A brief discussion on privileges that arise from marital relationships and relationships with service providers is contained in this section. For additional information on privileges in general, see the Michigan Judicial Institute’s Evidence Benchbook, Chapter 1.
A.Privileges Arising From a Marital Relationship
The two privileges that arise from a marital relationship under MCL 600.2162 are:
•the spousal privilege; and
•the confidential communications privilege.
MCL 600.2162(1)-(2) establishes spousal privileges that limit the circumstances under which one spouse may “be examined as a witness” for or against the other spouse in civil, administrative, and criminal proceedings:
“(1) In a civil action or administrative proceeding, a husband shall not be examined as a witness for or against his wife without her consent or a wife for or against her husband without his consent, except as provided in [MCL 600.2162(3)].[1]
(2) 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)].”
2.Confidential Communication Privilege
MCL 600.2162(4)-(7) establish confidential communication privileges limiting the circumstances under which an individual may “be examined” in civil, administrative, and criminal proceedings as to communications that occurred between the individual and his or her spouse during their marriage:
“(4) Except as otherwise provided in [MCL 600.2162(5)] and [MCL 600.2162(6)], a married person or a person who has been married previously shall not be examined in a civil action or administrative proceeding as to any communication made between that person and his or her spouse or former spouse during the marriage.
(5) A married person may be examined in a civil action or administrative proceeding, with his or her consent, as to any communication made between that person and his or her spouse during the marriage regarding a matter described in [MCL 600.2162(3)].
(6) A person who has been married previously may be examined in a civil action or administrative proceeding, with his or her consent, as to any communication made between that person and his or her former spouse during the marriage regarding a matter described in [MCL 600.2162(3)].
(7) 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.Exceptions to Privileges Arising From Marital Relationship
“The spousal privileges established in [MCL 600.2162(1)] and [MCL 600.2162(2)] and the confidential communications established in [MCL 600.2162(7)] do not apply in any of the following:
(a) In a suit for divorce, separate maintenance, or annulment.
(b) In a prosecution for bigamy.
(c) In a prosecution for a crime committed against a child of either or both or a crime committed against an individual who is younger than 18 years of age.
(d) In a cause of action that grows out of a personal wrong or injury done by one to the other or that grows out of the refusal or neglect to furnish the spouse or children with suitable support.
(e) In a case of desertion or abandonment.
(f) In a case in which the husband or wife is a party to the record in a suit, action, or proceeding if the title to the separate property of the husband or wife called or offered as a witness, or if the title to property derived from, through, or under the husband or wife called or offered as a witness, is the subject matter in controversy or litigation in the suit, action, or proceeding, in opposition to the claim or interest of the other spouse, who is a party to the record in the suit, action, or proceeding. In all such cases, the husband or wife who makes the claim of title, or under or from whom the title is derived, shall be as competent to testify in relation to the separate property and the title to the separate property without the consent of the husband or wife, who is a party to the record in the suit, action, or proceeding, as though the marriage relation did not exist.” MCL 600.2162(3).
The defendant’s wife could be compelled to testify against him where the charged crime against a third party grew out of a personal wrong or injury committed by the defendant against his wife. People v Hill, 335 Mich App 1, 12-13 (2020) (defendant made physical contact with his wife who feared for her safety, causing her to ask the third party for help, and the defendant shot the third party; although, “defendant was not charged with an offense against [his wife],” his “purpose in allegedly shooting [the third party] was to facilitate his assault against [his wife]”). See also MCL 600.2162(2)-(3).
“[T]he legal right not to testify [established] in [MCL 600.2162(2)] . . . is specifically limited by [MCL 600.2162(3)], which states that the spousal privilege established in subsection (2) ‘does not apply’ in certain cases [.]” People v Szabo, 303 Mich App 737, 747 (2014). “When such an ‘exception’ exists the effect, then, is not that the ownership of the spousal privilege transfers from the one spouse to the other . . . ; rather, the effect is that no spousal privilege exists at all[,]” and the victim-spouse may be compelled to testify against his or her defendant-spouse. Id. at 748. Accordingly, a victim-spouse may be compelled to testify against his or her defendant-spouse. Id. at 749. In Szabo, the victim-wife “was not vested with a spousal privilege [under MCL 600.2162(2)]” and could be compelled to testify where “[the] defendant[-husband] was charged with felonious assault and felony-firearm arising from criminal actions he allegedly committed against [her]” because those actions gave rise to a “cause of action [that grew] out of a personal wrong or injury done by the defendant-spouse against the victim-spouse.’” Szabo, 303 Mich App at 737, 748, 749, quoting MCL 600.2162(3)(d).
