Posted on 09/03/2015 9:31:11 AM PDT by ken5050
Can they testify about events that preceded the divorce?
Federal law offers an individual many protections when testifying in court. For instance, the U.S. Constitution gives you the right to plead the Fifth to avoid self-incrimination during a trial. Marital privilege, also called spousal privilege, is another protection that exists at the federal and state level. The law prohibits you from testifying against a spouse. The privilege, however, is somewhat complex.CAVEAT I do not know if this is in effect in all statesMarital Privilege
Marital privilege is similar to attorney-client or doctor-patient privilege because its automatic. The privilege starts as soon as the individuals marry. Spousal privilege only extends to individuals who are legally married to each other unless a specific state law prohibits common law marriage. Thus, if you are unmarried but live together regardless of the number of years you arent allowed to use the privilege law. The purpose of the law protects confidences which occur between spouses. The U.S. Supreme Court recognizes two types of marital privilege: marital communication privilege and refusal to testify.Communications
With marital communication privilege, any communication between spouses is private and must remain confidential. This type of martial privilege includes acts and words intended as communication. If your spouse tells you that he killed someone, the court can't force you to testify in court about the communication. The privilege, however, does have exceptions. If you were to communicate what your spouse said to you, then you cant plead spousal privilege. The law doesnt protect any communication between spouses overheard or told to third parties. If you told a friend about your husband killing someone, you cant claim the privilege.Refusal to Testify
Claiming spousal privilege affords you the right not to testify in court against your spouse. Thus, a prosecutor, judge or defense lawyer cant force you to testify. Marital privilege also includes testifying at pretrial hearings, depositions and court hearings. One major exception to the law concerns the spouses decision. The law allows the spouse who made the communication to waive his right to spousal privilege. Also, you cant waive the privilege for your spouse.Considerations
The law does have several exceptions depending on the state where you live and the type of court proceedings. In civil cases such as divorce or domestic violence cases, martial privilege doesnt exist. One spouse can testify against the other. Federal law also doesnt extend the privilege where one spouse is charged with a crime against a child. Threatening statements or communication intended to control or cause fear isnt privileged communication.
I do believe that a spouse cannot be compelled to testify. They can volunteer though referring to "spousal immunity". It is the law in Georgia (and probably most other states) that one spouse cannot be compelled to testify against another. In other words, the privilege belongs to the testifying spouse.
two different rules of law, the spousal immunity privilege and the confidential communication privilege.
The things you tell your wife in confidence during your marriage are protected by the confidential communications rule, including things occurring before the marriage. Both spouses hold the privilege for this, even after the marriage is over, meaning your wife can't testify as to something you told her without your consent (or an exception). This applies (in TX) to both civil and criminal trials. This is what has been described
Spousal immunity is somewhat different. It doesn't apply to things you tell your wife, but things she sees and otherwise knows about. This privilege is only available in criminal trials, and is only available if the two of you are still married at the time of trial. Also, this one is different from the confidential communications privilege in that the testifying spouse holds the privilege, not the defendant spouse. So she can testify if she wants about anything she saw, but still not about anything you told her in confidence.
And BTW..have a nice day!!
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