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Do You Have to Testify Against Your Spouse?

Posted on July 28, 2021 in Domestic Violence

In law, the term privilege means protection from having to testify. Attorney-client privilege, for example, protects an attorney from being called to testify against his or her own client during a criminal case. Another type of privilege, known as spousal or marital privilege, protects one spouse in a relationship from having to testify against the other. There are exceptions to the rule, however, as spousal privilege is not absolute.

What Is Spousal Privilege?

A privilege is an exception to the general rule that anyone asked to do so must give testimony in a legal proceeding. Although typically someone asked to act as a witness does not have the legal right to refuse to take the stand, he or she can refuse if a privilege exists. Both state and federal laws grant privileges to protect important relationships. These include relationships between attorneys and clients, doctors and patients, and a married couple.

Spousal privilege specifically protects the marital relationship. It gives one spouse the privilege to refuse to testify against the other without legal ramifications, in order to protect the marital relationship from the harm that would come of one spouse being forced to speak out or testify against the other. In this way, the spousal or marital privilege protects the privacy and trust enjoyed by a couple within their marriage.

It is important to note that spousal privilege applies to gay marriage now that it has been legalized on a federal level. If a couple is in a common-law marriage, however, the couple will have to show that they are common-law spouses to assert the spousal privilege. Proving a common-law marriage may take financial statements, housing documents and witness testimony.

Can the Prosecutor Subpoena You to Testify?

For the spousal privilege to apply to a criminal case in Arizona, the couple must be married at the time that the testimony is being given. If the couple has divorced since one spouse was accused of a crime, an ex-spouse may be compelled to testify against the defendant. Even if the couple is lawfully married, there are some exceptions to the rule that could allow the prosecutor to subpoena one spouse to testify against the other. A subpoena is a court order compelling the recipient to testify.

Exceptions to the spousal privilege in Arizona include:

  • A crime committed by one spouse against the other
  • A crime committed against the child of either party
  • A crime against a third party while one spouse is committing a crime against the other spouse
  • A crime involving human trafficking for immoral purposes (e.g., prostitution)
  • Testimony about matters that took place before the marriage

The spousal privilege also may not apply to a case involving a particularly serious crime, such as a first-degree felony. If one of these exceptions applies, the courts can compel one spouse to testify against the other in a criminal trial. Note, however, that confidential marital communications are also privileged. This means that a spouse cannot be forced to testify regarding private and confidential communications between him or her and the other spouse unless an exception applies.

What if You Want to Testify?

If you wish to testify against your spouse and not use your spousal privilege, you have the right to do so. However, your spouse – the party on trial – generally must give his or her consent to your testimony or to the information that you disclose. This is because your spouse is still protected by spousal privilege and the rule of confidential marital communications.

Consult With a Defense Attorney for More Information

Spousal privilege is a nuanced law with specific terms that vary from state to state. For more information about whether or not you have to testify against your spouse during a criminal case, consult with a domestic violence attorney in Phoenix. A lawyer can help you understand your rights and navigate confusing laws related to spousal or marital privilege. If you are facing criminal charges and know that your spouse plans to testify against you, a lawyer can also assist you with this matter.