Under the Federal Rules of Evidence (FRE), there are specific rules regarding whether a wife (or husband) can testify against her spouse. These are covered under spousal privileges, which include two main types:
1. Spousal Testimonial Privilege
- Scope: Protects against a spouse being compelled to testify against the other in a criminal trial or grand jury proceeding.
- Holder: In federal courts, the privilege is generally held by the witness-spouse. This means the spouse who is asked to testify can decide whether to testify or invoke the privilege to refuse.
- Applicability: Applies only during the marriage. If the marriage ends, the privilege no longer applies to events that occurred during the marriage.
- Exceptions: This privilege does not apply in certain situations, such as:
- Cases involving crimes against the spouse or their children.
- Situations involving joint participation in criminal activities.
2. Marital Communications Privilege
- Scope: Protects confidential communications made between spouses during the marriage.
- Holder: Both spouses typically hold this privilege, meaning either spouse can prevent the other from disclosing confidential communications.
- Applicability: Applies to communications made during the marriage, even if the marriage ends.
- Exceptions: This privilege does not apply in:
- Cases involving crimes against the spouse or their children.
- Communications made in furtherance of a joint criminal scheme.
Summary of Differences
| Privilege | Scope | Holder | Ends When? | Exceptions |
|---|---|---|---|---|
| Spousal Testimonial Privilege | Testifying in criminal cases | Witness-spouse | Divorce or annulment | Crimes against spouse/children, joint crimes |
| Marital Communications Privilege | Confidential communications during marriage | Both spouses | Not limited by divorce | Crimes against spouse/children, joint crimes |