Susan Westemeyer said:
"martial" privilege?
I assume she means "marital" and I also had always understood that was optional -- one couldn't be forced to testify against a spouse, but could if one wanted to -- and further that it didn't apply to ex-spouses.
Speedzero said:
Susan, that is exactly right. (IAAL)
That is not exactly right. The marital communication privilege protects confidential communications made between spouses during the marriage from being testified to in court (in either a civil or criminal case), but nothing else. It continues even if the marriage ends, so the last part of your statement is not correct. Furthermore, the marital communication privilege ONLY protects confidential communications; it does not protect communications involving third parties, and it does not protect impressions, views, discoveries, and observations of non-communicative behavior.
There is another kind of privilege, termed the "spousal" privilege, which applies only to criminal cases and ends when the marriage ends. At common law, it prevented a spouse from being a witness against her spouse in a criminal proceeding -- hence the phrase, "marry a person and seal her lips." At common law, the defendant spouse was the holder of the privilege, which means that, if the husband is on trial, he would be the one to invoke the privilege to prevent his wife from testifying; the modern trend is to hold that the witness spouse, not the defendant spouse, is the holder of the privilege, which means that the witness spouse can either refuse to testify, invoking the privilege, or choose to testify; the defendant spouse simply has to hope she chooses to invoke the privilege.
So, applying these to the Armstrong situation, the spousal privilege is gone; the marital communication privilege remains, but it only applies to testimony in court, and it only applies to confidential discussions between Lance and Kik. She can be compelled to testify as to what she saw, did, heard Lance say to others, and what she saw him do.
So, to say she is remaining silent because of the marital privilege is just window-dressing; she is just trying to justify remaining silent for other reasons, and as I said above, I think Luke is her primary reason for staying silent for now.