Also known as: adverse testimony privilege · spousal testimonial privilege
Written by attorneys · grounded in primary & secondary sources — see below
A rule of evidence that permits one spouse to refuse to give testimony adverse to the other spouse in a criminal proceeding. The privilege belongs solely to the witness spouse, who alone decides whether to testify. It does not protect observations or noncommunicative acts and ends when the marriage terminates.
Federal prosecutors subpoena Caleb to testify against his husband Owen in a crop insurance fraud case. Caleb informs the government he is willing to describe conversations about burning unsold crops. Owen objects and claims the privilege bars any testimony. The court permits Caleb to take the stand because the testimonial privilege rests with the witness spouse alone.
After her divorce from Porter, a former spouse is called to testify about events during the marriage that implicate him in a drug conspiracy. She agrees to describe a phone call in which Porter discussed buying cocaine. The court allows the testimony because the adverse testimonial privilege cannot be asserted once the marriage has ended.
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The witness spouse alone holds the privilege. The defendant spouse cannot invoke it to block testimony. If the witness spouse elects to testify, the court may compel answers subject only to the separate marital communications privilege.
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No. The adverse testimonial privilege may not be asserted after the marriage has been terminated. A former spouse may be compelled to testify about events that occurred during the marriage.
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Nothing. It concerns only whether a spouse can be forced to take the stand. It does not shield observations, noncommunicative acts, or statements that are not confidential marital communications.
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