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Florida’s Marital or Spousal Privilege

Federal law recognizes two types of marital privileges:

  • Testimonial privilege
  • Communications privilege

Florida law has no testimonial privilege but provides for a spousal communications privilege which is codified in Section 90.504, Florida Statutes.

As a result, in a proceeding in state court, your spouse might be forced to testify against you. During that testimony, Section 90.504, Florida Statute, creates a spousal privilege that can be invoked by you or your spouse. That spousal privilege means that communications between you and your spouse are inadmissible at a trial or hearing.

As a matter of public policy, Florida’s strong spousal evidentiary privilege is intended to preserve the goodwill, peace, and trust in the marital relationship.

In a relationship between a husband and wife, one spouse might tell the other spouse secrets that they intend to remain confidential. The spousal privilege reflects a commitment to protecting those communications made in the marital relationship.

The privilege recognizes that functional and healthy marriages are fundamental to the well-being of a civilized society. The courts must balance those considerations to protect the marital relationship with the need for complete evidence at trial.

Communications between a husband and wife are presumed confidential unless there is evidence to the contrary. Yokie v. State, 773 So.2d 115, 117 (Fla. 4th DCA 2000). Florida law recognizes a strong public policy supporting the marital privilege. Jackson v. State, 603 So. 2d 670, 671 (Fla. 4th DCA 1992).

Either party can invoke the privilege and refuse to disclose or prevent another from disclosing those communications. A person might be deemed to have waived the privilege if:

  • the husband or wife voluntarily discloses or makes the communication when he or she does not have a reasonable expectation of privacy; or
  • the husband or wife asserting the privilege consents to the disclosure of any significant part of the communication.

Attorney on the Marital Privilege in Florida

If your case involves the marital privilege and you need to hire a criminal defense attorney in Tampa, FL, then contact us. We can help you understand defenses that can be used in your case, including in marital privilege in Florida.

Contact us to find out why communications between a husband and wife only lose the privileged status if the person who made the original disclosure of such information waives the privilege, thus subjecting the communication to general rules of evidence.

We can help a husband or wife assert the marital privilege in order to fight a criminal case in Tampa, Hillsborough County, or the surrounding areas in the greater Tampa Bay area.

Contact us to find out how to invoke the spousal privilege at a trial or hearing. The issue can be raised in a pre-trial or pre-hearing motion to exclude the communication or through an objection during the trial or hearing.

Call 813-250-0500.


Section 90.504, Florida Statutes, on the Marital Privilege

The Florida Evidence Code specifies what types of evidence and testimony are admissible in court. The Evidence Code in Florida makes certain communications privileged, meaning their disclosure generally cannot be compelled, even in legal proceedings.

One example of such privileged communications concerns communications between a husband and wife (often called the “spousal privilege” or the “husband-wife privilege”).

Florida law provides for a marital privilege for confidential communications made between spouses while they are husband and wife. See § 90.504, Fla. Stat.

Title VII, Chapter 90 of the evidence code in Section 90.504, Florida Statutes, provides:

(1) Aspouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between spouses while they were husband and wife.

(2) The privilege may be claimed by either spouse or by the guardian or conservator of a spouse. The authority of a spouse, or guardian or conservator of a spouse, to claim the privilege is presumed in the absence of contrary evidence.

(3) There is no privilege under this section:

(a) In a proceeding brought by or on behalf of one spouse against the other spouse.

(b) In a criminal proceeding in which one spouse is charged with a crime committed at any time against the person or property of the other spouse, or the person or property of a child of either.

(c) In a criminal proceeding in which the communication is offered in evidence by a defendant-spouse who is one of the spouses between whom the communication was made.


When Does the Marital Privilege Apply?

Whether the communication occurred while the two were husband and wife would be a determination for the court. The privilege continues after the marital relationship ends as long as the communications were made during the marital relationship.

Section 90.504(1) provides:

“A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.”

The spousal privilege applies to “communications” including oral, written, and gesture-based marital communications. As a result, observations of things done or actions take by a spouse that were not intended to be “communications” are not subject to this privilege.


Can the Marital Privilege be Waived or Lost?

