Also known as: marital immunity · marital-immunity doctrine · interspousal immunity · spousal immunity doctrine · spousal immunity
Written by attorneys · grounded in primary & secondary sources — see below
A rule of evidence that prevents one spouse from being compelled to give adverse testimony against the other in a criminal proceeding. The rule applies only during a valid marriage and extends to events that occurred before the marriage. In federal court the privilege belongs to the witness spouse alone.
Maria Morales stands trial in federal court on fraud charges. Prosecutors subpoena her spouse Matthew Martinez to describe observations he made before their marriage. Matthew states he is willing to testify. Maria objects on spousal immunity grounds. The court overrules the objection because the witness spouse alone decides whether to testify.
Monica Morgan faces state manslaughter charges. The prosecutor subpoenas her spouse Mina Mehta to recount statements Monica made while the couple cohabited before marriage. Mina is willing to testify. Monica objects and asserts spousal immunity. The court sustains the objection because the party spouse in state court may block the testimony even when the witness spouse wishes to proceed.
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The privilege belongs to the witness spouse alone. That spouse may choose to testify against the defendant spouse even over the defendant spouse's objection. The defendant spouse has no power to block the testimony except as to confidential marital communications.
Yes. The rule expressly permits assertion of the privilege during a valid marriage even as to matters that occurred before the marriage took place.
In federal court the witness spouse controls the privilege and may testify if willing. In most state courts the party spouse holds the privilege and may prevent the witness spouse from testifying even if the witness spouse wishes to cooperate.
Yes. The rule turns on the existence of a valid marriage at the time testimony is sought rather than on when the underlying events occurred or when charges were filed.