Also known as:spousal adverse testimony privilege · adverse spousal testimony privilege · spousal immunity
Written by attorneys · grounded in primary & secondary sources — see below
A rule of evidence that prevents a spouse from being compelled to give testimony adverse to the other spouse in a criminal proceeding. In federal court the privilege is held solely by the witness spouse, who may choose to testify or refuse. The defendant spouse may not block the testimony except as to confidential marital communications.
Sources & Authorities
How it applies
Common Examples
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Witness Spouse Elects to Testify
Spencer Silver faces federal charges for transporting stolen goods. Prosecutors subpoena his wife Selena Singh, who handled sales records, to testify about observed transactions. Selena states she is willing to testify. Spencer objects, claiming spousal privilege bars her appearance. The court overrules the objection because the testimonial privilege belongs to Selena alone, allowing her to proceed while any confidential communications remain separately protected.
State Court Party Spouse Blocks Testimony
Steven Silva stands trial in state court on arson charges. Prosecutors subpoena his wife Sasha Stone to testify about pre-marriage conversations. Sasha is willing to testify, but Steven objects on spousal immunity grounds. Because state law vests the privilege in the party spouse, Steven may prevent Sasha from testifying even though she wishes to appear.
Put it into practice
Test Yourself
10
Practice Questions5
· 2 primary sources
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Cases
Common Law
Study Supplements
Common questions
Frequently Asked
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Who holds the spousal privilege against adverse testimony in federal court?+
The witness spouse alone holds the privilege. The witness spouse decides whether to testify against the defendant spouse and cannot be compelled to do so. The defendant spouse has no right to block the testimony except regarding confidential marital communications.
Supporting sources
Does the privilege apply in state court the same way as in federal court?+
No. 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 testify. Federal court follows the opposite allocation, placing control solely with the witness spouse.
Supporting sources
Can the privilege be asserted after the marriage ends?+
No. The privilege against adverse testimony may be invoked only while a valid marriage exists at the time of trial. A pending divorce does not terminate the marriage for this purpose until a final decree is entered.
Supporting sources
Does the privilege protect all observations made by one spouse about the other?+
No. The privilege against adverse testimony bars only compelled testimony by the witness spouse. Separate observations made in public or non-confidential settings are not protected, and only confidential marital communications receive independent protection.
Supporting sources
EvidencePrivileges and other policy exclusions · Spousal immunity and marital communicationsNEXTGENFoundational