COVID-19 Update: How We Are Serving and Protecting Our Clients

Marital Privilege / Spousal Privilege

Marital discord can often result in one party spouse calling the police on the other and communicating an allegation of domestic assault and battery or threats of bodily harm to authorities. When the police have arrived and arrest one party this can have drastic consequences on the marriage and family. After the parties have cooled down and decided to reconcile, a criminal case may still be ongoing and the aggrieved spouse may not want to move forward with a criminal prosecution. The criminal justice system does not always listen to the decision of a spouse who has changed his or her mind about a prosecution. Under Massachusetts law, a spouse has the right to exercise a marital privilege not to testify against their marital partner even if a prosecutor would like to see a different outcome. An experienced criminal lawyer can make the all the difference in successfully asserting that privilege in a court of law which often results in criminal charges being dropped. Professional guidance both in and out of court are necessary to successfully assert marital/spousal privilege in Massachusetts.

Except for civil proceedings, any prosecution for nonsupport, desertion, neglect of parental duty, or child abuse including incest, only a witness-spouse may claim spousal privilege under G.L. c. 233 Section 20. This means that a spouse cannot be made to testify in any action brought against another spouse, and a spouse also cannot prevent their spouse from testifying in a criminal case. If you find yourself in a situation where you want to invoke spousal privilege, it is vital that you consult an experienced Massachusetts criminal defense attorney to handle your case. Based in Boston, the Law Office of Patrick J. Murphy has the expertise you will need to guide you through this process. Overly aggressive prosecutors and well-intentioned victim witness advocates often apply verbal pressure on a spouse to testify against the other spouse in domestic assault and battery cases, especially where injury is involved. You need a qualified lawyer who knows the marital/spousal privilege law to assert your position in court to ensure that your needs and desires are heard and respected.

In most cases, under the marital privilege doctrine, a spouse can elect not to testify against their spouse in court. However, there are some other situations where spousal privilege does not stand. One exception is if the district attorney calls a spouse who has been accused and make them testify at a trial if that testimony is before a grand jury. If this case does not get indicted, then the spouse who is testifying is able use their spousal privilege.

As mentioned earlier, a case that involves child abuse such as incest or inappropriate sexual misconduct toward a child is not protected by spousal privilege. Thus, a prosecutor in a case with any of these criminal charges will be able to force a person to testify.

Along with situations where you will not be able to invoke spousal privilege, there are also situations where you will be able to waive spousal privilege, as demonstrated in Commonwealth v. Garcia, 73 N.E. 3d 296 (Mass. 2017). The defendant in this case was convicted for raping his step-daughter and then the conviction was reversed because the trial court inappropriately allowed the victim’s mother and defendant’s wife to testify. There were conflicting accounts of the nights events, and due to this, the court made the decision that under spousal privilege laws, a spouse is not obligated to testify, and additionally, it was not made voluntary to waive marital privilege.

When asserting spousal privilege not to testify, this applies whether or not the testimony would be helpful to the other spouse, and this is demonstrated in Commonwealth v. Maillet, 400 Mass, 572 (Mass. 1987). The defendant, who was convicted of second degree murder, appealed and argued that because the trial court allowed his wife to refuse to testify on his behalf, the court erroneously allowed her claim of spousal privilege. The defendant argued that a witness-spouse was allowed to invoke the privilege only in instances when called to be a witness against the other spouse. The court held that this was incorrect and stated that that the legislature intended the words “against the other” to refer not to the nature of the proceeding where a spouse could choose not to testify, but to the content of the spousal testimony. The court then affirmed the conviction.

Considering that the application of spousal privilege in Massachusetts can be a difficult, hard to interpret and process, you will need an experienced Massachusetts criminal defense attorney to guide you and to successfully advance the privilege in court and to deal with the prosecutor and victim witness advocate. When you want to invoke spousal privilege, rely on the Law Office of Patrick J. Murphy to steer you through the intricate and complicated criminal justice system. Patrick J. Murphy, Esq. is a successful criminal defense attorney with years of experience in the Boston area and Massachusetts. For a free and confidential legal assessment of your case or for further information, please call our office at (617) 367-0450 or complete the contact form on our website.

Client Reviews
★★★★★
"Highly Recommended. Attorney Patrick J. Murphy absolutely helped me out in my time of need. When I met him in his Boston office he put me right at ease and explained the criminal process to me in a way I could easily understand and in a manner that gave me complete confidence. I was facing a criminal wanton destruction of property charge in Barnstable District Court. On the day of the case, he was at the courthouse waiting for me and my wife. Mr. Murphy handled the hearing in a very thorough and professional manner putting us through our testimony and making a powerful argument to the decision maker. My case was thrown out and I could not be happier with the service from Attorney Murphy. I highly recommend him to you as a skilled legal advocate!" Rob, Avvo User
★★★★★
"Excellent Criminal Defense Lawyer. From the first consultation I knew Patrick Murphy was the right choice for my criminal defense. He was knowledgeable of the laws and knew how to build up a strong defense for my case. Every phone call and email I made was promptly answered. When it came time for my hearing, Patrick was prepared and able to get the criminal complaint against me dropped without ever becoming charge! Would highly recommend this attorney to anyone seeking a top quality defense attorney to handle their case!" John, Avvo User
★★★★★
"OUI Not Guilty Verdict. Patrick Murphy provided excellent service as council on my case. He worked diligently over a long legal process that spanned over 3 years. He was able to take my case to a Jury Trial and get me a Not Guilty verdict through he expert knowledge of the law and expertise in cross examination of the prosecutions witnesses. He was very professional and available at anytime night or day to answer questions." Chris, Avvo User
★★★★★
"Highly Skilled and Professional Lawyer. Attorney Pat Murphy did a great job guiding me through an A&B charge, and most importantly getting the case dismissed in a very timely manner. He is very professional, returns call promptly, and did a great explaining his strategy and the legal process to me. I was confident throughout the whole process that I was in good hands and would receive the best possible outcome in my case. Would highly recommended Attorney Murphy." Avvo User
★★★★★
"I Felt That I was in Good Hands... and I Was! Mr. Patrick J. Murphy was very quick to respond to my needs. He was always there to answer any questions I had in a timely fashion, and he made me feel very comfortable in an extremely uncomfortable situation. Having Mr. Murphy by my side in the courtroom felt like I was at an advantage. He speaks with confidence. He doesn't stutter or pause while put on the spot. He treated me with respect. He listens. He always greeted me with a warm welcome and never wasted any time." Avvo User