You have probably seen someone on a television show, movie, or media-covered court case “plead the fifth” as a witness at trial. This refers to the privilege all individuals have under the Fifth Amendment to the United States Constitution against government-compelled self-incrimination. Simply put, you cannot be forced by the government to confess to a crime before the court.
However, the privilege against self-incrimination is not the only privilege the law affords people who take the witness stand in court. Among the privileges that protect us as individuals are the privileges a married couple enjoys that allow them to safeguard their privacy and trust.
Just as you can “plead the fifth” in a criminal case, do the privileges afforded to married persons allow you to refuse to testify against your spouse in court?
The Spousal Testimonial Privilege
The rules that govern privileges concerning evidence—including testimony in court—differ from jurisdiction to jurisdiction. Many states specifically recognize a spouse’s privilege to refuse to testify against their spouse in court, subject to certain exceptions.
In Federal practice, the admissibility of evidence is governed by the Federal Rules of Evidence (FRE)—a written list of evidentiary rules that apply to Federal civil and criminal cases. But, unlike many states, the FRE does not explicitly mention a spousal testimonial privilege.
However, Rule 501 of the FRE provides that “[t]he common law—as interpreted by United States courts in the light of reason and experience—governs a claim of privilege…” As a result, the rules established by Federal judges in case law are the primary source for the Federal spousal testimonial privilege.
When discussing the spousal testimonial privilege, Federal courts have held that the witness-spouse is the holder of the privilege. Thus, an individual cannot assert the privilege to restrain their spouse from taking the stand if they wished to testify.
Importantly, a person’s ability to assert this privilege depends on their marital status with the witness-spouse. If a couple gets divorced, the privilege no longer applies. Thus, former spouses may not exercise this privilege to refuse to testify against their ex.
The Marital Communications Privilege
Most state courts and federal courts recognize another evidentiary privilege protecting spousal testimony in court. This privilege protects confidential communications exchanged between married spouses.
Unlike the spousal testimonial privilege, both spouses are the holders of the privilege against the disclosure of confidential marital communications. Therefore, an individual may assert this privilege to prevent their spouse from testifying about their private conversations.
Federal courts have held that the purpose behind this privilege is to avoid straining marital relationships by promoting openness and candor between spouses. The rationale is that, of all people, one should not have to keep secrets from their spouse.
However, if you knew that a court could compel your spouse to testify about the secret communications you shared while married, you would be less inclined to share them with your spouse in the first place.
This privilege differs from the spousal testimonial privilege, as it is limited to the disclosure of confidential marital communications. Only communications that a spouse intended to keep confidential and made during marriage are protected by this privilege.
For example, under the spousal testimonial privilege, one can simply refuse to answer the question, “did your spouse run the stop sign?” In contrast, the marital communications privilege does not protect against questions about what you witness your spouse doing.
Accordingly, you can refuse to answer the question, “did your spouse tell you they ran the stop sign,” but you may have to answer the question, “did you see your spouse run the stop sign?”
Florida’s Husband-Wife Privilege
Florida Evidence Code § 90.504 operates similarly to the Federal marital communications privilege, providing that “[a] spouse has a privilege during and after the marital relationship to refuse to disclose and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.”
However, § 90.504 lists specific situations where the Husband-Wife privilege does not apply:
- Proceedings brought by one spouse against the other (e.g., divorce cases)
- Cases where one spouse is charged with committing a crime against the other spouse or their property
- Criminal cases in which one spouse is the defendant who offers marital communications as evidence in support of their defense
Unlike the spousal testimonial privilege, marital communications privileges like Florida’s Husband-Wife privilege apply even after divorce. Therefore, you can prevent your ex-spouse from testifying about marital conversations you had with them in secret.
However, Florida law does not have a corresponding spousal testimonial privilege.
As a result, the answer to the question, “can I refuse to testify against my spouse,” is generally “yes.” But in Florida, you can only refuse to testify as to the secrets the two of you communicated to each other while married.
Consult Bauer Law Group, P.A. for Legal Representation
If you are looking for an experienced attorney to represent your interests in court, you should contact Bauer Law Group, P.A. for legal advice. Our legal team has experience with various legal disputes, including family law, personal injury, and other civil litigation matters.
Please call Bauer Law Group, P.A. at (352) 310-8169, or visit our website to fill out an online request form to schedule an initial consultation about your case today.