When Can My Spouse Be Forced to Testify Against Me?

Posted in General FAQ'S on March 28, 2016

Spousal privilege is one of those areas of law most people are loosely familiar with, like double jeopardy or hearsay. These rights relate to communications and testimony privilege, meaning anything the convicted spouse shared with his or her partner cannot be submitted as testimony before a judge. But before a person tries to argue this right in court, there are a few important details to keep in mind.

Different Privileges for Different Situations

There are two main categories of spousal privilege protected under US federal common law:

• Communications privilege. Confidential conversations (e.g., phone records, emails, or texts) shared between spouses cannot be submitted as evidence. This can only be invoked regarding confidential materials shared during the marriage. It is still a valid right, however, even if a marriage is dissolved.

• Testimonial privilege. Spousal testimonial privilege (also known as spousal incompetency or immunity) means one spouse cannot be called to testify against the other. This law preserves the couple’s marital integrity, and it concerns any events during or before the marriage. Couples who committed a joint crime, for example, do not have to testify against each other.

Though plenty of rights are protected under these provisions, there are many situations in which spousal privilege doesn’t apply. For example, divorcing couples or those engaged in a lawsuit may be required to testify against each other.

Your Spouse Can Testify Against You

In spite of these complex laws, your spouse actually can testify against you in certain situations. In fact, he or she may even be required to do so. Some of these circumstances include:

• Divorce. These rights last as long as you are married. The rules may be suspended during divorce proceeding or child custody disputes.

• A spouse wants to testify. Though a spouse may not be called to the stand, he or she can testify if he or she wants. Matrimonial harmony is presumed defunct if one partner wishes to testify against the other. Thus, while a spouse cannot be called as a witness if he or she does not want to, the individual is free to waive this right and provide a testimony.

• An adverse spouse. This is the party judgement is sought against – the defendant. He or she cannot provoke either spousal privilege. These laws also don’t apply to cases involving domestic abuse.

• Lawsuits. Spousal communication privileges don’t apply to couples who are suing each other.

Work with an attorney for a personal look at your case; he or she can help you determine if communications or testimonial privileges apply in your situation. To help you further understand how these charged claims can unfold in court, here is a contemporary example:

Real-World Precedence: Bill Cosby’s Defamation Suit

Bill Cosby’s wife, Camille Cosby, is being ordered to testify in her husband’s defamation suit. Bill has been accused of drugging and sexually assaulting as many as 50 women. Though he has denied these allegations, the case is certainly serious, especially now that Camille has been ordered to testify. In this case, a subpoena was filed by the plaintiffs because of Camille’s role as her husband’s manager. Though she attempted to repeal the order under Massachusetts’ spousal immunity laws, the judge found no credence to her dispute and promptly denied the claim.

Navigating the Legal System With the Right Attorney

This is a high profile case, and the nation awaits the final verdict. If convicted, Cosby could face up to 10 years in jail. Though most people don’t face such egregious charges, there are plenty of situations where spouses are either incriminated for the same crime or shared confidential details regarding a suit. When this is the case, an experienced attorney is absolutely essential. For more information on spouse privilege and the many avenues that may affect your claim, schedule a free consultation with Graham Donath today.