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Navigating Spousal Privilege In Boulder: ‘Til Court Do Us Part!

Happy Tuesday! Tuesday can be work-day of great accomplishment. We’re passed “adjust to the work week Monday,” and not at hump day yet. Today is a day for great accomplishments.

For a law-related, Law & Order related serious topic,  let’s chat about legal spousal privilege. Does a person have to testify against a spouse in a criminal case? This is IMPORTANT in many movies, and we all like to follow the legal aspects of movies, Law & Order, and the rest.

The common belief is that the spouse saying for example “she can’t testify against me because this is something that was talked about after we were married.” In fact it is the WIFE in this hypothetical who has the choice of whether or not to testify against her husband. The husband cannot prevent the wife from testifying. This is the opposite of what is generally thought. The topic is important although it is very rare for it to come up in court. It is important because it is featured as a plot-point in MANY movies.

How does it really work in Colorado? It DOES vary from state to state. So the next time you hear “a husband can’t testify against a wife” or vice versa, you’ll know who is really in control of this. The husband in this example cannot be forced to testify against the wife who is being charged. He can however choose to testify against the spouse and the spouse cannot prevent this. Here’s a summary of spousal privilege in Colorado. The statute which controls this is more complex, with special rules and exceptions for some situations. And if the communication occurred before the marriage or after a divorce, the privilege to refuse to testify does not apply. If the questions are about things which happened before the marriage, those communications also have no special protection and the spouse must answer the questions of the prosecutor, the Deputy District Attorney. Neither spouse can block such questions by asserting the spousal privilege.

Summary of Spousal Privilege in Colorado

In Colorado, spousal privilege serves as a legal safeguard in which one spouse can refuse to testify against the other in criminal proceedings. This privilege is meant to protect the sanctity of marriage by preventing one spouse from being forced to provide potentially damaging testimony against the other. It is often described as a shield, not a sword, emphasizing its role in protecting relationships rather than being used as a tactical advantage in legal battles.

The key aspect of spousal privilege is that it belongs to the witness spouse, not the defendant spouse. This means that the decision to invoke the privilege rests solely with the spouse who is called to testify. They have the right to choose whether or not to provide testimony. The defendant spouse cannot compel the witness spouse to invoke the privilege, nor can they prevent them from testifying if the witness spouse chooses to testify. The privilege belongs to the spouse being called upon to testify.

 

This privilege is limited to criminal cases and does not extend to civil cases or instances where one spouse is accused of committing a crime against the other. Additionally, it only applies to communications made during the marriage, preserving the confidentiality of private marital conversations. Understanding spousal privilege in Colorado highlights the balance between individual legal rights and the protection of marital bonds.

Lenny Lensworth Frieling

Shared Knowledge Is Power!

Leonard Frieling Pen Of Justice Legal Blogger
  • Senior Counsel Emeritus to the Boulder Law firm Dolan + Zimmerman LLP : (720)-610-0951
  • Former Judge
  • Photographer of the Year, AboutBoulder 2023
  • First Chair and Originator of the Colorado Bar Association’s Cannabis Law Committee, a National first.
  • Previous Chair, Boulder Criminal Defense Bar (8 years)
  • Twice chair Executive Counsel, Colorado Bar Association Criminal Law Section
  • NORML Distinguished Counsel Circle
  • Life Member, NORML Legal Committee
  • Life Member, Colorado Criminal Defense Bar
  • Board Member Emeritus, Colorado NORML
  • Chair, Colorado NORML, 7 years including during the successful effort to legalize recreational pot in Colorado
  • Media work, including episodes of Fox’s Power of Attorney, well in excess of many hundreds media interviews, appearances, articles, and podcasts, including co-hosting Time For Hemp for two years.
  • Board member, Author, and Editor for Criminal Law Articles for the Colorado Lawyer, primary publication of the Colorado Bar Assoc. 7 Years, in addition to having 2 Colorado Lawyer cover photos, and numerous articles for the Colorado Lawyer monthly publication.
  • LEAP Speaker, multi-published author, University lectures Univ. of Colorado, Boulder, Denver University Law School, Univ. of New Mexico, Las Vegas NM, and many other schools at all levels.
  • http://www.Lfrieling.com
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