Spousal Privilege Does Not Apply to Criminal Behavior

New York's marital privilege is codified in CPLR 4502(b), which provides in full: 'A husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage.' (There are statutory exceptions to the marital privilege in cases involving child abuse. See Prince, Richardson on Evidence ' 5-402 (11th ed., Farrell 1995).) The Court of Appeals has noted that '[t]he privilege, which is '[d]esigned to protect and strengthen the marital bond ' encompasses only those statements that are 'confidential,' that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship.” People v. Mills, 1 N.Y.3d 269, 276, 772 N.Y.S.2d 228, 232 (2003).

Thus, within the very definition and underlying purpose of the privilege are inherent limitations. For example, 'daily and ordinary exchanges' between spouses are not protected because the privilege encompasses only communications 'which would not have been made but for the absolute confidence in, and induced by, the marital relationship.' People v. Melski, 10 N.Y.2d 78, 80, 217 N.Y.S.2d 65, 67 (1961).