Understanding Spousal Immunity in Criminal Cases

Understanding Indiana’s Law on Spousal Immunity

In every marriage, on a daily basis, spouses share information with one another they would never dare share with anyone else. In fact, many times, secrets that are shared between spouses are often incredibly personal, with a deep understanding that what is said between the two of you stays just that — just between the two of you.
Much like the confidentiality you rely on with your doctor, your lawyer, and your pastor, private communications with your spouse are often much more intimate and much more relied upon to be kept clandestine — after all, you should trust your spouse more than anyone else, right? (Obviously, there are exceptions!) It’s during those discussions that couples develop trust and rely on that trust to open up — about things both good….and questionable!
In this blog the Indianapolis Criminal Defense Attorneys at Banks & Brower will focus on what happens if those communications involve talk about criminal acts committed by a spouse, and what rights both parties have if what was shared might have legal ramifications if released. Is there a duty to keep it secret? Can you be required to disclose it through testimony at trial? Even against your will? What if you want to share it? Can you get in trouble?
Obviously, this only becomes an issue if a criminal case is actually brought against a spouse and the remaining partner has information relevant to the alleged crime and that person has been subpoenaed by the state to testify under oath. If they do, the paramount questions then become: (1) How confidential were those communications between you and your significant other? (2) Will you have to testify against your spouse? And/or, (3) Can you deny your spouse the ability to testify against you at trial if they are willing to do so? You might be surprised by the answers.
Indiana has codified “Spousal Immunity” in I.C. 34-46-3-1. It reads as follows:
IC 34-46-3-1, Persons not required to testify
 Sec. 1. Except as otherwise provided by statute, the following persons shall not be required to testify regarding the following communications:
(1) Attorneys, as to confidential communications made to them in the course of their professional business, and as to advice given in such cases.
(2) Physicians, as to matters communicated to them by patients, in the course of their professional business, or advice given in such cases.
(3) Clergymen, as to the following confessions, admissions, or confidential communications:
(A) Confessions or admissions made to a clergyman in the course of discipline enjoined by the clergyman’s church.
(B) A confidential communication made to a clergyman in the clergyman’s professional character as a spiritual adviser or counselor.
(4) Husband and wife, as to communications made to each other.
By reading (4) above, you’d think that ANY communication made to your spouse is protected. You may even think that all acts committed against your spouse are also privileged. However, the courts have construed this immunity much more narrowly than that. In fact, many have claimed spousal immunity has been carved away at to such a narrow scope, that it almost doesn’t exist at all anymore.
According to Rubalcada v. State, 731 N.E 2d 101, only those communications passing from one marriage partner to the other because of confidence resulting from the intimate marriage relationship should receive protection. Meaning, in layman’s terms, the confidential nature of the communication in question is the deciding factor of whether or not it should be protected by the courts and if spousal immunity applies. In its simplest form, a court will ask itself, can the conversation be construed has having been meant to be private between a husband and wife because of their relationship as a married couple? If so, then it MIGHT be protected, unless an exception below applies.

  1. General Conversation: normal, everyday conversations between spouses are not privileged. In fact, the courts have held that both parties have to anticipate that the conversation was meant to be private, and your relationship as husband and wife make it so;
  2. Waiver of Immunity: if one spouse is willing to testify against another spouse, there is no way to prevent it — the court will allow it. Voluntary testimony by one spouse against the other always trumps, no matter how badly a spouse wishes to suppress it.  Under common law, testimonial privilege, where one spouse can deny the other spouse from testifying in court, is recognized in some states, BUT NOT INDIANA;
  3. Spousal Assistance Through Coercion: A spouse’s testimony concerning disclosures by the other spouse not made in reliance upon the marital relationship but because the disclosing spouse was in need of his spouse’s assistance and attempted to coerce action by their spouse by force or fear, is not privileged;
  4. Third Party Exception: Where the communication was intended to be transmitted to a third person and/or in the presence of a third party;
  5. Threats Disclosed: Where one spouse discloses a threat made by the other spouse.
  6. Battery/Crime Committed Against a Spouse: Where one spouse was battered/threatened by the other spouse – the act of battery and threats are not considered ” privileged communications”;
  7. Boyfriend/Girlfriend/Co-habitation without Marriage: The courts have also held that a boyfriend/girlfriend is not good enough to invoke the privilege, but rather a valid, formal, and legal marriage is required. Nevertheless, the privilege does still apply post-divorce to conversations that took place in confidence during the marriage!

As you can see, the spousal immunity privilege is one that sounds all encompassing, but when you truly get down to evaluating how the courts have interpreted it, it’s very narrow in scope. Yet, if you or a loved one is facing a criminal matter, and you feel as if a communication was shared that you think might be at the center of that case, it is imperative you speak to a lawyer about the ramifications of discussing it. Depending on the decision you make, your spouse’s freedom might be at stake. Give the Indianapolis Criminal Defense Attorneys at Banks & Brower a call today, and our experienced litigators will set up a free consultation to discuss it. Call us at 317.870.0019 or email us at info@banksbrower.com