.png)
Spousal Privilege
WHAT IS SPOUSAL PRIVILEGE?
A legal rule protecting marital harmony by allowing a person to prevent their spouse from testifying against them or to refuse to disclose confidential communications made during the marriage in court.
THE PURPOSE
According to the Utah Rules f Evidence Advisory Committee, the purpose of the spousal privilege is:
"The prevention of marital dissension and the repugnance of requiring a person to condemn or be condemned by his or her spouse.”
TWO TYPES OF SPOUSAL PRIVILEGE
Confidential Communications
Privilege to refuse to testify or to prevent his or her spouse or former spouse from testifying as to any confidential communication made by the individual to the spouse during their marriage.
Testimonial
A wife may not be compelled to testify against her husband, nor a husband against his wife.
HISTORY OF THE SPOUSAL PRIVILEGE IN AMERICA
English Common Law Origins
American spousal privilege grew out of two ancient doctrines in English common law that dates back to at least the 16th century:
-
The Doctrine of Legal Unity (Coverture): Under medieval law, a husband and wife were considered a single legal entity—and that "one" was the husband. Because a wife had no independent legal existence, she could not testify against her husband anymore than his own right hand could testify against his left.
-
The Rule Against Self-Incrimination and Self-Interest: In early English courts, a defendant was deemed incompetent to testify in their own trial because their self-interest would inevitably lead to perjury. Because the spouse was legally "one" with the defendant, they were also disqualified from testifying.
In short: You couldn't testify for your spouse because you were biased, and you couldn't testify against your spouse because it was viewed as a form of forced self-incrimination.
Adoption into American Jurisprudence
When the United States established its own legal system after 1776, it adopted English common law as its baseline. Early American courts enforced an absolute bar: spouses were simply "incompetent" to testify for or against one another.
However, as the 19th and 20th centuries rolled around, the legal fiction of "unity" began to crumble with the passage of the Married Women’s Property Acts. American courts realized that blocking spouses from testifying entirely was obstructing justice.
As a result, the absolute disqualification (you can't testify) evolved into a privilege (you have the choice to withhold testimony to protect the marriage).
HISTORY OF THE SPOUSAL PRIVILEGE IN UTAH
Edmunds-Tucker Act of 1887
The Edmunds-Tucker Act of 1887 was a federal law designed to dismantle the Church of Jesus Christ of Latter-day Saints (LDS Church) and eliminate the practice of polygamy in the Utah Territory. It significantly escalated previous anti-polygamy efforts by targeting the Church as a corporate entity rather than just individual practitioners.
One of the key provisions of the Edmunds-Tucker Act abrogated common law spousal privilege, making wives "competent witnesses" who could be called to testify against their husbands in polygamy cases.
Utah Response to the Edmunds-Tucker Act
The Edmunds-Tucker Act placed immense financial and legal pressure on the LDS Church, eventually leading to the 1890 Manifesto, in which Church President Wilford Woodruff officially discontinued the practice of plural marriage. This shift was a critical turning point that eventually paved the way for Utah to achieve statehood in 1896.
When Utah drafted its state constitution in 1895, the framers were wary of the federal government due to the passage of the Edmunds-Tucker Act. Accordingly, they took a rare and dramatic step. While most states left evidentiary privileges to statutes or common law, Utah carved the spousal testimonial privilege directly into its founding document.
Utah Constitution, Article I, Section 12:
"...a wife shall not be compelled to testify against
her husband, nor a husband against his wife."
By cementing this rule into the Bill of Rights alongside the right to counsel and protection against double jeopardy, Utah ensured an absolute testimonial privilege without exception.
In short, Utah enshrined the spousal privilege in its constitution in a response to the federal crackdown on polygamy and has become a relic of the State's founding that is now weaponized by perpetrators to control and manipulate victims. Click below to continue reading to learn how.
