The saying goes, no one knows you quite like your spouse. While it's true that our spouses often know the very best and very worse sides of us, can they be forced to use that knowledge to assist law enforcement in criminal proceedings? Will you go to jail or face criminal proceedings if you refuse to share this information with law enforcement? The short answer is no. The New Jersey legal system recognizes that marriages are unique relationships where spouses confide in one another. Under the doctrine known as “Spousal Privilege,” the law prevents spouses or partners in a civil union from revealing confidential communications between them throughout the course of legal proceedings.

Invoking Marital Privilege

Under normal circumstances, if an individual receives a court subpoena to testify in court, they can face contempt of court charges if they do not show up, testify, and “tell the whole truth and nothing but the truth.” Under the United States Constitution, however, the 5th Amendment doctrine of self-incrimination, a criminal defendant cannot be forced to testify against themselves. Due to the societal understanding that spouses are “one,” this doctrine extends to spouses as well.

Under both General Statutes §2A:84A-22 and Rule 509 of the New Jersey Rules of Evidence, spouses “shall not disclose any communication made in confidence between such person and his or her spouse or civil union partner.” This simply means that spouses cannot be forced to testify against their spouses even if they receive subpoenas to testify. In fact, the law recognizes the importance of spousal confidentiality so much so that spouses can also prevent one another from voluntarily disclosing confidential communications as well.

Like Anything, Exceptions Apply

While the language of Rule 509 is extremely broad, the privilege is not absolute. Under Rule 509, there are several instances where spouses cannot assert the privilege. Some of these exceptions include:

• if both spouses (or partners) agree to the disclosure;
• the communications were made before marriage;
• the communications were made after the couple divorced;
• the parties were separated at the time the communications were made;
• if the communication is relevant to an issue in an action between the spouses or partners, such as a domestic violence dispute, etc.;
• in a criminal action or proceeding coming within section 17 of P.L.1960, c.52 (C.2A:84A-17); or
• in a criminal action or proceeding if the communication “relates to an ongoing or future crime or fraud in which the spouses or partners were or are joint participants at the time of the communication.”

Let Us Answer Your Questions About Spousal Privilege

If you are concerned that you will have to testify against your spouse or would like to prevent your spouse from testifying against you, we can help. Criminal proceedings are confusing enough, and you do not need to further complicate your relationship with your spouse. If you have questions about your rights, attorney Joseph D. Lento and his team at the Lento Law Firm have decades of experience representing criminal defendants in the state of New Jersey. Contact the Lento Firm today by calling (888) 535-3686 or by using our online contact form.