Must a wife or husband testify against their spouse in a Georgia criminal proceeding?

Posted September 13, 2019 at 7:39pm.

Written by Peter Wosnik

A question I’m often asked in Georgia criminal cases is whether one spouse must testify against another in court or at a hearing. The simple answer is that there is a spousal immunity privilege for partners who are legally married in Georgia, but this privilege does not apply in all cases. In other words, you have the legal right not to testify for or against your spouse in a Georgia criminal proceeding, unless an exception applies.

exceptions to the rule

There are several important exceptions to the spousal immunity privilege in Georgia. These can be found in Section 25-5-503 of the Georgia Code. You may be asked to testify in the following cases: First, when a spouse is accused of committing a crime against a child under the age of 18. However, you can only be asked to do the specific acts for which your partner is accused. Second, where you were the victim of the crime, either while you were married or before you got married. Finally, when the accused spouse is accused of damaging either the joint marital property or your property.

Another informal exception to the rule applies to any communication you and your spouse have had outside of the courtroom. For example, there is no privilege against the state from using text messages, emails, letters, videos, or any other extrajudicial communication between you and your spouse to pursue the case.

Important points to consider

• Spousal privilege can only be invoked by the husband or wife who is not charged with committing the offence. The accused cannot assert the privilege himself. This means that a defendant’s spouse could testify against them even if they didn’t want to.
• The privilege expires upon divorce or the death of a spouse.
• The privilege can be invoked even if the spouse is not accused but if testimony in another proceeding could incriminate that spouse.
• Marrying another party solely for the purpose of not having to testify against them does not invalidate or waive the privilege

The most important thing to remember is to consult an attorney before testifying against your spouse. Both the court and the public prosecutor are obliged to inform you of your right to remain silent. And sometimes it is the testimony of an individual that can make or break a case.