In criminal cases, the state may try and speak with the defendant’s spouse to obtain critical evidence against the defendant. However, in Florida there is a spousal privilege which limits the state’s ability to obtain testimony from one spouse against another spouse who is charged with a crime. However, this spousal privilege has limitations. There are instances where a spouse can testify against his/her spouse in a criminal case.
What is protected are confidential communications between the spouses. Even if the spouse/witness wants to testify to what the defendant/spouse told him/her, the defendant can prevent the spouse from testifying to any confidential discussions and communications between the two. For instance, if a defendant is charged with robbery and before the alleged incident, the defendant tells his wife in the privacy of their home that he really needs money and he’s going to go out and get some, that would be a confidential communication that the state could not use against the defendant.
The spousal privilege is a well-recognized privilege in Florida, but it is not absolute. The communication must be confidential for it to be protected. If a spouse admits to incriminating information to his wife but also in front of a third party, the statement is not confidential and it is not privileged. If the defendant makes an incriminating statement to his wife and tells her she can share it with another person, or the defendant shares it with another person, the statement is no longer confidential and is unprotected.
In any criminal case where the state intends to question the defendant’s spouse, it is important for the criminal defense lawyer to determine the scope of this questioning and make sure any confidential communications between the spouses are not disclosed and are kept out of court.