I was watching a 1930s movie recently in which a distraught wife was told not to worry about her accused-of-murder hubby, as “she couldn’t testify against him.” It occured to me that this has been the linchpin of many a murder mystery—but the more I think about it, the shadier it seems.
Has this ever actually been a law in any country? Is it still, anywhere?
IANAL but I do believe that a spouse can not be compelled to testify.
They can volunteer though.
You are referring to “spousal immunity”. It is the law in Georgia (and probably most other states) that one spouse cannot be compelled to testify against another. In other words, the privilege belongs to the testifying spouse.
For example, a woman accuses her husband of domestic violence. When the trial date rolls around, she’s decided that she doesn’t want to prosecute (this happens more than you even want to know). The prosecutor cannot force her under subpoena to testify- if she wants to, she can testify, but if she doesn’t want to, they can’t make her.
However, if she gets on the stand and invokes her spousal privilege, they can still prosecute th ecase. There is an evidence rule that allows hearsay evidence if the witness is “unavailable”. In Georgia, invoking the spousal privilege is legal “unavailablilty”, and the wife’s previous statements (to police, investigators, friends, etc.).
So, the short answer to your question is that a spouse can tesify against another spuse, but only if they want to. They can’t be compelled. Probably a lot more than you wanted to know, but that’s what happens when a lawyer answers a legal question!
Zebra tells it the way I always heard it.
Your spouse can’t be forced to testify against you if he/she doesn’t want to. But they can if they want. Kind of like an extension of the 5th amendment.
So, in otherwords, don’t murder anyone in front of your wife unless you are sure she can keep her mouth shut.
The Federal Rules of Evidence recognises all privileges traditionally recognised in common law. California’s spousal privilege (Evid. Code § 970) gives the privilege to the person being called to testify, and I assume that most other states do likewise.
Prosecuters get around this one by charging the wife, too, then offering her immunity if she’ll testify against her husband. This is pretty common in the war on drugs.
Here in Tejas we have, in addition to the spousal immunity Katie describes, a rule regarding confidential communications between spouses during marriage. Where the spousal immunity rule prevents a spouse from being compelled to testify against a defendant spouse in a criminal trial, the confidential communication rule prevents a spouse from being compelled, or allowed in absence of consent of the other spouse, from testifying as to a confidential communication made during marriage (certain exceptions apply to both privileges, e.g. spousal or child abuse).
For instance: Husband comes home covered in blood on the same night Victim is murdered. Wife sees him. If they are still married, wife can’t be compelled by Prosecutor to testify as to what she saw at Victim’s murder trial under the spousal immunity rule. Wife holds this privilege; she can testify if she desires.
On the other hand: That same night, Wife asks about the blood. Husband says “I just killed Victim”. Prosecutor seeks to have wife testify as to Husband’s comment. Under the confidential communication rule, Wife can’t testify without both Wife and Husband’s consent, even if they are now divorced. Both spouses hold this privilege.
I live in Illinois, and my SO beat me up really bad. After that, we got married, and when he went to court, they told me I didn’t have the right NOT to testify in this type of criminal case. However, they decided not to force me to testify and gave him probation and anger management-type classes. No spousal immunity here!
They may still have the spousal immunity rule there, EchoKitty, but there are important exceptions to actions or communications “destructive of the family unit”, like spousal abuse or child abuse where you do have to testify. Since the rationale of the privileges is preservation of the marriage/family unit, applying the privileges in those cases would defeat their purposes.
Sorry about your troubles.
Thanks for your concern. All is OK now that the cocktail hour is out of the equation.
Hmmm, interesting—and here I’d thought it was all an invention of Hollywood! I wonder if a gay man could sue, because his “husband” must testify against him, as their marriage is not legal?
I don’t believe a gay couple would have the protection. They don’t get the benefit of any other marital type laws, so I can’t imagine this one would apply.
Eve, that’s a very interestsing question, but I think I know how they’d answer it in Georgia, given that consensual sodomy was a felony here up until about 2 years ago. I remember when I first started practicing way back in the dark ages, we would go to some lengths to prove common-law marriage to try to get spousal immunity if the spouse didn’t want to testify. It’s not as simple as livning together for some period of time.
I think you guys are getting this a little bit wrong. I discussed this in a thread around here awhile ago but two searches haven’t turned it up and I’m tired of searching when the board is so slow. However, this is the way I remember it:
Spousal immunity adheres to you…not your spouse. That is, your spouse cannot testify if you do not wish it. Even if your spouse wants to blab they can’t, or at least the blabbing can’t be used in court against you. So, if I tell my wife I killed person X today she cannot testify against me if I do not wish it. Further, this covers issues from before we were married. If I tell my wife I killed person X when I was 16 (before I knew my wife) she still can’t tell her story in court unless I agree to it. Likewise, if we get divorced, she can’t testify in court about anything she found out while we were married.
The only allowance for this is if I do something to her. That is, if I beat her up she is free to testify against me on her own behalf.
Like I said earlier, not only is she free to testify if she wants to, but she can be forced to testify, even if she doesn’t want to.
You’re confusing two different rules of law, the spousal immunity privilege and the confidential communication privilege. Everything you said is correct, but it isn’t because of spousal immunity.
The things you tell your wife in confidence during your marriage are protected by the confidential communications rule, including things occurring before the marriage. Both spouses hold the privilege for this, even after the marriage is over, meaning your wife can’t testify as to something you told her without your consent (or an exception). This applies (in TX) to both civil and criminal trials. This is what you’re describing
Spousal immunity is somewhat different. It doesn’t apply to things you tell your wife, but things she sees and otherwise knows about. This privilege is only available in criminal trials, and is only available if the two of you are still married at the time of trial. Also, this one is different from the confidential communications privilege in that the testifying spouse holds the privilege, not the defendant spouse. So she can testify if she wants about anything she saw, but still not about anything you told her in confidence.
It looks like this depends. Searching around the internet I found a bunch of different answers. It seems that while spousal immunity used to exist in some fairly strong forms it has been whittled away in different states to varying degrees. In Maryland, for instance a woman can only be forced to testify under some very particular conditions:
This web page has a lot of legal code posted but I don’t claim to be able to decipher a lot of it. Still, read the following and see what you think (bolding is mine):
In Scotland, a spouse cannot be compelled to give evidence against their wife/husband, although they can if they wish.
There is an exception though - A spouse can be compelled if it is a crime of violence.
Well, I have to concede that the old common law rule *did[/d] vest the privilege in the defendant spouse, but this has been largely reversed today in the U.S.
The page you quote was good research, but it’s a bit misleading. It quotes a proposed federal rule of evidence and makes it seem as though it’s actually now in effect, rule 505, and quotes the Hawkins case as authority, now overruled.
Hawkins v. United States, 358 U.S. 74 (1958). stated the traditional rule that the defendant spouse was the holder of the spousal immunity, or the “husband/wife privilege”. Hawkins was overruled by Trammel v. United States 445 U.S. 40 (1980), where the Supreme Court reversed the traditional rule . The Proposed Rule 505 is an attempt to reinstate Hawkins, but so far it hasn’t been adopted. A minority of jurisdictions do still follow the traditional rule, but most states and federal courts today vest the privilege solely in the testifying spouse.
So, yes, if a minority of states still follow the traditional common law rule, I suppose you’re right, it depends.
I gotta admit, though, that you did have me scratching my head on that one, and I had to go pull out the ol’ evidence book. 