Spousal Privilege - Will I have to testify?

Spousal Privilege

Does the Spousal Privilege apply in the case of the Orlando Pulse shooter? Can the police get the wife's testimony of what she knew of the shooting? Maybe. It depends on whether or not those communications she made with her husband were meant to be confidential. We often get this question from victims of domestic violence. They may not want to testify against their husbands in a criminal trial. They want to claim Spousal Privilege against their testimony. Sometimes they are even willing to marry, after the crime, to make sure the spousal privilege will apply. This right is embodied in the Florida Rules of Evidence under Florida Statute section 90.504. But in order to use the privilege in a pending case, certain criteria need to be satisfied.

• The communication must have occurred during or after the marital relationship. (Marrying after the event won't work)
• The communication must have been made with an intent to be confidential.
• If it applies, one spouse may prevent the other from disclosing the confidential communication
• The privilege can't be claimed in Florida for all communications during the marriage and the State can compel the wife or husband to testify about non-confidential facts
• The privilege does not apply when one spouse sues another (like in a divorce)
• The privilege does not apply when one spouse is charged with a crime against the other (or their child)

So if you have been charged with domestic battery and you think that the State won't be able to make you testify against your husband or wife, think again. This applies also to Violation of a Domestic Violence Injunction . If the only proof is his or her statement, the same result applies. The privilege can't be claimed. You should also be aware that the privilege can be waived. If a confidential communication was made between husband and wife, but later one of you told a third person that information, the privilege is waived as to all communications about that subject. So, if you called the police and told them about something your husband did or said, the Spousal privilege is waived. A recent circumstance that brings this law into the forefront is the mass shooter in Orlando who apparently communicated with his wife during and after the shooting. If she is prosecuted, the communication will fall under the husband wife privilege and the question will be whether her statements are the only ones that can support a criminal charge against her.