Is Your Pillow Talk Safe?
Maybe, if made between husband and wife! Generally, relevant evidence is admissible in a trial, and privileges, such as attorney-client, doctor-patient, and priest-penitent, are disfavored because they are seen as “barriers to the ascertainment of the truth.” But in Minnesota, the legislature and Minnesota Supreme Court have come down on the side of protecting communications made within the sanctity of marriage from being used at trial.
The marital privilege rule was born out of two medieval notions: (1) a man could not testify on his own behalf because he had an interest in the proceedings, and (2) husband and wife were considered one. A wife did not have a separate legal existence; the husband was the “one.” What was not allowed from the husband was not then available from the wife.
Now a man may testify on his own behalf, and husband and wife are considered two separate legal entities. However, a husband can still prevent his wife from testifying against him, and vice versa. The reason is that the rule helps maintain the harmony and sanctity of marriage. Courts have recognized that making one spouse testify against the other is bad for a marriage. Even if the couple is divorced, the rule still applies to communications made during the marriage because courts do not want to get in the way of couples freely communicating with one another.
Minnesota’s law goes even farther by protecting communications made prior to marriage. If the couple has married prior to the trial, then the marital privilege rule still applies. Minnesota has yet to adopt a “sham” marriage exception to the rule, even when the couple stated that part of the reason they married was to avoid having to testify against one another!
But as with any other legal rule, exceptions exist. The rule does not apply in a civil action between spouses, i.e. a dissolution of marriage, nor in a criminal action for a crime committed by one spouse against another or a child under the care of either spouse, nor in an action in which one of the spouses was charged with homicide and the date of the marriage of the defendant-spouse was subsequent to the date of the offense. So, a spouse cannot hide domestic abuse behind the privilege, nor can he or she avoid damaging statements in a divorce proceeding.
Minnesota has a robust spousal privilege rule, which is different from the federal rule and the spousal privilege rule in other states, as some have relaxed it or added more exceptions. Preserving the unguarded and free communications between spouses, Minnesota affirms the sanctity of marital relations. This appears to be one area where the State does not have unbridled freedom to interfere, but beware, the pillow talk rule does not apply to anyone else except your spouse
