The marital privilege in Nevada protects spouses from having to testify against each other in a legal proceeding unless they wish to do so. It also precludes a spouse from revealing the other spouse’s communications during the marriage unless the other spouse consents to it.
In this article, our Las Vegas criminal defense attorneys discuss:
- 1. What is the marital privilege in Nevada?
- 2. Are there exceptions?
- 3. Is there a spousal privilege in federal court?
- 4. Other privileges
1. What is the marital privilege in Nevada?
Nevada law recognizes two types of marital privileges:
- The spousal testimonial privilege; and
- The spousal communications privilege.
Spousal testimonial privilege
If you are married, Nevada’s spousal testimonial privilege prevents you from testifying for or against your spouse unless you want to.
Example: Paul was a passenger in his wife Jane’s car when she was drunk driving in Las Vegas. During Jane’s ensuing DUI criminal trial in state court, the prosecutor subpoenas Paul to testify against her.
Since Paul and Jane are married, Paul can choose not to testify against Jane even though he knows whether or not Jane had been drinking.
Certainly, you can choose to testify against your spouse if you wish to. This typically happens in cases involving domestic violence.1
Spousal communications privilege
Nevada’s marital communications privilege prevents you from testifying as to any communications you and your spouse had during the marriage unless your spouse consents to you testifying about it. Even if you get divorced, you would still need your ex-spouse’s permission to reveal communications made during the marriage.
Example: While Frank and Jill are married, Frank confides that he has assets hidden in offshore funds. After they divorce, Frank is prosecuted for tax evasion.
Jill wishes to testify at his trial. But due to the spousal communications privilege, she cannot reveal what Frank confessed to her while they were married without Frank’s permission.
Note that the spousal communications privilege only protects things said during the marriage, not before or after.2
A witness spouse can choose to testify against their spouse.
2. Are there exceptions?
Yes. Nevada’s marital privileges do not apply in the following five situations:
- A civil case where one spouse is suing the other.
- A proceeding brought by (or on behalf of) a spouse to establish their competence.
- A proceeding to commit a spouse and/or the spouse’s property under another person’s control due to the spouse’s mental or physical condition.
- Juvenile or family court proceedings pursuant to protecting children from abuse or neglect.
- A criminal case where a spouse is charged with either:
- bigamy;
- incest;
- abandonment of a child;
- nonsupport of the child or other spouse; or
- any crime against the person or property of the other spouse or of a child.3
There is also an exemption if a court declares a spouse to be insane. In this situation, the other spouse can testify about facts that occurred before and during the insanity.4
Furthermore, marital privileges apply only if there is a valid marriage. Two people who hold themselves out as man and wife but never lawfully married cannot claim the privileges. Nevada does not recognize common law marriages as valid.5
3. Is there a spousal privilege in federal court?
Yes. Similar to Nevada state law, federal law recognizes marital testimonial and communications privileges.6
4. Other privileges
Attorney-client privilege
Nevada lawyers may not ever reveal privileged communications between themselves and their clients without the client’s permission. The main exception to the attorney-client privilege is when a person is seeking out the lawyer in order to perpetrate fraud or commit another crime.7
Learn more about the attorney-client privilege.
Doctor-patient privilege
Physicians generally may not reveal confidential communications made by their patients. One of the instances where doctors can break confidentiality if they have reasonable cause to believe that a child has been abused or neglected.8
Learn more about the doctor-patient privilege.
Even if a married couple divorces, communications they made during the marriage remain privileged.
Legal References
- Nevada Revised Statute 49.295. Married person: General rule of privilege; exceptions.
1. Except as otherwise provided in subsections 2 and 3 and NRS 49.305:
(a) A married person cannot be examined as a witness for or against his or her spouse without his or her consent.
(b) No spouse can be examined, during the marriage or afterwards, without the consent of the other spouse, as to any communication made by one to the other during marriage.
2. The provisions of subsection 1 do not apply to a:
(a) Civil proceeding brought by or on behalf of one spouse against the other spouse;
(b) Proceeding to commit or otherwise place a spouse, the property of the spouse or both the spouse and the property of the spouse under the control of another because of the alleged mental or physical condition of the spouse;
(c) Proceeding brought by or on behalf of a spouse to establish his or her competence;
(d) Proceeding in the juvenile court or family court pursuant to title 5 of NRS or NRS 432B.410 to 432B.590, inclusive; or
(e) Criminal proceeding in which one spouse is charged with:
(1) A crime against the person or the property of the other spouse or of a child of either, or of a child in the custody or control of either, whether the crime was committed before or during marriage.
(2) Bigamy or incest.
(3) A crime related to abandonment of a child or nonsupport of the other spouse or child.
3. The provisions of subsection 1 do not apply in any criminal proceeding to events which took place before the spouses were married.
See also Meador v. State, (Nevada Supreme Court, 1985) 101 Nev. 765. - NRS 49.295.
- NRS 49.295.
- NRS 49.305.
- NRS 122.010 – NRS 122.030.
- See Trammel v. United States (1980) 445 U.S. 40.
- NRS 49.035 – NRS 49.115.
- NRS 49.215 – NRS 29.245.