Spousal Privilege: Can You Testify Against Your Spouse?

Have you ever noticed that moment in series and movies when a spouse says that they will not testify and that no one can make them? That is actually true, and here’s how and why!

Spousal privilege actually consists of two separate privileges: the testimonial privilege and the communications privilege.

So, let us begin with explaining what having those privileges actually means for a married couple.

Communications Privilege

Also, even if one of the spouses would want to choose to testify, the spouse who is being testified against can invoke the privilege and prevent the spouse that is being called for as a witness from speaking about anything that was mentioned during private conversations which happened during the marriage.

It also lasts after the marriage has dissolved. Meaning that the privileged information can be kept confidential even after the divorce.

When the communications privilege cannot be invoked

This privilege begins when the marriage starts and a spouse can not invoke the privilege if the testifying spouse is trying to testify on anything that has been shared before the beginning of their marriage. Therefore, if they choose to do so, a spouse can testify against their spouse and mention anything that was communicated before the marriage began.

There are 5 more scenarios during which this privilege cannot be invoked. And those are:

1. If one of the spouses being sued by the other one (or are suing each other), or are suing each other’s estates in a civil case.
2.  If one of the spouses has initiated a criminal case against the other.
3.  If one of the spouse’s mental capacity is being questioned in competency proceedings.
4.  If the confidential information that was being passed along was a plan or actual action to commit a crime.
5.  And lastly, if the spouse giving the testimony is choosing to testify against the other one, but in their own defense.

Testimonial Privilege

Now, testimonial privilege is something entirely different. While communications privilege simply makes any information divulged during marriage confidential, the testimonial privilege allows a spouse to simply refuse to testify against the spouse who is a defendant in the court.

This privilege is applied in criminal and civil cases alike and the spouse that is called forth as a witness alone holds the right to invoke or waive this privilege. At least that is the reading of this privilege that the U.S. Federal common law decided on. However, this principle is not accepted in the majority of jurisdictions in the United States of America. This means that, even against the efforts of the federal lawmakers, in most states, the spouse that is a party in case still holds the right to prevent the other spouse from appearing in court to testify.

This was clearly explained in the case of State V. Burden in Washington 1992. where the court noticed that:

“The spousal testimonial privilege provides that a husband shall not be examined for or against his wife, without the consent of the wife, nor a wife for or against her husband without the consent of the husband; nor can either during marriage or afterward, be without the consent of the other, examined as to any communication made by one to the other during marriage.”

But, why is this an actual thing?

The actual purpose of this privilege is to preserve the stability of marriage as an institution. Lawmakers have decided to instate policies in favor of protecting family harmony and having one spouse being forced to testify against the other would disrupt said harmony. Especially if the spouse that was a defendant in the case is found not guilty.

It also allows for married couples to be completely honest with each other and building a more stable family. In that regard, it has a point, however, there is a lot of criticism against this policy. The main issue people have is that it does inhibit the justice system from accomplishing their goals in some situations and that it forces a spouse to be an accessory to a crime.

This could be the reason that the common law dictates that a spouse can choose to testify against the spouse that is in court as a defendant so as to appease their own moral compass, but, as we have said it, in most states, it is the party-spouse that holds the privilege of right now.