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A sues B.

At trial, B asks A about statements he made to his wife. A objects, invoking the spousal communications privilege. The court sustains the objection, so the statements do not come in.

B then calls A's wife as a witness. A objects, invoking the spousal testimonial privilege. The court sustains the objection, so the wife does not testify.

B asks for a jury instruction saying that the jury may make adverse inferences against A about the testimony that was excluded based on the spousal privilege. A objects.

Must/may the court give that instruction? Does the answer change depending on whether it is the litigant or the spouse who invokes the privilege?

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Must/may the court give that instruction?

No. It would be error for the court to give that instruction.

The only privilege for which an adverse inference instruction is generally authorized in civil litigation is the 5th Amendment privilege against self-incrimination. This is because when you invoke it, you are implicitly asserting that your testimony could be used against you, if you gave it, to show that you were guilty of a crime, and because a relevant question will be about events pertinent to the lawsuit.

An adverse inference is also not allowed for invoking the 5th Amendment when you are a defendant in a criminal case because that would undermine its purpose in the the criminal justice system.

An invocation of a marital privilege, in contrast, merely implies that you are married, which is not something that would normally and naturally suggest that you did something for which there is civil liability.

One could probably imagine a fact pattern in which being married was a disputed issue that could give rise to liability (e.g. under the "family car doctrine"), of course, in which the invocation of the privilege would estop A from asserting a defense on the ground that he isn't married to A's wife (either at the time of the communication if the confidential communication privilege is raised, or at the time of the testimony, if the right to not testify against a spouse privilege is raised, as the case might be). Tricky cases would involve people who were unmarried at the time of the accident but subsequently married. But, outside very unusual facts, people generally don't deny that they are married in a lawsuit and then try to assert the marital privilege in a lawsuit.

Does the answer change depending on whether it is the litigant or the spouse who invokes the privilege?

No.

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  • Is this answer specific to the US, or to common-law systems? Nov 19, 2021 at 3:12
  • @DavidSiegel It is not specific to the U.S. I don't know how it would play out outside common law legal systems, because the structure of the evidentiary rules is every different there. But civil jury trials are extremely rare in most common law jurisdictions other than the U.S. and Canada.
    – ohwilleke
    Nov 19, 2021 at 3:14
  • Thank you very much. I wondered because you mentioned the 5th amendment privilege. Nov 19, 2021 at 3:15
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    @DavidSiegel I don't know how adverse inference works in non-U.S. jurisdictions with respect to the equivalent of the 5th Amendment, but I am confident of the treatment of the spousal privilege in other common law jurisdictions.
    – ohwilleke
    Nov 19, 2021 at 3:20
  • To me, asserting the spousal privilege implies more than the fact of marriage. As I recall learning it, the entire point of the testimonial privilege was to avoid pitting husband against wife; if that's the case, invoking it seems to imply the existence of unfavorable evidence. If I were sued for negligently running a red light, and my wife could testify that the light was green, I'm not going to stop her. In the normal case, it seems that the invocation is going to happen because the spouse has something damning to say.
    – bdb484
    Nov 19, 2021 at 5:34

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