Getting the Facts Straight: Spousal Privilege (First published in the Sisters in Crime Guppy Newsletter, First Draft) This month, I'll respond to a recent question from a fiction writer. Can a witness testify against his or her spouse? The spousal or marital privilege has a long history, though its application has evolved over time. The law holds that no one has a privilege to refuse to testify unless otherwise provided by constitution (e.g., the right to avoid self-incrimination), statute, or state or federal rules of evidence. The spousal privilege is a combination of two elements: 1) the right not to be compelled to testify against one's spouse, and 2) the protection of marital confidences. As an example, let's look at the Montana statute. Most states' laws are similar, although they may be part of the rules of evidence or a separate statute. Writers of historical mysteries, note that the privilege was fairly well-established in both English and American law by about 1850.
This statute protects marital confidences. It applies equally to husbands and wives, and can be waived by the spouse who made the communication (usually the one being testified against). Neither spouse can testify about communications between them during the marriage; the protection continues even after the marriage ends. The privilege does not apply, however, in a civil suit between spouses, such as a divorce or custody proceeding, or when one spouse is charged with a crime against the other. A separate statute extends that exception to cases where the spouse is charged with abuse, abandonment, or neglect of the other spouse or either spouse's children. In other words, if a husband is charged with assault against his wife or a child of either of them, the spousal privilege does not apply and she can testify about what she saw AND what he told her. A few specifics: -- The privilege belongs to the person who made the communication. Only he or she can waive it. -- Like all privileges, the spousal privilege is waived if the communication is made in the presence of a third person, or if the spouse who holds the privilege discusses the privileged communication with someone besides the spouse. Those circumstances indicate the person who made the communication did not consider it confidential. (Keep in mind, though, that disclosures may be subject to another privilege, such as attorney-client, or physician-patient.) -- Some states limit the spousal privilege to criminal cases only. Most, if not all, states do not recognize the privilege in criminal cases charging spousal assault or child abuse, neglect, or molestation. -- No witness or attorney can comment on the claim of privilege. A prosecutor cannot suggest, for example, that if the defendant's wife had been allowed to testify, the jury would have a fuller picture of his cruel and abusive nature -- The privilege is intended to protect communications, not acts or observations. -- To be privileged, a communication must have been made in reliance on the marital relationship. A statement made as a threat or to assert control through fear will not be privileged. -- The privilege applies in pretrial proceedings, such as depositions or court hearings, as well as at trial. -- The privilege assumes a legal marriage. Some states recognize common law marriage (we'll talk about that in another column), and some extend the privilege to long-established relationships, sometimes called "meritricious relationships," that had many characteristics of marriage (e.g., property ownership, shared assets, children) without the legal sanction. As always, be sure to check the law of the state where your story is set. Cornell Legal Information Institute's topical index of state statutes is a good starting point, though you may have to do some digging. Look for headings such as privileges, witnesses, spousal, marital, husband-wife, confidences, or competency. http://www.law.cornell.edu/topics/state_statutes2.html#evidence Another source is this list of links to state rules of evidence, http://expertpages.com/news/state_rules_of_evidence.htm. Spousal, doctor-patient, and attorney-client privileges all have many potential uses in mysteries. Use them to heighten tension or create suspense about whether certain information can be revealed. Create a conflict for your sleuth. Make your reader wonder, and make your reader think, long after the pages are closed. A 1984 graduate of Notre Dame Law School, a former law clerk to the Washington State Court of Appeals, and a lawyer admitted in Washington and Montana, Leslie Budewitz lives, writes, and practices law in northwest Montana. If you have a question about a legal issue in your fiction, please browse her website, www.lawandfiction.com or email her at leslie@lawandfiction.com. Site contents © Leslie Ann Budewitz webmaster@lawandfiction.com 13727 
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