Communicating With Your Attorney

Marital Privilege: When Can You Assert The Right Not To Testify Against Your Spouse?

Many people believe that one spouse can never testify against another in a criminal trial, due to something known as "marital privilege." However, that's not quite true. If you're the spouse of someone who has been accused of a crime, this is what you should know about marital immunity laws.

Marital Privilege Is Not Absolute.

The idea behind marital privilege is that spouses have a special relationship under the law as a unified entity. Private communications between spouses are allowed to remain private under most circumstances. In addition, one spouse usually can't be forced to testify against another -- if he or she doesn't want to testify.

A Spouse Can Choose To Testify.

You should note that very important distinction -- the spouse of the accused can usually testify if he or she is willing to do so. Many times, people are not aware of that possibility, because it wasn't always true. Different states applied the privilege in an uneven fashion, with some allowing the defendant spouse to assert the privilege and stop his or her spouse from testifying at will. That changed in 1980, however, when the Supreme Court ruled that the privilege belongs to the non-defendant spouse and he or she can waive it.

Why Would A Spouse Waive Privilege?

In some cases, someone wants to testify against his or her spouse because they feel like it is the morally correct thing to do. In other cases, a spouse may not only want to testify but even find it a personal advantage to do so. A common situation occurs when spouses are accused of participating in a crime together. One spouse may choose to leverage his or her knowledge about the crime into a plea deal for a more lenient sentence, especially if the other spouse took the lead role in the crime.

For example, an Arkansas woman involved in the kidnapping and murder of a real estate agent agreed to testify against her husband about his role in the crime in exchange for not having to face the death penalty. Her husband, on the other hand, could be sentenced to death.

Sometimes Privilege Doesn't Apply.

In other situations, the spouse may want to retain the privilege but find that their private communications don't fall under the umbrella of spousal privilege after all. This can happen when spouses have separated or divorced, for example, which breaks the special bond between them that allows the privilege.

Another situation that destroys the privilege of private communications is when spouses have a business relationship as well as a marital one. If the non-defendant spouse has knowledge of a defendant's crimes through his or her business relationship with the defendant, he or she can be obligated to testify and disclose private conversations. For example, the wife of comedian Bill Cosby may have to testify against him in a lawsuit brought by women who claim they were sexually assaulted by him. Her relationship to the comedian as his business manager ended up outweighing marital privilege.

If you're the spouse of someone that's been accused of a crime, you shouldn't rely on the police or the prosecution to tell you what your rights are -- it is always to their advantage to have you testify. You should consult an attorney, such as those at Miller Law LLC, to determine whether or not you can assert the marital privilege in your case.