A.Privileges Related to the Marital Relationship
“In a criminal prosecution, a husband shall not be examined as a witness for or against his wife without his consent or a wife for or against her husband without her consent, except as provided in [MCL 600.2162](3).”48 MCL 600.2162(2).
2.Confidential Communications Privilege
MCL 600.2162(7) states:
“Except as otherwise provided in [MCL 600.2162](3), a married person or a person who has been married previously shall not be examined in a criminal prosecution as to any communication made between that person and his or her spouse or former spouse during the marriage without the consent of the person to be examined.”
3.When Privileges Do Not Apply
The legal rights established in MCL 600.2162(1)-(2) stating that a spouse shall not testify against his or her spouse in a criminal prosecution, civil action, or administrative proceeding do not apply in the specific circumstances listed in MCL 600.2162(3). People v Szabo, 303 Mich App 737, 747 (2014).
The spousal privilege does not apply to cases that arise from a personal wrong or injury committed by one spouse against the other spouse. Szabo, 303 Mich App at 748. In Szabo, the victim-wife could have been compelled to testify because the charges against her defendant-husband—felonious assault and felony-firearm—“[grew] out of a personal wrong or injury done by one [spouse] to the other.” Id. at 748-749. See MCL 600.2162(3)(d).
The “personal wrong or injury exception” to spousal privilege appearing in MCL 600.2162(3)(d) does not require that a defendant-spouse be charged with an offense against the victim-spouse related to the personal wrong or injury. People v Hill, 335 Mich App 1, 12-13 (2020). In Hill, the defendant-spouse shot a third party who was attempting to intervene in a physical altercation between the defendant-spouse and the victim-spouse. Id. at 4. The charges against the defendant-spouse were a result of conduct directed at the third party that “occurred contemporaneously with (or after)” the defendant-spouse’s initial assault of the victim-spouse and that constituted conduct intended to facilitate the defendant-spouse’s continued assault of the victim-spouse; therefore, the charges against the defendant-spouse arose “[i]n a cause of action that [grew] out of a personal wrong or injury done by one [spouse] to the other . . . .” Id. at 12; MCL 600.2162(3)(d). Consequently, the spousal privilege did not apply, and the victim-spouse could be compelled to testify against the defendant-spouse in a criminal prosecution. Hill, 335 Mich App at 13.
B.Sexual Assault and Domestic Violence Counselors
Except as provided in MCL 722.631 (addressing privileged communications in child protective proceedings), communications between a victim and a sexual assault or domestic violence counselor are protected under MCL 600.2157a(2):
“[A] confidential communication, or any report, working paper, or statement contained in a report or working paper, given or made in connection with a consultation between a victim and a sexual assault or domestic violence counselor, shall not be admissible as evidence in any civil or criminal proceeding without the prior written consent of the victim.”
The privilege in MCL 600.2157a is abrogated in child protective proceedings. See MCL 600.2157a(2); MCL 722.631. It is also abrogated if the sexual assault or domestic violence counselor has a duty to report suspected child abuse or child neglect under MCL 722.623.49 See MCL 722.631.
If a sexual assault or domestic violence counselor is licensed, certified, or identified as a social worker, psychologist, or other specified professional, other privileges may also apply:
•Social workers, MCL 333.18513;
•Psychiatrists and psychologists, MCL 330.1750;
•Psychologists, MCL 333.18237;
•Physicians, MCL 600.2157; and
•Clergy, MCL 767.5a(2).50
With the exception of a member of the clergy acting in that capacity, or the protected communication between an attorney and his or her client, these privileges are abrogated in child protective proceedings. See MCL 722.631.51
48. MCL 600.2162(3) lists situations in which the spousal and confidential communication privileges do not apply, including suits for divorce, separate maintenance, and annulment. MCL 600.2162(3)(a)-(f).
49. See the Michigan Judicial Institute’s Child Protective Proceedings Benchbook for detailed information.
50. MCL 600.2156 (a provision often cited in support of the cleric-congregant privilege) “does not qualify as an evidentiary privilege.” People v Bragg, 296 Mich App 433, 453 (2012). In Bragg, the trial court correctly excluded evidence of the defendant’s admission to his pastor that the defendant had sexually assaulted his young cousin because the defendant’s conversation with his pastor was “privileged and confidential under MCL 767.5a(2)[.]” Bragg, 296 Mich App at 236-237, 463. Notwithstanding the fact that the pastor had initiated the conversation at which the defendant’s mother was present, “the content of the communication” fell within the scope of MCL 767.5a(2). Bragg, 296 Mich App at 463-465. For discussion of the cleric-congregant privilege and Bragg, see the Michigan Judicial Institute’s Crime Victim Rights Benchbook, Chapter 3.
51. See the Michigan Judicial Institute’s Child Protective Proceedings Benchbook for detailed information.