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Federal Evidence • Privileges
EVID#117
Legal Definition
The spousal testimonial privilege is the privilege to not be forced to testify against a current spouse and not be called as a witness against a current spouse.
It applies only during marriage, and it is held only by the testifying spouse.
It applies only during marriage, and it is held only by the testifying spouse.
Plain English Explanation
The spousal testimonial privilege allows a married person to refuse to testify against their spouse in court. It means a wife or husband cannot be compelled to take the witness stand and give evidence that would implicate their spouse in a crime or other misconduct.
The purpose is to protect the special trust and confidence that exists between married couples. Forcing one spouse to testify against the other could undermine marriages. So the law allows a witness spouse to decline to testify if it would harm their marital relationship.
The privilege only applies while a couple is still married. Once divorced, the ex-spouse can be required to testify about events during the marriage. However, exceptions exist where this privilege does not apply, such as in cases involving crimes committed by one spouse against the other or their children.
Also, only the witness spouse can claim the privilege—the defendant spouse cannot prevent their spouse from voluntarily testifying if they choose to do so. This maintains the autonomy of the witness spouse in deciding whether to protect their marital privacy or participate in legal proceedings.
The purpose is to protect the special trust and confidence that exists between married couples. Forcing one spouse to testify against the other could undermine marriages. So the law allows a witness spouse to decline to testify if it would harm their marital relationship.
The privilege only applies while a couple is still married. Once divorced, the ex-spouse can be required to testify about events during the marriage. However, exceptions exist where this privilege does not apply, such as in cases involving crimes committed by one spouse against the other or their children.
Also, only the witness spouse can claim the privilege—the defendant spouse cannot prevent their spouse from voluntarily testifying if they choose to do so. This maintains the autonomy of the witness spouse in deciding whether to protect their marital privacy or participate in legal proceedings.
Hypothetical
Hypo 1: Bob is accused of tax fraud, and his wife, Amy, is asked to testify about his financial behaviors. Amy chooses to invoke the spousal testimonial privilege, refusing to testify against Bob since they are still married.
Result: The court respects her decision under the spousal testimonial privilege, allowing her to avoid testifying against her husband, thereby protecting their marital privacy.
Hypo 2: During a criminal trial, Sam is called to testify against his wife, Sarah, who is accused of embezzlement. Sam decides to invoke the spousal testimonial privilege, refusing to provide potentially incriminating testimony against Sarah. Result: The court allows Sam to withhold his testimony, respecting the integrity of their marital relationship under the spousal testimonial privilege.
Hypo 3: Amy, now divorced from Bob, is subpoenaed to testify in a case involving crimes Bob allegedly committed while they were married. The prosecution wants her to discuss private conversations they had about his business dealings. Result: While the spousal testimonial privilege does not apply because Amy and Bob are no longer married, the marital communications privilege (that you will learn in another card) may still protect the confidentiality of their private discussions during the marriage.
Hypo 4: Bob is on trial for a crime committed before his marriage to Amy. The prosecution seeks Amy’s testimony about Bob’s past actions. Result: The spousal testimonial privilege does not protect Bob in this scenario because the privilege does not cover actions prior to the marriage. Amy can testify about anything she knew before getting married.
Result: The court respects her decision under the spousal testimonial privilege, allowing her to avoid testifying against her husband, thereby protecting their marital privacy.
Hypo 2: During a criminal trial, Sam is called to testify against his wife, Sarah, who is accused of embezzlement. Sam decides to invoke the spousal testimonial privilege, refusing to provide potentially incriminating testimony against Sarah. Result: The court allows Sam to withhold his testimony, respecting the integrity of their marital relationship under the spousal testimonial privilege.
Hypo 3: Amy, now divorced from Bob, is subpoenaed to testify in a case involving crimes Bob allegedly committed while they were married. The prosecution wants her to discuss private conversations they had about his business dealings. Result: While the spousal testimonial privilege does not apply because Amy and Bob are no longer married, the marital communications privilege (that you will learn in another card) may still protect the confidentiality of their private discussions during the marriage.
Hypo 4: Bob is on trial for a crime committed before his marriage to Amy. The prosecution seeks Amy’s testimony about Bob’s past actions. Result: The spousal testimonial privilege does not protect Bob in this scenario because the privilege does not cover actions prior to the marriage. Amy can testify about anything she knew before getting married.
