905.05 Husband-wife and domestic partner privilege.

(1) General rule of privilege. A person has a privilege to prevent the person's spouse or former spouse or domestic partner or former domestic partner from testifying against the person as to any private communication by one to the other made during their marriage or domestic partnership. As used in this section, “domestic partner" means a domestic partner under ch. 770.

(2) Who may claim the privilege. The privilege may be claimed by the person or by the spouse or domestic partner on the person's behalf. The authority of the spouse or domestic partner to do so is presumed in the absence of evidence to the contrary.

(3) Exceptions. There is no privilege under this rule:

(a) If both spouses or former spouses or domestic partners or former domestic partners are parties to the action.

(b) In proceedings in which one spouse or former spouse or domestic partner or former domestic partner is charged with a crime against the person or property of the other or of a child of either, or with a crime against the person or property of a 3rd person committed in the course of committing a crime against the other.

(c) In proceedings in which a spouse or former spouse or domestic partner or former domestic partner is charged with a crime of pandering or prostitution.

(d) If one spouse or former spouse or domestic partner or former domestic partner has acted as the agent of the other and the private communication relates to matters within the scope of the agency.

History: Sup. Ct. Order, 59 Wis. 2d R1, R130 (1973); 1991 a. 32; 2009 a. 28.

Cross-reference: As to testimony of husband and wife in paternity action regarding child born in wedlock, see s. 891.39.

A wife's testimony as to statements made by her husband was admissible when the statements were made in the presence of 2 witnesses. Abraham v. State, 47 Wis. 2d 44, 176 N.W.2d 349 (1970).

Spouses can be compelled to testify as to whether the other was working or collecting unemployment insurance, since such facts are known to 3rd persons. Kain v. State, 48 Wis. 2d 212, 179 N.W.2d 777 (1970).

A wife's observation, without her husband's knowledge, of her husband's criminal act committed on a public street was neither a “communication" nor “private" within meaning of sub. (1). State v. Sabin, 79 Wis. 2d 302, 255 N.W.2d 320 (1977).

“Child" under sub. (3) (b) includes a foster child. State v. Michels, 141 Wis. 2d 81, 414 N.W.2d 311 (Ct. App. 1987).

The privilege under sub. (1) belongs to the person against whom testimony is being offered. While an accused may invoke the privilege to prevent his or her spouse from testifying against him or her, the witness spouse may not invoke it to prevent his or her own testimony. Umhoefer v. Police and Fire Commission of the City of Mequon, 2002 WI App 217, 257 Wis. 2d. 539, 652 N.W.2d 412, 01-3468.

Under sub. (3) (b), it is irrelevant whether the acts of the defendant that constitute a crime against a third party are the same acts that constitute a crime against the spouse or different acts. State v. Richard G.B. 2003 WI App 13, 259 Wis. 2d 730, 656 N.W.2d 469, 02-1302.

When all outgoing telephone calls made by inmates of a jail were recorded and that policy was disclosed to all inmates, the defendant knowingly exposed the content of the call to a third party. That constituted a waiver of any marital privilege. State v. Eison, 2011 WI App 52, 332 Wis. 2d 331, 797 N.W.2d 890, 10-0909.

The fact that the defendant was untruthful in his statements to his wife was not an exception to the marital privilege. State v. Eison, 2011 WI App 52, 332 Wis. 2d 331, 797 N.W.2d 890, 10-0909.