Can My Wife Testify Against Me?

Question: I have been charged with domestic battery.  My wife is the victim.  Can my wife testify against me?

Answer: Yes.

In Illinois, in any type of criminal case, a defendant’s spouse can generally testify about the things the spouse sees the defendant do.  The issue becomes trickier if the issue deals with something that the defendant communicated to his or her spouse.  Statements from one spouse to the other are privileged in many instances, but those statements will not be privileged where the defendant is charged with an offense against his or her spouse’s person (e.g., domestic battery with the spouse as the victim).

The applicable statute is 725 ILCS 5/115-16 (emphasis added):

In criminal cases, husband and wife may testify for or against each other.  Neither, however, may testify as to any communication or admission made by either of them to the other or as to any conversation between them during marriage, except in cases in which either is charged with an offense against the person or property of the other . . . .

Jeremy Richey

2 Responses to “Can My Wife Testify Against Me?”

  1. 1 Windypundit March 8, 2009 at 10:30 am

    Are you saying the privilege belongs to the accused? If I confess a crime to my wife, not only couldn’t she be forced to testify about it, she couldn’t even testify voluntarily?

  2. 2 Jeremy March 8, 2009 at 5:40 pm

    Yes, in your hypothetical, you would be the holder of the privilege and you could prevent your wife from testifying.

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Jeremy J. Richey, Attorney at Law
© Jeremy J. Richey and The East Central Illinois Criminal Law & DUI Weblog, 2008-2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.