Spousal Privilege

Michael: Why didn't you just put me in charge?
George Sr.: Michael, listen to me! These guys, the SEC, they have been after me for years. If I had put you in charge, you would be wearing one of these orange jumpsuits too.
Michael: I could have helped you—
George Sr.: You'd be an accomplice! No. It had to be your mom. [conspiratorial whisper] They cannot arrest a husband and wife for the same crime! [winks at Michael]
Michael: ...Yeah, I don't think that that's true, dad.
George Sr.: Really? [facepalms] ...I have the worst f[bleep]ing attorneys.

— Arrested Development

At a less enlightened point in legal history, a woman's legal identity was overtaken by her husband. One of the results of this, when mixed with another old legal concept (you could not testify at your own trial), was that a wife could not testify for or against her husband. As the rules regarding legal personage and testimony changed, this turned into a rule that one spouse could not give adverse testimony against the other. Over the course of the 20th century, this rule has continued to change, generally transforming into a sort of privilege for certain communications.

Currently, in U.S. federal courts (other nations' courts and State courts frequently have a different, typically lesser, degree of protection), two spousal privileges exist, thanks to the 1934 Supreme Court decision Wolfie vs. the United States:

1. Marital confidences privilege: Any private conversation between spouses during the marriage, even if the two are later divorced, is not admissible as evidence, unless both allow its admission. There are exceptions to this; for example if both spouses are parties to a criminal conspiracy they can't invoke privilege to hide their conversations in furtherance of it. This is roughly equivalent to the attorney-client privilege or the priest-penitent privilege, with the unique twist that both parties have to agree (in the other two, the attorney/priest must reveal what was said in confidence if the client/penitent allows it). It's also important to note the information must be truly private. Having a third party present for the conversation invalidates it, as does one of the couple revealing it to a third person outside of the conversation. So Peter Parker telling Mary Jane he is Spider-Man is not protected, since he has told other people as well.
2. Spousal testimonial privilege: If one spouse is on trial, the other cannot be compelled to testify against the one on trial. "Compelled" is important here; if the spouse wants to testify against their partner, they are free to do so. Note that this is considerably different from other sorts of legally recognized privileges. In those cases, the party the information is adverse to has the control. Unlike the Marital confidences privilege, the two have to be married at the time, but this privilege also covers things before marriage.

If they are on opposite sides of the lawsuit, such as in divorce proceedings, child custody, or when one is the plaintiff and the other is the defendant, all spousal privilege is suspended (otherwise there wouldn't be much that could be said during the trial).

When this is used in fiction, it tends to be ... broadly used to say that the other spouse can't be a witness, even if they want to be (note that it was true for some time in the past in some jurisdictions (including the UK), but definitely not anymore, except in some strict interpretations of Sharia law).

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Examples:

Comic Books

• Used as the Karmic Twist Ending in one The Twilight Zone comic. A man sells his soul with the understanding that he must be a horrible person. When he dies, he goes to Hell, where the Devil requires him to prove that he has been a horrible person. He calls his wife, whom he has abused terribly, as witness to his awfulness. However, she smilingly says that a wife cannot be compelled to testify against her husband, and the man is dragged off protesting by demons.
• Conspicuously inverted in The Clone Saga, specifically the miniseries "The Trial of Peter Parker". Mary Jane Parker is forced by the prosecution into the stand basically against her will, in clear violation of the spousal testimonial privilege.

Fanfic

• There is a Luke/Mara fanfic, where the New Republic wants to prosecute Mara for her crimes while serving as Emperor Palpatine's agent. Their only witness is Luke. Now, being a Jedi Master, he's not supposed to lie... so he marries her, and thus gains the right not to testify.
• Denied in the Elemental Chess Trilogy. Riza is the only person who can verify that her husband was nowhere near the scene of a crime when it happened - but her testimony is considered biased and therefore inadmissible in court. ^note In the Fullmetal Alchemist canon, Maria Ross had the same problem; she was with her parents at the time the murder of which she was accused was performed, but they weren't allowed to testify on her behalf for the reason of personal bias.

Film

• In Angel Face (1953), Diane Tremayne conspires with chauffeur Frank Jessup to murder her parents by tampering with their car. Both Diane and Frank are arrested for the deaths, but they get married so they cannot be made to testify against each other.
• The Case of the Curious Bride: In this Perry Mason movie, the defendant's husband has damaging testimony against her. His family does not approve of her, so they're trying to get the marriage annulled so his testimony will be admissible.
• In Old Chicago: After the final open break between Jack and Dion, Jack issues a subpoena to Dion's lover Belle. Dion then reforms, saying he'll help Jack clean up the Patch (a Chicago slum), and asks Belle to marry him. Jack performs the ceremony, and as soon as he pronounces Dion and Belle man and wife, Dion starts laughing. It was all an act designed to make sure Belle can't testify against him.
• In A Song Is Born, gangster Tony Snow wants to marry his moll girlfriend Honey Swanson just so she can't testify against him about a murder he committed.
• In The Man from Kangaroo, one of the reasons why Illegal Guardian Marti Giles wants to marry his charge Muriel is so she cannot testify against him for embezzling from her family fortune. Note that this would have been true at the time the movie was made.

