Does Spousal Privilege Extend to Unmarried Partners in Massachusetts?

Spousal privilege is a long-standing privilege whereby the spouse of someone charged with a crime cannot be compelled to testify against their defendant spouse.

This basis of this privilege is the recognition of the special and unique bond that a married couple will have with respect to each other, and the belief that it would be wrong and immoral to compel someone to have to testify against their spouse, and thereby break the important bond of trust that should be implicit in a marriage.  In other words, the belief is that the prosecution should be required to find other acceptable means to prove the guilt of someone charged with a crime without resorting to compelling the spouse of a defendant to testify.

What About Non-Married Couples – Can They Be Compelled to Testify Against One Another?

Yes.

Today, many couples choose to live in committed relationships without marrying.  While the couples in such relationships may view their relationship as being just as committed as those who married, the law does not treat non-married relationships the same as those who are married when it comes to spousal privilege.

If this were not the case, the law would need to address a number of factual issues.  For instance, how long would the unmarried couple need to have been “committed” to each other?  One year?  Ten years?

Would the couple need to live with each other, or would it be OK if they are living apart?

What is the difference between being in a “committed” relationship, and merely “exclusive dating”?

Instead of seeking to create a list of requirements for this privilege, the law imposes a “bright-line” test – is the couple legally married or not?

As a result, if a couple is not married, spousal privilege will not apply in Massachusetts, irrespective of how committed the couple may be, or how long they have been together.

What Happens if My Spouse Tells a Friend – Can that Friend Be Compelled to Testify Against Me?

Even if you discuss your case with your spouse, if your spouse divulges this communication to someone else (perhaps a close friend), then your conversation could also come back to haunt you.  As an example, suppose a person charged with a crime tells his wife that he hid the weapon used to commit a shooting in the back of an abandoned shed.  The person’s wife then tells her best friend where the weapon is.  The police then arrest the friend on an unrelated drug charge.  Knowing that she has a “get out of jail free” card by knowing where the weapon is (which can then be traced back to the defendant), she discloses the weapon’s location to the police.

The fact that the friend learned about the weapon’s location from the wife will not impact the admissibility of the weapon.  In other words, while the prosecution may not be able to make the wife testify about what her husband told her, they can make the friend testify.

Is it OK to Discuss My Case with Family and Friends?

No.

There is no privilege that may be asserted if a defendant discusses his or her case with family or friends, other than spousal privilege.  It does matter if a person does not have a spouse – that person cannot substitute a “best friend” in place of the spouse for privilege purposes.  As a result, this means that if you discuss your case with your friends, parents, or neighbors, it’s possible that they could be questioned by the police, or even called as witnesses.

For this reason, it’s best not to discuss your case with anyone other than your lawyer, as in general, all communications between a client and the client’s attorney are subject to the attorney-client privilege.[1]

Asserting Spousal Privilege

If the prosecution seeks to compel a spouse to testify, the defendant spouse must assert spousal privilege before such testimony.  If such assertion is not timely made and the spouse nonetheless testifies, then such testimony can be used.

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[1] The exceptions to attorney-client confidentiality concern statements in which a client threatens future harm on someone, and conversations in which an attorney may be involved with a client to commit a crime.