Also known as: husband-wife immunity · interspousal immunity · spousal immunity
Written by attorneys · grounded in primary & secondary sources — see below
A privilege in criminal proceedings that protects one spouse from compelled adverse testimony against the other. The privilege belongs exclusively to the witness spouse in federal court and permits that spouse to refuse to testify while allowing voluntary testimony even over the defendant spouse's objection. The privilege applies only during a valid marriage and reaches matters occurring before the marriage.
Federal prosecutors subpoena Luis to testify against his husband Daniel about insider trading tips. Luis states he feels morally obligated to cooperate and will appear. Daniel objects claiming spousal immunity bars the testimony. The court overrules the objection because the privilege belongs to Luis alone and he may choose to testify.
State prosecutors subpoena a wife to testify against her husband in a criminal fraud trial. The husband objects and asserts the privilege to prevent her appearance. The court sustains the objection because in most state courts the defendant spouse holds the privilege and may block the testimony even when the witness spouse wishes to cooperate.
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Federal prosecutors subpoena Maria to testify against her wife Elena about a conspiracy charge. Maria declines citing the privilege. Elena cannot force her testimony. The court quashes the subpoena because the privilege belongs to Maria alone during their valid marriage.
State prosecutors subpoena Tom to testify against his husband Carlos about events from before their marriage. Tom invokes the privilege. The court upholds the refusal because the privilege reaches pre-marriage matters when asserted during a valid marriage.
Federal prosecutors subpoena Anna to testify against her husband Robert in a fraud case. Anna elects to testify despite Robert's objection. The court permits her testimony because only the witness spouse holds the privilege and may choose to cooperate.
The privilege belongs exclusively to the witness spouse. That spouse decides whether to testify against the defendant spouse and cannot be compelled to do so. The defendant spouse has no power to block the testimony.
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Yes. The privilege may be invoked during a valid marriage and reaches matters occurring before the marriage as well as during it.
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In federal court the witness spouse alone holds the privilege and may choose to testify. In most state courts the defendant spouse holds the privilege and may prevent the witness spouse from testifying even if the witness wishes to cooperate.
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No. Earlier voluntary statements to law enforcement do not waive the right to refuse compelled testimony at trial. The privilege is determined at the time testimony is sought and the witness spouse retains control.
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Confidential marital communications made in reliance on the intimacy of the marriage remain protected by a separate privilege. The defendant spouse may still prevent disclosure of those communications.
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…for loss of consortium ( Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d at pp. 389-404); and abrogated the rule of interspousal immunity for negligent torts. ( Klein v. Klein (1962) 58 Cal.2d 692, 697-699 [26 Cal. Rptr. 102, 376 P.2d 70].) Every one of these landmark decisions required a difficult choice among competing…