Is There a Spousal Privilege in SC?

by | Sep 12, 2019 | Criminal Defense, Evidence Rules |

Is there a spousal privilege in SC? 

There is, although it is not always helpful. Spousal privilege in SC used to be a common-law rule that prohibited calling a person as a witness against their husband or wife. Now, spousal privilege in SC is statutory – the statute allows a spouse to testify but prohibits requiring them to disclose communications made by their spouse. 

The statute lists specific exceptions to spousal privilege in SC, and SC case law illustrates how spousal communications can be used by law enforcement even when they are not admissible in court…

What is Spousal Privilege in SC?

Although spousal privilege in SC once was a common-law rule that prohibited testimony by a person’s spouse, the SC legislature replaced the common-law rule with a statutory spousal privilege that permits questioning under some circumstances.

Spousal Privilege in SC is Statutory

SC Code Section 19-11-30 implies that a husband or wife is competent as a witness (there is no longer a blanket prohibition on their testimony), but spousal privilege still applies:

SECTION 19-11-30. Competency of husband or wife of party as witness.

In any trial or inquiry in any suit, action, or proceeding in any court or before any person having, by law or consent of the parties, authority to examine witnesses or hear evidence, no husband or wife may be required to disclose any confidential or, in a criminal proceeding, any communication made by one to the other during their marriage.

The statute makes a distinction between the spousal privilege in a civil case, where a spouse cannot be compelled to disclose a confidential communication, and a criminal case, where a spouse cannot be compelled to disclose any communication. 

Spouses are Competent to Testify

Although there is a spousal privilege in SC, husbands and wives are still competent to testify. The SC Supreme Court says in State v. Motes:

This statute makes the husband or wife of any party “competent and compellable to give evidence the same as any other witness,” except that “no husband or wife shall be required to disclose any confidential communication or, in a criminal proceeding, any communication made by one to the other during their marriage.” 

The effect of the quoted statute was to remove the absolute common law disqualification of a husband or wife to testify against the other, and to define the limits of the remaining privilege against being compelled to so testify. 

For example, in a civil case, a spouse can be forced to testify about communications that are not confidential. In a criminal case, a spouse can still be forced to testify, but they cannot testify about any communications they have had with their husband or wife. 

Consider a prosecutor questioning a murder defendant’s wife at trial:

Q:    Did your husband tell you that he shot Bob?

A:    I refuse to answer on grounds of spousal privilege.

Q:    Okay, but when your husband returned home, was there blood on his shirt?

…does your husband own a .38 caliber handgun?

…did he appear upset or agitated when he returned home with blood on his shirt?

…did you see him burning the bloody shirt in the backyard fire pit?

…does your husband drive a black 2009 Ford Explorer?

Exceptions to the Spousal Privilege in SC

When the privilege does apply, there are still exceptions when a spouse can be forced to testify. SC Code Section 19-11-30 also says:

Notwithstanding the above provisions, a husband or wife is required to disclose any communication, confidential or otherwise, made by one to the other during their marriage where the suit, action, or proceeding concerns or is based on child abuse or neglect, the death of a child, or criminal sexual conduct involving a minor.

Spousal privilege in SC does not apply in any case, civil or criminal, where the court proceedings are based on:

  • Child abuse or neglect;
  • A child’s death; or
  • Criminal sexual conduct involving a child. 

Who Holds Spousal Privilege in SC – the Defendant or the Witness?

Who can assert spousal privilege? The defendant? The witness? Or both? 

In cases involving attorney-client privilege, for example, the client holds the privilege. If the client chooses to waive attorney-client privilege, the attorney cannot then refuse to testify. 

In SC, the witness is the only one who can assert spousal privilege. The defendant cannot say, “I assert spousal privilege, therefore, my spouse cannot testify.” The spouse/witness, however, could refuse to testify against the defendant as to privileged communications. 

The SC Supreme Court held in State v. Motes that a defendant could not assert spousal privilege when his wife voluntarily testified:

Under our construction of the statute, the inquiry as to whether it was error to permit the wife to testify need proceed no further than a determination of who may exercise the privilege against disclosure, that is, whether the privilege is that of the witness spouse or whether the privilege is that of either spouse who chooses to claim it. The fact that the wife voluntarily testified is not questioned in this case. The privilege was sought to be exercised by the defendant husband…

the statute makes the exemption against disclosure a privilege of the particular witness, unaffected by any objection of the other spouse.

The witness “holds the privilege” and is the only person who can assert spousal privilege in SC. 

Can Police Use My Spouse’s Statements Against Me?

Spousal privilege is a rule that only applies in the courtroom – it does not prevent police from questioning your spouse or using that conversation against you later. 

For example, in State v. Copeland, the defendant (Wife) was arrested and questioned as a result of information that police obtained from her husband. The conversation that police had with the husband included information that would be covered by spousal privilege (in court), and yet the police were able to obtain the information and use it to continue their investigation. 

The SC Supreme Court confirmed that the witness, the husband in this case, could not be compelled to testify about communications from his wife, the defendant:

The spousal privilege provides that in criminal cases married persons cannot be compelled to testify against their spouses concerning any communication made between them during their marriage. S.C. Code Ann. § 19-11-30 (Supp. 1995). We have held that the right to exercise the privilege against disclosing marital communications is solely that of the witness/spouse from whom the privileged information is being sought. State v. Motes, 264 S.C. 317, 215 S.E.2d 190 (1975).

The husband asserted spousal privilege and was not forced to testify. The statement that he made to the police was also not admissible because it was covered by spousal privilege:

At trial, Copeland’s husband elected not to testify against his wife by asserting his spousal privilege. He was not called as a witness, and the trial court ruled that the content of Mr. Copeland’s statement to the police was inadmissible.

The police were, however, allowed to tell the jury that the husband’s statement led to the defendant’s arrest and they could tell the jury what they did based on the information that the husband had provided to them:

The testimony presented merely referred to the fact that conversations with Copeland’s husband led the police to the discovery of Copeland’s vehicle, thus providing them with sufficient probable cause to suspect her. The testimony did not reveal the actual content of Mr. Copeland’s statement to the police nor did it disclose marital communications. On these facts, Mr. Copeland’s assertion of the spousal privilege at trial did not preclude the police from stating what transpired after they talked with him. Accordingly, we find no error in admitting the police testimony regarding their investigation.

So, police can:

  • Question your spouse;
  • Use information, including spousal communications, to arrest you; and
  • Testify that the conversation happened and what police did in response to the conversation, if they do not reveal the content of the privileged communications in their testimony. 

Although it can be helpful in some circumstances, spousal privilege in SC is not a blanket prohibition on spousal testimony and its uses are limited. 

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