Federal Spousal Witness Privilege - Articles

All Content

Posted by: Donald Paine on Jan 25, 2012

Journal Issue Date: Feb 2012

Journal Name: February 2012 - Vol. 48, No. 2

While doing some legal research in the National Enquirer on a recent weekend, I came across an article about phoney baloney lawyer John Edwards. He is facing trial in a federal district court for using vice-presidential campaign funds to conceal his extramarital affair with Rielle Hunter, mother of his child. The Enquirer reports that Edwards wants Hunter to marry him so she can refuse to take the witness stand.

What’s that all about?

Federal courts, unlike Tennessee courts, apply a spousal witness privilege. As modified in the controlling precedent Trammel v. United States, 45 U.S. 40 (1980), it gives a married person the privilege of not testifying against the other spouse in a criminal trial. The witness spouse may testify but cannot be compelled to do so; it’s her choice.

Consequently, if Miss Rielle Hunter becomes Mrs. Rielle Edwards by John’s trial date, she can refuse to tell the jury what she knows about her husband’s crimes. Allegedly they became engaged on Christmas Eve. The Enquirer says so; therefore it must be true.  

Donald F. Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, and the Tennessee Judicial Conference.