Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 24-9-23 are included in the annotations for this Code section.

Privilege of refusing to testify belongs to witness and not to accused. Morris v. State, 173 Ga. App. 663, 327 S.E.2d 792 (1985) (decided under former O.C.G.A. § 24-9-23); Mapp v. State, 191 Ga. App. 622, 382 S.E.2d 618; 191 Ga. App. 922, 382 S.E.2d 618 (1989), cert. denied, Brown v. State, 261 Ga. 66, 401 S.E.2d 492 (1991) (decided under former O.C.G.A. § 24-9-23); 502 U.S. 906, 112 S. Ct. 296, 116 L. Ed. 2d 240 (1991); Duncan v. State, 232 Ga. App. 157, 500 S.E.2d 603 (1998), cert. denied,(decided under former O.C.G.A. § 24-9-23);(decided under former O.C.G.A. § 24-9-23).

Defendant had no standing to exclude a spouse's testimony at the trial because the privilege against spousal testimony was available only to the witness-spouse. Corn v. Zant, 708 F.2d 549 (11th Cir. 1983), cert. denied, 467 U.S. 1220, 104 S. Ct. 2670, 81 L. Ed. 2d 375 (1984), vacated in part on other grounds sub nom., Corn v. Kemp, 772 F.2d 681 (11th Cir. 1985), judgment vacated, 478 U.S. 1016, 106 S. Ct. 3326, 92 L. Ed. 2d 732 (1986), remanded for further consideration in light of Rose v. Clark, 478 U.S. 570, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986), aff'd, 837 F.2d 1474 (1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228 (1988) (decided under former O.C.G.A. § 24-9-23); Chancey v. State, 256 Ga. 415, 349 S.E.2d 717 (1986); 481 U.S. 1029, 107 S. Ct. 1954, 95 L. Ed. 2d 527 (1987), cert. denied,(decided under former O.C.G.A. § 24-9-23).

Trial court did not err in allowing the defendant's spouse to testify in the defendant's trial for shooting their two adult sons to death as the privilege of refusing to testify belonged to the witness, the spouse, and not to the accused; moreover, nothing showed that the spouse's testimony was not voluntary. Biswas v. State, 255 Ga. App. 339, 565 S.E.2d 531 (2002) (decided under former O.C.G.A. § 24-9-23).

Statements of common-law spouse admissible.

- In a murder prosecution, where defendant's common-law spouse asserted privilege not to testify against the defendant, statements the spouse made during the official investigation and confirmed at a subsequent pre-trial hearing were admissible as an exception to the hearsay rule without conducting an additional hearing on the statement's reliability. Drane v. State, 265 Ga. 663, 461 S.E.2d 224 (1995) (decided under former O.C.G.A. § 24-9-23). Clark v. State, 271 Ga. 6, 515 S.E.2d 155 (1999) But see.

Privilege did not depend upon stability of marriage.

- Application of the privilege of refusing to testify did not depend upon the stability of the marriage, either at the time of the communication or at the time the privilege was asserted. Brown v. State, 261 Ga. 66, 401 S.E.2d 492 (1991), cert. denied, 502 U.S. 906, 112 S. Ct. 296, 116 L. Ed. 2d 240 (1991) (decided under former O.C.G.A. § 24-9-23).

Marital testimonial privilege could be asserted even though the marriage was entered into for the purpose of preventing the spouse's testimony. State v. Peters, 213 Ga. App. 352, 444 S.E.2d 609 (1994) (decided under former O.C.G.A. § 24-9-23).

Privilege may be invoked by spouse who testified at previous hearing.

- Privilege not to testify may be invoked by the witness spouse even if he or she testified for or against the defendant spouse in a previous hearing. Brown v. State, 261 Ga. 66, 401 S.E.2d 492 (1991), cert. denied, 502 U.S. 906, 112 S. Ct. 296, 116 L. Ed. 2d 240 (1991) (decided under former O.C.G.A. § 24-9-23).

Comments on the failure of a spouse to testify constituted impermissible argument and warranted reversal. Price v. State, 175 Ga. App. 780, 334 S.E.2d 711 (1985) (decided under former O.C.G.A. § 24-9-23).

No protection for documents prepared by third party.

