What is the Husband/Wife Privilege in Utah Criminal Cases?

Some aspects of criminal law have found their way into the public consciousness through movies, television, and famous court cases.  One of these well-known (but poorly-understood) terms refers to the “husband wife privilege.”  This concept is rife with myths and misinformation — as more than one defendant has found out the hard way.  It’s important for married defendants to know what the husband wife privilege means, what it can do, and where its limitations lie.  Salt Lake City criminal defense lawyer Darwin Overson explains some of the legal basics you and your spouse should know if one of you is facing criminal charges in Utah.

How Does Spousal Privilege Work in Utah?

By definition, privilege inherently goes beyond baseline rights and guarantees.  Likewise, the husband wife privilege is a special legal right that exists between spouses.  This privilege can arise in a wide variety of legal matters, including both civil cases (such as divorce or child custody) and criminal cases (such as murder charges).  You may hear the husband wife privilege referred to as “spousal privilege,” but the meaning is the same.

Each state has its own set of laws regulating the uses and limitations of this privilege.  In Utah, the relevant laws are addressed by Rule 502 (Husband – Wife), which says that spouses generally cannot be forced to testify against each other.  However, as we will discuss a little later, there are some important exceptions to this rule.

First, let’s take a closer look at the general scope of Utah’s spousal privilege.  This privilege is actually divided into two separate subcategories, both of which are recognized by Utah: communications privilege, which we’ll define in just a moment, and testimonial privilege, which permits one spouse to refuse testifying against the other as long as no exceptions apply.

In accordance with Rule 502, the privilege:

  • Covers “confidential communications,” meaning communications which:
    • Were “made privately by any person to his or her spouse.”
    • Were not intended to be shared (“disclosed”) with anyone else.
  • Lasts for the duration of each spouse’s life.  The privilege disappears when the “communicating spouse” passes away.  The communicating spouse is the person making (not receiving) the communications.

When and where it applies, the privilege goes in two directions.  Not only can a spouse invoke the privilege in order to refuse to testify against their husband or wife during criminal proceedings — he or she can also use the privilege to stop the other person from disclosing any “confidential communications.”  In other words, you can (1) choose not to speak, and (2) prevent the other person from speaking.

However, there’s a caveat: under Rule 502(e), there are four situations where the privilege does not apply.

Exceptions: When the Husband-Wife Privilege Doesn’t Apply

Of course, every person’s legal situation varies on a case-by-case basis.  That being said, criminal defendants should not rely on spousal privilege alone to act as a shield against a misdemeanor or felony conviction.  Under the terms of Rule 502, the special rights which are normally afforded by spousal privilege do not apply in the following legal scenarios:

  • Civil cases where the spouses are “adverse parties,” i.e. a plaintiff wife versus a defendant husband in divorce proceedings.
  • Cases where the privilege could be detrimental to the welfare, health, and/or safety of a minor child.  For example, when making custody determinations, judges will consider the child or children’s best interests above all other factors.  This could also arise in cases involving child abuse or neglect.
  • Cases where the privilege would be used to “enable or aid anyone to commit; to plan to commit; or to conceal a crime [or a civil wrong called a “tort,” such as causing injury through negligence].”

This brings us to the fourth and final point, which carries the greatest significance of all for criminal defendants.  The privilege may not be invoked in any “proceeding [where] one spouse is charged with a crime or a tort against the person or property of” any of the following parties:

  • Your husband or wife.
  • Your child and/or your husband or wife’s children.
  • Anyone who lives with your spouse.
  • Any third person, provided you allegedly committed the crime (or tort) against the third person while committing a crime (or tort) against one of the three parties mentioned above (i.e. spouse, children, and cohabitants).

Sometimes, the courts will issue something called a subpoena, which is a written order requiring the recipient to appear in court, produce evidence, and so forth.  Even if you are invoking spousal privilege, you must comply with any subpoenas to appear in court.  If you fail to appear, you could potentially be held in contempt of court, a criminal offense punishable by a $1,000 fine plus up to 30 days in a county jail like the Guide to Salt Lake County Jail or the Summit County Utah Jail.

If you or your spouse has been arrested in Utah, it’s critically important to seek experienced legal representation.  To set up a free and completely confidential consultation, call Salt Lake City criminal defense attorney Darwin Overson right away at (801) 758-2287.