Also known as: spousal immunity · spousal immunity doctrine · interspousal immunity · interspousal tort immunity
Written by attorneys · grounded in primary & secondary sources — see below
An evidentiary privilege that prevents one spouse from being compelled to testify against the other in a criminal proceeding. The privilege applies only while a valid marriage exists and may cover events that occurred before the marriage. In federal court the witness spouse alone holds the privilege and may choose to testify or refuse, while in most state courts the defendant spouse holds the privilege and may block the witness spouse from testifying.
Select any source to read its text and confirm it supports the definition.
Dana married Leo after the alleged hacking but before his federal trial. Prosecutors subpoena Dana to describe Leo's pre-marriage boasts about bypassing security systems. Dana tells the court she does not want to testify. Leo objects and asks the court to order her to the stand. The court permits Dana to refuse because the federal rule gives the witness spouse sole control over whether to provide adverse testimony.
Owen faces state criminal charges for trafficking antiquities. Prosecutors call his husband Liam to describe conversations during their still-valid marriage. Liam states he is willing to testify even though the marriage is strained. Owen objects and invokes the privilege. The court sustains the objection because the state follows the majority rule that lets the defendant spouse block all adverse testimony from the witness spouse.
Ursula faces state manslaughter charges arising from a construction site collapse. She married Walker weeks before trial after years of cohabitation. Prosecutors subpoena Walker to recount Ursula's pre-marriage admissions about safety shortcuts. Ursula objects on spousal immunity grounds and moves to quash the subpoena. Walker states he is willing to testify. The court grants the motion because a legally recognized marriage existed when the subpoena issued, allowing the defendant spouse to prevent the testimony.
The witness spouse alone holds the privilege. That spouse may refuse to testify against the defendant spouse but may also choose to testify even if the defendant objects. The defendant spouse has no power to block the testimony except as to confidential marital communications.
Supporting sources
Yes. The privilege turns on the existence of a valid marriage at the time testimony is sought, not on when the underlying events occurred. A witness spouse may therefore invoke the privilege regarding pre-marriage conduct so long as the couple remains married when the criminal proceeding takes place.
…that the plaintiff lacked capacity to bring a personal injury action against her husband, the defendants relied upon Texas interspousal immunity laws. However, such laws do not exist in Oklahoma. In point of fact, this Court has on numerous occasions held that a party may maintain a tort action against his or her…
…for personal injury but for the fact that the defendant is the wife of the plaintiff, thus bringing into issue the doctrine
Supporting sources
The outcome depends on the jurisdiction. In federal court the witness spouse may testify over the defendant's objection. In most state courts the defendant spouse holds the privilege and may prevent the witness spouse from testifying even if the witness is willing.
Supporting sources
No. Prior voluntary statements to law enforcement do not waive the privilege against compelled testimony at trial. The witness spouse retains the right to refuse to testify in court even after earlier disclosures, because the privilege is determined at the time testimony is sought.
Supporting sources