Who May Assert It?
Either spouse may assert the privilege as long as there is a valid contract of marriage in existence at the time of the proffered testimony. Marashi, 913 F.2d at 729-30. However, it is important to remember that whereas the dissolution of the marriage terminates the privilege under the anti-marital facts privilege, this is not the case with the confidential communications privilege. Confidential communications during the marriage are always privileged (unless certain public policy grounds dictate otherwise, see discussion infra). Id. 4. Can the Privileges be Waived? Yes. In order to assert the privilege a timely objection must be made to the allegedly privileged communication. See United States v. Figueroa-Paz, 468 F.2d 1055, 1057 (9th Cir. 1972) (finding that when the defendant “failed to object to his wife’s testimony as to his communications when it was offered,” he waived the privilege); United States v. Montgomery, 384 F.3d 1050, 1057 (9th Cir. 2004) (“[T]he marital communications
