At common law and by rule of evidence, any party or witness in any proceeding has a privilege to prevent his or her present or former spouse from testifying as to any confidential communication between himself or herself and his or her present or former spouse.58 The privilege may be claimed by the party or witness or by the spouse on behalf of the party or witness. The authority of the spouse to do so is presumed.59
A communication is “confidential” for the purpose of the husband-wife privilege if it is made privately by any person to his or her spouse and is not intended for disclosure to any other person.60 Whether a communication is confidential depends on whether the communicating spouse acted under a reasonable expectation that the communication would be transmitted to the spouse and would go no further.61 As the husband-wife privilege relates to statements based on the marital relationship, it does not apply to information acquired independent of such relationship. Nor does it apply to statements of observations as to a spouse’s appearance or actions which are not intended as communications, even though the opportunity to observe these matters arose from the marital relationship. Similarly, evidence by one spouse as to the habits of another spouse are not privileged.62
The privilege does not apply in any proceeding in which one spouse is charged with a wrong against the person or property of (1) the other spouse, (2) a child of either, (3) a person residing in a household of either, or (4) a third person committed in the course of committing a crime against any of them. Further, the privilege does not apply in any proceeding brought relating to family matters, such as divorce, adoption, paternity and termination of parental rights proceedings, where the interests of the spouses are adverse.63
None of the foregoing, however, prevents a wife or husband from testifying for or against each other in any Delaware court.64
58. D.R.E. 504(b); Pierce v. State, 437 A.2d 851, 853 (Del. 1981); Mole v. State, 396 A.2d 153, 155 (Del. 1978); Duonnolo v. State, 397 A.2d 126, 130 (Del. 1978); State v. Lynch, 128 A. 565, 568 (Del. O. & T. 1925); Williams v. Betts, 98 A. 371, 373 (Del. Ch. 1916).
59. D.R.E. 504(c).
60. D.R.E. 504(a).
61. State v. DeRoche, ID No. 0001019333, Witham, J. (Del. Super. July 27, 2000) (husband and wife had reasonable expectation of privacy in police interview room when police officer left them alone so they could have privacy, notwithstanding that their voices could be heard outside of the room); Rochen v. Huang, C.A. No. 87C-JN-96, slip op. at 3-4, Gebelein, J. (Del. Super. Jan. 13, 1989).
62. State v. Patrick, Cr. A. Nos. IN-79-04-0482, slip op. at 2-3, Christie, J. (Del. Super. Sept. 12, 1979).
63. D.R.E. 504(d).
64. D.R.E. 504(e).
© 2010 David L. Finger