Colorado Criminal Law – Understanding the Marital Privilege – When A Wife Is Prevented From Testifying Against Her Husband And The Reverse

Colorado Criminal Law – Understanding the Marital Privilege – When A Wife Is Prevented From Testifying Against Her Husband And The Reverse

In the Context of Colorado Domestic Violence Cases – reference to the question – can I be prevented from testifying from my spouse or can I decide not to testify – is a frequent question. Here are the answers.

The Colorado Spousal Privilege C.R.S. ยง 13-90- 107(1)(a).

Prevents a husband or wife from:

(1) Being examined for or against his or her spouse without consent;

(2) Being examined without consent during the marriage or afterwards regarding any communications made by one or the other during the marriage;

Common-law marriage also qualifies for spousal privilege.

But, the spouse asserting the claim of privilege has the burden of proving the existence of the marriage.

There is no privilege for statements made by an intended spouse before the marriage nor for statements made by a former spouse after dissolution of marriage.

By statute, the privilege does not apply to:

A civil action or proceeding by one against the other;

A criminal action or proceeding for a crime committed by one against the other;

A criminal action or proceeding against one or both spouses when the alleged offense occurred prior to the date of the parties’ marriages; and

The exception does not attach if otherwise privileged information is communicated after the marriage.

The Spousal privilege does not apply to class 1, 2, or 3 felonies.

In this situation, during the marriage or afterward, neither husband nor wife shall be examined as to any communications to the other intended to be made in confidence with consent.

Spousal privilege does not apply where communications are made for the purpose of aiding the commission of a future crime or of a present continuing crime.

Notice of assertion of spousal privilege must be given at least 10 days prior to any hearing.

Spousal privilege may not be invoked to exclude a spouse’s testimony in child abuse charges.

Here is the excerpt on Colorado Spousal Privilege in Colorado

C.R.S. 13-90-107. Who may not testify without consent.

(1) There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person shall not be examined as a witness in the following cases:

(a) (I) Except as otherwise provided in section 14-13-310 (4), C.R.S., a husband shall not be examined for or against his wife without her consent nor a wife for or against her husband without his consent; nor during the marriage or afterward shall either be examined without the consent of the other as to any communications made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, a criminal action or proceeding for a crime committed by one against the other, or a criminal action or proceeding against one or both spouses when the alleged offense occurred prior to the date of the parties’ marriage. However, this exception shall not attach if the otherwise privileged information is communicated after the marriage.

(II) The privilege described in this paragraph (a) does not apply to class 1, 2, or 3 felonies as described in section 18-1.3-401 (1) (a) (IV) and (1) (a) (V), C.R.S. In this instance, during the marriage or afterward, a husband shall not be examined for or against his wife as to any communications intended to be made in confidence and made by one to the other during the marriage without his consent, and a wife shall not be examined for or against her husband as to any communications intended to be made in confidence and made by one to the other without her consent.

(III) Communications between a husband and wife are not privileged pursuant to this paragraph (a) if such communications are made for the purpose of aiding the commission of a future crime or of a present continuing crime.

(IV) The burden of proving the existence of a marriage for the purposes of this paragraph (a) shall be on the party asserting the claim.

(V) Notice of the assertion of the marital privilege shall be given as soon as practicable but not less than ten days prior to assertion at any hearing.

Colorado Domestic Violence Lawyer