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Can Your Spouse Testify Against You?

If you’re facing criminal charges in Minnesota, you may be wondering, “Can your spouse testify against you?” Spousal privilege laws may exclude your spouse from testifying against you in a court trial or related legal proceeding. You or your spouse can assert the privilege to block the testimony. Special conditions and exceptions may apply. The spousal privilege, for instance, ends immediately after the official termination of the marital relationship. It may also end when your spouse files a civil suit or presses criminal charges against you. 

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What Is Spousal Privilege?

Spousal privilege refers to rules and regulations that protect marital relations. These laws predate the written U.S. Constitution. They treat an officially married couple as one legal entity.

Under spousal privilege, your spouse has the privilege to remain silent without legal consequences. The objective here is to shield the marital relationship from the potential repercussions of one spouse getting compelled to testify or give evidence against the other.  

If your state doesn’t recognize your marriage, you can’t assert spousal privilege. Keep in mind that spousal privilege may extend to same-sex marriages. A 2015 ruling by the U.S. Supreme Court requires all states to recognize same-sex marriages conducted in other states. 

Some states – like Minnesota – do not recognize common-law marriages within the state. Minnesota does, however, recognize legal common-law marriages from other states. 

Even if your state recognizes common-law marriage, you must provide sufficient proof. Property documents, bank statements, an affidavit specifying the nature of your relationship, and witness testimony are examples of documents that may serve as proof of common-law marriage. 

Protecting Marital Relationships Versus the Need for Evidence  

Spousal privilege guards the privacy and trust that exist in a recognized marital relationship. The justice system requires maximum cooperation and honest testimony from victims and witnesses to remain functional. These are two equally important needs. Courts and governments (federal and state) have introduced several specific requirements and exceptions to the spousal privilege to strike a perfect balance between these competing needs. 

Spousal Privilege Waiver

The responsibility of protecting confidential spousal communications lies on the shoulder of spouses. Failure to properly assert privileges may result in their waiver or loss of the right to assert. 

If a spouse does not protest the other spouse’s testimony when provided, that spouse may waive his or her privilege. A privilege waiver may also happen when either spouse discloses a confidential spousal communication to someone else.                                                                                    

Additionally, a privilege waiver may happen when a spouse uses a third-party witness to testify regarding a confidential spousal communication. Federal Law on Spousal Privilege. In cases without spousal privilege, if the victim doesn’t show up to court, he or she may face penalties.

Spousal Privilege Under Federal Law

Under federal law, spousal privilege falls into two distinct categories: spousal testimonial privilege and spousal communications privilege. 

Spousal Testimonial Privilege 

Spousal testimonial privilege prevents one spouse from offering testimony against the other spouse in a bench trial, jury proceeding, or similar legal proceedings. Either spouse can claim the privilege to stop the testimony. In short, your spouse cannot act as any of the three types of witnesses in a criminal proceeding once you claim the privilege. 

A legally recognized marital relationship must exist for this privilege to apply. Following a divorce, courts can compel your ex-spouse to testify against you, since you are no longer in a marital relationship. 

Exceptions to this type of spousal privilege arise where a spouse is:

  • Facing charges for crimes against the other spouse or his or her property and relatives; 
  • Facing charges for crimes against a child of either spouse;
  • Facing charges for crimes against someone else while executing a criminal act against the other spouse;
  • Required to testify about subjects pre-dating the marriage; or  
  • Accused of engaging in human trafficking for immoral intentions like prostitution.

Spousal Communications Privilege 

The spousal communications privilege bars a spouse from testifying about private conversations they had with the other spouse. The privilege can apply in a civil or criminal case. This privilege protects only statements that the spouse considers and treats as confidential. In other words, if the spouse shared the information while other family or friends were around, then it may not fall within the privilege. It applies to oral or written statements between spouses. 

Some communications that are not intended for either spouse do not qualify for protection under spousal communications privilege. Such communications include observations that spouses make about the behavior of each other.

Let’s explore an example of an observation exception. An ex-wife testifies that, during the marriage, she overheard her husband entering a verbal agreement to sell drugs with another person. The ex-husband argues that the ex-wife’s testimony was a privileged communication. The court would likely allow the testimony because the ex-wife was not testifying about confidential communications between spouses.  

Most of the exceptions to the spousal testimonial privilege apply to the spousal communications privilege. Private communications during a marital relationship remain protected even after the dissolution or termination of the marriage. This consideration does not extend to communications made after the marital relationship ends.

A spouse can lose the right to claim spousal communication privilege if either party fails to maintain the confidentiality of the communication. Sharing a previously private, confidential communication with a third party, for instance, may remove the confidentiality needed to assert the spousal communication privilege. 

Minnesota Law on Spousal Privilege

Like federal law, Minnesota law recognizes two different spousal privileges: spousal testimonial privilege and marital communication privilege. The Minnesota Supreme Court has held that compelling a spouse to testify against another spouse may upset the stability of the marital structure. It may drive a wedge between the spouses, increasing the risk of divorce. 

Most states that enforce spouse privilege laws require spouses to be in a legitimate marriage to claim these privileges. It’s essential to note that Minnesota does not have any ruling that precludes any marriage from marital privilege.

Despite strict enforcement of spousal privilege laws in Minnesota, most spouses never claim their privileges. As discussed earlier, failure to properly claim spousal privileges may result in their waiver. 

If you have a domestic violence charge, a domestic violence lawyer can discuss how asserting spousal privileges can help your case. Your lawyer can walk you through the many confusing spousal privilege laws. The lawyer can also guide you on what to do when a witness lies under oath in your court trial or related proceeding. 

Can Your Child Testify Against You in Minnesota? 

Minnesota is one of the few states that recognizes and enforces parent-child privilege. It bars the state from compelling a parent or a child to divulge confidential family communications. Either the parent or the child can claim the privilege to hold off the testimony. 

Minnesota’s law allows police officers to question a child of any age who may be a crime witness or victim. It also allows them to probe a child without the parent’s presence or requesting parental permission before the probe. The officers, however, must seek parental permission if the parent is present when they approach a child.

Max Keller has won countless jury trial cases involving misdemeanors and felonies, sex crimes, and DWI’s. He is a member of the Minnesota Society for Criminal Justice, which only allows the top 50 criminal defense attorneys in the state as members. Max is a frequent speaker at CLE’s and is often asked for advice by other defense attorneys across Minnesota.

Years of Experience: Approx. 20 years
Minnesota Registration Status: Active
Bar & Court Admissions: State of Minnesota Minnesota State Court Minnesota Federal Court 8th Circuit Federal Court of Appeals State of Maryland

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