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Can Your Spouse be Forced to Testify Against You?

Married couples know a lot about each other – often secrets they do not want others to know. If you are involved in a criminal proceeding, can the state compel your spouse to testify against you to help prove your guilt? The answer is generally no, but this is not always the case.

Spousal Privilege in Florida

Section 90.504 of Florida’s Evidence Code governs the spousal privilege in this state. The statute provides that one spouse has a privilege to refuse to disclose, and to prevent anyone else from disclosing, confidential communications made between spouses during their marriage. Consequently, if you told your spouse something in confidence, you can assert the privilege at trial to prevent him or her from having to testify as to what you said. The privilege reflects a commitment to protecting the marital relationship. But this desire to protect marriages must be balanced against the need for complete evidence at trial. So the privilege’s application has limits.

When does spousal privilege apply?

The privilege applies only to confidential communications between married couples. The two main requirements therefore are (1) a valid marriage, and (2) a communication intended to be confidential. Although you can still assert the privilege as to a former spouse if you are no longer married, the communication at issue must have occurred during the marriage. In addition, not all conversations between spouses are meant to be kept secret between them; for example, conversations had in front of others would not be privileged. And either spouse can waive the privilege, whether purposefully or unintentionally, by revealing the communication to a third party.

The fact that the privilege applies only to communications means that a spouse can be compelled to testify to what he or she may have observed about the other spouse’s behavior or actions. For example, in a DUI case, a wife could be made to testify that she saw her husband drink alcohol, but not to the fact that he told her he was drunk, if the statement was meant to be for her ears alone.

What are the exceptions to the spousal privilege?

There are three statutory exceptions to the privilege:

  1. When an action is brought by or on behalf of one spouse against the other;
  2. In a criminal proceeding, when one spouse is charged with a crime against the other spouse or either spouse’s child; and
  3. In a criminal proceeding, when the defendant spouse offers the communication in evidence and was one of the spouses between whom the communication was made.

The Florida statute does not recognize one exception common in other jurisdictions: the so-called “crime-fraud exception.” Under this exception, there is no privilege for spousal communications made in the course of furthering a crime or fraud.

What about spousal privilege in federal court?

The federal courts acknowledge the same privilege for confidential communications, but there is an additional privilege there not contained in Florida law. Federal courts and some other jurisdictions recognize a spousal testimonial privilege, under which one spouse may refuse to testify against the other in a criminal case. Only the testifying spouse can assert the privilege; that is, if your spouse wants to offer evidence against you that is not protected by the confidential communications privilege, you cannot stop him or her.

Contact an Orlando criminal defense attorney

If you have been arrested or charged with a crime, you need an experienced criminal lawyer in your corner. The Orlando and Miami attorneys of The Baez Law Firm have successfully defended both misdemeanor and felony cases throughout Florida. Contact The Baez Law Firm for a consultation today.

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