Does a spouse always have the right to invoke the spousal privilege, which in essence grants a spouse the right to refuse to testify against his or her spouse? Under Pennsylvania law a spouse has the right to invoke this privilege and refuse to testify against his/her spouse. However, there are exceptions in which the spouse can still be forced to testify. For instance, if the defendant spouse is charged with committing a criminal act of bodily injury or attempted violence or threatening violence against the other spouse or against the minor children of the husband or wife, or the minor children of either, or any minor child in their custody or care, then the spouse may be forced to testify against the other. An example of an occasion in which this might occur would be if the said spouse has committed a criminal act or is threatening to kill or harm the other spouse and is consequently charged with these offenses, the spouse being threatened or harmed may be forced to testify against the defendant spouse.
The exception pertaining to violence against the testifying spouse only applies if the violence was directed against the testifying spouse. If a defendant spouse has been charged with bodily injury against another person or persons and a spouse was witness to this act, perhaps even been in danger too, if it is determined that the defendant spouse did not intend to threaten or harm the spouse, then the spouse may invoke his/her right not to testify.
Although many of the cases involving a witness invoking the spousal privilege are in criminal proceedings, a recent ruling in a Pennsylvania civil case has led a federal judge to rule that this privilege does not apply to civil cases. In this most recent case the spouse of one of the parties involved in a contentious litigation asserted the spousal privilege in her deposition, but the Court ruled that the spousal privilege does not apply in civil cases and that the wife could not invoke this privilege in any deposition. However a different privilege, known as the marital communications privilege, does still apply in civil cases. The marital communications privilege prevents a spouse from testifying to what his or her spouse said, not what may have been observed.
Finally, in another recent Pennsylvania case the Pennsylvania Supreme Court upheld the right to immediate appeals of claims of spousal privilege. The impact of this is that trial court orders overruling claims of privilege and requiring disclosure of privileged and confidential materials are immediately appealable – allowing the proponent protection before the cat is out of the bag.