By Bill Edie, Attorney at Law, Gasper Law Group
Question: “My wife is going to get called as a prosecution witness in my criminal case. What do I do?”
Answer : “Stay happily married.”
Well, sometimes. Colorado, like many states, has enacted a statute, referred to as the “marital privilege,” which can prevent spouses from testifying against one another, even if they might otherwise be ready, willing, and able (and regardless of how critical they might be to the prosecution’s case). This privilege is purely a creature of state statute, not a constitutional right, and thus can be changed by the legislature at any time. Also bear in mind that every state is different in its details and applications, as is the federal system. Our discussion here is limited to Colorado.
Here’s generally how it works: If you are charged with a class 4 felony or below (details of classification of offenses in the State of Colorado can be found at the gasperlaw.com website), the state cannot call your spouse to testify against you about events she may have witnessed, (seeing you break into a car and stealing the stereo, for example) even if she is willing to do so. To invoke this privilege, you must be married at the time of the trial or hearing in question. If a pending divorce becomes final prior to your trial, her testimony is fair game, even if she does not want to testify against you.
There’s another component to class 4 felonies and below. As a general rule, confessions to crimes are admissible against the person making them. It does not have to be a police officer receiving that confession to have it come in against you. It could be your boss, your bartender, your cell mate in jail, or your best friend. Again, Colorado’s marital privilege comes to the rescue. If you later confess privately to your wife to committing that car break-in, you can prevent her from testifying to the confession, regardless of her wishes. In this case, what is critical is your marital status at the time of the confession, not your status on the day of trial. So, as long as you’re married when you confess, she can’t nail you at trial even if the divorce has since become final, and even if she wants you to suffer. But never, ever, confess to your ex-wife, even if you’re still close. All bets are off.
Don’t get cocky just yet. If you break into someone’s house and steal their stereo, things just got more complicated. This is a class 3 felony, and the rules change for any offenses which are class 3 felonies and above, i.e., the more serious cases such as murder, sale of controlled substances, and the like. Forget preventing her from testifying like you could in the car break-in example. This time the privilege is strictly limited to private communications (i.e. private confessions made after the event in question, but while you are still married), and this time, she gets to decide whether to testify against you or not. So, you’d better be really nice to her, since she’s now holding all the cards. This, even if you are still officially, happily married when your trial comes up.
Critical exceptions exist to each of the above, not the least of which is that neither of you can invoke these privileges in cases of domestic violence, nor for restraining orders against one another. There are other exceptions, as well as procedural rules for invoking the privilege properly. Little good it will do you, for example, if the DA has six other witnesses to the same event all lined up. You can’t be married to all of ‘em. Make sure you have an experienced practitioner to properly advise you and assert your rights in a timely and effective manner. And while you’re at it, go order some flowers.