Also known as: spousal testimonial privilege · spousal testimony privileges · marital testimony privilege · spousal privilege
Written by attorneys — see sources 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.
The petitioners were fourteen same-sex couples and two men whose same-sex partners were deceased. They lived in Michigan, Kentucky, Ohio, and Tennessee. Those states defined marriage as a union between one man and one woman under their constitutions and statutes. The petitioners filed suits in federal district courts in their home states. They sought marriage licenses or recognition of marriages lawfully performed elsewhere. James Obergefell and John Arthur traveled from Ohio to Maryland to marry aboard a medical transport plane because Arthur suffered from ALS; Obergefell later sought to be listed as surviving spouse on Arthur's death certificate. April DeBoer and Jayne Rowse, Michigan nurses, adopted three children but could not both serve as legal parents under state adoption rules. Army Reserve Sergeant Ijpe DeKoe and Thomas Kostura married in New York before DeKoe's deployment to Afghanistan and later settled in Tennessee. Each district court ruled in the petitioners' favor. The respondents appealed. The Sixth Circuit consolidated the cases and reversed the district court judgments. The petitioners sought certiorari, which the Supreme Court granted. Same-sex couples had begun establishing families after substantial cultural and political developments in the late twentieth century. Earlier litigation had addressed the legal status of gays and lesbians, including challenges that reached the Supreme Court in Bowers v. Hardwick and Lawrence v. Texas.
View caseThe 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…