The short answer is, it depends. Marital privilege is a privilege developed in common law that deals with the restriction of spousal testimony. Moreover, at common law, there were two independent marital privileges recognized; namely, testimonial privilege and marital communications privilege. In this blog, we look at the parameters of marital privilege and incidents where you may be required to testify against your spouse.
As previously stated, at common law, the marital privilege consisted of two independent privileges. First, there was the testimonial privilege. Testimonial privilege allows either spouse to prevent the other spouse from testifying against him or her. This testimonial privilege is not limited to confidential communication but was available only to spouses who were married at the time of trial. This type of privilege was justified on the grounds that it prevented discord between spouses. Furthermore, this privilege was viewed as avoiding what was thought to be a naturally repugnant spectacle of a wife or husband compelled to testify against her or his spouse. Nonetheless, Indiana no longer recognizes the testimonial privilege branch of marital privilege.
Indiana does, however, recognize the marital communications privilege. This privilege protects communications between spouses. The marital communications privilege differs from testimonial privilege in several respects. First, it is limited to confidential communications protecting only communications between individuals who have entered into a legally recognized marriage. Second, this type of privilege survives termination of the marriage. However, Indiana courts have made clear that the marital privilege is subject to certain well-established exceptions and is not an absolute bar to all confidential communications. For example, the privilege does not prevent a spouse from testifying when the offense was committed by one spouse against the other (i.e., domestic battery).
The above information is general in nature. It is important to know exceptions apply to almost every rule, and whether or not you or your spouse can assert marital privilege is an extremely fact sensitive analysis. We hope this blog provides some insight into some of the more important rules of criminal procedure. This blog post is written by attorneys at Dixon & Moseley, P.C. who handle criminal matters of all types throughout Indiana. This blog is written as general for general educational purposes only and is not intended as legal advice or a solicitation for services. It is an advertisement.