Suppose a husband and wife are going to a psychologist for couples counseling to save their failing marriage.
During a session, the husband blurts out he murdered somebody.
He is soon after arrested, charged, arraigned, etc.
His lawyer motions to suppress: his communication was to the psychologist (doctor-patient privilege) AND to his wife (spousal privilege).
The district attorney claims privilege is broken when communicated in the presence of a third party…wife breaks doctor-patient privilege and doctor breaks spousal privilege.
Under these conditions, do the two simultaneous privileges cross-cancel or reinforce each other?
I would argue that it breaks the marital privilege because of the presence of a third party, but since the wife and husband were co-patients, the therapy was meant to extend to all parties, so doctor-patient still applies.
While privilege is held by the patient/s and maintained by the psychologist, it is not legally inviolable regardless of the question of whether the co-patients hold spousal privilege. Not to get off-target here, but also in your scenario is the question of whether the spouse wishes to maintain privacy, and whether state law permits or requires the psychologist to report post hoc. You also seem to assume for didactic purposes that some party in the room breached privacy, but if Murderous Joe is blurting it out here, he may have blurted it out to some other party as well.
I think it might vary according to state law, concerning the degree that spouses comprise a unit. In some states, a husband and wife act as one, by statute. One anecdotal example of this would be my experience trying to get a vasectomy in Kansas. State law prohibited the performance of a vasectomy on any married man without the consent of his lawfully wedded wife. A case in which a medical issue, despite doctor/patient confidentiality, treated the husband’s body as a part of joint marital property.
I would love a cite to this law. If it exists it is absolutely unconstitutional. Even under the olde English common law someone’s body was never marital property!
To the best of my knowledge (and I’ve looked), there is no such law in Kansas, and hasn’t been in at least the last several decades. (I don’t know about long ago.)
That said, there are certainly medical practices within the state that require the consent of both. See, e.g., the patient information packet from the Hutchinson Clinic in Hutchinson, Kansas (Warning: PDF): “It is our policy that the individual wanting a vasectomy and his wife or partner, come to our office, study our ideas and advice, be examined, have a discussion with the doctor. Then, if it is mutually agreeable with the doctor, set a date at least one week in the future to have the operation.” The consent form on page 5 of the packet has a spot for both husband and wife to sign. I assume there was some law or lawsuit or legal tussle once upon a time to cause the clinic to take this position, but perhaps it’s just physician preference.
I always consult this case when a SP question is asked, see footnote 9.
This was a federal case, and it mentions a third party witness.
See what your state law says, then look it up to verify it is still the same as when this decision was rendered.
In part, FN9; The remaining 17 States have abolished the privilege in criminal cases: see Ariz. Rev. Stat. Ann. 12-2231 (Supp. 1978); Ark. Stat. Ann. 28-101, Rules 501 and 504 (1979); Del. Code Ann., Tit. 11, 3502 (1975); Fla. Stat. 90.501, 90.504 (1979); Ill. Rev. Stat., ch. 38, 155-1 (1977); Ind. Code 34-1-14-4, 34-1-14-5 (1976); Kan. Stat. Ann. 60-407, 60-428 (1976); Maine Rules of Evidence 501, 504; N. H. Rev. Stat. Ann. 516.27 (1974); N. Y. Crim. Proc. Law 60.10 (McKinney 1971); N. Y. Civ. Proc. Law 4502, 4512 (McKinney 1963); N. D. Rules of Evidence 501, 504; Okla. Stat., Tit. 12, 2103, 2501, 2504 (West Supp. 1979); S. C. Code 19-11-30 (1976); S. D. Comp. Laws Ann. 19-13-1, 19-13-12 to 19-13-15 (1979); Tenn. Code Ann. 40-2404 (1975); Vt. Stat. Ann., Tit. 12, 1605 (1973); Wis. Stat. 905.01, 905.05 (1975). http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=445&invol=40
No but if someone is known to be sterile, they must reveal that fact to their future spouse before marriage in California for obvious reasons. I would not be surprised if there were laws that if you are sterilized during a marriage you would need to reveal that to your partner although I agree joint consent is probably not required.