Privilege

The MBE tests privilege as an admissibility gatekeeper: the call is whether evidence is relevant yet still excluded because a privilege blocks it. The classic spousal trap turns on who holds the privilege and when the communication occurred. The testimonial (spousal-immunity) privilege covers being compelled to testify against a current spouse, is held by the witness-spouse in federal court (Trammel), and evaporates on divorce; the confidential-marital-communications privilege covers only confidences shared during marriage, is held by both spouses (majority rule), and survives divorce. Neither applies where one spouse is charged with a crime against the other or the children.

Don’t confuse privilege with hearsay — a privileged statement can be perfectly admissible hearsay yet still barred, and they’re independent objections. Note that privilege protects communications, not the underlying facts a witness independently knows. Watch the work-product trap: opinion work product (an attorney’s mental impressions) is nearly absolute, while ordinary work product yields on substantial need plus undue hardship.