Roses Are Red, Violets Are Blue, Your Spouse Can’t Be Forced to Testify Against You

Happy Valentine’s!!!

              Love is in the air and so is the yearning for legal knowledge. Nothing is more romantic than learning about the law so let’s light a candle, get under these sheets and learn about Spousal Privilege.

Spousal privilege is a set of evidence rules that can limit when husbands or wives can be forced to testify in a criminal case involving their spouse. It shows up in a couple ways: protection for certain communications between spouses, and limitations on forcing a spouse to take the stand against the other.

 The two types of spousal privilege:

 In modern criminal practice, spousal privilege usually refers to two related but distinct protections:

              The first is spousal “testimonial” privilege. In Kentucky courts, a spouse cannot be compelled to testify against their husband or wife in a criminal case, at least while they are still legally married. Each spouse has some part of this privilege. If husband is charged and wife is called to testify against them, wife can choose whether to testify or refuse. The husband also has privilege to prevent wife from testifying against him – however, if the marriage ends, the privilege ends.

              If you’re really nerding out today, here’s the actual rule from the KRE (Kentucky Rules of Evidence): KRE 504(a), Spousal testimony. The spouse of a party has a privilege to refuse to testify against the party as to events occurring after the date of their marriage. A party has a privilege to prevent his or her spouse from testifying against the party as to events occurring after the date of their marriage.

The second form of spousal privilege is the “marital communications” privilege. This protects confidential communications made privately during a valid marriage, and it can apply in both civil and criminal proceedings. Unlike testimonial privilege, either spouse can usually assert this privilege to keep those private conversations out of evidence, and the privilege continues even if the marriage has ended.

              Again, the actual rule: KRE 504(b) Marital communications. An individual has a privilege to refuse to testify and to prevent another from testifying to any confidential communication made by the individual to his or her spouse during their marriage. The privilege may be asserted only by the individual holding the privilege or by the holder's guardian, conservator, or personal representative. A communication is confidential if it is made privately by an individual to his or her spouse and is not intended for disclosure to any other person.

So let’s feel the hot friction of the rubber meeting the road with a couple of spicy hypotheticals: 1) In a game of truth or dare, one spouse quietly confesses a past crime: Wife Bunny chooses “truth” and tells Jeff that she once committed a crime by streaking through the quad, all the way to Taco Bell. The marriage later ends, and Bunny is charged with Exposing Herself (8 year olds, Dude). This private conversation may be protected, even though Bunny is charged and even if Mr. Lebowski agrees to testify. Contrast that with 2)  In a game of truth or dare, one spouse witnesses another commit a crime: Husband Dude chooses the “dare” to bathe with a weasel and actually commits the crime of “keeping wildlife, an amphibious rodent, for uh, domestic, you know, within the city.”  Maude witnessed Dude commit the crime. The marriage ends. Later, when Dude is on trial, Maude’s observation itself is usually not a “confidential communication” and may not be privileged.

It’s important to note that spousal privilege does NOT block a criminal prosecution. It does not create a “free pass” to commit crimes. Instead, it operates to determine the admissibility of some evidence and testimony.

Key practical points in a criminal case include:

• The privilege must be invoked; if no one objects, the testimony or communication can often be used.

• Testimonial privilege usually lasts only while the parties are married; after divorce, a former spouse can typically testify about what they saw, although confidential marital communications may still be protected.

• Marital communications privilege normally covers only statements intended to be confidential between spouses—things said privately in reliance on the marriage relationship—rather than acts, public behavior, or communications in front of third parties.

• Spousal privilege does not block physical evidence (like text messages, documents, recordings) that investigators obtain from other sources; it addresses testimony and certain communications, not the entire case.

Because these are rules of evidence, they interact with subpoenas, motions in limine, and trial strategy, and they can be waived or narrowed by how the defense and prosecution litigate the issues before trial.

Common exceptions and limits There are important exceptions where courts often allow spouses to testify despite any privilege. Typical exceptions in many jurisdictions include:

• Crimes against the spouse, such as domestic violence or sexual offenses.

• Crimes against a child of either spouse, including abuse or neglect.

• Cases involving human trafficking, certain serious felonies, or joint criminal activity between the spouses.

WHY THESE ISSUES REQUIRE A TRIAL LAWYER

How and when to raise spousal privilege can dramatically shape a criminal case, especially if the spouse is a key witness or the only person who can corroborate or contradict the Commonwealth’s version of events. An actual trial lawyer (who actually tries jury trials) understands things like how judges in real courtrooms handle privilege disputes in front of a jury, how to litigate pretrial motions to exclude privileged statements and limit damaging testimony, and how to cross‑examine a spouse‑witness if the privilege does not apply or has been waived.

At Ward & Simms, PLLC in Louisville, our criminal defense practice includes taking criminal cases to jury trial, not just negotiating pleas from the hallway. We prepare every case with trial in mind, which means we fully analyze spousal privilege, evidentiary issues, and jury dynamics from day one so your defense is built for the courtroom, not just the conference room.

If you or a loved one are charged with a crime (or under investigation) and you’re worried about what a spouse can be forced to say, contact Ward & Simms, PLLC at 502.654.9977. The sooner you involve a trial‑ready defense team, the more options you have to protect your rights, your family, and your future.