The New York Criminal Law Blog

Gay Spouses Get Marriage Privileges in Fed. Court

On top of marital privileges in the state, gay spouses in New York now have marriage privileges in federal courts, too.

The Department of Justice (DOJ) released a memo on Monday stating that same-sex married couples should be treated the same and given the same marital privileges as opposite-sex married couples.

So what marital privileges can be used by gay couples in a criminal case?

Marital Privileges in Criminal Cases

It's important to remember that the marital privileges recognized by the DOJ are only available to use in federal court. With that in mind, legally married couples have a marital communications privilege that can be used in federal court.

The marital communications privilege prevents confidential communications made between the spouses during the marriage from being entered into evidence. What's special about this privilege is that it lasts even if the couple gets divorced. Plus, either spouse can object if private marital communications are introduced as evidence at trial.

For example, in a drug trafficking case, if a federal prosecutor asks a woman what her wife said to her after she was arrested, either spouse can object to answering the question. The marital privilege protects what was said between the couple because it occurred while they were married.

Spousal Privileges

In addition to the marital privilege, same-sex couples can invoke their spousal privilege in federal court. What makes the spousal privilege different from the marital communications privilege is that only one spouse can use it.

The spousal privilege only lasts as long as the couple is married. Contrary to popular belief, the spousal privilege doesn't allow one spouse to prevent the other from testifying against him or her in federal court. In fact, it's up to the testifying spouse to decide whether or not he or she wants to testify against his or her husband or wife.

If gay spouses want to invoke these marital privileges in New York pursuant to the Department of Justice's memo, they can only do in the state's federal courts. A criminal defense attorney in New York can also help same-sex spouses distinguish between state and federal laws when it comes to marriage privileges.

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