Three Times When The Prosecutor Can Breach Spousal Privilege


Married defendants depend on spousal privilege laws to keep prosecutors from forcing their wives or husbands to testify against them and/or reveal confidential information that could tank their cases. Unfortunately, though, these laws aren't bulletproof. Here are three times when the prosecutor in your criminal case can breach spousal privilege and compel your husband or wife to spill the beans.

The Criminal Act Is Exempt

Most people assume spousal privilege laws cover any and all crimes, including murder. While it's true that the majority of misdemeanors and felonies are covered by these laws, a few are exempt and can provide a way for the prosecutor to get a spouse to break his or her silence. These exempt crimes include:

  • Criminal acts against the spouse
  • Criminal acts against children of either person in the marriage
  • Human trafficking
  • Criminal acts against other persons while committing a crime against the spouse

For example, a husband hits a neighbor's dog while trying to run over his spouse with a vehicle. The judge will reject any attempt to exert spousal privilege in this case because the defendant attempted to commit a crime against his spouse that resulted in collateral damage against another person.

In addition to these exceptions, spousal privilege doesn't cover the planning of criminal acts. For example, two spouses discuss robbing a bank together. The prosecutor can compel one spouse to testify against the other, even if that spouse doesn't actually participate in the crime.

Since each state has its own rules regarding spousal privileges, it's best to consult with an attorney for more info about additional exemptions that may be relevant to your case.

One Spouse Initiates Legal Proceedings Against the Other

Spousal privilege may also be revoked or invalidated in cases where spouses are suing each other in civil cases or when one spouse has criminal charges brought against the other. Laws governing spousal privilege were enacted to protect the harmony within a marriage by ensuring spouses can speak freely to each other without fear of what they say being used against them in court.

When one spouse initiates civil or criminal proceedings against the other, it's assumed that marital harmony has been lost. Thus, neither spouse can use the laws to prevent the other from testifying in court or willingly providing information to the prosecutor about confidential matters.

That doesn't mean everything you told your spouse during your marriage is up for grabs. In most cases, the information sought must be relevant to the case at hand. So, testimony about any violent tendencies you have shown would be allowed in a domestic violence case, while anything involving insider trading would not if your case isn't about that.

The Marriage Ends or Is Invalid

A third way the prosecutor can break spousal privilege is if your marriage ends or is declared invalid. However, you may still enjoy a certain amount of protection depending on whether your marriage ends in divorce or was invalidated by the court.

In cases of divorce, communications between spouses while the marriage was active are still protected, meaning the prosecutor can't compel the spouse to discuss a private issue talked about during that time period. However, anything you discussed with your spouse prior to getting married is not longer protected by spousal privilege, and the prosecutor can get your wife or husband to relay that information in court.

On the other hand, for spousal privilege to apply, the marriage must be valid. Thus, anything can become ripe for the picking if the courts determine the marriage wasn't legal to begin with. This often happens in cases where a couple has a common law marriage and live in a state where those types of unions aren't legally recognized.

Spousal privilege can be a powerful tool for preventing the prosecutor from using your spouse against you. However, it's full of nuances and pitfalls that must be carefully navigated to extract the most benefit. Discuss the issue with an attorney to ensure you make the most of this legal maneuver.


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