If you are like most people, you've probably heard that husbands and wives cannot be forced to testify against each other in court. You may even think that testimony from a spouse is prohibited; giving those in a criminal cases a convenient way to suppress pertinent information. While there is some truth to this belief, if you are facing criminal charges, your spouse can (and may even be required to) testify in court, depending on the circumstances. Find out how to protect yourself from harmful testimony from a spouse.
What is Spousal Privilege?
In the judicial system, privilege means that a person is exempted from the rule that no one can withhold testimony or evidence of a crime in a court of law. In the case of spouses, spousal privilege exempts a spouse from the requirement to provide testimony or evidence in court. But, spousal privilege is not a blanket excuse to withhold information. There are two types of privilege afforded to spouses.
- Testimonial Privilege: A spouse cannot be forced to provide testimony against the other spouse if either of the two claims privilege. This applies only to married couples. If the couple is no longer married at the time of the proceedings, the ex-spouse can be forced to testify.
- Marital Communications: Confidential communications between spouses are protected by privilege, but only if both parties have maintained the confidentiality. If either spouse has shared the information with another person, the claim to confidential marital communications is nullified. Marital communication does not include observations or overheard conversations. A spouse can be compelled to testify about their observations if they provide pertinent information. For example, if a husband observes his wife disposing of suspected evidence, that observation is not protected under spousal communications. If the husband tells his wife about his actions, it may be protected under spousal communications. Either spouse can breach the confidential communication privilege by sharing the communication with a third party.
Exceptions: There are some exceptions to spousal privilege. That means neither you nor your spouse can suppress the information by claiming privilege.
- Crimes against the other spouse
- Crimes against the children of either spouse
- Crimes committed against another person while committing a crime against the other spouse
- Human trafficking for prostitution or other immoral acts
- Events that occurred before the couple was married
Special Circumstances
Non-traditional marriages may also have spousal privilege, but there are conditions that must be met.
Common Law Marriage
Whether spousal privilege applies to common law marriages depends of whether the state where the crime was committed recognizes common law marriage. While each state sets the regulations regarding common law marriage, no states recognize common law marriage based on merely living together for a specific number of years, explains Unmarried Equity. As a rule, the following must apply in order to be considered a common law spouse and qualify for spousal privilege.
- Live in a state that recognizes common law marriage.
- Live as husband and wife with the intention of presenting yourself to the community as a married couple. This may include:
- Using the same last name.
- Filing joint tax returns.
- Referring to each other as husband and wife.
Same Sex Marriages
As of June 2015, the Supreme Court ruled that all states must issue marriage licenses to same-sex partners and must recognize same-sex marriages performed in other states. (Obergefell v. Hodges) Under these new marriage laws, spouses in same-sex marriages are afforded the same legal protection of spousal privilege as opposite-sex marriage partners.
If you, or your spouse, are facing criminal charges and you wish to claim spousal privilege, talk to your criminal defense lawyer. Privilege is not automatically granted. It must be asserted or claimed before testimony is heard. Not claiming spousal privilege may result in waiving the privilege and losing the exemption from testifying against your spouse or your spouse testifying against you.
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