Do I have to testify against my spouse in Utah if I am subpoenaed?

Stephen Howard — Stone River Law

Real Experience. Real Results.

Do I have to testify against my spouse in Utah if I am subpoenaed?

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 protected. Contact us today to arrange for a consultation.

Spousal Constitutional Rights v. Communications Privilege in Utah

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 Privilege

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 testifying spouse, 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 husband.

Utah Spousal Communications Privilege

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 divorce.

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 spousal 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 criminal attorney.