Do I have to testify against my spouse in Utah if I am
Utah's State Constitution provides protection to spouses who are
subpoenaed to testify against their own spouse in a criminal case.
Article I, Section 12 of the Utah Constitution provides that
"a wife shall not be compelled to testify against her husband, nor a
husband against his wife." But regardless of any testimonial or
communications privilege, you can still be required to comply with a
properly issued and served subpoena by appearing in court or at a
deposition. Whether you can be forced to testify is a separate
question. But failure to comply with a subpoena by appearing as ordered
can result in contempt penalties.
Whether you are the alleged victim or just
a witness, as a spouse you have important legal rights. As an
experienced criminal trial attorney
Stephen Howard can advise and assist you, ensuring that your rights are
today to arrange for a consultation.
Spousal Constitutional Rights v. Communications Privilege in
This constitutional protection afforded spouse witnesses is
different from the spousal communications privilege in several
respects. They each serve similar interests, but work in different
ways. If you or your spouse are facing criminal prosecution,
consultation with an experienced criminal attorney can ensure that your
rights are protected. Based in Salt Lake City, criminal lawyer
Stephen Howard provides legal assistance to clients throughout Utah. Contact
us today for an initial consultation.
Constitutional Spousal Testimonial
Under the Utah State Constitution, the spousal privilege to refuse to
testify is enforceable during the entire existence of the
marriage. This means that this privilege is created by the marriage,
but it is destroyed by a divorce. In other words, a spouse can only
claim this privilege if he or she is married at the time he or she is
called to testify.
Consider, for example, an engaged involved in a fight where one person
was charged with disorderly conduct. Prior to getting married, the
prosecuting attorney could subpoena the other person and force him or
her to testify in court. But if the couple were to marry before the
trial date, neither could be forced to testify against the other.
Contrast the previous example with the following situation where a couple subsequently divorces. In this situation, a
married couple is involved in a fight, and one spouse was charged with
disorderly conduct. If, prior to trial, the couple divorced, the
ex-spouse could no longer claim the constitutional spousal privilege
and could be forced to testify.
It is important to understand that the Utah constitutional privilege
does not protect a spouse from being subpoenaed. If a spouse is served
with a subpoena, the spouse is still required to appear in court as
directed. But once the spouse appears in court, the spouse has the
option of informing the court that he or she refuses to give any
testimony on constitutional grounds. When properly invoked by the
this constitutional spousal privilege protects a husband from being
forced to testify
against his wife, or a wife from being required to testify against her
The spousal communications
privilege in Utah is in some ways more limited than the constitutional
testimonial privilege. The spousal communications privilege applies
only to confidential communications made between a married couple
during their marriage. The privilege can not be invoked by the person
testifying, but instead must be invoked by the person against whom the
testimony is offered.
Unlike the constitutional testimonial privilege, the spousal
communications privilege continues and survives even after a divorce.
For example, if two married people had a confidential conversation
during their marriage wherein the husband confessed to committing a
crime, the wife could be prevented to testifying about that
conversation at trial, even if the two had divorced prior to trial.
Purposes of Spousal Privileges in Utah
The constitutional protection is intended, in part, to help preserve
marriages and protect a husband or wife from being forced to do
something that would adversely affect the marriage. The
constitutional protection is lost if the husband and wife divorce. The
spousal communications privilege, which applies to privileged
communications between a husband and wife, continues even if there is a
The spousal communications privilege is intended to prevent a
husband or wife from revealing communications that were intended to be
confidential marital communications. The public policy purpose behind
this privilege is to encourage open communications between spouses. The
communications can be invoked by a defendant even if the testifying
spouse wants to
testify. On the other hand, the constitutional privilege can only be
invoked by spouse who is
called to testify. If
the testifying spouse wants to testify, the defendant cannot prevent
him or her from taking the stand.
Exercising Your Rights
Although most criminal subpoenas are issued by attorneys (either by
they prosecuting attorney or by a defense attorney), a subpoena has the
authority of a court order. If you ignore a subpoena, you may
be held in contempt of court. Being found in contempt can
potentially result in fines or jail time.
Most judges and prosecutors will not voluntarily inform you of your
rights as a spouse, and the defense attorney representing your husband
or wife normally will not be able to discuss these rights with you
because of conflict of interest or witness tampering concerns. This makes it critical that you obtain advice from an experienced
Contacting a Utah Criminal Lawyer in Salt Lake City
If you receive a subpoena which will require you to testify against
your husband or wife, you have a right to talk to an attorney who can
help you understand your rights, and protect those rights. Stephen
Howard is an
experienced criminal defense
, based in Salt Lake City and practicing throughout
Utah. Contact us
now to schedule an initial consultation. Make sure that
your rights and interests are protected.
RELATED CRIMINAL DEFENSE TOPICSCan a witness invoke Fifth Amendment privileges if not formally identified as a suspect?What happens if I am not read my Miranda Rights?Can police arrest me without questioning me or asking for my side of the story?