A person cannot be forced to testify against their spouse

Stevens & Gailey Divorce and Criminal Defense Law Firm in Utah

A person cannot be forced to testify against their spouse

In any criminal proceeding in Utah, including domestic violence cases, a wife shall not be compelled to testify against her husband, nor a husband against his wife.1 Moreover, the Utah Constitution further reinforces spousal disqualification privilege. Specifically, Article 1, section 12 of the Utah Constitution states, “a wife shall not be compelled to testify against her husband, nor a husband against his wife.”

A person cannot be forced to testify against their spouse

1Utah Rule of Evidence 502(a)

In criminal proceedings the spousal disqualification privilege works as follows:

  • First, either the husband or wife must be charged with a criminal offense;
  • Second, the husband or wife must be subpoenaed to testify against their spouse;
  • Third, the husband or wife must assert their “spousal disqualification privilege”;
  • Fourth, the husband and wife must be married at the time the prosecutor requests their testimony. This means, that if a couple gets married, even after the charges have been filed, the testifying spouse can then assert their “spousal disqualification privilege”; and
  • Fifth, the testifying spouse must not have waived their “spousal disqualification privilege”.

Interestingly, Utah recognizes common law marriage.2 This means, that a couple can assert the marital privilege even if their marriage is not solemnized. Common law marriage arises out of a contract between a man and a women who: they are of legal age and capable of giving consent; they are legally capable of entering a solemnized marriage; they have cohabitated; they have mutually assumed marital rights, duties, and obligations; and they have held themselves out as and have acquired a uniform and general reputation as husband and wife.

2Utah Code Ann. §30-1-4.5

A person cannot be forced to testify against their spouse

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