Also known as: adverse spousal testimonial privileges · spousal testimonial privilege · marital testimonial privilege · adverse spousal privilege
Written by attorneys · grounded in primary & secondary sources — see below
An evidentiary privilege in federal criminal prosecutions that belongs exclusively to the witness spouse and permits that spouse to refuse to give adverse testimony against the defendant spouse. The privilege does not extend to observations or nonconfidential facts perceived by the witness spouse. It is distinct from the marital communications privilege that either spouse may assert to block disclosure of confidential statements made during the marriage.
Andrew Avery faces federal charges for an undocumented labor operation on his farm. His wife Ava Adebayo managed housing and observed daily practices while also hearing private admissions from Andrew. When subpoenaed, Ava states she will testify about her observations but not the private talks. The court permits her testimony on the observations because she alone controls the testimonial privilege and elects to proceed.
Albert Allen is prosecuted for obstruction of justice. Prosecutors call his husband Alan Ackerman to testify about workplace conduct Albert directed. Alan states he is willing to appear. The court overrules Albert's objection because the testimonial privilege rests solely with the witness spouse, who may choose to testify even when the defendant objects.
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The witness spouse alone holds the privilege. That spouse decides whether to testify adversely against the defendant spouse. The defendant spouse has no power to veto the decision when the witness spouse is willing to testify.
No. The privilege allows the witness spouse to refuse to take the stand at all. It does not protect nonconfidential observations or facts the witness spouse perceived outside confidential communications. Those matters remain subject to compelled testimony if the witness spouse elects to appear.
The testimonial privilege is held only by the witness spouse and concerns whether that spouse must testify at all. The communications privilege belongs to either spouse and protects only the content of confidential statements made during the marriage. The two privileges operate independently and can be asserted separately.