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The marital communications privilege permits an individual to refuse to testify, and to prevent a spouse or former spouse from testifying, as to any confidential communication made by the individual to the spouse during their marriage. See, e.g., Unif. R. Evid. 504(a); J. Strong, et al., McCormick on Evidence §§ 78-86 (4th ed. 1992); Blau v. United States, 340 U.S. 332, 95 L. Ed. 306, 71 S. Ct. 301 (1951). Trammel v. United States, 445 U.S. 40, 51, 63 L. Ed. 2d 186, 100 S. Ct. 906 (1980).3 Unif. R. Evid. 502(b); McCormick §§ 87-97; Upjohn Co. v. United States, 449 U.S. 383, 389-90, 66 L. Ed. 2d 584, 101 S. Ct. 677 (1981); United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358 (D. Mass. 1950) (Wyzanski, J.).


No general rule withdraws the privilege from communications that occur in the same time frame as criminal act conduct. See In re Grand Jury Subpoenas Duces Tecum, 798 F.2d 32, 34 (2d Cir. 1986). In federal courts, the marital communications privilege typically is forfeited only where both husband and wife are jointly engaged in criminal activity or where the victim is the other ...

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