By Jedidiah McKeehan
If you have watched enough lawyer movies and TV shows, then you may have come across one where someone is facing a murder charge and they marry a key witness so the key witness cannot testify against the person who is now their spouse.
Is that how it works? Is being married to someone a free pass to avoid being made to testify against them in Tennessee? Not really.
Tennessee Code Annotated section 24-1-201 deals with the testimony of married persons and here is what is says.
(a) In either a civil or criminal proceeding, no married person has privilege to refuse to take the witness stand solely because the person’s spouse is a party to the proceeding.
Right off the bat, it would seem that marriage is no help in avoiding having to testify in a case involving your spouse, but let’s keep reading.
(b) In a civil proceeding, confidential communications between married persons are privileged and inadmissible if either spouse objects. This communication privilege shall not apply to proceedings between spouses or to proceedings concerning abuse of one of the spouses or abuse of a minor in the custody of either spouse.
So this paragraph seems to help the spouse trying to avoid testifying. As long as the case is not a case between the spouses (like a divorce), or involves abuse (like a DCS investigation) then either spouse can object to testimony about confidential communications.
Now, let’s see what the law says about testimony in criminal matters.
(c)(1) In a criminal proceeding a marital confidential communication shall be privileged if:
(A) The communications originated in a confidence that they will not be disclosed;
(B) The element of confidentiality is essential to the full and satisfactory maintenance of the relation between the parties;
(C) The relation must be one which, in the opinion of the community, ought to be sedulously fostered; and
(D) The injury to the relation by disclosure of the communications outweighs the benefit gained for correct disposal of litigation.
(2) Upon a finding that a marital communication is privileged, it shall be inadmissible if either spouse object. This communication privilege shall not apply to proceedings concerning abuse of one of the spouses or abuse of a minor in the custody of either spouse.
Wow, so that is a lot. If I try to sum up what is said here, it would be that they want to make it hard for a spouse to get out of testifying. I mean, the communication between the spouses has to be claimed to be a privileged communication, and then, that it meets four criteria to be considered of a nature that the spouse need not testify about the communication. That is very tough.
To circle back to our original point of discussion, no, simply being married to someone does not get you out of having to testify in a case in which they are involved.
Jedidiah McKeehan is an attorney practicing in Knox County and surrounding counties. He works in many areas, including divorce, custody, criminal, personal injury, and estate planning. Visit attorney-knoxville.com for more information about this legal issue and other legal issues.