💑 Spousal Privilege: When Can a Spouse Refuse to Testify in Massachusetts?

In Massachusetts, one spouse cannot be forced to testify against another in criminal proceedings.

According to M.G.L. c. 233, § 20,

except in any proceeding relating to child abuse, including incest, neither husband nor wife shall be compelled to testify in the trial of an indictment, complaint or other criminal proceeding against the other

Additionally, a spouse may use the privilege even if he or she is the alleged victim.  See Commonwealth v. Foley, 445 Mass. 1001 (2005).

The privilege does not apply, however, in (1) grand jury proceedings, (2) prosecution for desertion or failure to provide support, and (3) criminal proceedings involving nonmarried couples who live together as though they were married.

To assert the privilege, the defendant-spouse should file a motion asking the judge to speak with the witness/victim spouse on the record.

After speaking with the spouse who wishes to assert the privilege, the judge will determine whether the privilege applies and whether its being “freely and voluntarily” asserted.

If the spouse asserting the privilege is also the alleged victim, assertion of the privilege often results in a dismissal of the case.

A certified copy of the couple’s marriage certificate should also be presented to the judge when the couple goes before the court.