Do I have to testify against my spouse? Like all things legal the answer is – IT DEPENDS.
The Florida Evidence Code governs which evidence is allowed in at trial. Most of the evidence code is written to prevent prejudice before a jury. The Marital privilege is one of those. The law says that a spouse can refuse to disclose commuications “which were intended to be made in confidence between the spouses while they were married. ” (the key here is while they were married, I have many people ask, what happens if I marry him now? meaning after he’s been charged with the crime – the answer is: too bad. The communications must occur within the marriage.)
However, the law goes on to say that if one spouse is charged with a crime against the other – the privilege doesn’t apply. Domestic Battery is a good example. The Husband – Wife privilege does not apply if one spouse is charged with a crime against a child of either spouse.
Another exception is if the defendant spouse is the one who offers the evidence. For example: One spouse is charged with murder. He/She offers testimony that he had a conversation with his wife three weeks earlier about how someone else was going to kill the victim, or that he was going to be out of town on the day the murder occured. That is called an EXCULPATORY statement, and someone charged with murder would want his or her spouse to testify to something like that. They certainly would not invoke the privilege if the communication could potentially help him or her.
A recent Florida Supreme Court case out of Jacksonville, FL discusses the Husband- Wife privilege in detail. It seems the Husband, who was charged with murdering his father’s girlfriend after an evening of drinking and cocaine use and then burning down the house; told his wife of his plans to frame another man for the murder. While he was in jail, he befriended his cellmate, who helped him find someone on the outside to plant the evidence. He told his wife to give another man $300 to help him plant evidence on the other guy. The wife met up with the man, gave him the money, and discussed the cover-up with him. Unbeknownst to the wife – the man helping with the cover-up was an undercover cop. (This is a perfect example of why not to befriend cellmates – this guys cellmate went right to the cops!) The wife was subsequently charged with a crime for her help and pled guilty. During the penalty phase of the trial, she was called to testify about her actions by the State. Obviously, the defense attorney objected that the wife’s testimony was privileged. But the Supreme Court said she was merely testifying about her own ACTIONS, not the communications she had with her husband and therefore the testimony was admissible.
The wife was also called to testify about a phone call she received from her husband telling her not to go home because the house was on fire.
The Court said that although this was privileged communication between a Husband and Wife, there were so many other witnesses at trial who testified that the house was on fire, that even if the jury had not heard her testimony, they would not have changed their minds about his guilt on the arson charge. The Court calls this “harmless error,” meaning with or without the Wife’s testimony, a reasonable jury would have convicted him of arson anyway.
In review: If you are the victim of your spouse’s crime, the Husband Wife privilege doesn’t apply. If the testimony is about the defendant’s actions – rather than what he said – the privilege doesn’t apply. The only time the Husband Wife privilege applies is when the parties have a reasonable expectation of privacy while speaking to each other. And most importantly, don’t befriend your cell mate!