Spousal Privilege Laws in Pennsylvania
In Pennsylvania, the law states that a husband and a wife may refuse to testify against each other in a criminal proceeding. However, this does not mean that a spouse is not allowed to testify against his or her spouse.
Testimonial Privilege and Communications Privilege
There are two different privileges, testimonial privilege and communications privilege. When people think of spousal privilege, most people are thinking of testimonial privilege.
Testimonial Privilege protects a spouse from being compelled to testify against his or her spouse by the prosecution.
The Pennsylvania statute 42 Pa. Cons. Stat. 5913 reads, “ in a criminal proceeding a person shall have the privilege, which he or she may waive, not to testify against his or her then lawful spouse.”
So, outside of a few exceptions, a spouse cannot be forced by the prosecution to testify against their spouse. However, this does not mean they cannot testify if they so choose.
The decision is theirs; they can choose to claim the privilege and not testify, or they can waive that right and choose to testify.
This privilege can only be claimed while spouses are legally married.
Communications privilege protects the contents of communications between spouses, during their marriage, that are reasonably believed to be confidential.
The criminal Pennsylvania statute (42 Pa. Cons. Stat. 5914) reads, “ in a criminal proceeding neither husband nor wife shall be competent or permitted to testify to confidential communications made by the other, unless this privilege is waived upon trial.”
This privilege protects communications that would not have been made except for the absolute confidence of the marital relationship.
This privilege only covers communications made during marriage, if the communication was made prior to marriage or after divorce, communication privilege will not apply.
Both spouses hold the communication privilege; meaning either may invoke the privilege to protect confidential statements. There are a few exceptions to this, such as if the communication was made in furtherance of a fraud.
This privilege covers any confidential statements made during the marriage, even if at the time of trial the couple is divorced. If the confidential statement was made during marriage, communications privilege can be invoked.
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