The ‘Honey-Do’ List: Spousal Privilege

In the movie Ball of Fire, a gangster attempts to force Barbara Stanwyck to marry him, with the objective of the nuptials being to prevent Stanwyck from testifying against him. The gangster could have saved the trouble of a fistfight with Gary Cooper, but then we would have lost an entertaining movie.1

This movie and others have left the public with the impression that one spouse cannot testify against the other spouse. There is a common-law tradition to that effect, typically protecting the husband from the testimony of the wife. The common law began with the supposition that marriage turned two persons into one — that one being the husband. The wife was considered to be incompetent to testify against the husband, though in our world of gender equality, the rule continues in attenuated fashion toward both genders. In practice, it is usually the male who seeks protection from a vengeful spouse.2

No polygamous marriage is valid in the United States, and though certain religions allow for such unions, they have not managed to get any level of government to agree.

The common law has been changed by statute and court decision, though these changes have been uneven among the states and federal system. The nuances of the changes are such that a lawyer, and FBI agent, was motivated to publish an article on the subject in the FBI Law Enforcement Bulletin.3 The article only focused on the federal interpretation of the right, and, even so, there are differences in the circuits regarding its meaning and extent.

First of all, there must be a valid marriage. No polygamous marriage is valid in the United States, and though certain religions allow for such unions, they have not managed to get any level of government to agree. Common-law marriages are allowed in certain states, but they may not be recognized in other states. The parties to a common-law marriage were adamant on the right of privilege until they were told that if they didn’t answer certain questions, their children would be taken into foster care.4 Same-sex parties entered into civil unions before same-sex marriage was found to be a constitutional right, though it appears that these unions were not marriages for the purpose of this privilege. If the parties are separated, a valid marriage may not exist, at least if it works toward a conviction.

Pick a Hand

The privilege may be broken down into two subcategories: a Marital Communication Privilege and Adverse Spousal Testimony. The Marital Communication Privilege is supposed to preserve the sanctity of marital communication, but the communication must be a communication, and observations of actions are not normally communication.

Atop that, the communication must have been intended to be private. If third parties are present, there is no privilege. Nor does this privilege apply to crimes against the spouse or children, nor does this privilege apply to the spouse conspiring to commit a crime.

The Adverse Spousal Testimony privilege is designed to prevent a spouse from testifying against another spouse. This is designed to preserve marital harmony, though many states by statute or court decision have ruled that if one spouse wants to testify against another, there is no marital harmony to preserve.

The general rule is that a spouse may testify against the other if he or she wants.

There does not seem to be any sense in dividing the privilege into two elements. Perhaps it is intended to divide and conquer the privilege. It doesn’t have to make sense anyway; it’s just the law.

In some places, the privilege only prevents courtroom testimony. It can still be used as an investigative tool, even before a grand jury, and even if the testimony cannot be used at trial, the investigators will then know where to look for admissible evidence. In some places, the privilege survives divorce or even death. (Why testimony against a dead spouse would be wanted is not immediately obvious, but all things are possible.) Even if evidence is gathered in violation of the privilege, it is still admissible, as the violation is a violation of the common law and not of the Constitution.

Bottom Line

The general rule is that a spouse may testify against the other if he or she wants. In fact, investigations frequently rely on betrayed wives for direction. An Ohio man dragged his girlfriend from her apartment by her hair and forced her to marry him, thinking this would prevent her from testifying against him in a different disorderly act. He was wrong.5 Less-violent actions have made women eloquent on the sins of their spouses, and the decision to testify was always hers.

There are other testimonial privileges in the statutes. A defendant can rely only on statements to a lawyer or Catholic priest, and then only under the seal of the confession. Priests have a better fee schedule, but a lawyer’s advice is more to the point. All told, the great body of divorce law warns against confession to a spouse.

Kevin L. Jamison is an attorney in the Kansas City, Missouri area, concentrating in the area of weapons and self-defense.

This information is for legal information purposes and does not constitute legal advice. For specific questions, you should consult a qualified attorney.

Endnotes

(1) Actually two. It was remade, starring Danny Kaye, as “A Song Is Born.” (2) A 2013 Kentucky case found that same-sex partners do not enjoy the protection because, at the time, Kentucky did not recognize same-sex marriage. “Spousal privilege doesn’t apply to woman testifying in same-sex partner’s murder trial, judge rules,” ADAJournal.com/News/Article/Spousal_Privilege_Doesnt_Apply. (3) “Spousal Privileges in the Federal Law,” FBI Law Enforcement Bulletin August 2003, 26, et seq, see https://Leb.FBI.gov/Archives. A frequently useful online magazine provided without charge. Your tax dollars have already paid for it. (4) A threat also directed at parents in conventional marriages. (5) “Force nuptials may backfire,” Kansas City Star, Oct. 29, 2003 at A2 Clm 2.