Spousal Privilege

Can My Spouse Testify Against Me At My Criminal Trial?

Spousal privilege (It is also frequently defined as marital privilege or husband-wife privilege) is a term used in the law of evidence to describe two separate privileges: the communications privilege and the testimonial privilege. Both types of privilege are based on the policy to promote marital felicity, and Under the Federal Rules of Evidence, in a criminal case the prosecution cannot compel the defendant’s spouse to testify against him. Also refer as spousal immunity, marital privilege or spousal testimonial privilege.

Spousal Privilege: There are two separate privileges a criminal defendant may have, which can be used to avoid his or her spouse testifying against them at a criminal trial.

First, is the marital privilege (a/k/a husband-wife privilege) laws exist at the state level and the federal level, however the rule varies from state to state.

The second privilege is the marital communications privilege, which provides that “©ommunications between the spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged . . . .” The privilege (1) extends to words and acts intended to be a communication; (2) requires a valid marriage; and (3) applies only to confidential communications, i.e., those not made in the presence of, or likely to be overheard by, third parties.

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A few variations of these privileges include the following:

• Federal Rule of Evidence 501- Testimonial privilege that permits a witness to refuse to testify against his or her spouse. The witness spouse alone holds the privilege and may choose to waive it.

• North Carolina General Statute § 8-57

Husband and wife as witnesses in criminal actions

(a) The spouse of the defendant shall be a competent witness for the defendant in all criminal actions, but the failure of the defendant to call such spouse as a witness shall not be used against him. Such spouse is subject to cross-examination as are other witnesses.

(b) The spouse of the defendant shall be competent but not compellable to testify for the State against the defendant in any criminal action or grand jury proceedings, except that the spouse of the defendant shall be both competent and compellable to so testify:

(1) In a prosecution for bigamy or criminal cohabitation, to prove the fact of marriage and facts tending to show the absence of divorce or annulment;

(2) In a prosecution for assaulting or communicating a threat to the other spouse;

(3) In a prosecution for trespass in or upon the separate lands or residence of the other spouse when living separate and apart from each other by mutual consent or court order;

(4) In a prosecution for abandonment of or failure to provide support for the other spouse or their child;

(5) In a prosecution of one spouse for any other criminal offense against the minor child of either spouse, including any child of either spouse who is born out of wedlock or adopted or a foster child.

(c) No husband or wife shall be compellable in any event to disclose any confidential communication made by one to the other during their marriage.

• Florida Statute 90.504
Husband-wife privilege.—

A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife. (1)

The privilege may be claimed by either spouse or by the guardian or conservator of a spouse. The authority of a spouse, or guardian or conservator of a spouse, to claim the privilege is presumed in the absence of contrary evidence. (2)

There is no privilege under this section: (3)

(a) In a proceeding brought by or on behalf of one spouse against the other spouse.

(b) In a criminal proceeding in which one spouse is charged with a crime committed at any time against the person or property of the other spouse, or the person or property of a child of either.

(c) In a criminal proceeding in which the communication is offered in evidence by a defendant-spouse who is one of the spouses between whom the communication was made.

Please remember many if not all of the Federal and States rules of evidence have exceptions. Please call us for any of your criminal trial needs.

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