If you’re accused of a crime, can your spouse be forced to testify against you? If you marry your girlfriend or boyfriend after you’re charged, will that stop the prosecution from calling them as a witness in your case? What if they know something that could help convict you?
Georgia law recognizes something called “spousal privilege,” which is a special right married couples enjoy when one of them is facing prosecution. However, that protection is not absolute.
Georgia recognizes two types of privilege for married couples
Under Georgia law, married couples have two distinct legal protections:
- Under C.G.A. § 24-5-503, one spouse generally cannot be forced to give evidence against the other. However, the spouse can testify voluntarily. The privilege – and the decision – belongs to the spouse being called as a witness to invoke, not the one facing charges.
- Under C.G.A. § 24-5-501, private communications between spouses during their marriage are generally protected from disclosure and precluded from use in court.
These protections serve different purposes. One lets a spouse decline to testify against the other, while the other protects confidential exchanges between married couples.
When doesn’t spousal privilege apply?
Georgia law specifically says that one spouse can be obliged to give testimony against the other when:
- The testimony pertains to a criminal charge by the other spouse against a minor.
- One spouse is the victim of a crime by the other, including incidents before their actual marriage.
- The charged offense involves the damage or destruction of property belonging to either spouse.
There are other important limitations. For example, the right to refuse to testify generally ends when a couple divorces. Privilege also typically doesn’t cover any information that was learned from third parties or shared with third parties.
Spousal privilege can affect what evidence prosecutors can present, but it doesn’t prevent them from using other witnesses, documents or independently obtained evidence. An experienced Georgia criminal defense attorney can help determine which protections apply and what evidence can be challenged in your case.