A question for Legal interested Dopers, esp. ones familiar with NYS law

Factual Questions
1

Basically, I’ve been hearing in popular fiction for years that there is some kind of protection between spouses when one is indicted for a crime: That a spouse may not be compelled to testify against the other member of the marriage. Of course, all the times I’ve heard of it, it’s that a wife can’t be made to testify against her husband, but I’m assuming it’s reciprocal.

My questions are all hypothetical - part of a scenario I’m working on for (Og spare me) a romance novel I’m writing. Because I’m planning to set the action for this story locally to me, my interest is specifically with NYS law, but I’d be eager to hear any answers from any Dopers speaking up about their knowledge of any English Common Law systems. Information from other legal systems will be welcomed, too, but my own ignorance of the other legal traditions out there would leave the information as little more than an interesting bit of trivia to me.

  1. Does this exclusion in fact exist at this time in NYS criminal codes?

  2. If it does exist, why? My guess is that it’s a carry over from the time when the law assumed that the male part of a marriage was in control both of the marriage and the finances. Or perhaps some variation of the priveleged nature of communications between a lawyer and client, or priest and penitent. If some Doper cares to explain where I’ve got my thinking messed up on the reasoning behind this, I’d be quite grateful.

  3. If it doesn’t exist, now, did it ever exist? And when was the change made?

3A. If it doesn’t exist, and never did, why is it such a popular concept in fiction?

  1. If it does exist, now, how do juries react to having a spouse on the witness stand use that protection? Does having the accused wife, forex, say, “I respectfully decline to answer that question. Because it involves my husband’s alleged crimes, I stand on my right to remain silent on this topic.” leave a jury thinking that she knows the guy did everything he’s been accused of doing. And maybe a little bit more?
2

IANAL, but from what I understand, Law & Order gets it wrong. Husband/wife communication is not sacrosant, like priest/penitent. The DA’s often state, “Well, it’s illegal for her to testify against her husband.” IIRC, they can’t compel a spouse to testify, but if the spouse wants to, there’s no law saying they can’t.

Again, IANAL.

3

I should have made it clear - I didn’t think that there was any obligation for a spouse to keep quiet, if they wished to testify - simply that they could refuse to answer, and the court would allow them to use this marital privelege to cut off the whole line of questioning.

4

The term you’re looking for is spousal privilege. Here’s a couple good links to start with:

And a review of New York’s statutory spousal privilege, first appearing in the New York Law Journal in May 2006, as posted on Morrison Mahoney LLP’s Website (PDF ).

In law school I found the history and nuances of the privilege a fascinating topic, especially questions of who/when it can be invoked. I hope the above helps to get you started!

Rhythm

5

Thanks, Rhythm!