Can a person be compelled to testify against their spouse?

Many of us have heard that a person cannot be compelled to testify against their spouse. Can a person actually avoid legal jeopardy because their spouse, who holds the key evidence, refuses to testify?

South Carolina has a statute on the books that speaks specifically to this (S.C.Code Ann. § 19-11-30 (Supp.1995)).  In South Carolina, a person can not be compelled to testify against their spouse in a limited circumstance.  

The legal action involved must be criminal in nature. If a person tells their spouse that they embezzled money from their employer, the spouse can refuse to testify to this fact. If the only evidence of a defendant’s culpability is their spouses testimony, the defendant will likely not be convicted of a crime if the spouse refuses to testify.  However, law enforcement can make derivative use of a spouses statements during their investigation and if evidence of guilt is found, that evidence can be used agains the defendant.  

For example, a spouse may tell law enforcement that her husband, who is a suspect in a murder case, drove the Pontiac Firebird parked in their drive way on the day of the murder. If law enforcement finds evidence of the murder in the Pontiac Firebird, Wife cannot be compelled to testify that her husband had driven the car on the day of the murder. However, law enforcement can testify that they spoke with Wife and as a result of this conversation they searched the Pontiac and found evidence linking husband to the murder. See State v Copeland.

The spousal privilege rule is not absolute.  SC Statute provides 3 exceptions: “where the suit, action, or proceeding concerns or is based on child abuse or neglect, the death of a child, or criminal sexual conduct involving a minor”.  This means that the spousal privilege does not apply in criminal cases involving child abuse or neglect, the death of a child, or criminal sexual conduct involving a minor, nor does it apply in DSS abuse and neglect cases.  

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