It goes without saying that the people that know us best – and know our deepest and perhaps darkest secrets – are often our spouses. While every marriage is different, it is common for one spouse to tell another spouse things he or she wouldn’t tell anyone else in the world. With that comes the expectation that those secrets will remain within the marriage, whether they relate to hopes and fears or potential criminal behavior relating to past violent acts, drugs, guns, theft, and any other type of criminal behavior. But this is not always the case. When a person gets in trouble with the law, however, and police and prosecutors come around asking questions, it is thus often a common question whether a defendant’s wife (or husband) can be called to testify against them in criminal court. It is an important question, as a person who is called to testify in a criminal case must testify truthfully or face a criminal perjury charge. Oklahoma does give both spouses a spousal communications privilege in criminal cases which protects certain communications, but it is important to understand what it does and does not protect.
Oklahoma’s Spousal Communication Privilege
Pursuant to 12 OK Stat § 12-2504 (2014), a spouse cannot be forced to testify against his or her spouse about communications made in confidence between the two spouses during the marriage. This is subject to exceptions, discussed below. First off, this is what is referred to as a “spousal communications privilege.” This is different than a “spousal testimonial privilege,” which is something Oklahoma law does not offer, although it is sometimes confusingly referred to with that phrase. With a spousal testimonial privilege, the other spouse does not have to take the stand at all against a spouse on trial. To be clear, this is not the rule in Oklahoma. Instead, the rule in Oklahoma is that a spouse who does take the stand cannot speak about any confidential communications (meaning they were not shared with other people) between the spouses, unless both spouses agree to waive the privilege. Again, this is subject to exceptions below.
The Exceptions to Oklahoma’s Spousal Communication Privilege
There are limits to this privilege, however. In a criminal case, one spouse can testify against the other spouse about confidential communications between them (and over the accused spouse’s objections) if the nature of the charges relate to crimes against the person or property of:
- The testifying spouse
- The child of either spouse
- Another person living in the same household as the spouses
- A third party who was the victim of a crime that occurred when a crime was being committed against any of the above parties (e.g. committing assault against a family friend who tried to intervene to protect a spouse from domestic violence)
When the spousal communications applies and when it does not apply can be tricky to understand in a given situation, but a key takeaway is to not rely what you may have in seen in TV or movies or heard from other sources about a spouse not being able to testify against you if you are put on trial. Laws on this topic vary from state to state, and have changed greatly over the years. Speak to an Oklahoma criminal defense attorney about how the laws of our state affect your particular situation.
Experienced Criminal Defense in Your Oklahoma Criminal Matter
Oklahoma City criminal defense attorney Patrick Quillian is a former Oklahoma district attorney who relies on his years of experience in prosecuting cases to provide the best possible defense for all defendants. If you are facing criminal charges and/or investigation for a felony or misdemeanor in Oklahoma, contact the office of J. Patrick Quillian, Attorney at Law, today at 405-418-8888 to schedule a free consultation to see what his criminal defense team can do for you.