Under § 90.507, the spousal privilege can be waived or lost under the following circumstances:

  • If the communication between the spouses was recorded or overheard by a third party;
  • If the spouse who holds the privilege affirmatively waives the privilege; or
  • If the spouse who holds the privilege voluntarily discloses privileged communications.

For this reason, the marital privilege does not apply where the spouses are involved in proceedings against each other or one spouse is charged with a crime committed against the other spouse’s person or property or that of a child of either.

Section 90.507, Florida Statutes, provides that the privilege will be waived if a holder of the privilege makes the communication in circumstances in which he has no reasonable expectation of privacy.

The marital privilege also doesn’t apply when a third party overhears communications between husband-wife, if the spouse didn’t intend it to be private. Proffitt v. State, 315 So. 2d 461, 464 (Fla. 1975), aff’d, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976); see also Gross v. Security Trust Co., 453 So. 2d 944, 945 (Fla. 4th DCA 1984).

In Taylor v. State, 855 So.2d 1, 26 (Fla.2003), the court found that the privilege still applies if there are third parties nearby. In Taylor, the statements were made in the jail, but we noted that “there was no third party involved, no one overheard the conversation.” Id. at 27 n. 30.

The court reasoned: “[a]s a general rule, when third-party eavesdroppers hear otherwise privileged communications, the communications are not privileged unless the communicating parties had [a] reasonable expectation of privacy.” Id. at 27 n. 30.

The courts in Florida have held that communications between spouses are not privileged where the parties were:

  • aware of the presence of a third party; and
  • were speaking in a manner and place where they had a reasonable chance of being overheard; and
  • they knew the possibility at that time.

Proffitt v. State, 315 So.2d 461, 465 (Fla.1975).

The court in Proffitt noted that there was “no testimony indicating that either the appellant or his wife made any attempt, no matter how little, to keep the conversation from being overheard.” Id.


Recording of a Conversation Does Not Compromise the Marital Privilege

In Boyd v. State, 17 So.3d 812 (Fla. 4th DCA 2009), the court found that the recording of a conversation does not compromise the privilege if the only person who can testify regarding its contents is a spouse.

In Boyd, the husband and wife were conversing, ostensibly privately, in a police interrogation room. Id. at 814–15.


Exceptions to the Spousal or Marital Privilege in Florida

Under § 90.504, no spousal privilege applies to:

  • a proceeding brought by or on behalf of one spouse against the other spouse;
  • a criminal proceeding in which one spouse is charged with a crime committed at any time against the person or property of the other spouse, or the person or property of a child of either; or
  •  a criminal proceeding in which the communication is offered in evidence by a defendant-spouse who is one of the spouses between whom the communication was made.

In Bolin v. State, 793 So. 2d 894 (Fla. 2001), the court provides a lengthy discussion at the way the courts apply the spousal privilege in Florida.


Does the Martial Privilege Apply to Divorce Case?

Since the marital privilege is not allowed in cases in which one spouse filed an action against the other, the privilege does not apply in divorce proceedings. So during a divorce proceeding, one spouse cannot stop the other from revealing information learned from their marriage.

For the same reason, the privilege might not apply in a prosecution for assaulting or communicating a threat to the other spouse, in a prosecution for trespass upon the property of the other spouse, in a prosecution for abandonment or failure to pay child support, or in a prosecution of one spouse for any other criminal offense against the minor child of either spouse.


Does a Wife Have to Testify Against Her Husband in a Domestic Violence Case?

In Florida, a wife can be forced to testify against her husband in a domestic violence case. Furthermore, the marital privilege doesn’t apply at a domestic violence trial since the case is a “criminal proceeding in which one spouse is charged with a crime committed at any time against the person or property of the other spouse…”


What About the “Spousal Testimonial Privilege?

In federal court, a similar privilege applies to confidential communications between a husband and wife. In addition, federal law recognizes a “spousal testimonial privilege.”

Federal Rule of Evidence 501 provides for a testimonial privilege that permits a witness to refuse to testify against his or her spouse.

The spousal testimonial privilege found in Federal Rule of Evidence 501 allows one spouse to refuse to testify against the other spouse in a criminal case.

For the spousal testimonial privilege to apply, only the testifying spouse can assert the privilege. In other words, if your spouse wants to testify against you, the testimonial privilege does not apply to testimony about evidence other than confidential communications.


This article was last updated on Friday, September 20, 2019.

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