May My Spouse Testify Against Me In A Criminal Case In Virginia?

by J.D. Garrett on April 20, 2013

Spousal PrivilegeIn Virginia Criminal Procedure Law, the interests of married individuals to enjoy a private relationship with their spouse, and to maintain harmony in the marital relationship, have some level of precedence over the interest of the Commonwealth to prosecute an alleged criminal act. In most cases a person may may elect not to have their spouse testify against them in court. This is referred to a spousal privilege.

What cases does spousal privilege not cover:

In all other criminal cases, each spouse is granted certain privileges in regards to testimony against the other. It is important for both spouses to know when these privileges may be asserted, and more importantly, who may raise them.

A spouse has the right to not offer any testimony against their defendant-spouse. The spouse may not be compelled to testify, may not be held in contempt for opting not to testify, and furthermore, the mention of asserting this privilege by the spouse may not be commented upon by the prosecutor before the jury. The spouse may, however, at their sole discretion testify against their spouse regarding what they might have witnessed regarding a criminal charge.

A defendant may, at their sole discretion, prevent their spouse from disclosing any communications between the couple, provided the two were married at the time of the communication. This privilege may be asserted even if the couple is no longer married at the time of the trial.

Confusing? Let’s use some examples:

  • A spouse is charged with murder (not of a minor child of either spouse). Their spouse did not witness the murder, but the defendant-spouse told them about the plan to commit the murder beforehand, as well as they confessed of committing the murder to the spouse. In this case, the defendant may prevent their spouse from testifying against them regarding any of these statements. Even if this confession led to the spouse filing for and being granted a divorce from the defendant, they may still be prevented from giving testimony against their now ex-spouse.
  • A spouse is charged with murder  (not of a minor child of either spouse). Their spouse witnessed the killing, and the defendant-spouse had told them about the plan to commit the murder beforehand. Here, the spouse may or may not, at their discretion, testify about witnessing the killing; however, they may be prevented by the defendant, at the defendant’s sole discretion, from testifying regarding the conversation of  the planning of the killing.

If you have been charged with a criminal offense in Virginia Beach, our criminal defense attorneys are here to help. Contact our office today. (757) 422-4646. You may speak with one of our defense attorneys 24/7/365.


J.D. Garrett is a criminal law attorney in the Virginia Beach office of Garrett Law Group, PLC. He has years of experience representing clients in the courts of Virginia Beach, Norfolk and surrounding areas.

Previous post:

Next post: