What Does Spousal Privilege Mean in Colorado?

On May 25, 2020

Spousal Privilege Defined: Can What You Say to Your Spouse Come Back to Haunt You?

Trust: the foundation of a marriage, and in Colorado, spousal privilege means that spouses don’t have to breach that trust in court. Whether in a divorce, another type of civil case, or a criminal defense case, either spouse can prevent the other from testifying about things shared in confidence between them in most circumstances. But what happens after a marriage ends? Is it open season for every word a couple said to each other before they divorced?

What spousal privilege means in Colorado depends on many factors. The nature of the proceeding, the substance of the alleged statement, and who invokes the privilege all play a role in what a spouse can say in court regarding the other.

What Does Spousal Privilege Mean Generally

Spousal privilege is two distinct privileges, each with its own limitations and requirements: the “spousal testimonial privilege” and the “marital communications privilege.”

Spousal Testimonial Privilege

Under this privilege, a spouse can refuse to testify against their spouse in a criminal proceeding and some states the privilege also gives a criminal defendant the right to prevent their spouse from testifying against them.

In Colorado, the testimonial privilege only exists while the parties remain married. Once the marriage ends, neither party can assert the privilege to prevent testimony. The testimonial privilege covers more than just statements the parties made; when invoked, it covers any adverse testimony by one spouse against the other in a criminal case

Marital Communications Privilege

The marital communications privilege is a long-standing legal principle that exists because, as the U.S. Supreme Court once wrote, marital confidences are “so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails.”

This privilege applies to criminal and civil cases alike. But the marital communications privilege only covers statements made during the marriage. Unlike the spousal testimonial privilege, marital communications privilege does not end when the marriage does. Either spouse can assert the privilege long after a divorce and prevent the admission of testimony about confidential statements made while the parties were married.

Colorado Law Defining What Spousal Privilege Means

Colorado Revised Statutes Section 13-90-107 lays out spousal privileges for couples in the state. With specific exceptions, the law provides that Colorado Springs courts cannot force a spouse to testify for or against the other spouse without the consent of that spouse. Additionally, a court or attorney cannot examine either spouse as to any communications made between them during the marriage without the other’s consent.

However, the privilege does not apply, and a spouse may testify without the other’s consent in the following cases:

  • Civil action or proceeding by one spouse against the other
  • A criminal case for a crime one spouse commits against the other
  • Criminal proceeding against one or both spouses when the alleged offense occurred before the date of the parties’ marriage
  • One spouse communicates the otherwise privileged information after the marriage ends, or
  • Spouse makes the communications to aid the commission of a future crime or a present continuing crime

The Colorado spousal privilege also does not apply to class 1, 2, or 3 felonies or level 1 or 2 drug felonies. In such cases, either during the marriage or afterward, a Colorado Springs court cannot compel a spouse to testify about confidential communications made during the marriage. Note that in this circumstance, the privilege belongs to the testifying spouse, not the criminal defendant. As such, a spouse can testify against the other regardless of whether the other gives their consent.

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Once a married couple divorces, a former spouse can no longer invoke the privilege to avoid testifying in a Colorado Springs criminal case, and the other spouse cannot assert the privilege to prevent that testimony from being admitted into evidence based on the privilege.

A party can inadvertently waive the spousal privilege if they don’t invoke it in time or if the spouse also communicated the statements at issue to a third-party. In Colorado, a spouse intending to assert marital privilege must do so as soon as practicable, but not less than ten days before asserting it at any hearing.

Questions About What Spousal Privilege Means in Colorado? Speak With An Experienced Attorney Today.

If you have concerns about what spousal privilege means or whether you or your spouse can or must testify in court about confidential communications between the two of you, speak with an experienced Colorado Springs divorce and criminal defense attorney.

Time is of the essence in any court case, so call Perkins Law today for your free consultation.

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