When a witness takes the stand in a criminal trial, generally they are required to testify. There are certain confidential relationships under state and federal law which prevent a witness from being compelled to testify. These include the well-known attorney-client and doctor-patient privileges. Privileges are granted by law and are not Constitutional rights like the 5th Amendment, which protects against self-incrimination.

There are two other privileges that are not as well known, the spousal testimonial privilege and the marital communications privilege. Both of these involve the defendant’s spouse, but one applies to the communications during the marriage period regardless of the state of marriage at trial, and the other only applies to marriages that are intact when the trial is occurring.

The spousal testimonial privilege applies to a witness only if they are married at the time of the criminal proceeding. If they were married at the time of arrest or throughout the investigation, but are subsequently divorced before the day of testimony, this privilege cannot be asserted. The defendant spouse holds this privilege as well as the testifying spouse, meaning that only one needs to exercise the privilege in order to avoid testimony. For example, if a wife of a defendant takes the stand and wants to testify, she can be prevented from doing so if the defendant spouse does not want her to.

There are a few exceptions to this privilege including when the defendant is accused of a crime against the spouse or child of either spouse, when the testifying spouse is being asked questions regarding pre-marriage information, or when the defendant is being charged with human trafficking.

The second privilege between married individuals is the marital communications privilege. This can be asserted regardless of the marital status at the time of the trial. This privilege protects specific communications between spouses, when they were married and when they both intended the conversation to be confidential. If one of the spouses shares the contents of the conversation with a third party, this privilege can no longer be asserted. Courts have held that even if the communication is not shared, but that the spouses do not sufficiently safeguard the information, it will be considered non-confidential as if it was shared with a third party. One case like this was where a spouse left a confidential note open and clearly visible in a home where other people were present. The Court reasoned that it was not confidential enough because third parties could easily read the contents.

If you have questions or concerns about a criminal charge, it is vital that you contact an experienced defense attorney who can help protect your rights. Contact Larry McCord & Associates, LLC at (631) 643-3084.