Russell Hebets Nov. 4, 2015

We’ve watched the scene unfold on television before, a couple discusses their pending legal doom, things are bleak, then somehow they realize they can’t be forced to testify against one another, and suddenly, there is hope these troubles can be averted.

What happened here? Is it true that couples don’t have to testify against each other?

Marital or spousal testimony exception, as it’s sometimes called, is a very real privilege that most states provide. To be clear, it is not a right and each state has its own guidelines for it, but it does mean that you are not required to testify against your spouse if you are married at the time of trial and testimony.

How it works in Colorado

In Colorado, marital testimony applies to any information you learned about a crime committed by your spouse while you were married. If you learned about the crime prior to your marriage or if you learned of it post-divorce, that information is fair game. So the TV trope of getting married to avoid testimony won’t really work. But anything disclosed while already married does not have to be discussed. In fact, even if a spouse wanted to testify in Colorado, the other party has to give consent before they can do so. If you don’t give consent, then your spouse can’t testify. If you get divorced, the information you shared during the marriage is still subject to this privilege and consent of the party-spouse, not the witness-spouse, is still required.

This privilege has its limits. If the crime is charged as a felony 1, 2 or 3, there are no spousal testimony exceptions. Additionally, if the case involves domestic violence, protective orders or charges levied by one spouse against the other spouse, then testimony is necessary and there is no exception. Lastly, if the couple is conspiring in an ongoing or future crime then no exception exists, either party may be compelled to testify in order to protect public safety.

What about common law marriage or gay marriage?

Common law marriage is a situation where a couple is not legally married but they appear to live together as a married couple. The burden of proof concerning being married is on the couple, so without a license, the state standards on common law will apply and the court may make a final ruling on that matter. Usually the state of Colorado sees common law as a mutual public agreement, one where those around you regard the relationship as one of husband and wife. Proof of marriage may include documents of shared finances, like bank accounts or mortgages, or statements from those who know the couple.

Now that gay marriage is federally legal, marital testimony exceptions do extend to same sex couples.

In any case, when one party is asked to testify against their partner, they have to give notice of their desire to use the marital exception privilege at least 10 days before the time of testimony.

Why have these exceptions at all?

Marital testimony exceptions are designed to support the sanctity of marriage. It protects each individual from being forced to condemn the other, thereby maintaining the harmony of the couple. Some other examples of privileged communications include attorney-client privilege, doctor-patient privilege and clergy-penitent privilege. These are all contexts where it is recognized that communications may be extremely delicate and that those involved should expect their privacy to be continually protected. In all these situations it is easy to see how the relationship can be undermined if someone was forced to testify. An attorney could not defend his client to the best of his ability if communications were not private; a priest cannot offer the best guidance if his penitent cannot speak freely; and a person’s medical issues may be used against them if their doctor was forced to testify.

Spousal testimony exceptions, like other privileged communications, have been criticized for withholding too much information from cases; however, they serve the greater purpose of protecting privacy and the sanctity of the most important relationships in our lives.