Can Spouses Testify Against Each Other?

     Like most states (and federal courts), Colorado has a marital privilege regarding testimony between a husband and wife which, if properly and timely asserted, provides as follows (CRS 13-90-107(1)): 

 

(1) There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person shall not be examined as a witness in the following cases:

(a) (I) Except as otherwise provided in section 14-13-310 (4), C.R.S., a husband shall not be examined for or against his wife without her consent nor a wife for or against her husband without his consent; nor during the marriage or afterward shall either be examined without the consent of the other as to any communications made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, a criminal action or proceeding for a crime committed by one against the other, or a criminal action or proceeding against one or both spouses when the alleged offense occurred prior to the date of the parties' marriage. However, this exception shall not attach if the otherwise privileged information is communicated after the marriage.

(II) The privilege described in this paragraph (a) does not apply to class 1, 2, or 3 felonies as described in section 18-1.3-401 (1) (a) (IV) and (1) (a) (V), C.R.S., or to level 1 or 2 drug felonies as described in section 18-1.3-401.5 (2) (a), C.R.S. In this instance, during the marriage or afterward, a husband shall not be examined for or against his wife as to any communications intended to be made in confidence and made by one to the other during the marriage without his consent, and a wife shall not be examined for or against her husband as to any communications intended to be made in confidence and made by one to the other without her consent.

(III) Communications between a husband and wife are not privileged pursuant to this paragraph (a) if such communications are made for the purpose of aiding the commission of a future crime or of a present continuing crime.

(IV) The burden of proving the existence of a marriage for the purposes of this paragraph (a) shall be on the party asserting the claim.

(V) Notice of the assertion of the marital privilege shall be given as soon as practicable but not less than ten days prior to assertion at any hearing.

         Prosecutors, judges and prosecuting judges do not like the privilege, and numerous exceptions may prevent its application including - communications made to a former spouse after the marriage; communications made during the marriage in the presence of a third person; if waived by the holder; in a criminal proceeding between spouses; when the offense occurred prior to the date of the marriage; for child abuse or sex offense or certain child murder cases; offenses against an at-risk person; or communications made for the purpose of aiding the commission of a future crime or present continuing crime.

 

         Ordinarily, the defendant-spouse may assert the privilege to prevent testimony.  However, the privilege reverses in the prosecution of certain specified class 1, 2 or 3 felonies.  In such cases, the privilege belongs to the testifying spouse-witness, instead of the defendant-spouse.                                                                    

         The reason for the privilege is to protect the sanctity and tranquility of the marital relationship.  "The rationale of the privilege is to protect the privacy and trust of the marital relationship and enable spouses freely to communicate and confide in one another."  Mueller and Kirkpatrick, Evidence, p. 478 (1995).

         "The party seeking to overcome the privilege has the burden of showing the privilege holder has expressly or impliedly forsaken the claim of confidentiality."  People v. Wickham, 53 P.3d 691, 698 (Colo. App. 2001).  

 

         Nor are privileged statements otherwise admissible under a hearsay exception.  See Edwards v. People, 129 P.3d 977, 980 (Colo. 2006) ("In Crawford [v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004),], the Supreme Court revised the criteria under which testimonial out-of-court statements may be admitted at trial when the witness who made the statements does not testify. Crawford involved a wife who refused to testify against her husband under marital privilege. 541 U.S. at 40, 124 S.Ct. 1354. As a result, the prosecution sought to have her earlier statement to police admitted at trial under a hearsay exception. Id. The Court held that the Confrontation Clause requires out-of-court testimonial statements by witnesses to be barred from use at trial unless the witness "was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Id. at 53-54, 124 S.Ct. 1354.").

 

     The bottom line is that the marital privilege can be a useful tool in precluding damaging testimony, for good reason.  Call on Sanderson Law, PC, if you need help protecting yourself or your significant other.