"My husband got into a fight with a guy at a bar and ended up punching the other guy in the face. I was there and saw the whole thing. The police arrested my husband and charged him with assault. The prosecutor is trying to get me to testify against my husband, but I don’t want to. Can the prosecutor force me to testify against my own husband?"
In most states, spouses can refuse to testify against their spouses in a criminal case.
This is an exception to the general rule that everyone is required to give judges and juries any relevant information they have about a crime—and that a lawyer can compel witnesses to testify by obtaining a subpoena. A subpoena is an order to appear before a court. Someone who is subpoenaed as a witness is required to testify unless they enjoy what’s called a testimonial privilege. A witness who refuses to testify and does not have a testimonial privilege may be held in contempt of court and fined or even jailed.
Testimonial Privileges
A testimonial privilege is a right that allows a person to refuse to testify. There are several different types of testimonial privileges, including the attorney-client privilege, physician-patient privilege, and husband-wife privilege. Each one has its own set of rules that determine whether the privilege will be recognized under a particular set of circumstances.
Two types of testimonial privileges relate to marriage: the spousal testimony privilege and the spousal communications privilege.
The Spousal Testimony Privilege
A person cannot be forced to testify against his or her spouse in a criminal proceeding. This privilege belongs to the spouse who is called as a witness. The witness-spouse may testify or may refuse to testify. The other spouse cannot forbid the witness-spouse from testifying.
This privilege exists only during the marriage and cannot be invoked after divorce. So if a couple was married when the events occurred but divorced by the time of trial, the privilege is no longer available, and the witness-spouse may be compelled to testify.
Confidential Marital Communications
The spousal communications privilege protects confidential communications—that is, communications made in private—that occur during a marriage. It applies in both criminal and civil proceedings. There are exceptions; in most states, there is no privilege if one spouse is being prosecuted for abusing the other.
This privilege belongs to both spouses. Even if one spouse (or former spouse) wants to testify about confidential communications, the other can prevent it.
This privilege survives even if the marriage ends in divorce. You may not testify as to confidential marital communications to or from a former spouse.
Get Legal Advice From an Attorney
The law of marital privileges varies widely from one state to another. Talk to a qualified attorney who can help you determine whether you can lawfully refuse to testify against your spouse.
