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Tampa Criminal Lawyer > Blog > Criminal > What is Spousal Privilege & How Does it Apply to Criminal Cases?

What is Spousal Privilege & How Does it Apply to Criminal Cases?


Spousal privilege is a unique device that is exclusive to married couples. In Florida, a spouse cannot be asked to testify against her spouse in a criminal proceeding, but there are exceptions to the rule. If you are facing criminal charges at the federal or state level and your spouse was not an accomplice or accessory, you may be concerned that they will be unfairly targeted or pursued to make a statement. In addition, many states have repealed spousal privilege. But, in Florida, the privilege still exists while a couple remains married. If you have questions about this privilege or the protection and privacy of your family as you contend with your criminal defense, contact Attorney Bryant Scriven.

Spousal Privilege Defined

Florida statute defines spousal privilege as a spouse’s choice to refuse to testify against their spouse in a criminal proceeding about communications exclusively between the couple. The privilege is only extended to criminal defense proceedings and only while the couple is legally married. Unmarried couples and even so-called common law marriages are not eligible. In addition, a spouse can be called to testify against her husband regarding activities he engaged in prior to their marriage, when they were dating or acquaintances. And, if the couple divorces and subsequently the defendant is indicted, the former spouse can be compelled to testify.

Other jurisdictions have revoked the privilege for several reasons, most importantly because of obstruction to justice. Some state legislators have argued that couples are marrying only to circumvent a prosecutor’s ability to call a key witness to criminal activity to testify. Also, in some criminal cases a defendant’s alleged conduct is often assisted to or the spouse becomes an accessory before or after the fact, with or without their consent. 

Exceptions to the Spousal Privilege 

There are several exceptions to spousal privilege in Florida. If the couple engaged in confidential communications but were aware that another party was physically present or capable of hearing the conversation (a neighbor, the nanny, a friend on speaker phone, etc.) the privilege is voided. If the defendant is arrested for allegedly committing a domestic violence offense against his spouse or children, the privilege cannot be invoked. This is because the state prosecutes the offense on behalf of the victim, which in a domestic violence case is the spouse. The other spouse also cannot claim the privilege if the defendant-spouse offers up an excerpt of the communication into evidence on the record.  The privilege exists to protect the sanctity and union of a legal marriage. Being asked to testify against a spouse regarding confidential communications would be a violation of their unique relationship and would likely lead to deterioration of the martial union if the witness-spouse’s testimony contributed to a defendant’s conviction. 

Schedule a Consultation with Attorney Scriven

If you or a loved were recently arrested, arraigned or facing trial and are seeking legal representation, look no further than Attorney Bryant Scriven. As a former prosecutor, Scriven understands the criminal justice system from a unique perspective. He also maintains extensive experience litigating federal and state criminal cases throughout the Tampa Bay area. If you are concerned about your family’s right to privacy, asset seizure, your reputation, your career, and your freedom, you need legal counsel as soon as possible. Call Tampa criminal attorney Scriven today to schedule a consultation.



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