Husband & Wife's Privilege Against Testifying Against Each Other
A person cannot be forced to testify against their spouse.
In any criminal proceeding in Utah, including domestic violence cases, a wife shall not be compelled to
testify against her husband, nor a husband against his wife.1 Moreover, the Utah Constitution
further reinforces spousal disqualification privilege. Specifically, Article 1, section 12 of the Utah
Constitution states, "a wife shall not be compelled to testify against her husband, nor a husband against
1Utah Rule of Evidence 502(a)
In criminal proceedings the spousal disqualification privilege works as follows:
- First, either the husband or wife must be charged with a criminal offense;
- Second, the husband or wife must be subpoenaed to testify against their spouse;
- Third, the husband or wife must assert their "spousal disqualification privilege";
- Fourth, the husband and wife must be married at the time the prosecutor requests their testimony. This means, that if a couple gets married, even after the charges have been filed, the testifying spouse can then assert their "spousal disqualification privilege"; and
- Fifth, the testifying spouse must not have waived their "spousal disqualification privilege".
Interestingly, Utah recognizes common law marriage.2 This means, that a couple can assert the
marital privilege even if their marriage is not solemnized. Common law marriage arises out of a contract
between a man and a women who: they are of legal age and capable of giving consent; they are legally capable
of entering a solemnized marriage; they have cohabitated; they have mutually assumed marital rights,
duties, and obligations; and they have held themselves out as and have acquired a uniform and general
reputation as husband and wife.
Self-defense in Utah Domestic Violence Cases
Defenses of Justification
Under certain conditions, Utah allows a person charged with a crime, such as domestic violence, to claim self-defense. Self-defense is an affirmative defense to prosecution for any offense based on the conduct of the accused.1 Self-defense can be claimed by a person accused of a crime to justify their use or threatened use of force against another.2 If a person charged with crime, such as domestic violence was justified in their use or threatened use of force, they are entitled to a "not-guilty" verdict.3 Wherefore, a person charged with a crime, such as domestic violence, should consider using self-defense as justification for their conduct.
The amount of force a person is justified in using to defend themselves or another depends on the following conditions: The person's reasonable belief in the perceived threat to themselves or another4; Whether the person created the circumstance in which force or threatened use of force was used to defend themselves or another5; and Whether the person was lawfully in the place were force or threatened use of force was used to defend themselves or another6.
In determining a person's reasonable belief in the perceived threat, the judge or jury may consider, but is not limited to, any of the following: the nature of the danger; the immediacy of the danger; the probability that the unlawful force would result in death or serious bodily injury; the other person's prior violent acts or violent propensities; and any patterns of abuse or violence in the parties' relationship7.
As long as the person was lawfully in the place where force or threat of force was used to defend themselves or another, they do not have a duty to retreat. However, if the person was not lawfully in the place where they defended themselves or another, they must retreat from the encounter and effectively communicate to the other person their intent to do so, in order to claim self-defense.1Utah Code Ann. §76-2-401(1) 2Utah Code Ann. §76-2-402(1) 3State v. Wilson, 565 P.2d 695 (Utah 1977) 4Utah Code Ann. §76-2-402(1)(a) and §76-2-402(1)(b) 5Utah Code Ann. §76-2-402(2) 6Utah Code Ann. §76-2-402(3) 7Utah Code Ann. §76-2-402(5)