What Is Spousal Immunity?

When Irving Blau was ordered to appear before a Colorado federal grand jury in 1948 to answer questions about his wife’s associations with communism, he refused to comply. And when he was asked about her whereabouts so that she could be served a summons directly, he refused to provide that information.

Some things, Blau argued, are private in a marriage. The courts agreed with him.

Many people know that Americans cannot be forced to testify against themselves, a protection from self-incrimination enshrined in the Fifth Amendment. 

But “spousal immunity” also exists, extending that right of declining to testify to the spouses of Americans facing trials.

While spouses have the right not to testify against their husbands or wives, cases emerge when husbands or wives are intent on testifying against their spouses on trial—and the spousal defendants do not want that testimony allowed.

The case of drug dealer Otis Trammel illustrates how this type of situation unfolded after he was busted along with his wife, Elizabeth Ann Trammel, while smuggling heroin into California from the Philippines in 1975. 

Elizabeth Ann agreed to testify against Otis in exchange for a lesser charge. Otis tried to block his wife’s testimony, with his lawyers arguing that their communication was privileged by marriage. 

The U.S. Supreme Court unanimously ruled against Otis and that decision gave spouses who are witnesses to crimes the power to decide whether or not they want to testify against their accused spouses in federal cases.

At the state court level, there are a few states that still allow accused spouses to block witness spouses from testimony–but always with exceptions. In Washington State, for example, accused spouses cannot block their spouses from testifying in trials where the witness spouses or their children were victimized.

Spousal immunity can only be invoked if the married couple were the only two people involved in the conversation in which a spousal defendant is incriminated. 

In a noteworthy terrorism case from 2016, New Jersey resident Tairod Pugh was denied spousal privilege involving a letter he wrote to his wife in which he shared his interest in joining ISIS. 

The judge ruled that this privilege was denied, in part, because Pugh never sent the letter, according to The Wall Street Journal. But even if Pugh had sent the letter, he and his wife did not speak the same language, and so he would have had to get the letter translated from English to Arabic. Because the letter needed a third-party translator, the spousal privilege would have been lost, the judge said.

Nearly all U.S. states have some version of spousal immunity, and in 2014, federal protection for spousal immunity was extended to same-sex marriages.

But in 2019, New Mexico became an outlier when its state supreme court abolished spousal communications privilege, with the chief justice writing that it had “outlived its useful life.”