I was just watching an episode of Law and Order SVU, and basically it was about a stepmom who marries her stepson, to gain spousal privilage.
Near the end, the stepson divorces her, and it is implied (I took it as read anyway), that this somehow freed him to testify against her?
So 3 questions:
I’m confused, too.
I think I’ve watched an episode of L&O in which spousal privilege was optional.
One spouse could rat on the other if he/she so desired.
It might be different from state to state, but L&O trials are almost all in NYS.
of numbers 1 & 2 i know nothing, but of no 3 i know that it is applicable only if certain condition are met, i.e., conspiracy to commit murder:
if hubby sits around the kitchen table w/jimbob & bobbilee and his wife, ermalee, and talks about his plan to snuff grandpa, she may be compelled to testify. but if hubby & ermalee are lying together in connubial bliss and he confides same, it would be covered. also if they were alone washing dishes. it’s not the sex, it’s the intimacy of the relationship that gives the spousal privilege.
i’m not certain, but 90% sure the communication has to occur within the marriage, so marrying to get immunity for knowledge of prior illegl acts would not be covered.
IANAL, but spousal privilage means that you can’t testify at all in court about anything your spouse told you in private. Otherwise you’re free to testify against them, but the court can’t force you to do so.
There are two forms of spousal privilege: a communication privilege and a testimonial privilege. Under the communication privilege, a spouse may not be compelled to testify about a marital communication, nor can a spouse be permitted to testify about a marital communication without the other spouse’s assent (some states do not include this last element, but instead make it optional). This protects the sanctity of communications within the marriage.
Under the testimonial privilege, a spouse may not testify against his/her partner without that partner’s permission. Think of it as a veto power – even if a husband wants to testify against his wife, he cannot do so without her permission. This protects the sanctity of marriage itself, because the state cannot pit one spouse against another.
Different states have different privilege rules, and I don’t know NY. But the issue in the OP implicates the testimonial privilege: the stepmother, by marrying her stepson, gains the right to prevent him from testifying against her. When the marriage ends, the right to control testimony ends. Because this is not about the communication privilege (which I understand persists beyond the end of the marriage), ending the marriage frees him to testify.
The annulment question is interesting; an annulment means a marriage never took place. Therefore, there would be neither a testimonial privilege nor a communication privilege.
There would be no privilege of any kind following a decree of annulment, which is a judicial decision that there was never any marriage. Legal annulments, as opposed to religious ones, are very rare.
Spousal privilege applies in the UK to a limited extent.
(Police and Criminal Evidence Act 1984, s.80)
The husband or wife of an accused is a competent witness (they may give evidence) but is not a compellable witness (they cannot be forced to give evidence) for the prosecution.
However, the spouse can be compelled to testify for the prosecution if the accused is charged with:
a) an assault on, or injury or threat of injury to the wife or husband or a person who at the time of the offence was under 16;
b) a sexual offence committed on a person who at the time of the offence was under 16; or
c) attempting or conspiring to commit, or aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within a) or b)
The exceptions are designed to be able to force the victims of domestic violence to testify against their abusers and to prevent one spouse who is abusing their children to be protected by the other’s refusal to testify.
People who are no longer married to one another are competent and compellable as if they were never married.
Generally speaking the communication privilege can only be waived by the non-testifying spouse while the tesimonial privilege can be waived by the testifying spouse. Of course this varies state by state but this is the traditional way the privilege is formulated.
Translation into English:
Husband tells wife he hates his neighbor. Then wife sees husband punch neighbor in the face.
As to what the husband told the wife, the husband holds the privilege, and, unless he waives it, the wife cannot testify as to what he told her even if she wants to. (Note that there is an exception if the wife wants to testify about, say, a time when husband threatened her directly).
As to what the wife saw the husband do, it is up to the wife whether she wants to testify about what she saw. If she wants to, she can testify and the husband has no legal right to stop her. On the other hand, she can assert the testimonial privilege and say, I’m not going to testify against my husband.
Generally speaking the communication survives divorce. So, in the above hypo, if husband and wife are now divorced, ex-wife STILL cannot testify as to what ex-husband told her, unless he waives the privilege. The purpose of this privilege is to encourage spouses to communicate freely with each other without fear that what they say will be disclosed. If the privilege went away as soon as the divorce was final, spouses would be less likely to speak freely with each other while married (or so goes the theory).
The testimonial privilege generally does NOT survive divorce. If now ex-wife doesn’t want to testify regarding what she saw then husband but now ex-husband do, then she cannot assert the marital privilege. The idea behind the testimonial privilege is that it would cause dissension in a marriage if one spouse testified against another. But, if there is no marriage, then there is no need to worry about dissension.
Not sure what happens in the case of an annulment. My guess would be that it is treated like a divorce, but I don’t know.