against him or her. The spouse called to testify cannot assert the privilege to stay off the witness stand. The testifying spouse (or ex-spouse), however, can assert the confidential communication privilege to avoid disclosing communications between the spouse (or ex-spouse) made during the marriage, UNLESS it is an inquiry to a matter regarding an excluded proceeding in MCL 600.2162(3).

In a criminal proceeding not excluded from the spousal privilege, the holder spouse is the TESTIFYING SPOUSE and can assert the privilege to avoid being compelled to testify against the spouse accused of a crime. The defendant spouse cannot asset the privilege to keep the other spouse from testifying without the witness spouse's permission. In addition, the testifying spouse may not be compelled to reveal any communication with the defendant spouse during the marriage unless the testifying spouse waives that privilege. The testifying spouse (or ex-spouse) may also assert the confidential communication privilege to avoid disclosing communications between the spouse (or ex-spouse) made during the marriage, UNLESS it is an inquiry to a matter regarding an excluded proceeding in MCL 600.2162(3).

The spousal privilege has been trimmed down from its common law heritage to apply at seemingly random times in Michigan litigation, if at all. An experienced attorney can help you understand if this privilege applies to your unique situation no matter what type of legal matter you may be involved in.

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