Also known as: spousal testimonial privilege · spousal testimony privileges · marital testimony privilege · spousal privilege
Written by attorneys · grounded in primary & secondary sources — see below
A privilege in criminal proceedings that permits one spouse to refuse to give adverse testimony against the other. The privilege belongs exclusively to the witness spouse, who may elect to testify voluntarily but cannot be compelled to do so by the government or the defendant spouse. It is distinct from the separate marital communications privilege that protects the content of confidential exchanges made during the marriage.
Sylvia Santos faces federal charges for submitting false Medicare claims. Prosecutors subpoena her spouse Samuel Soto to describe kitchen conversations about altering billing records. Samuel agrees to testify about nonconfidential observations but invokes the privilege only for truly private exchanges. The court permits Samuel to take the stand over Sylvia's objection because the testimonial privilege rests solely with the witness spouse.
Seth Shapiro is indicted for insurance fraud. His spouse Solomon Silver reviewed donor records as a volunteer and learned of the scheme through independent work. Solomon states he is willing to testify about those records. The court allows the testimony because the witness spouse alone holds the adverse testimonial privilege, and Solomon's knowledge came from sources outside any confidential marital exchange.
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The witness spouse alone holds the privilege. The defendant spouse cannot prevent a willing witness spouse from testifying, though the witness spouse may still refuse to take the stand.
Supporting sources
No. It bars only compelled adverse testimony. A willing witness spouse may testify about nonconfidential observations and conduct, while the separate marital communications privilege may still shield truly private conversations.
Supporting sources
The testimonial privilege concerns whether a spouse can be forced to testify at all and belongs only to the witness spouse. The communications privilege protects the content of confidential statements made during marriage and may be asserted by either spouse.
Supporting sources
…rights relating to support and property division under HRS chapter 580 (1985 and Supp. 1992); (12) the benefit of the spousal privilege and confidential marital communications pursuant to Rule 505 of the Hawaii Rules of Evidence (1985); (13) the benefit of the exemption of real property from attachment or execution under…