Many people believe that marriage is an institution that is good for society. That is, many people hold the belief that married people are more stable and likely to contribute good things to society. Many people also believe that homes with two parents are better environments in which to raise children. People also generally hold the belief that things said and done between husband and wife ought to be entitled to some privacy. The law, if nothing else, tends evolve and exist roughly in parallel with what society believes to be best. Thus, it should come as no surprise that the law tries to support marriages and goes out of its way to avoid breaking them asunder. Few things, after all, will destroy a marriage faster than one spouse testifying against the other. For this reason, most states acknowledge some form of marital or spousal privilege.
In Ohio, there are really two types of what might be called spousal privilege, or marital privilege. These are called spousal privilege and spousal competency.
Competency, remembering back to prior blog posts, is the question of whether a witness is the sort of person who can testify. In Ohio everyone is competent to testify except for a few specific categories of people. One of these categories is people who are being compelled to testify against their spouse. Under Ohio law, a witness-spouse is “incompetent” to testify unless the witness voluntarily chooses to testify or the witness is testifying against their spouse in a crime that was committed by the spouse against the witness or a child of either the spouse or the witness. For example, a wife may choose not testify against her husband unless the husband’s crime was committed against the wife or their child. However, it should be noted that the point of this privilege is to preserve marriage by not creating a situation where the government could force an unwilling spouse to implicate their beloved in a crime (or other similar situation). Thus, if the witness and defendant are unmarried at the time when one of them is to testify (even if they were married when the crime or incident underlying the case occurred) the competency issue does not arise and the witness will have to testify.
Spousal privilege, however, is somewhat different from competency. Privilege exists to fulfill society’s expectation that things said and done between husband and wife are private and that privacy should be respected. Thus, Ohio law protects things said or done, by spouses, in the each other’s presence, while they are married, as long as no third person is present. This is different from competency because in this case, for example, even if a wife wants to testify about something she saw or something that was said in the privacy of the marriage, her husband can prevent her from testifying about it. However, unlike the case of competency, the witness is not entirely excused from testifying, only the specific privileged acts or communications are private. That is, the witness could still testify, if she wanted to, about anything that was said or done in front of a third person. But acts or communications shared between spouses without anyone else present are protected. Moreover, the protection does not disappear when the marriage does. If two people were married when they shared some private act or communication and they subsequently divorce, the act or communication is still privileged.
In short, spouses generally do not have to take the witness stand against each other if they do not want to. But, even in some cases where they might want to, they cannot do it if what they want to testify about is something that happened in the privacy of the marriage and the other spouse does not want them to.
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