Limitations on Spousal Privilege
Spousal privilege, also known as spousal immunity, is a rule of evidence that allows someone to refuse to testify against their spouse in legal proceedings. Interspousal tort immunity is a similar concept that applies when spouses sue each other.
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What Is Spousal Privilege?
Spousal privilege is broad. Unless an exception applies, it doesn’t matter if you are testifying in a proceeding to which your spouse is a party, your spouse is not a party, or your spouse is not even charged with a crime. You have the privilege to refuse to testify as long as your testimony could incriminate your spouse. You can testify if you want – it’s just that you do not break the law by refusing to testify.
Other Testimonial Privileges
You might someday respond to a subpoena to act as a witness at a trial or deposition (out-of-court testimony).
If you do, Georgia law will require you to:
- Appear at the appointed place at the appointed time (e.g., a court for a trial or a law office for a deposition)
- Take the witness stand when the lawyer calls your name
- Swear to tell the truth
- Answer questions that the lawyer addresses to you
Once you are under oath, it is illegal for you to refuse to answer a question unless a privilege applies or unless your lawyer successfully objects to the question.
Some examples of common testimonial privileges include the following:
- The 5th Amendment privilege against compelled self-incrimination (“taking the Fifth”): The state cannot force you to answer a question if an honest answer would likely subject you to criminal charges.
- The attorney-client privilege allows you to refuse to testify on communications between you and your attorney. You can also prevent your attorney from testifying on such matters. The purpose of this privilege is to protect the confidentiality of the attorney-client relationship.
If a privilege applies, you can refuse to answer the question. You should then state the grounds for your refusal by naming the privilege. If the judge orders you to answer the question anyway, you can appeal on this basis. A higher court might even declare the proceedings a mistrial. Nevertheless, if you refuse to answer, the judge can jail you for contempt of court.
What Is the Purpose of Spousal Privilege?
The purpose of this rule is to preserve the intimacy of the marital relationship. The consequences of forcing spouses to testify against each other go beyond the courtroom into the home. Without the spousal privilege, spouses might have to monitor their speech in front of each other.
Exceptions To Spousal Privilege
Georgia, like other states, has carved out certain exceptions to spousal immunity. A list appears below.
Crimes Against Minors
You cannot refuse to testify against a spouse who committed a crime against a minor (under 18 years old). Even so, you can limit the scope of the testimony to matters directly related to the crime.
The Testifying Spouse Is the Victim of the Crime
You cannot claim spousal privilege if you were the victim of a crime that your spouse is accused of committing. This exception applies even if the crime took place before you married your spouse.
Your Spouse Is Accused of Damaging Your Property
You cannot assert spousal privilege in situations where your spouse is accused of damaging either your property or marital property (property that belongs to both of you). One reason for this exception is that getting a conviction or judgment might be impossible without your testimony.
You and Your Spouse Are Divorced
You cannot assert spousal privilege if you and your spouse have already divorced, even if you were still married at the time of the events you are being questioned about. Since spousal privilege aims to preserve intimacy, it doesn’t make sense to apply it where intimacy has already been broken by divorce.
Termination of Marital Harmony
In Stanfield v. Stanfield, a Georgia court ruled that extreme factual circumstances indicating that marital intimacy had already broken down justified an additional exception to spousal privilege. This might occur due to a long separation, for example, or severe domestic violence. In such cases, enforcing the privilege would defeat its original purpose.
Your Spouse Is Dead
If your spouse is dead, you cannot refuse to testify in a matter that is adverse to your deceased spouse. The reason is similar to the reason that appears above – death breaks the bond of intimacy between married couples. This means you cannot refuse to testify against your late spouse in a wrongful death lawsuit, for example.
The Communication Did Not Constitute “Testimony”
If spousal privilege applies, Georgia cannot compel you to testify against your spouse. Nevertheless, if you had a text message chat with your spouse, spousal privilege may not prevent the state from using the text message exchange as evidence in court.
The Accused Spouse Attempts To Assert the Privilege To Keep You Silent
Your spouse cannot assert the privilege to restrain you from testifying against them. You can exercise the privilege if you choose to, or testify if you choose to.
Interspousal Tort Immunity: Lawsuits Between Spouses
Generally, interspousal tort immunity prevents spouses from suing each other or maintaining pre-existing lawsuits against each other once they marry.
Following are some notes about how the interspousal tort immunity restriction applies in particular situations:
- The “termination of marital harmony” exception (see above) applies to both spousal privilege and interspousal tort immunity. After all, even a divorce is a civil lawsuit.
- If you sue someone and then marry them while the lawsuit is pending, the lawsuit cannot continue.
- You cannot divorce a spouse and then sue them for something they did while married to you.
- If both spouses are dead, their estate representatives cannot sue each other.
The purposes of interspousal tort immunity are to preserve marital harmony and to prevent collusive lawsuits between spouses.