Marital Privilege vs. Spousal Privilege

Can I be forced to testify against my spouse? Can my spouse prevent me from testifying against them?

When it comes to testifying against a spouse, states have differing rules on whether or not this type of testimony can be compelled. In Utah, Article 1 Section 12 of the Utah Constitution specifically provides that a husband cannot be compelled to testify against his fife and a wife cannot be compelled to testify against her husband. This rule has also been placed into Utah’s Rules of Evidence, Rule 502 (, which is known as the marital privilege rule.

These types of scenarios come up most often in domestic violence and sexual assault cases. Often times, the spouse that has been abused will be reluctant to testify against their spouse, resulting in the abusive spouse going free and not facing the consequences of their actions. While this seems like a harsh consequence of the marital privilege, states that have chosen to adopt similar rules concerning marital privilege do so in order to foster marital harmony, avoid marital dissension. (See Federal Marital Privileges in a Criminal Context: The Need for Further Modification Since Trammel, 43 Wash. & Lee L. Rev. 197 (1986) In adopting this privilege, states have also recognized that this rule also flows from a natural repugnance towards requiring a person to condemn or be condemned by his or her own spouse.

In contrast to this “privilege” is the spousal communications privilege, which allows either spouse to prevent certain testimony about communications made during the marriage. This privilege is also codified under Utah Rules of Evidence, Rule 502. Under the spousal communications privilege, any communications between a husband and a wife made during the marriage are confidential. Making these communications confidential means that one spouse cannot testify about communications made with the other spouse during the marriage unless both spouses give consent to the testimony. Since both spouses must give consent, this privilege is often used to keep one spouse from testifying against another spouse. Because this privilege can have very harsh consequences in the criminal context, such as allowing a defendant to go free because his or her spouse is prevented from testifying about crucial evidence, Utah has limited the applicability of this privilege to the civil context.

Michael Hepworth

Michael Hepworth

Managing Attorney at Hepworth & Associates
Michael is the Managing Attorney of Hepworth & Associates, LLC.
Michael Hepworth

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