Mont. Code Ann. » TITLE 26. EVIDENCE · CHAPTER 1. STATUTORY PROVISIONS ON EVIDENCE · Part 8. Privileges
Montana Code Annotated

Mont. Code Ann. § 26-1-802 (2026)

Spousal Privilege

✓ current as of May 2026
Find cases: SyfertCases citing this section MT-LEGleg.mt.gov JustiaTitle on Justia CornellLII Search CasesGoogle Scholar
  1. MCA Contents
  2. TITLE 26
  3. CHAPTER 1
  4. Part 8
  5. 26-1-802 Spousal privilege

TITLE 26. EVIDENCE

CHAPTER 1. STATUTORY PROVISIONS ON EVIDENCE

Part 8. Privileges

Spousal Privilege

26-1-802. Spousal privilege. (1) A spouse may not, without the consent of the other spouse, testify during or after the marriage concerning any communication made by one to the other during their marriage.

(2) A judicial, legislative, administrative, or other governmental body may not request or require the disclosure of an electronic communication made by one spouse to the other during their marriage from a spouse or an electronic communication service used by the spouse.

(3) A spouse or an electronic communication service used by the spouse may not be adjudged in contempt by a judicial, legislative, administrative, or other body having the power to issue subpoenas for refusing to disclose or produce electronic communications made by one spouse to the other during their marriage.

(4) The privilege under subsections (1) through (3):

(a) is restricted to communications made during the existence of the marriage relationship and does not extend to communications made prior to the marriage or to communications made after the marriage is dissolved; and

(b) does not apply to a civil action or proceeding by one spouse against the other or to a criminal action or proceeding for a crime committed by one spouse against the other or against a child of either spouse.

(5) For the purposes of this section, "electronic communication" and "electronic communication service" have the meanings provided in 46-5-601. The terms do not include communications transmitted by the state telecommunications network provided for in 2-17-506.

History: En. Secs. 373-377, pp. 210, 211, L. 1867; re-en. Secs. 447-451, p. 125, Cod. Stat. 1871; en. Secs. 629, 630, pp. 203, 204, L. 1877; re-en. Secs. 629, 630, 1st Div. Rev. Stat. 1879; re-en. Secs. 650, 651, 1st Div. Comp. Stat. 1887; re-en. Sec. 3163, C. Civ. Proc. 1895; re-en. Sec. 7892, Rev. C. 1907; re-en. Sec. 10536, R.C.M. 1921; amd. Sec. 1, Ch. 83, L. 1925; amd. Sec. 1, Ch. 130, L. 1931; re-en. Sec. 10536, R.C.M. 1935; amd. Sec. 1, Ch. 61, L. 1971; amd. Sec. 1, Ch. 318, L. 1973; amd. Sec. 15, Ch. 543, L. 1975; amd. Sec. 2, Ch. 225, L. 1977; R.C.M. 1947, 93-701-4(1); amd. Sec. 1, Ch. 158, L. 2005; amd. Sec. 1, Ch. 446, L. 2023; amd. Sec. 19, Ch. 53, L. 2025.

Notes of Decisions
Cited in 16 cases, 1981–2019 · leading case: State v. Forsythe, 2017 MT 61 (Mont. 2017).
Sort: Relevance Newest Treatment
State v. Forsythe, 2017 MT 61 (Mont. 2017). · cites it 52× “3 by spousal privilege under § 26-1-802, MCA. The State countered that the letters to Giana were not within the scope of spousal privilege because the letters were intended to intimidate and harass Giana into silence.”
State v. Edwards, 2011 MT 210 (Mont. 2011). · cites it 23× “¶16 As a threshold matter, we conclude that the District Court should have applied the 2009 version of § 26-1-802, MCA, instead of the 2001 version.”
State v. Nettleton, 760 P.2d 733 (Mont. 1988). · cites it 36× “He asserted that his communications with the two women during marriage were privileged under Section 26-1-802, MCA. After a hearing on the motion, the District Court determined that sufficient evidence had been introduced to show a marriage between Nettleton and DuMontier, and…”
State v. Baldwin, 2003 MT 346 (Mont. 2003). · cites it 18× “Section 26-1-802, MCA, states: Spousal privilege.”
State v. Roberts, 633 P.2d 1214 (Mont. 1981). · cites it 10× “) Section 26-1-802, MCA, hereafter identified as the marital privilege statute, provides: “A husband cannot be examined for or against his wife without her consent or a wife for or against her husband without his consent; nor can either, during the marriage or afterward, be,…”
State v. Torgerson, 2008 MT 303 (Mont. 2008). · cites it 4× “¶28 Torgerson also argues the District Court erred in allowing Doane to testify about communications between them while they were married in violation of § 26-1-802, MCA, which prohibits such testimony without the nontestifying spouse’s permission.”
In Re the Marriage of Sarsfield, 671 P.2d 595 (Mont. 1983). · cites it 3× “The privilege against examination concerning inter- *406 spousal communications is set forth in Section 26-1-802, MCA: “Spousal privilege.”
State v. Christian, 841 A.2d 1158 (Conn. 2004). · cites it 2× “260 (1) (2000); Mont. Code Ann. § 26-1-802 (2003); Neb. Rev.”
Commonwealth v. McBurrows, 779 A.2d 509 (Pa. Super. Ct. 2001). · cites it 2× “2d 733 (1988) (finding the communication for which the privilege under Section 26-1-802 MCA is sought must be an utterance or other expression intended to convey a message to the other spouse); People v.”
State v. Krinitt, 823 P.2d 848 (Mont. 1991). · cites it 4× “Krinitt was barred from testifying against her husband by § 26-1-802, MCA (spousal privilege), and § 46-16-212, MCA (competency of spouses).”
United States v. James Montgomery, United States of Am. v. Mary O'COnnOr, 384 F.3d 1050 (9th Cir. 2004). “260; Mont.Code Ann. § 26-1-802; Neb.Rev.Stat. § 27-505(1); Nev.”
Commonwealth v. Hunter, 60 A.3d 156 (Pa. Super. Ct. 2013). “*162 504(C)(1) (2012) (Louisiana), Mont.Code Ann. § 26-1-802 (2012) (Montana); and Ohio R.”
Show all 16 citing cases →
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.