Spousal Privilege

Under state laws in most jurisdictions, statutory modifications have narrowed the blanket rules prohibiting non-party spouse testimony, and have made either spouse competent to testify for or against the other in civil actions. See McCormick, supra note 1, 66 at, 161 (1962). It was not until the Supreme Court granted one spouse the right to testify on behalf of the other in criminal cases. See Funk v. United States, 290 US 371 (1933). When a crime has been committed by one spouse against the other or their children, the acts are deemed non-confidential. See McCormick, supra note 1, 84, at 199. Actions for divorce, abandonment, and non-payment of support will also render the privilege inapplicable. Communications between the couple in furtherance of a crime or fraud are not protected under the marital privilege. See McCormick, supra note 1, 79, at 192. The "Crime-Fraud Exception" is based on the idea that communications of a crime do not involve the privacy of the marriage, and are outside the scope of the marital privilege. Further, the United States Court of Appeals for the Tenth Circuit extended the scope of the crime-fraud exception and held that the marital privilege is not available when one spouse participates as an accessory after the fact to a crime committed solely by the other spouse.

St John's Law Review, Vol 59, Iss. 3 [1985]

Tennessee:

T.C.A. § 24-1-201. SPOUSAL PRIVILEGE 

(a) In either a civil or criminal proceeding, no married person has privilege to refuse to take the witness stand solely because that person's spouse is a party to the proceeding. 

(b) In a civil proceeding, confidential communications between married persons are privileged and inadmissible if either spouse objects. This communications privilege shall not apply to proceedings between spouses or to proceedings concerning abuse of one (1) of the spouses or abuse of a minor in the custody of or under the dominion and control of either spouse, including, but not limited to, proceedings arising under title 36, chapter 1, part 1; title 37, chapter 1, parts 1, 4 and 6; title 37, chapter 2, part 4; and title 71, chapter 6, part 1. This confidential communications privilege shall not apply to any insured's obligations under a contract of insurance in civil proceedings. 

(c) (1) In a criminal proceeding a marital confidential communication shall be privileged if: 

(A) The communications originated in a confidence that they will not be disclosed; 

(B) The element of confidentiality is essential to the full and satisfactory maintenance of the relation between the parties; 

(C) The relation must be one which, in the opinion of the community, ought to be sedulously fostered; and 

(D) The injury to the relation by disclosure of the communications outweighs the benefit gained for the correct disposal of litigation. 

(2) Upon a finding that a marital communication is privileged, it shall be inadmissible if either spouse objects. Such communication privileges shall not apply to proceedings concerning abuse of one (1) of the spouses or abuse of a minor in the custody of or under the dominion and control of either spouse, including, but not limited to proceedings arising under title 37, chapter 1, parts 1 and 4; title 37, chapter 2, part 4; and title 71, chapter 6, part 1.