Spousal Privileges

Utah Recognizes Two Spousal Privileges

Privilege Against Forced Testimony

In Utah there are two recognized spousal privileges.  The first is found in the Utah Constitution, specifically in article 1 section 12.  That section provides that a husband cannot be compelled to testify against his wife and a wife cannot be compelled to testify against her husband.  The privilege of not being forced to testify against one’s spouse has also been placed in the Utah Rules of Evidence.

The spousal privilege against forced testimony can act as a true headache for prosecutors, especially in domestic violence and sex crimes among spouses.  For example, in a domestic violence case in which the husband is charged for violent acts allegedly committed on his wife, if the wife chooses to not testify against her husband the state’s case generally becomes very weak and the state in many instances is forced to dismiss the case.

In our experience, the spousal privilege arises quite often in domestic violence, sexual assault, and even rape cases.  Many spouses are reluctant to testify against their spouse.  This can be an advantage as well as a disadvantage.  In many cases charges of domestic violence or spousal abuse are falsely made.  In such cases the spousal privilege against forced testimony can work to ensure that an innocent spouse is not unjustly convicted.  On the other hand, in some cases even if the spouses has committed acts of violence on the other spouse, the perpetrating spouse may go free if the victim spouse does not testify.

Spousal Communications Privilege

Another privilege codified by in Utah law is the spousal communications privilege.  This privilege provides that any communications between a husband and wife made during the marriage are confidential.  This means that one spouse cannot be examined about marital confidential communications without the consent of the other.  In a Utah criminal case, however, the criminal defendant cannot invoke this privilege. Thus, generally the only marital privilege that applies in criminal matters is the privilege against forced testimony.

Questions About Utah Spousal Privileges?

If you would like to learn more about Utah’s spousal privileges as it may relate to your case give us a call at 801.618.1334 or email us to set up a free consultation.

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