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Rationalizing a Spousal Confidential Communications Privilege Fit for the Twenty-First Century

Posted by on Tuesday, July 20, 2021 in En Banc, Notes and Comments, Volume 74.

Emily Crawford Sheffield | 74 Vand. L. Rev. En Banc 187 (2021) |

For the spousal confidential communications privilege to be rationalized in the twenty-first century, the privilege must first be limited to apply only to the witness-spouse’s election of invocation. By refocusing the privilege’s protections onto only the witness-spouse, the modern societal values of individualism, personal autonomy, and intimacy are reflected. Then, by rationalizing this modernized spousal confidential communications privilege under a doctrine of excuse rather than attempting to fit the privilege into any traditional theory of justification, the spousal confidential communications privilege will serve a useful purpose in the modern legal system.

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Emily Crawford Sheffield