Can Your Spouse Testify Against You In Court?

Spousal privilege, marital privilege, or “Pillow Talk Privilege,” is a legal privilege that can prevent spouses or domestic partners from incriminating each other in court. Spousal privilege operates similarly to attorney-client, doctor-patient, and clergy-penitent privileges. These privileges are all designed to protect the validity and confidentiality of these relationships.

There are exceptions to every rule, however. For example, the marital privilege does not apply if the spouse or their children are alleged victims of the crime, nor when spouses allegedly commit the crime together.

Testimonial Privilege and Communications Privilege

Two parts of marital privilege apply if you are married and accused of a crime: testimonial privilege and communications privilege.

Testimonial privilege prevents your spouse from having to provide adverse testimony against you in court unless they choose to do so. In addition, any communication between you and your spouse during the marriage is not considered admissible in court without both spouses’ consent. If proven that communication did not occur in true confidence – i.e., if there was a third party present during the communication – the communications privilege does not apply.

How Does “Pillow Talk Privilege” Apply to Online Communication?

If you email your spouse, message them on social media, or contact them via any other online means, these communications do not fall under the protections of marital privilege due to the stipulation regarding the impact of a third-party presence. In the eyes of the law, Internet Service Providers (ISPs) are third parties, and their privacy policies do not protect communications made between users – regardless of their relationship with one another.

Law enforcement is subject to the Fourth Amendment of the United States Constitution, which prohibits unreasonable search and seizure. There must be probable cause to access these communications before records of electronic communications can be used to build a case against you.

Your right to communications and testimonial spousal privilege may make or break the outcome of your legal matter. Contact us online to schedule a free initial consultation with a proven defense attorney.


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