Can My Spouse Testify Against Me?

In criminal cases, certain types of communication and relationships are protected by privileges to preserve trust and confidentiality. One such privilege, known as spousal testimonial privilege or the marital communications privilege, allows a spouse to refuse to testify against their partner in a criminal trial. In this comprehensive guide, we will explain the privilege, its exceptions, and its implications for your criminal case.

1.Introduction to Spousal Testimonial Privilege

Spousal testimonial privilege is a legal protection that prevents one spouse from being compelled to testify against the other spouse in a criminal trial. This privilege is rooted in the idea that preserving the sanctity of marriage and fostering open communication between spouses is of greater importance than obtaining evidence in a criminal case. 

2. How Spousal Testimonial Privilege Works in Indiana

Under Indiana law, the spouse who is called to testify holds the spousal testimonial privilege. This means that it is up to the testifying spouse to decide whether to invoke the privilege and refuse to testify against their partner. The accused spouse does not have the power to prevent their spouse from testifying if the testifying spouse chooses to do so voluntarily.

3. Exceptions to Spousal Testimonial Privilege

Like most legal privileges, spousal testimonial privilege is not absolute. There are several exceptions to the privilege under Indiana law, which are designed to strike a balance between the policy interests of preserving the sanctity of marriage and ensuring justice in criminal cases. The main exceptions to spousal testimonial privilege in Indiana include:

• A. Crimes Against the Testifying Spouse or a Child: If the accused spouse is charged with a crime against the testifying spouse or a child of either spouse, the privilege does not apply, and the testifying spouse may be compelled to testify. This exception includes crimes such as domestic violence, child abuse, and child neglect. The rationale behind this exception is that the interest in protecting victims of these crimes outweighs the interest in preserving marital harmony.

• B. Joint Criminal Activity: If the spouses participated in joint criminal activity, the spousal testimonial privilege does not apply, and the testifying spouse may be compelled to testify against their partner. This exception is based on the principle that spouses should not be allowed to use the privilege to shield themselves from the consequences of their joint criminal conduct.

• C. Testifying Spouse as a Victim or Witness in a Prior Case: If the testifying spouse has previously testified against the accused spouse in a separate criminal case, either as a witness or as a victim, the spousal testimonial privilege does not apply in the current case. This exception is based on the idea that the marital harmony has already been disrupted by the previous testimony, and therefore, the privilege should not be used to prevent the testifying spouse from providing relevant evidence.

• D. Waiver of the privilege: There are several ways that the privilege can be waived. Where acts and communications to the spouse were made in the presence of third parties. Where the communication between spouses was intended to be transmitted to third parties. When the testimony concerns disclosures by the other spouse not made in reliance upon the marital relationship and the spouse was coerced by force or fear, and the 

• E.  Spousal Testimony Waiver: Of particular importance to the defense of a criminal case is when one spouse is willing to testify against another spouse. In some jurisdictions, the opposing spouse may be able to stop the testimony. NOT IN INDIANA – the privilege belongs to the testifying spouse and only be waived by him/her.

 4. Practical Implications of Spousal Testimonial Privilege in Criminal Cases

Spousal testimonial privilege can have a significant impact on a criminal case, as it may prevent the prosecution from presenting potentially critical evidence against the accused spouse. As a criminal defense attorney, my priority is to ensure that all applicable privileges are asserted and protected on behalf of my clients. In cases where spousal testimonial privilege may be relevant, it is essential to carefully evaluate the circumstances of the case and determine whether the privilege should be invoked or whether any exceptions may apply.

5. Asserting and Waiving Spousal Testimonial Privilege

It is important for both the testifying and accused spouse to understand their rights with respect to spousal testimonial privilege. If the testifying spouse wishes to assert the privilege, they must do so explicitly during the trial. If the testifying spouse does not assert the privilege and chooses to testify against their spouse voluntarily, the privilege is considered waived, and the testimony may be used as evidence in the case.

Conversely, if the testifying spouse asserts the privilege, but the prosecution believes that an exception applies, the prosecution must present evidence to support their claim that the exception is valid. The court will then decide whether the privilege should be upheld or whether the exception applies and the testifying spouse must testify.

6. Challenging the Application of Exceptions to Spousal Testimonial Privilege

In cases where the prosecution seeks to apply an exception to spousal testimonial privilege, your defense attorney will play a crucial role in challenging the application of the exception and protecting your rights. Your attorney may present evidence to refute the prosecution's claims or argue that the exception does not apply in the specific circumstances of your case. By doing so, your attorney can help to ensure that your rights and the sanctity of your marriage are protected.

7. Conclusion

Understanding spousal testimonial privilege and its exceptions in Indiana is essential for anyone facing a criminal case in which their spouse may be called to testify. As a criminal defense attorney, my goal is to help you navigate the complexities of spousal testimonial privilege, protect your rights, and achieve the best possible outcome for your case. If you or your spouse are facing criminal charges in Indiana, reach out to our office today to discuss your case and explore your options for defense.

Remember, each case is unique, and the specific facts and circumstances of your case will determine the applicability of spousal testimonial privilege and its exceptions. It is essential to consult with an experienced criminal defense attorney to ensure that your rights are protected and that you receive the best possible representation in your case.