Spousal Privilege in Pennsylvania: When your spouse doesn’t have to testify

January 9, 2012

1. History, 2. Law, 6. Trial

Spousal Privilege in Pennsylvania: When your spouse doesn’t have to testify

Some relationships are fundamental to a healthy society. From a legal perspective, these relationships cover religion, physical and mental health, the law, and the nuclear family.  As a general statement, conversations within these relationships are privileged – no one can compel a participant to disclose what was said, not even a court.  We can’t optimize our physical health, so the theory goes, without confiding fully in a health practitioner.  That person is forbidden from disclosing what you shared except under rare circumstances.  With a doc, telling him about a crime you plan to commit (but not completed crimes) might fall into an exception.  Concerning the family, the parent-child relationship is a developing area, and the spouse-to-spouse relationship is mature.

We’re gonna focus just on the criminal proceedings concerning the last privilege.

The Spousal Privilege is not quite as simple as being able in every situation to refuse to testify wife against husband, for example.  There are a few dynamics at work.  The first seems to be an extension of our 6th Amendment right against self-incrimination; the second places marriage as a desired institution so we keep the government out; and the third extends the privilege to non-criminal proceedings.  Think of it as two types of privileges:  Spousal Testimony and Marital Confidences.  SCOTUS said it well many years ago:  The spousal privilege is “regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice” (Wolfle v. United States, 291 U.S. 7, 54 S. Ct. 279, 78 L. Ed. 617 [1934]).

Let’s look at some Pennsylvania statutes on the topic.  42 Pa. Cons. Stat. § 5913 begins as follows:

Spouses as witnesses against each other. Except as otherwise provided in this subchapter, in a criminal proceeding a person shall have the privilege, which he or she may waive, not to testify against his or her then lawful spouse except that there shall be no such privilege:

We’ll catch the exceptions in a moment.  This section specifically calls out “criminal proceeding.”  That is necessarily to the exclusion, for purposes of this section, of civil proceedings (which are addressed separately).  That criminal-civil division is why this feels like an extension of our 6th Amendment right.  I can’t be forced to testify against myself – against my penal interests – and since spouses are supposed to be able to share everything, then by extension my spouse cannot be forced to testify against me.  In marriage, two people become one.  Seems logical.

The exceptions are also logical:

(1) in proceedings for desertion and maintenance;
(2) in any criminal proceeding against either for bodily injury or violence attempted, done or threatened upon the other, or upon the minor children of said husband and wife, or the minor children of either of them, or any minor child in their care or custody, or in the care or custody of either of them;
(3) applicable to proof of the fact of marriage, in support of a criminal charge of bigamy alleged to have been committed by or with the other; or
(4) in any criminal proceeding in which one of the charges pending against the defendant includes murder, involuntary deviate sexual intercourse or rape.

(1), (2), and (3) are limited exceptions allowing the court to peer inside the marriage – criminal non-support, smacking her around, and proof of marriage.  There should be no reason to throw blockades in the way of proper fact-finding in these areas.  (4) is just a cherry picking of crimes – the worst homicide, the worst sexual assaults.

Let’s assume that your wife wakes up each morning heartbroken that you didn’t die in your sleep.  She hates you so much that she refuses to divorce you – she’d rather watch you spiral ever deeper in the Well of Self-Pity, and you’re too complacent or stupid to do it yourself.  You go out on one of your frequent I-Drink-to-Forget nights at the bar.  Driving home, you hit something but you’re not sure what.  ”Probably a deer or a house,” you tell yourself as you pull into your driveway.  Your wife looks at your car.  You remember it all in a flash and tell her.  The next morning, after the cops follow the blood trail to your house, you get arrested for Involuntary Manslaughter DUI-related (your BAC is still over .08).  Turns out you hit a nun who was returning to the convent following her midnight tryst with Father McCaulley.  The civil suit – Catholic Church of Rome v. You – is gonna suck.

Any hope you have of a defense – an alibi, insanity, self-defense, or anything you can grasp at in sheer desperation – can be undermined wholly and utterly by your wife.  You just need her to shut up for once and stay off the witness stand.  Can you stop her?

Go back to the statute snippet above – “a person shall have the privilege, which he or she may waive, not to testify against his or her then lawful spouse.”  If she wants to testify, she can and you’re toast.  You’ve got to choose your poison – give her whatever she is demanding for cooperation or plead out and go to prison for two to five years.  Either way your life is going to be Living Hell.  At least with prison you know when it’ll end.

Quick side note – the phrase “lawful spouse” is important.  See here:  However, pursuant to Pennsylvania precedent, a lawful marriage is defined based upon the law and not the couple’s behavior with respect to that marriage. Even if a couple has separated and filed for divorce, they are still a “lawful spouse” one to the other for purposes of the privilege.  Back to our story …

“BUT WAIT!” you exclaim.  ”What about § 5914?” OK, let’s go there:

§ 5914. Confidential communications between spouses.  Except as otherwise provided in this subchapter, in a criminal proceeding neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other, unless this privilege is waived upon the trial.

Two issues arise – Was it a “confidential communication,” and how does waiver occur at trail?

No court is going to expect you to preface a conversation with your spouse with, “What I am about to share is shared in confidence between spouses.”  A court will look to the intent of the spouses - the communication must be made in confidence and with the intention that it not be disclosed.  The structure of the conversation, more specifically, whether a third party was present, is also dispositive.  If you told your wife that you hit a nun on the way home from the I Go Inn (which is or was an actual bar in Scranton), you’re clean – it’s confidential – unless her skank girlfriend was sitting there at the time.

So assume that you had a confidential communication with your wife that you did not intend to be disclosed.  Can you stop her from testifying?  YES.  The 5914 privilege is held by both spouses and both must waive in order for testimony to go forward.  Yes, you can prevent your spouse from sharing marital confidences on the stand.

“Confidential communications” are narrower than all possible things about which your spouse can testify.  She can refuse to testify about all those other things, but you can’t stop her if she wants to.  You can prevent her from testifying about confidential communications.  She can, for example, testify that you were out that night, that you came home drunk, and that you looked upset when she saw your car – if she alone waives the privilege.  But when she tries to testify about what you said, now you stop her.

Got it?

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

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