If you’ve watched any criminal television show, you’ve likely seen that a spouse cannot be made to testify in court. Spousal laws exist that do not permit a spouse to be forced into testifying against the other spouse in a trial.
This is called martial spousal privilege.
But as with every law, there are exceptions where spousal privilege does not apply. This is not to be confused with the Fifth Amendment, which is a constitutional right. Privileges can be denied under a few circumstances.
Martial Communication Privilege and When It Doesn’t Apply
States will recognize one of two spousal privileges. Communications are a privilege in which the confidential communications between spouses cannot be used in a trial. If you were texting your husband about a crime he committed, the text may not be brought into question.
But there are times when communication privileges may be lost.
- Witnessing the actual crime
- Another party overhearing the communication
Communications may be used as evidence when one spouse is on trial with the other spouse. If a spouse is suing the other spouse in a civil case or if a defendant spouse wants to testify on their own behalf, the privilege may not apply.
If there is proof that the communication was used to commit the crime, privilege may also be lost.
Spousal Testimony Privilege and When It Doesn’t Apply
There are times when spousal testimony privilege can be invoked, and this means that if one spouse is a subject in a criminal trial or grand jury proceeding, they cannot be forced to testify. The right can be asserted by either spouse.
The exception is that the two must be married at the time of assertion.
Denial for such privileges can be made when one spouse is charged with:
- Crimes against the other spouse
- Crimes against a marital child
- Crimes against a third-party
- Human trafficking
If the crime took place before the marriage, spousal testimony may also be denied. Let’s assume that your husband’s crime dates back to January 2, 2018. You were engaged at the time, had a wedding date planned, venue booked and were going to be married on January 4, 2018.
You were not married at the time of the crime, so you may be asked to testify for any crimes committed prior to the date of marriage.
This may mean that you’ll have to testify, and any communications that occurred between the two of you may also be used against you if it pre-dates the marriage. Every state has its own martial privilege laws, so it’s important that your local laws be considered.
Courts do not want to force spouses to testify because it weakens the martial bond.
Some courts, like those in Minnesota, have never ruled against martial privilege even when the marriage was in question. Courts do not want to cause strife between married couples. If your spouse is in a criminal proceeding, you should assert your privileges so that you do not have to testify against your partner during the trial.