The Marital Privilege

If you are charged with a criminal offense and expect to go to trial, you may ask if your spouse can be forced to testify against you. Florida law provides for communications between married couples to be privileged. This means that one spouse cannot be forced to testify against the other unless certain exceptions are met.

The Florida Marital Privilege Statute

The Florida Evidence Code, Section 90.504 provides in relevant part: “A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.”

The purpose behind the law is to preserve the marital relationship and respect the confidentiality of the relationship. In order for the privilege to apply, there are certain qualifications must be met:

1.    The couple was married to each other at the time the communication occurred.

2.    The communications between the married couple was intended to be confidential. If another person was present, there is no expectation of confidentiality and one spouse may be compelled to provide testimony harmful to the other one. Also, if one spouse tells another person about the communication, it is no longer considered confidential and there is no longer a privilege.

3.    The privilege applies to communications, including gestures or written notes, but not to observations. For example, a spouse may be compelled to testify that he or she observed their spouse leave the home at a certain time.

The privilege is not absolute. There are exceptions under the statute itself and which have been carved out by court interpretations of the statute.

When the Privilege Does Not Apply

The statute itself provides for exceptions.

·         When the court action is brought by one spouse against the other. There is no longer a marriage to preserve.

·         In a criminal action where one spouse is charged with committing a crime against the person or property of the other spouse or against the person or property of a child of either spouse.

·         In a criminal proceeding where the spouse charged with an offense offers the communication to aid in the defense.

For more information about using the marital privilege in your criminal case, contact a Jacksonville criminal defense attorney at the Law Office of James Davis, P.A.


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