My Love Of The Law

Spousal Privilege: Understand How It Really Works

by Alan Medina

If you've been accused of a crime and your spouse is being asked to testify against you, is there really any reason to worry? Doesn't "spousal privilege" apply, making it impossible for one spouse to testify against another? 

Not exactly. If you rely on this belief, you could face an unpleasant surprise down the road. Here is what you need to know about how spousal privilege actually works (and when it doesn't):

Two different privileges are often confused as one.

There are actually two different legal concepts at play that often get confused under the title "spousal privilege." One is actually spousal immunity and the other is the marital confidence privilege. Both of these are subsets of spousal privilege laws, but they operate very differently.

The privilege of spousal immunity belongs to your spouse.

Spousal immunity allows your spouse the freedom to refuse to testify against you on the majority of subjects. There are, however, a few subjects where spousal immunity doesn't apply:

  • when you are accused of a crime against your spouse, like assault or rape
  • when you are accused of a crime against a child, like abuse or neglect
  • when you are partners in a conspiracy with your spouse
  • if the crime occurred prior to your marriage or you are no longer married

The thing about spousal immunity is that your spouse is actually the person who holds this legal privilege—which means that your spouse can also decide to waive it.

If the police are pressuring your spouse to testify against you, he or she may also be afraid of being charged in connection with a crime. The police may frighten or threaten your spouse into waiving his or her immunity and testifying. If that happens, there is nothing that you can do to stop your spouse from testifying against you.

The privilege of marital confidence belongs to you both.

The privilege of marital confidences applies only to communications between spouses. In other words, it doesn't apply to anything your spouse may have witnessed—only to things that you told your spouse in private and that you and your spouse fully intended to keep secret between you at the time.

Even if you and your spouse are now divorced, the privilege of that private communication is still valid. The marital confidence privilege actually belongs to you both. You can invoke it and prevent your spouse from testifying against you on the subject in court even if he or she is willing to testify. 

For example, if you told your spouse some things about a contract deal that you made that you would rather not be repeated in court, you can legally prevent your spouse from testifying. 

If you're concerned about your spouse's potential testimony in court, talk to a criminal defense attorney like Damiani Gerard M to see if any spousal privilege applies and, if so, whose privilege it is. You may or may not be able to stop your spouse from testifying. At the very least, however, you need to be prepared for any potential fallout should that happen.