Spousal privilege confuses a lot of smart people. One form of legal privilege is the testimonial privilege which prevents certain witnesses from testifying about things they know. Familiar examples are the attorney-client privilege, the doctor-patient privilege, and the priest-penitent privilege. The privilege can only be asserted by the client, patient or penitent, and never by the attorney, doctor or priest. The law does not favor privilege because it excludes evidence; as such, courts “narrowly construe” privilege, which means its technicalities are strictly followed. Spousal privilege only applies to testimony in court.
Section 2945.42 of the Ohio Revised Code provides that a witness may not testify against his spouse unless the case involves personal injury by either spouse against the other. So, unless the spouses are suing each other for bodily injury, or have “waived’ (given up) the privilege, spouses may not testify against one another if the non-testifying person properly asserts the privilege.
Spousal privilege has far-reaching implications. Spouses routinely testify against each other in family law cases; by filing claims against each other, they are deemed to have waived (given up) the spousal privilege because they have filed court actions against each other. Nevertheless, spousal privilege can still be critical in family law cases.
Successful Assertion of Spousal Privilege in a Custody Case
Recently, I represented the mother in a custody case and I called her husband as a witness. The father’s attorney asked him what his wife (the mother/my client) had told him about how long she left the child alone after school. I objected and asserted the spousal privilege. The father’s attorney rolled his eyes and laughed. The Magistrate adjourned, researched the issue and found that I was right. The mother was married to the witness and what she told him is protected by the spousal privilege.
The father’s attorney then lost his momentum on cross-examination and never recovered. Had he read the statute since the bar exam, he would have attempted to prove that the mother had given up the spousal privilege by making her statements in the known presence or hearing of another person. Had he asked the witness in his earlier deposition before trial whether he had told anyone else what his wife had told him, he may have been able to introduce the statements by a third-party. The spousal privilege only stops a spouse from testifying, not from running his mouth outside of court in a way that could be admissible. As a result of all this wrangling, everything my client told her husband about the case was excluded.
Most family law cases have cross claims that kill spousal privilege. Perhaps when I represent the next Defendant I could withdraw our counterclaim at the last minute and then assert the privilege when the Plaintiff attempts to introduce anything the Defendant said. With the right case and the consent of the client, fun times could be had by all.
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