Also known as: husband wife testimonial privilege · spousal testimonial privilege · marital testimonial privilege
Written by attorneys · grounded in primary & secondary sources — see below
A privilege in federal criminal proceedings that permits the witness spouse to refuse to give adverse testimony against the defendant spouse. The privilege belongs solely to the witness spouse, who may choose to testify even if the defendant spouse objects. The defendant spouse holds no veto power over the witness spouse's decision.
Harold Hunt stands trial in federal court for skimming resort funds. Prosecutors subpoena his wife Hannah Hughes to describe joint-account deposits and her observations of his work habits. Hannah states she is willing to testify. Harold objects on spousal-privilege grounds. The court overrules the objection because the testimonial privilege rests with Hannah alone, allowing her voluntary testimony about non-communicative facts.
Ulysses faces federal charges for directing illegal dumping. Prosecutors subpoena his wife Bridget to recount her personal observations of his work schedule and on-site conduct. Bridget invokes the testimonial privilege and declines to take the stand. The court sustains her refusal because she alone controls whether to give adverse testimony, even though Ulysses cannot block her if she later chooses to testify.
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The witness spouse alone holds the privilege. The defendant spouse cannot prevent the witness spouse from testifying if the witness spouse elects to do so. The prosecution may not compel the witness spouse to testify over that spouse's objection.
The testimonial privilege concerns whether a spouse may be forced to take the stand at all and is held only by the witness spouse. The marital communications privilege protects the content of confidential spousal statements and may be asserted by either spouse. Observations and non-communicative facts fall outside the communications privilege.
No. The defendant spouse lacks standing to assert the testimonial privilege on the witness spouse's behalf. The witness spouse may voluntarily testify about her own participation in events even without the defendant spouse's consent.
Yes. The privilege against adverse spousal testimony applies in grand-jury investigations as well as at trial. A witness spouse may refuse to testify adversely before the grand jury on the same terms that govern trial testimony.