Also known as: marital immunity rule · marital immunity · spousal immunity · interspousal immunity
Written by attorneys — see sources below.
2 senses
An evidentiary privilege that prevents one spouse from being compelled to give adverse testimony against the other in a criminal proceeding. The privilege applies only while a valid marriage exists at the time testimony is sought and extends to events occurring before the marriage. In federal court the witness spouse alone holds the privilege and may choose to testify even over the defendant spouse's objection, while in most state courts the defendant spouse holds the privilege and may block the witness spouse's testimony.
A substantive rule barring one spouse from maintaining a tort action against the other for personal injuries sustained during the marriage. The rule is treated as a matter of family or tort law rather than procedure and may be displaced by choice-of-law analysis when the place of injury and the spouses' domicile differ.
Each sense below has its own examples, sources, and questions.
An evidentiary privilege that prevents one spouse from being compelled to give adverse testimony against the other in a criminal proceeding. The privilege applies only while a valid marriage exists at the time testimony is sought and extends to events occurring before the marriage. In federal court the witness spouse alone holds the privilege and may choose to testify even over the defendant spouse's objection, while in most state courts the defendant spouse holds the privilege and may block the witness spouse's testimony.
Federal prosecutors subpoena Dana to testify against her husband Leo in a hacking prosecution. Dana and Leo married after the charged conduct but before trial. Dana wishes to refuse the subpoena. Because the case is in federal court, Dana alone decides whether to testify and may decline even though Leo objects.
Owen stands trial in state court for trafficking antiquities. The state calls his husband Liam to testify about conversations during their still-valid marriage. Liam wants to testify, but Owen objects. Under the majority state rule, Owen as the party spouse may invoke spousal immunity to prevent Liam from testifying at all.
5 common questions
In federal court the witness spouse alone holds the privilege and may choose to testify even if the defendant spouse objects. In most state courts the defendant spouse holds the privilege and may prevent the witness spouse from testifying regardless of the witness spouse's wishes.
Supporting sources
Yes. The privilege may be invoked as long as a valid marriage exists at the time testimony is sought, even if the underlying events or statements occurred before the marriage.
A substantive rule barring one spouse from maintaining a tort action against the other for personal injuries sustained during the marriage. The rule is treated as a matter of family or tort law rather than procedure and may be displaced by choice-of-law analysis when the place of injury and the spouses' domicile differ.
Marilyn sues her husband Robert and his co-employers for injuries she suffered on the job. The defendants move to dismiss on the ground that Texas law bars one spouse from suing the other in tort. The court treats the marital immunity rule as an affirmative defense that must be pleaded rather than a jurisdictional bar appearing on the face of the petition.
In this personal injury action, plaintiff Marilyn S. White alleged that she was a passenger in a truck driven by defendant Robert W. White. They were traveling south on Interstate 35 near the city of Louisville, Texas, when the defendant lost control of his truck, overturning it and causing injury to her body. The petition alleged that the plaintiff's injuries were caused by negligent acts of the defendant. He failed to keep a proper lookout for vehicles properly on the highway. He followed the vehicle in front of him too closely in violation of specific Texas statutes which were pleaded and attached. Robert White drove his vehicle into a space between the divided roadway and failed to keep his vehicle only upon the righthand roadway in violation of another specific Texas statute which was pleaded. He drove his vehicle at a speed that was greater than reasonable and prudent under the circumstances in violation of another specific Texas statute which was also pleaded and attached. The plaintiff pleaded that as a result of said negligent actions she suffered broken bones and other injuries to the body resulting in permanent disability, medical expenses, and lost income with her damages totaling some $200,000.00. The petition further alleged that at the time of the accident the defendants Robert W. White and Edward White were engaged in a joint venture or partnership operating a long-haul truck tractor-trailer. The plaintiff was employed by the defendants to help operate the truck. At the time of the accident she was within the scope of her employment. The defendants failed to carry Workmen’s Compensation Insurance, and that she has elected to proceed in the District Court. Attached to the petition and made a part thereof was the Motor Carrier Bodily Injury and Property Damage Liability Certificate of Insurance. The Corporation Commission of Oklahoma certified that Employers Casualty Corporation had issued to Edward White of Fort Cobb, Oklahoma an insurance policy covering the obligations imposed upon the insured by the Oklahoma Motor Vehicle provisions. Employers Casualty Corporation is not a party to this appeal because the cause against it was dismissed without prejudice by the plaintiff. In response to the petition the defendants Robert W. White and Edward White filed special demurrers. They demurred to the petition on the grounds that the plaintiff has no legal capacity to sue and that the petition does not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendants. In arguing that the demurrers should be sustained both Robert and Edward White argued that the plaintiff Marilyn S. White lacks the capacity to sue because she is the wife of Robert W. White and under the laws of Texas one spouse may not bring a personal injury action against the other. This fact does not appear on the face of the petition. The defendants also argued that in fact the plaintiff was not their employee but was a co-employer. They relied upon facts which do not appear upon the face of the petition. The trial court sustained the demurrers to the petition and dismissed the case with prejudice. The plaintiff appealed, and the matter came before the Supreme Court of Oklahoma for review.
…the tort was committed, citing Goodrich, Conflict of Laws (1st ed.), p. 188, sec. 92. From this premise it was further held that interspousal immunity from tort liability necessarily is governed by the law of the place of injury. This principle of conflict of laws has been consistently applied in all subsequent interspousal actions in…
…one of the defendants. The conflict posed in that action was whether Florida's marital immunity law or New Jersey law abrogating interspousal immunity
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 cooperation.
Supporting sources
Spousal immunity bars compelled adverse testimony by one spouse against the other in criminal cases and is held by either the witness spouse or the defendant spouse depending on jurisdiction. The marital communications privilege protects only confidential statements made during marriage and is generally held by both spouses.
Supporting sources
A legally recognized marriage must exist at the time the privilege is asserted. An attempted or void marriage, such as one entered while a prior marriage remains undissolved, will not support the privilege.
Supporting sources
A Wisconsin wife sues her husband in Wisconsin court for injuries sustained in a California car accident. California law would bar the suit between spouses, while Wisconsin law permits it. The court must decide whether the marital immunity rule of the place of injury or the law of the spouses' common domicile governs the action.
The plaintiff, Mrs. Haumschild, and her husband were domiciled in Wisconsin at all relevant times. Wisconsin is both the state of the forum and of the domicile while California is the state where the alleged wrong was committed. While the couple was traveling in California, Mrs. Haumschild sustained personal injuries in an automobile accident that was allegedly caused by her husband's negligence. She subsequently commenced an action in Wisconsin circuit court against her husband and Continental Casualty Company, his insurer, seeking damages for those injuries. The defendants asserted that California law barred a wife from suing her husband in tort and therefore precluded recovery. The circuit court rendered judgment against the plaintiff on that ground. The plaintiff appealed to the Supreme Court of Wisconsin. The appeal was argued before the Supreme Court of Wisconsin on March 2, 1959. On April 10, 1959, the court reversed the judgment in an opinion authored by Justice Currie, with Justice Fairchild filing a separate concurrence joined by Justice Brown.
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