Marital communications privilege

The Marital communications privilege is a potential safeguard against inquiry into private admissions between spouses, but in the case of Rusty Sabich and Barbara Sabich it offers no complete assurance. As Sandy Stern weighs whether Rusty should testify, the privilege becomes both a possible limit on the prosecution’s questions and an uncertain part of the defense’s risk calculation.

Scope and Possible Protection

Sandy Stern tells Rusty that the privilege would probably prohibit questions to Barbara about Rusty’s admissions to her concerning his affair with Carolyn Polhemus. The point is specific: the possible protection concerns what Rusty told his wife, not a general guarantee that the affair or its surrounding facts cannot be raised in court.

Role in the Testimony Decision

The privilege enters the discussion because Barbara might be cross-examined if Rusty takes the stand. Stern considers the possibility that the same facts could emerge through her testimony, while acknowledging that the privilege might block questions about Rusty’s admissions. He cannot treat that outcome as certain, so the rule reduces one potential danger without eliminating the broader risk of testimony. Stern adds that this issue is not his principal concern about Rusty taking the stand, placing the privilege within a larger strategic judgment rather than presenting it as decisive.