The Marital Privilege in Massachusetts - The Fernandez Firm
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The Marital Privilege in Massachusetts

The Marital Privilege in Massachusetts

The Marital Privilege in Massachusetts


Most states, including Massachusetts, protect one spouse from being compelled to testify against the other, except in limited circumstances — this is known as the spousal (or marital) privilege, and it is a powerful evidentiary privilege that can help to significantly strengthen your defense in a criminal case.


As a matter of public policy, the spousal privilege is important, as it protects the marriage construct during a high-conflict trial in which one spouse would otherwise be called upon to testify against the other.  From a policy perspective, the law assumes that to require spouses to testify against each other could potentially deteriorate the institution of marriage in society, and might damage the relationship between the two spouses to a point beyond repair.


Spousal Evidentiary Rules in Massachusetts — Criminal Law


There are two major evidentiary rules relating to spousal testimony in the Massachusetts criminal law context: a) the spousal privilege, and b) spousal disqualification.


The Spousal Privilege


In any criminal proceeding, Massachusetts law grants a spousal privilege to the witness-spouse.  Only the witness-spouse may claim the privilege to avoid being forced to testify at the trial of their criminal defendant-spouse.  The criminal defendant-spouse cannot claim the privilege for the witness-spouse to prevent them from testifying — the choice to testify belongs entirely to the witness-spouse.


There are, however, certain exceptional circumstances under which the spousal privilege does not apply.  The privilege does not apply in situations wherein: a) the spouses must testify to prove the existence of their marriage, or to prove their parenthood; b) the spouses are testifying before a grand jury; and c) there are charges of child abuse, incest, and other sexual misconduct towards children.


Though it may seem like a bit of a legal blind spot, the spousal privilege can actually be asserted in domestic violence situations, even if the witness-spouse is the victim.  In determining whether the witness-spouse can legitimately claim the privilege, the court must assess whether the witness-spouse has voluntarily claimed the privilege, free of intimidation, threats, and other psychologically-relevant factors.


Spousal Disqualification


Spousal disqualification is an evidentiary rule that is closely related to the spousal privilege, with significant differences in both form and applicability.


The spousal privilege must be claimed by the witness-spouse, and it applies to all testimony in a criminal proceeding.  Only the witness-spouse can claim the privilege.  An outsider cannot claim the privilege to prevent testimony.


Spousal disqualification, on the other hand, is not a privilege, and as such it is not claimed — instead, it automatically applies if the requirements are met.  Despite the name, spousal disqualification applies to any persons with information regarding private conversations between spouses.  Pursuant to the spousal disqualification rule, either a spouse or a third-party witness can be prevented from testifying as to the private conversations held between spouses.


Suppose that you and your spouse are having a private discussion in your bedroom about an incident that could lead to criminal litigation.  At the time, you were speaking in hushed voices and were under the impression that you were speaking privately.  In reality, however, your neighbor was hiding quietly outside your window, listening in on the conversation.  Later, during the criminal proceedings, if the witness-neighbor was brought to testify as to the content of the conversations you had with your spouse in the bedroom, the neighbor might be disqualified from providing testimony pursuant to the spousal disqualification rule, as the conversation was reasonably assumed to be private.


Importantly, however, spousal disqualification does not apply in certain limited circumstances, including child abuse, incest, criminal proceedings in which one spouse has been charged with a crime against another spouse (such as domestic violence proceedings), among others.


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