You’re staring at an MBE Evidence question about whether a conversation between spouses can be admitted. You know there’s a privilege somewhere in there, but which one applies? And wait—does it matter if they’re divorced now? What about attorney-client privilege—can the government force a lawyer to testify about conversations with a client who later died?

Privileges trip up more bar examinees than almost any other Evidence topic. They’re tested frequently on the MBE, they have overlapping exceptions, and the fact patterns are designed to make you second-guess yourself. Let’s break down exactly what you need to know about attorney-client privilege, spousal privilege (yes, there are two), and the other privileges that show up on the bar exam.

Why Privileges Matter on the MBE

Privileges are an exception to the general rule that all relevant evidence is admissible. They protect certain confidential communications even when those communications would help determine the truth. The MBE loves testing privileges because the rules have specific elements, clear exceptions, and fact patterns that seem designed to confuse you.

Here’s what makes privileges particularly tricky: the Federal Rules of Evidence don’t actually define most of them. FRE 501 punts the issue to federal common law in federal question cases and to state law in diversity cases. But for MBE purposes, you’re tested on the widely recognized common law privileges that appear consistently across jurisdictions.

The NCBE expects you to know attorney-client privilege, both spousal privileges, and the basic framework for psychotherapist-patient privilege. Let’s tackle them one by one.

Attorney-Client Privilege: The Big One

Attorney-client privilege protects confidential communications between a client and attorney made for the purpose of obtaining or providing legal advice. This privilege belongs to the client, not the attorney—meaning only the client can waive it.

Here are the elements you must nail down:

1. Communication between attorney and client (or their representatives). This includes prospective clients seeking legal advice, even if they never hire the attorney. It also covers communications through intermediaries like paralegals or translators.

2. Made in confidence. The communication must be intended to remain confidential. If the client discusses the matter in front of third parties who aren’t necessary to the representation, the privilege is destroyed. Exception: third parties whose presence is reasonably necessary to facilitate the representation (accountants, interpreters, co-clients with joint interests) don’t destroy confidentiality.

3. For the purpose of obtaining or providing legal advice. Business advice doesn’t count. If a client asks their attorney about a tax strategy purely for business planning, that’s not privileged. But if the client asks about the legal implications of that same strategy, it is.

The privilege survives the client’s death and continues indefinitely unless waived. The attorney cannot be compelled to testify about privileged communications even decades later.

Common MBE traps: The privilege protects communications, not underlying facts. If a client tells their attorney “I ran the red light,” the communication is privileged—but the fact that the client ran the red light is not. A third party who witnessed the client run the light can testify to that fact. The privilege also doesn’t apply to communications made to further a crime or fraud (the crime-fraud exception). If a client asks their attorney how to structure a Ponzi scheme, that conversation isn’t privileged.

Spousal Privileges: Two Distinct Rules

This is where it gets messy. There are two separate spousal privileges, and the MBE expects you to keep them straight.

Spousal Testimonial Privilege (Spousal Immunity)

The spousal testimonial privilege prevents one spouse from being compelled to testify against the other spouse in a criminal case. This privilege belongs to the witness spouse—not the defendant spouse. That means the witness spouse can choose to testify if they want to, and the defendant can’t stop them.

Key details:

MBE hypothetical: Defendant is on trial for bank fraud. His wife witnessed him shredding documents the night before FBI agents arrived. At trial, the prosecution calls the wife to testify. Can she refuse? Yes—spousal testimonial privilege applies because they’re still married and this is a criminal case. But if she wants to testify, the defendant cannot invoke the privilege to stop her.

Confidential Marital Communications Privilege

The confidential marital communications privilege protects private communications between spouses made during the marriage and intended to be confidential. Unlike spousal testimonial privilege, this one survives divorce.

Key details:

MBE hypothetical: Husband tells wife in private, “I’ve been embezzling from my company for three years.” They divorce two years later. At husband’s criminal trial, can the prosecution call the wife to testify about that conversation? No—confidential marital communications privilege applies. The communication was made during the marriage in confidence, and the privilege survives divorce. But if the husband had simply left incriminating documents on the kitchen table and the wife saw them without any accompanying communication, there’s no privilege for her observations.

The key distinction: Testimonial privilege = can’t be forced to testify at all (but only while married, only in criminal cases). Marital communications privilege = can’t testify about private conversations (even after divorce, in any case).

Psychotherapist-Patient Privilege

The psychotherapist-patient privilege protects confidential communications between a patient and a licensed psychotherapist (including psychiatrists, psychologists, and licensed social workers) made for the purpose of diagnosis or treatment. This privilege is recognized under federal common law and applies in federal courts.

The privilege belongs to the patient and covers communications with licensed mental health professionals. It does not extend to communications with unlicensed counselors or self-help groups.

Exception: The privilege doesn’t apply when the patient’s mental condition is at issue in the litigation—for example, when a criminal defendant raises an insanity defense or a civil plaintiff claims emotional distress damages.

Physician-Patient Privilege: Not on the MBE

Here’s something critical: there is no physician-patient privilege under federal common law. Some states recognize it, but the MBE tests federal evidence rules. Unless a question explicitly states that state law applies (rare in Evidence MBE questions), assume there’s no doctor-patient privilege.

That means a doctor can be compelled to testify about communications with a patient, medical diagnoses, treatment details—all of it. The only exception is if the doctor is a psychiatrist and the psychotherapist-patient privilege applies.

Other Privileges You Might See

The MBE occasionally tests a few other privileges:

Clergy-penitent privilege: Protects confidential communications made to a member of the clergy in their spiritual capacity. Recognized under federal common law.

Government privileges: The government can assert privileges for state secrets, official information, and the identity of informants. These are narrow and highly fact-specific. If you see a question about them, focus on whether disclosure would harm a substantial government interest.

How to Approach Privilege Questions on the MBE

When you spot a privilege question, work through this checklist:

1. Identify which privilege is potentially at issue. Look for keywords: attorney, spouse, therapist, doctor, clergy.

2. Confirm all elements are met. For attorney-client: confidential communication for legal advice. For marital communications: private communication during marriage. For spousal testimonial: valid marriage at time of trial, criminal case.

3. Check for exceptions. Crime-fraud exception for attorney-client. Crime against spouse or child for spousal privileges. Mental condition at issue for psychotherapist-patient.

4. Determine who holds the privilege. Client for attorney-client. Witness spouse for testimonial. Both spouses for marital communications. Patient for psychotherapist-patient.

5. Watch for waiver. Voluntary disclosure to third parties waives the privilege. Putting privileged information at issue can waive it.

The NCBE loves testing boundary cases. They’ll give you a conversation that’s almost privileged but missing one element. Or they’ll present a privilege that clearly applies but then hit you with an exception. Read carefully and apply the elements mechanically.

What You Must Memorize

Here’s your takeaway checklist for privileges on the MBE:

Attorney-Client Privilege:

Spousal Testimonial Privilege:

Confidential Marital Communications Privilege:

Psychotherapist-Patient Privilege:

No Physician-Patient Privilege: Under federal common law, doctors can be compelled to testify.

If you want all 109 Evidence rules organized for active recall—including these privilege rules and their exceptions—FlashTables breaks them down in a structured two-column format that makes memorization faster. The Evidence table covers privileges alongside hearsay, relevance, character evidence, and every other topic the NCBE tests.

Privileges are one of the highest-yield topics in Evidence. Master these rules, practice spotting the elements in fact patterns, and you’ll pick up easy points on test day.