Can a prosecutor force me to testify against my spouse in a criminal case?
The Constitution of the State of Utah provides an unconditional right to refuse to testify against one’s spouse. This is separate and distinct from the spousal communications privilege. Understanding both is important.
Under the unconditional testimonial spousal privilege, a prosecutor may still serve a subpoena requiring one spouse to appear in court. But neither the court nor the prosecutor can compel the first spouse to give restraining against the other. This privilege can be invoked only by the spouse being subpoenaed to testify, but can be invoked by that spouse either as a victim in the case or as an ordinary witness.
The best defense attorneys challenge the status quo through ethical advocacy both in and out of the courtroom.
The spousal communications privilege is different in that it can be invoked by the person against whom the testimony is offered. The communications privilege also continues to exist even if there has been a divorce. Confidential communications made between spouses during the marriage remain confidential and privileged even following a divorce.