Literature

• In The Nine Tailors by Dorothy L. Sayers, the police won't allow William and Mary Thoday to marry until the case is resolved, as they might need her testimony against him.
• A plot point in Agatha Christie's Witness for the Prosecution, though, as the story was originally written in 1925, the relevant legal clause was spousal incompetency (i.e., total inability of the wife to testify against her husband regardless of her own will) rather than incompellability. That's why Romaine, wishing to testify against Leonard, has to assert that she is not his spouse (claiming to be legally married to another man), though in the end it's left unclear whether this really was the case and whether it could realistically be proven in the court at the time.
• A major plot point in Brighton Rock: one character marries another specifically to prevent her from testifying about some information that could potentially tie him to a murder. (Later, he finds out she correctly guessed the full extent of his guilt, but decided to marry him anyway: she's that much of a Love Martyr.)
• In the Sidney Sheldon novel Master Of The Game, Keith blackmails Eve into marrying him by revealing that he knows she killed George Mellis (as revenge for brutally assaulting her several years prior). When he tells her that if they were married, he couldn't be forced to testify against her, she reluctantly agrees - but is infuriated when she realizes that they have to stay married because there's no statute of limitations on murder. He turns the tables by disfiguring her after she cheats on him and she now becomes his slave, terrified that he'll leave her because he's repulsed by her ugliness.

