Can I be forced to testify against my partner? Spousal privilege in Texas

Sometimes when a crime is committed, a husband or wife may have privileged information that can put his or her partner behind bars. The state may expect the spouse with evidence to testify against the guilty party. 

But, how do you ignore the fact that most of the things married people share are in confidence? After all, the nature of marriage is that one’s spouse knows a lot about their partner and should keep confidential matters secret. 

Does the court expect spouses to testify against each other?

Due to the nature of marital relationships, the court does not expect a spouse to give evidence against the other. Here’s why;

• It creates a conflict of interest and could lead to perjury, where one spouse is forced to lie to protect the other. 
• The defendant’s spouse could be involved in the crime and is likely to provide self-incriminating evidence if required to testify against their partner.
• Husbands and wives are supposed to stick by each other through thick and thin in marriage. Therefore, asking one to testify against the other interferes with the sanctity of marriage.

It is for the above reasons that in Texas, couples are covered by matrimonial privilege under what is known as Texas Rule of Evidence 504. 

What is Texas Rule of Evidence 504?

Also known as spousal immunity, Texas Rule of Evidence 504, protects a husband or wife from being called to testify against their spouse in a criminal trial. In addition, the accused spouse has to invoke the privilege under spousal immunity or lose it.

According to Texas law, common law spouses can claim spousal privilege, if a few elements of the relationship are fulfilled including;

• The man and woman have an agreement to be married;
• The man and woman are living together in Texas;
• The couple is recognized by people as a married couple. 

Unfortunately, the rule does not apply to same-sex couples.

What are the exceptions to the Texas Rule of Evidence 504?

Although it may seem like the rule on spousal immunity is all in favor of spouses refusing to testify against each other, there are two exceptions to the rule. These are;

a. A defendant cannot depend on spousal immunity if he or she is facing charges for committing a crime against the spouse

For example, if a man batters his wife and is charged for it, he cannot claim spousal immunity and expect his wife not to testify against him. After all, she is the one against whom he has committed the crime.

b.  Spousal immunity also does not cover crimes committed before or after a couple’s marriage. 

For example, if a man committed a crime before his marriage, and the wife has evidence about it, she cannot refuse to testify against him. The same case applies if the man commits a crime after divorcing his wife; she cannot claim spousal immunity and refuse to testify against him.

You will also find that under Tex. R. Crim. Evid. 511(1), a defendant can waive the privileges provided under Texas rule of evidence 504 if he or she voluntarily reveals a significant part of the privileged communication or consents to someone else doing the same. 

It’s also important to note that under Tex. R. Crim. Evid. 611 (b), the testifying spouse can be cross-examined by the prosecution.

What rights do couples get under spousal privilege in Texas?

Under the Texas rule of evidence 504, couples are afforded two forms of privilege. These are ;

1. Confidential communications privilege

Under spousal immunity, confidential communication privilege covers any private communication made between spouses during a marriage. 

A confidential communication under Texas rule of evidence 504 (a)(1) is any communication made by a spouse to their partner in private that he or she is not expected to disclose to someone else.

Unfortunately, any communication between a husband and wife witnessed or overheard by a third party is not referred to as a confidential communication. 

According to Tex. R. Crim. Evid. 504(a)(3), confidential communication privilege can also be claimed by a defendant’s guardian, spouse, or a defendant’s representative on his or her behalf.

Exceptions to Confidential Communication privilege

There are several exceptions to the confidential communication privilege that are found under Tex. R. Crim. Evid. 504(a)(4). These circumstances are;

a. Where communication is made partially or wholly to enable a crime or aid, anyone, to commit one

b. Where a defendant is accused of a crime against a spouse, a member of their household, or a minor child.

c. Where proceedings are done to put a spouse or their property under another’s control due to a debilitating physical or mental ailment

d. Where proceedings are brought on behalf of either of the spouses to establish competence

e. Where a case of bigamy is brought against a defendant

Also, where a spouse overhears incriminating communications made by a spouse, he or she can choose to testify against him or her in a trial. A good example is where a wife overhears a husband confessing to a murder. In such a case, the husband cannot invoke confidential communication; hence the wife is free to testify against him. 

2. Testimonial privilege

The second privilege found under spousal immunity is called testimonial privilege. Testimonial privilege only covers the witness spouse meaning the defendant cannot interfere with his or her spouse’s choice on whether to provide testimony or not.

Testimonial privilege does not cover crimes like domestic violence, where the accused spouse has committed a crime against their wife or husband. Neither does it apply in cases of child abuse.

It is also essential to note that Tex. R. Crim. Evid. 504(b)(2) allows a prosecutor to comment on a defendant’s failure to call a spouse to testify on matters relevant to the case when there is evidence that he or she has knowledge of the issue.

Have you been asked to testify against your spouse?

If your husband or wife has committed a crime, and you’ve been asked to testify against him or her, you could be wondering how to go about it. Perhaps you are aware of the spousal immunity law in Texas, or maybe you aren’t? In the interest of protecting your spouse, and yourself, it is essential that you contact a Denton County Texas lawyer to guide you on this matter.