Spousal and Marital Privileges: Can Spouses Be Forced to Testify Against One Another?

Two types of "marital privileges" exist under the law. When applicable, these privileges can protect a spouse from being forced to testify against the other spouse or divulge confidential communications made between them. However, these privileges are not absolute, and they come with several exceptions and conditions.

Understanding Marital and Spousal Privileges

In most legal proceedings, witnesses cannot refuse to give testimony or other evidence. This general rule promotes the interests of justice by ensuring fair trials based on all available evidence. Refusal to testify can lead to contempt charges.

However, the law makes certain exceptions to this rule—called privileges—designed to protect important relationships. A privilege allows a person to refuse to testify about communications within certain confidential relationships without being found in contempt of court. Among the best-known privileges are the attorney-client privilege and the doctor-patient privilege. The marital relationship is granted a similar privilege. It applies to both opposite-sex and same-sex marriages.

Courts and the federal and state governments recognize spousal privileges to protect marital relationships from the harm that would befall them if spouses could be forced to testify against each other. This goal, though, must be balanced against the competing need to avoid the harm caused when evidence is withheld from trials. Balancing these competing needs has resulted in various exceptions to, and underlying requirements for, these spousal privileges.

How Spousal Immunity and Marital Communication Privileges Work

Federal and state laws generally recognize two types of spousal privileges:

• spousal testimonial privilege, which allows a spouse to refuse to testify against the other spouse in a criminal trial, and
• marital communications privilege, which allows a spouse to refuse or prevent testimony about confidential communications made between spouses from being introduced as evidence.

These privileges differ in several key aspects, including (1) what information is privileged, (2) who holds the privilege, (3) whether the privilege applies in criminal or civil court, and (4) whether the parties must be married to invoke the privilege.

Spousal Testimonial Privilege

The spousal testimonial privilege protects a spouse from being compelled to give testimony against the other spouse who is a defendant in a criminal trial or the subject of a grand jury proceeding. Generally, only the witness-spouse can claim or waive this privilege. (A few states allow the defendant-spouse to prevent the other spouse's testimony.)

The spouses must be married at the time that the privilege is asserted. In some states, only adverse testimony receives immunity, and a spouse can be forced to testify as to general information, such as the defendant's employment, habits, or schooling.

Marital Communications Privilege

Under the marital communications privilege, either spouse can refuse or prevent the other spouse from testifying as to private, confidential communications in either criminal or civil proceedings. This privilege can be invoked during or after the marriage, so long as a valid marriage existed at the time of the confidential communication. Only communications the spouses intended and maintained as confidential are protected.

Generally speaking, this privilege applies only to written and spoken private communications. It doesn't apply to observations of a spouse's actions or gestures. So the privilege would apply if one spouse confides in the other that they committed a crime. However, it would not apply if one spouse witnesses the other spouse hiding drugs in their house, as that's not a "'communication." (Although here, the spousal testimonial privilege might come into play.)

Can Marital or Spousal Privileges Be Waived?

Privileges must be properly asserted. If they are not, the privilege may be waived (given up). For instance, in a criminal case, a spouse who wants to testify against the other can do so, and this testimony is a waiver of their spousal testimonial privilege. A spouse can also waive or lose the right to assert the privilege by failing to object to the other spouse's testimony when offered. Either spouse can generally waive their right to keep marital communications confidential by communicating the information to a third party.

Do Exceptions Exist to Marital and Spousal Privileges?

Yes, federal and state laws provide exceptions to these privileges, which means the court can compel a spouse to testify against the other or divulge confidential communications.

The underlying purpose of spousal privileges is to support marital relationships and foster harmony. When this underlying purpose doesn't exist, a state legislature might create an exception to the privilege. Court decisions have also resulted in many exceptions.

Common exceptions to the spousal testimonial privilege exist where a spouse is charged with a crime against the other spouse, a child of either spouse (or any child), or a third party in the course of committing a crime against the other spouse. Another common exception applies when a spouse is asked to testify about matters occurring before the marriage.

Many states apply these exceptions to marital communications as well. Marital communications can also lose their confidential privilege if spouses' communications furthered fraud or conspiracy to commit a crime.

Federal and State Laws on Spousal and Marital Privileges

Every state recognizes one or both of the types of spousal privileges. Most state spousal and marital privileges can be found in statutes (evidentiary statutes). Federal law recognizes both types of privileges, but courts (case law) define their parameters and exceptions.

For any spousal or marital privilege to apply, the parties must have a valid marriage. Whether a marriage is valid depends on the laws in a jurisdiction. For instance, some states recognize common-law marriages whereas others do not. Sham marriages void the privilege.

When to Talk to a Lawyer

If you plan to invoke spousal immunity or marital communications privilege, it's best to speak to an attorney to learn how these privileges work in the specific jurisdiction. State laws on privileges vary greatly. You need to know if the privilege applies, how it works, and what exceptions may come into play.