Live-Action TV

• In Weeds, Peter, who is a DEA agent, gets Nancy to marry him in Las Vegas to convince her that he won't try to arrest her for selling pot. The implication is that he'd be in huge trouble if his wife was a drug dealer, so he'd have a selfish reason to avoid arresting her rather than merely his word, but since he knew she was a drug dealer before they got married, the marital confidences privilege wouldn't apply and the spousal testimonial privilege wouldn't stop him from testifying if he wanted to. This of course doesn't cover the fact he legally blackmailed and coerced her into marriage (a legal contract), as well as a whole slew of other issues.
• In The Sopranos, Adrianna gets this idea from a late-night crime show and proposes to Christopher so she can't testify against him. Unfortunately, an actual lawyer then clarifies for her that spousal privilege doesn't apply to things that happened before they're married.
• In Arrested Development, George Sr. (mistakenly) thinks that a husband and wife cannot be tried for the same crime, and so believes that even though he's been arrested, the family business is essentially untouchable in the hands of his wife Lucille, which is why he chose to sign the company over to her instead of one of their children. When corrected by his son, he says "I have the worst fucking attorneys."
• This is a staple of Law & Order, which tends to ping pong around a bit between marital confidence and spousal testimonial privilege, depending on the needs of the episode.
  • One notable example is the episode "Gov Love", which is about the interaction between spousal privilege and gay marriage, and where the spouse cannot be compelled to testify.
  • In the earlier "Ego", a spouse who wants to testify can't because of the privilege.
  • In another episode,
    • McCoy tries to claim that spousal privilege has been nullified because a third party was present when a man divulged some pertinent information to his wife. Unfortunately, said third party was the couple's marriage counselor, which falls under "doctor-patient" privilege. McCoy then tries to claim that that privilege is void because of the presence of a third party, but the judge tells him he can't have it both ways.
    • He gets his own back later when he realizes the doer and his wife were legally separated, a fairly significant legal distinction compared to the normal state of a married couple. He's able to convince a judge that since the "sanctity of [their] marriage" was legally suspended, spousal privilege shouldn't apply. The judge admits they're in uncharted territory but chooses to accept McCoy's argument.
• Law & Order: Special Victims Unit:
  • "Greed": In the climax, the two villains confess the whole plot to their respective spouses precisely to abuse spousal privilege, something with which they openly mock the detectives. The physical evidence isn't enough to convict either, and their spouses can no longer testify to what they heard. Their overconfidence eventually backfires when investigations dig up a prior marriage license they hadn't gotten annulled, making their current marriages null and void.
  • Another episode involves a serial rapist giving trophies from his victims (usually, jewelry) as gifts to his wife. He would ask her to wear the gifts during sex. She thought nothing of it until presented with all the evidence of the rapes. She agrees to testify but is forbidden from giving any details regarding what her husband would have her do with the gifts, as the defense attorney argues that giving gifts to a spouse counts as private communication and is inadmissible as evidence. The prosecutor is limited to asking only details as to when and which gifts were given. During the trial, the wife gets upset that she's not being asked more and breaks down, revealing the truth. The judge declares a mistrial, and the husband goes free, until one of his earlier victims helps his wife shoot him "in self-defense".
  • The "Criminal Hatred" episode had a homosexual rapist stop his husband from testifying this way. The husband still provides evidence that convicts the rapist for the death of one of his victims. Provides a funny moment when the ADA prosecuting the case lists off every reason he can think of to consider the marriage invalid; when Benson asks him if he would challenge a straight marriage that way, his response has to be seen to be believed.
    Rafael Barba: If I thought the husband was good for a murder? I'd cross-examine the priest.
• The Closer used variations on both types, on different occasions:
  • In "Til Death Do Us", the wife claims spousal privilege so she can't be forced to testify against her husband, which DDA Garnett tells her doesn't apply in this case; though in the end, she testifies of her own will as part of a plea deal, as she had committed the murder at her husband's instigation.
  • Closing the case in "Double Blind" depends on Brenda getting someone to break spousal testimonial privilege. She does this by showing the hospitalized wife a video still of her husband pointing his gun at her during a robbery they planned. The wife goes into hysterics and begins to run down her husband's intelligence and sexual prowess. The husband hears this in the hallway outside her hospital room and loses it.
    Brenda: I couldn't get Vince to testify against you, but I knew you could.
  • In "Living Proof", the wife, after being told that her husband is a war criminal and likely murderer, she, in a state of shock, relates how her husband came home covered in blood (which she presumed was from the assault on him), then invoked spousal privilege and told the police they couldn't act on the information in that conversation. (Raydor even cites and quotes Wolfie vs. the United States above.) Brenda complies and tries to find probable cause to search for traces of blood, but in the end, they get around the spousal privilege by establishing that the husband used a fake name on his marriage certificate, thus nullifying the legality of the marriage and spousal privilege.
  • Averted in "Fool's Gold". Brenda incorrectly assumes the thieving couple are married, and even remarks "That'll make this easier" when she learns they aren't.
• Invoked in Downton Abbey, where Anna is forced onto the sidelines at Bates' trial.
• In Boardwalk Empire, Nucky marries Margaret partly so Esther Randolph cannot force her to testify against him in his trial for the murder of her first husband. Margaret goes along with this partly because she (at this point) legitimately loves Nucky and partly because even if she didn't love Nucky, her first husband had it coming.
• In the Castle episode "Den of Thieves," they interview the wife of Esposito's allegedly Dead Partner, whom they suspect of the murder of the week. She points out that either he's really dead, in which case he didn't do it, or he's not, in which case they're still married and she can't be compelled to testify against him.
• Both POIs of the Person of Interest episode "Till Death" invoke this at the end. This was unusual in that the crime for which they were arrested was hiring hitmen to kill each other.
• In Breaking Bad, Skyler opts to go back on her desire to divorce Walt when she devises a cover story for his drug money so that it can go towards Hank's physical therapy, claiming it's so they can't be compelled to testify against one another.
• In Better Call Saul, Kim Wexler and Jimmy McGill/"Saul Goodman" get married after being forced (largely by her client) to appear opposite each other in a (non-litigation) real-estate case. This is primarily so that Jimmy can confide in her about his shady clients without worrying that she could be compelled to testify against him, as that kind of thing was causing a strain on their relationship.
• Averted by The Whole Truth — due to an exception, in the second episode the husband testifies against his wife.
• On One Life to Live, David blackmails Dorian into marriage so that neither of them can be forced to testify against each other regarding their obstruction of justice regarding Victor Lord's murder.^note  It's a very common Soap Opera trope for people who despise each other to enter into such an arrangement. It's a classic example of Hollywood Law; spousal privilege applies to things discussed during the marriage. Even married, what each of them knew about the other before the wedding is fair game.
• The Good Place:
  • Jason doesn't quite get how it works. He suggests that if he and Pillboi get caught robbing a restaurant, they should just marry each other and then nobody will be able to testify against them.
  • In a later episode, he also tries proposing to his own arresting officer, again out of a deep misunderstanding of how it works.
• In one episode of The Good Wife, a businessman Alicia is defending tries to claim spousal privilege relating to his husband, same-sex marriage being legal in Illinois but federally illegal at the time of airing. This attracts the attention of a Crusading Lawyer who is trying to get the Defense of Marriage Act overturned and thinks he could use the spousal privilege question as part of an equal protection argument. Lockhart & Gardner ultimately Takes a Third Option and gets their client acquitted.
• In one episode of Criminal Minds, the unsub is apprehended while attempting to murder his husband. As he's dragged away, he reminds his husband that they're still married, so he isn't allowed to help the police. Reid assures the husband that spousal privilege isn't all-encompassing, so he's only prohibited from testifying about conversations. He's still allowed to testify about what his husband did to him, just nothing he confessed.

Western Animation

• Futurama: During "Into the Wild Green Yonder", Leo Wong is called up to testify against the Feministas, including his own daughter. After being told he can't be made to testify against Amy, he casually admits he has no problem doing so, before adding "also, I have plenty of stuff to say about my wife."
• The Simpsons: In the Treehouse of Horror episode "I Know What You Diddily-Did", Homer ends his "eulogy" for Ned Flanders by hastily declaring that a man cannot testify against his wife, since he and Marge think she killed Ned.

Real Life

• One of Al Capone's lieutenants, Jack McGurn, married his girlfriend - who was also his alibi for the St. Valentine's Day massacre - so she couldn't be compelled to testify about it in court.
• In Scotland, the privilege against self-incrimination extends to an admission of adultery. Similarly, a wife cannot be guilty of reset (selling or profiting from) of goods stolen by her husband.

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