The spousal privilege is a rule of evidence that prevents the spouse of an accused from testifying against the accused in a criminal case.  There are three limited exceptions to that  privilege.  They are: (a) if the accused spouse consents (b) if the accused is charged with an offense against the spouse or a child of either of the spouses; or, (c) where the spouse is a complainant.  The policy consideration associated with the rule recognizes that the marital contract is an important component of social order and that if a spouse is compelled to testify against another spouse who is accused of a crime the marital arrangement could be significantly impaired.  In short, public policy requires the truth to be compromised in order to preserve this valuable relationship. 

A recent case has tested the outer limits of the spousal privilege.  In that case a woman accused her employer and her older sister’s boyfriend of sexual assault at his medical office. The sister lived with the accused for a number of years. As result of this disclosure, however, the sister  moved out of the defendant’s home.  In the process she took the defendant’s palm pilot, a towel and a pair of  underwear.  She took the palm pilot to determine if there were any photographs of her sister and the towel and underwear because they could have contained a residue of semen.  Three days after the sister moved out of the defendant’s residence, they resumed their relationship and even scheduled a wedding.  The government filed an application with the court seeking  to enjoin the marriage.  The application was denied.   

The defendant was later charged with aggravated sexual assault. The government filed another application compelled the sister, now the wife of the defendant, to testify.  The trial court granted the application.  The case was reversed on appeal.    The Appellant Division noted, that although testimonial privileges are to be narrowly construed, the public policy associated with maintaining the integrity of the marital arrangements was more important than the trial court’s need to develop the truth.