Spousal privelege

[flight]

Does it apply to things that happened before marriage?

Say I was a secretary for someone, and as such I witnessed her embezzle a million dollars. Embezzlement turns me on, so we start a relationship and get married. Now the Feds start investigating. Can they compel me to testify against my spouse regarding things that happened before we were married?

[cher3]

IANAL, but isn’t the purpose of the law to keep you from being put in the position of having to decide whether to incriminate your spouse or commit perjury? What she did and when wouldn’t be relevant, since the law is intended to protect you.

[Diogenes_the_Cynic]

From Wikipedia

The privilege is usually restricted to confidential communications made during marriage and does not include communications made before the marriage or after divorce. The privilege does, however, generally survive the divorce; that is, a person can be prevented from testifying about confidential communications with an ex-spouse made during the marriage.

Either spouse can invoke this privilege, either refusing to testify against their spouse or preventing their spouse from testifying. Finally, courts may require that the communication relate specifically to the marriage.

So I guess you can be forced to testify about stuff that happened before you were married.

If you knew about the embezzlement before you were hitched, though, and if testifying about it could expose you to criminal charges yourself, then I guess you could assert your 5th Amendment right not to incriminate yourself.

[cher3]

Huh. So the emphasis is on confidentiality rather than to protect the partner from emotional pain or undue temptation to lie in court? Is it the same idea as protecting information about crimes that are confessed to a priest?

[Diogenes_the_Cynic]

@cher3

Huh. So the emphasis is on confidentiality rather than to protect the partner from emotional pain or undue temptation to lie in court? Is it the same idea as protecting information about crimes that are confessed to a priest?

I think so, yeah. It sounds like the idea is that you have a right to assume that anything you say to your spouse is confidential and private.

[FatBaldGuy]

This reminds me of a Law & Order episode I saw recently that had me wondering about this (Yes, I know that any resemblance between L&O and actual law is coincidental).

The main plot was that a con man (played by Henry Winkler) and his girlfriend both married rich elderly people with the intent to kill them and inherit their respective fortunes. They had apparently pulled this on others in the past.

At any rate, as the detectives started closing in, they confessed all of their nefarious plans to their spouses, on the basis that the spouses couldn’t testify against them. This strategy was eventually foiled when it was found out that the con couple had married each other in Mexico and never divorced, so the subsequent marriages were void and privilege did not apply.

BUT…I always thought that spousal privilege meant that a spouse could not be compelled to testify. Does it also mean that a person cannot voluntarily testify against their spouse? I didn’t think this was the case, but this episode made it seem that way.

[Diogenes_the_Cynic]

@FatBaldGuy

BUT…I always thought that spousal privilege meant that a spouse could not be compelled to testify. Does it also mean that a person cannot voluntarily testify against their spouse? I didn’t think this was the case, but this episode made it seem that way.

From the linked quote above:

Either spouse can invoke this privilege, either refusing to testify against their spouse or preventing their spouse from testifying.

[FatBaldGuy]

Thanks, I guess that answers my question.

[Gfactor]

There’s a lot of variation between states on this issue:

Virginia, like many states, recognizes two kinds of marital privilege: evidentiary and testimonial.

Evidentiary:

§ 8.01-398. Privileged marital communications.

Husband and wife shall be competent witnesses to testify for or against each other in all civil actions.

In any civil proceeding, a person has a privilege to refuse to disclose, and to prevent anyone else from disclosing, any confidential communication between his spouse and him during their marriage,** regardless of whether he is married to that spouse at the time he objects to disclosure.** This privilege may not be asserted in any proceeding in which the spouses are adverse parties, or in which either spouse is charged with a crime or tort against the person or property of the other or against the minor child of either spouse. For the purposes of this section, “confidential communication” means a communication made privately by a person to his spouse that is not intended for disclosure to any other person.

(Code 1950, §§ 8-287, 8-289; 1977, c. 617; 2005, c. 809.)

(Emphasis added).

The bolded portion is different from the rule in most states, where the privilege dies with the marriage.

Testimonial:

§ 19.2-271.2. Testimony of husband and wife in criminal cases.

In criminal cases husband and wife shall be allowed, and, subject to the rules of evidence governing other witnesses, may be compelled to testify in behalf of each other, but neither shall be compelled to be called as a witness against the other, except (i) in the case of a prosecution for an offense committed by one against the other, against a minor child of either, or against the property of either; (ii) in any case where either is charged with forgery of the name of the other or uttering or attempting to utter a writing bearing the allegedly forged signature of the other; or (iii) in any proceeding relating to a violation of the laws pertaining to criminal sexual assault (§§ 18.2-61 through 18.2-67.10), crimes against nature (§ 18.2-361) involving a minor as a victim and provided the defendant and the victim are not married to each other, incest (§ 18.2-366), or abuse of children (§§ 18.2-370 through 18.2-371). The failure of either husband or wife to testify, however, shall create no presumption against the accused, nor be the subject of any comment before the court or jury by any attorney.

Except in the prosecution for a criminal offense as set forth in (i), (ii) or (iii) above, in any criminal proceeding, a person has a privilege to refuse to disclose, and to prevent anyone else from disclosing, any confidential communication between his spouse and him during their marriage, regardless of whether he is married to that spouse at the time he objects to disclosure. For the purposes of this section, “confidential communication” means a communication made privately by a person to his spouse that is not intended for disclosure to any other person.

@FatBaldGuy

BUT…I always thought that spousal privilege meant that a spouse could not be compelled to testify. Does it also mean that a person cannot voluntarily testify against their spouse? I didn’t think this was the case, but this episode made it seem that way.

Again, it depends which court one is in. In federal court, the testifying witness holds the testimonial privilege and can waive it. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=445&invol=40

There is a separate federal privilege for confidential marital communications, but it would not apply to premarital communications.

[Tim_T-Bonham.net]

How does this apply to gay marriages?

Since they are recognized in Massachusetts, but not by the Federal government, could a married person use the spousal privilege to refuse to testify against their spouse in a state court, but be required to testify in a Federal Court?

And what about states with Civil Unions? Can one partner in a civil union be forced to testify against their spouse?