Question: “My wife is going to get called as a prosecution witness in my criminal case. What do I do?”
Answer : “Stay happily married.”
Well, sometimes. Colorado, like many states, has enacted a statute, referred to as the “marital privilege,” which can prevent spouses from testifying against one another, even if they might otherwise be ready, willing, and able (and regardless of how critical they might be to the prosecution’s case). This privilege is purely a creature of state statute, not a constitutional right, and thus can be changed by the legislature at any time. Also bear in mind that every state is different in its details and applications, as is the federal system. Our discussion here is limited to Colorado.
Here’s generally how it works: If you are charged with a class 4 felony or below (details of classification of offenses in the State of Colorado can be found at the gasperlawgroup.com website), the state cannot call your spouse to testify against you about events she may have witnessed, (seeing you break into a car and stealing the stereo, for example) even if she is willing to do so. To invoke this privilege, you must be married at the time of the trial or hearing in question. If a pending divorce becomes final prior to your trial, her testimony is fair game, even if she does not want to testify against you.
There’s another component to class 4 felonies and below. As a general rule, confessions to crimes are admissible against the person making them. It does not have to be a police officer receiving that confession to have it come in against you. It could be your boss, your bartender, your cell mate in jail, or your best friend. Again, Colorado’s marital privilege comes to the rescue. If you later confess privately to your wife to committing that car break-in, you can prevent her from testifying to the confession, regardless of her wishes. In this case, what is critical is your marital status at the time of the confession, not your status on the day of trial. So, as long as you’re married when you confess, she can’t nail you at trial even if the divorce has since become final, and even if she wants you to suffer. But never, ever, confess to your ex-wife, even if you’re still close. All bets are off.