Spousal Immunity vs. Marital Privilege

SPOUSAL IMMUNITY The rule forbidding one spouse to testify for or against the other is based on principles which are deem...

The rule forbidding one spouse to testify for or against the other is based on principles which are deemed important to preserve the marriage relation as one of full confidence and affection, and this is regarded as more important to the public welfare than that the exigencies of the lawsuits should authorize domestic peace to be disregarded for the sake of ferreting out facts within the knowledge of strangers. 

Requisites in order for the spousal immunity to apply
  1. That the spouse for or against whom the testimony is offered is a party to the case;
  2. That the spouses are validly married; 
  3. The testimony is one that is offered during the existence of the marriage (Riano, Evidence: A Restatement for the Bar, p. 266, 2009 ed.); and 
  4. The case is not one of the exceptions provided in the rule. (Herrera, Vol. V, p. 302, 1999 ed.) 
Kind of testimony is covered by the prohibition
The prohibition extends not only to testimony adverse to the spouse but also to a testimony in favor of the spouse. (Sec. 22, Rule 130; Riano, Evidence: A Restatement for the Bar, p. 265, 2009 ed.) 

It does not apply in the case of estranged spouses, where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed (Alvarez vs Ramirez, October 14, 2005) 

Exceptions to the spousal immunity
  1. In a civil case by one against the other; or 
  2. In a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants (Sec. 22), or 
  3. Where the testimony was made outside the marriage. 
This can be waived just like any other objection to the competency of other witnesses. It can be waived through failure to interpose timely objection by calling the other spouse as a witness. 

If an accused marries the prosecution witness for the sole purpose of sealing the lips of the witness, the prohibition may apply as long as a valid marriage exists at the time of the trial, the witness-spouse cannot be compelled to testify even where the crime charged is against the witness’ person, and even though the marriage was entered into for the express purpose of suppressing the testimony. 

The marital privilege is a right that only legally married persons have in court. Also called the husband-wife privilege, it protects the privacy of communications between spouses. The privilege allows them to refuse to testify about communications they have privately exchanged as marital partners. 

Requisites for the application of this privilege
  1. There was a valid marriage;
  2. The privilege is invoked with respect to a confidential communication between the spouses during the said marriage; and
  3. The spouse against whom such evidence is being offered has not given his consent to such testimony. (Sec. 24, Rule 130)
The privilege is inapplicable
  1. In a civil case by one against the other; or 
  2. In a criminal case for a crime committed by one against the other or the latter’s direct ascendants or descendants.
Third persons who, without the knowledge of the spouses, overhear the communication are not disqualified to testify. Except when there is collusion and voluntary disclosure to a third party, that third party becomes an agent and cannot testify.

In United States v. Concepcion, 31 Phil. 182 (1915) the basis of the rule is said to be the "considerations of public policy growing out of the marital relation." Said the Court: "To allow one to testify for or against the other would be to subject him or her to great temptation to commit perjury and to endanger the harmony and confidence of the marital relation." On the other hand, in People v. Francisco, 78 Phil. 694 (1947), the Court gave as reasons for the privilege the following: "First, identity of interests; second, the consequent danger of perjury; third, the policy of the law which deems it necessary to guard the security and confidences of private life even at the risk of an occasional failure of justice, and which rejects such evidence because its admission would lead to domestic disunion and unhappiness; and fourth, because, where a want of domestic tranquility exists, there is danger of punishing one spouse through the hostile testimony of the other."

To finally differentiate: 

  • Spousal immunity can be invoked only if one of the spouses is a party to the action. While marital privilege can be claimed whether or not the other spouse is a party to the action.
  • Spousal immunity applies only if the marriage is existing at the time the testimony is offered. While marital privilege can be claimed even after the marriage is dissolved.
  • Spousal immunity constitutes an absolute prohibition for or against the spouse of the witness. While marital privilege applies only to confidential communications between the spouses.
  • In spousal immunity, the married witness would not be allowed to take the stand at all because of the disqualification. Even if the testimony is, for or against the objecting spouse. While in marital privilege, the married person is on the stand but the objection of privilege is raised when confidential marital communication is inquired into
The author takes no responsibility for the validity, correctness and result of this work. The information provided is not a legal advice and it should not be used  as a substitute for a competent legal advice from a licensed lawyer. See the disclaimer

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