Sunday, February 21, 2016

Can I be forced to testify against my husband or wife?

Bill Cosby's wife, Camille Cosby was been ordered to testify in her husband's defamation case on Monday, February 21, 2016.  The court order required Mrs. Cosby to be sworn in, and give some testimony.  The court order did acknowledge some privilege, but said that she couldn't decline to answer any questions with a blanket "privilege" argument. 

At the 11th hour, Cosby's attorneys got the court to delay the deposition and hold a hearing on the morning of the deposition. 

Married folks may be wondering, how?  "I thought that I couldn't be forced to testify against my spouse." or "I thought my spouse was not allowed to testify against me" 

First and foremost, privilege protects communication not visual observations.  Spousal Privilege is based in common law (the historical legal principals that are the foundation for our legal system).  Most states have codified the common law into a statute or written law.   So you can be compelled to talk about what you saw, or overheard, but not what you were specifically told in confidence. 

The second issue you have to legally be married.   This may seem very common sense, but you would be surprised.  Many people claim to be married because they have been together for so long,  or they are mistaken about common-law marriage.  In Florida, there is no automatic marriage.  Also, you cannot get married after the event and use your new marriage to keep spousal confidences.  

Finally, there are exceptions.  In Florida, the statute protects the privilege and provides three exceptions for when the privilege is waived:  (1) the spouses sue each other, (2) one spouse is a defendant in a criminal case where the other spouse is a victim, and (3) the defendant spouse waives the privilege and offers the testimony.  Most state law and Federal law are similar. 

So if you think you're off the hook to testify against your spouse,  think again.   And if you find yourself in this position, you should certainly consult your own attorney to make sure that you are not incriminating yourself, which is prevented under the 5th Amendment privilege. 

If you have any questions, or for more information, call 904-516-5560 or visit

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