B.Privileged Communications with Care Providers
The Michigan Legislature has enacted a number of statutes that limit the use of communications with various care providers as evidence in civil or criminal trials.
1.Sexual Assault and Domestic Violence Counselors
Communications between a victim and a sexual assault or domestic violence counselor are protected under MCL 600.2157a(2):
“Except as provided in . . . [MCL] 722.631,[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.”
If a sexual assault or domestic violence counselor is licensed, certified, or identified as a social worker, psychologist, or other professional, other privileges may also apply:
•Social workers, MCL 333.18513;3
•Psychiatrists and psychologists, MCL 330.1750;
•Psychologists, MCL 333.18237;
•Physicians, MCL 600.2157; and
•Clergy, MCL 767.5a(2).4
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, MCL 722.631.
2.Abrogation of Privileges in Cases Involving Suspected Child Abuse or Neglect
If a person listed as a mandatory reporter under MCL 722.623(1) suspects that a child is being abused or neglected, the person must report the suspected child abuse or neglect.5 MCL 722.623(1).
“MCL 722.631 governs privileges in child protective proceedings.” MCR 3.901(A)(3). MCL 722.631 states:
“Any legally recognized privileged communication except that between attorney and client or that made to a member of the clergy in his or her professional character in a confession or similarly confidential communication is abrogated and shall not constitute grounds for excusing a report otherwise required to be made or for excluding evidence in a civil child protective proceeding resulting from a report made pursuant to [the Child Protection Law]. This section does not relieve a member of the clergy from reporting suspected child abuse or child neglect under [MCL 722.623] if that member of the clergy receives information concerning suspected child abuse or child neglect while acting in any other capacity listed under [MCL 722.623].”
“[A] communication [between a member of the clergy and a church member] [was] within the meaning of ‘similarly confidential communication’ when the church member d[id] not make an admission, but ha[d] a similar expectation that the information [would] be kept private and secret.” People v Prominski, 302 Mich App 327, 328, 336-337 (2013) (where the parishioner “went to [her pastor] ‘for guidance[ and] advice’” to discuss “her concerns that her husband was abusing her daughters” and “‘expected that the conversation be kept private[,]’” the parishioner’s communication with the pastor was a confidential communication as contemplated by MCL 722.631, and the pastor was not required to report the suspected child abuse under the mandatory reporting statute, MCL 722.623(1)(a)).
Abrogation of privileges under MCL 722.631 does not depend on whether the person initiating the child protective proceeding was required to report the suspected abuse, or whether the proffered testimony directly addresses the abuse or neglect that gave rise to the protective proceeding. In re Brock, 442 Mich 101, 116-120 (1993) (physician and psychologist were permitted to testify concerning a parent’s past history of mental illness despite the fact that a neighbor reported the suspected neglect that gave rise to the proceeding). See also MCR 3.973(E)(1), which states in relevant part that, “as provided by MCL 722.631, no assertion of an evidentiary privilege, other than the privilege between attorney and client, shall prevent the receipt and use, at the dispositional phase, of materials prepared pursuant to a court-ordered examination, interview, or course of treatment.”
1 MCL 600.2162(3) lists situations in which the spousal and confidential communication privileges do not apply. See Section 4.6(A)(3) for more information on these exceptions.
2 For purposes of child protective proceedings, MCL 722.631 abrogates all recognized privileges except the attorney/client and clergy/penitent privileges. See Section 4.6(B)(2) for more information.
3 See People v Carrier, 309 Mich App 92, 113 (2015) (extending the privilege under MCL 333.18513 to a client whose communications were with an employee who had a limited license, bachelor’s of social work).
4 MCL 600.2156 (a provision often cited as one of the clergy-penitent privileges) “does not qualify as an evidentiary privilege.” People v Bragg, 296 Mich App 443, 462-463 (2012) (holding that the defendant’s admission to his pastor that the defendant had sexually assaulted his young cousin was “privileged and confidential communications under MCL 767.5a(2)[,]” notwithstanding that the pastor had initiated the conversation and that the defendant’s mother was present). For discussion of the clergy-penitent privilege and Bragg, see the Michigan Judicial Institute’s Crime Victim Rights Benchbook, Chapter 3.
5 For a detailed discussion of reporting suspected child abuse or neglect, including a list of individuals who are required to report suspected child abuse or neglect under MCL 722.623(1), see the Michigan Judicial Institute’s Child Protective Proceedings, Chapter 2.