Can your wife testify against you?

The Sixth Circuit Court of Appeals(Tennessee’s circuit) decided yesterday that one cannot invoke marital privilege in child abuse cases as to confidential communications.

There are two types of marital privilege. First, a spouse cannot be compelled to testify adversely against his or her spouse. The privilege is held by the testifying spouse. The defendant spouse cannot invoke it.

Second, a defendant can invoke the privilege as to confidential communications with his or her spouse.
They must be married; it applies only to utterances by one spouse to convey a message to the other and it must be confidential. Exceptions are when the couple is separated and when one commits an offense against the other.

In recognizing that most states and federal circuits have created a child abuse exception, the Sixth Circuit adopted that exception to the rule.

In quoting the public policy behind this exception from a Tenth Circuit case, the court said,” it would be unconscionable to permit a privilege grounded on promoting communications of trust and love between marriage partners to prevent a properly outraged spouse with knowledge from testifying against the perpetrator of such a crime.”

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