Under Indiana law, the spousal privilege has been interpreted as protecting only those communications passing from one marriage partner to the other because of the confidence resulting from their intimate marriage relationship. Beyerline, 147 Ind. at 130, 45 N.E. at 774. The spousal privilege is subject to waiver where the defendant gives direct testimony concerning his communication with his spouse during the time in question, Taylor v. State, 567 N.E.2d 98, 102 (Ind. 1991).
The privilege is also subject to certain other well-established exceptions. For example, where the spousal communication is made in the presence of a third person, our supreme court
has held that no privilege exists because of the lack of confidentiality. Holt v. State, 481 N.E.2d 1324, 1326 (Ind. 1985), cert. denied, 481 U.S. 1031, 107 S.Ct. 1960 (1987). The same is true for a communication “intended to be communicated to a third person.” Resnover v. State, 267 Ind. 597, 601, 372 N.E.2d 457, 459 (1978). In addition, there is an exception to the spousal privilege where the offense charged was committed by one spouse against the other. Shepherd, 257 Ind. at 232-33, 277 N.E.2d at 167. Lastly, the parties must have a legally recognized marriage in order to claim the spousal privilege. Holt, 481 N.E.2d at 1326.
Thus as long as your statement does not fit into an above exception, your husband's attorney can move to suppress the statement and have it not used in court.
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