- Although communications between a husband and a wife are confidential and privileged, such protections did not apply to financial documents either prepared or seen by third parties; a trial court did not err in granting a motion to compel an employee and the husband to produce financial documents such as checks, account statements, and tax returns. Dempsey v. Kaminski Jewelry, Inc., 278 Ga. App. 814, 630 S.E.2d 77 (2006) (decided under former O.C.G.A. § 24-9-23).

In prosecution for manslaughter, marital privilege justified exclusion of suicidal statements the decedent allegedly related to the decedent's spouse on the day that the decedent was shot. Robinson v. State, 221 Ga. App. 865, 473 S.E.2d 519 (1996) (decided under former O.C.G.A. § 24-9-23).

Subsection (b) of former O.C.G.A. § 24-9-23 applied when the victim and spouse were the same person; the victim of statutory rape could be compelled to testify even though the victim and the defendant were married at the time of the trial. Hamilton v. State, 210 Ga. App. 398, 436 S.E.2d 522 (1993) (decided under former O.C.G.A. § 24-9-23).

Spouse as victim.

- When the victim, defendant's wife, who had refused to testify for the state against her husband, was called by her husband, the fact that she asserted her privilege during the state's case was not conclusive because the privilege not to incriminate one's spouse at the behest of the state is different from the privilege not to testify for one's spouse and she should have been summoned to state her intentions before the presiding judge whether she would testify at the behest of her husband or reassert her privilege. Respres v. State, 244 Ga. App. 689, 536 S.E.2d 586 (2000) (decided under former O.C.G.A. § 24-9-23).

Knowing that the victim was going to invoke the marital privilege, the defendant was not entitled to a mistrial because the defendant did not timely object to the announcement of the defendant's wife's name as a witness; in any event, the mere announcement of the victim's name, without more, did not constitute the creation by the state of an "unwarranted negative inference" against the defendant. Carter v. State, 275 Ga. App. 483, 621 S.E.2d 503 (2005) (decided under former O.C.G.A. § 24-9-23).

Failure of a defendant's spouse to testify was not a legitimate subject matter of argument for counsel for the state, although such a comment did not constitute reversible error when the trial court rebuked the prosecuting attorney immediately in the presence of the jury, instructed the jury that it was not necessary for any defendant or the defendant's spouse ever to take the stand, and that the burden was always upon the state to prove a defendant's guilt beyond a reasonable doubt. Casey v. State, 167 Ga. App. 437, 306 S.E.2d 683 (1983) (decided under former O.C.G.A. § 24-9-23).

State may comment generally when defendant relied upon spouse's actions for corroboration.

- It did not appear that it was harmful error for the state to comment generally, without direct reference to the exercise of the spousal privilege, upon the fact that the state has no power to call a defendant's spouse who had not given direct testimony, but whose words and actions were relied upon by the defendant as being somewhat corroborative of the defendant's own exculpatory testimony. Under these circumstances, such a comment by the state would be no more than a statement informing the jury that the state's failure to call the nontestifying spouse did not necessarily signify an acceptance of or acquiescence in a portion of the defendant's exculpatory version of the events to which defendant has testified. Wynn v. State, 168 Ga. App. 132, 308 S.E.2d 392 (1983) (decided under former O.C.G.A. § 24-9-23).

Severance of spouse's trial from defendant not required.

- Trial court did not err in denying the defendant's motion to sever the defendant's trial from that of the defendant's spouse because the defendant made no showing that the denial of the motion forced the defendant to choose between the defendant's right to a defense and the defendant's spousal privilege, former O.C.G.A. § 24-9-23; the defendant argued that the defendant was compelled not to testify, which was not safeguarded by former § 24-9-23 and was not a denial of due process, and there was nothing confusing about the evidence and no danger that the evidence against the spouse would be considered against the defendant. Holland v. State, 310 Ga. App. 623, 714 S.E.2d 126 (2011) (decided under former O.C.G.A. § 24-9-23).

Testimony when spouse was charged with a crime against a minor child.

- When defendant standing trial for child molestation argued that the prosecuting attorney improperly questioned the defendant's failure to call the defendant's spouse as a witness and that such argument constituted reversible error because the defendant could not compel the defendant's spouse to testify, there was no reversible error in the state's remarks on defendant's failure to call the spouse as a witness, since spousal immunity does not apply to proceedings in which one spouse was charged with a crime against a minor child under subsection (b) of former O.C.G.A. § 24-9-23. Sosebee v. State, 190 Ga. App. 746, 380 S.E.2d 464, cert. denied, 493 U.S. 933, 110 S. Ct. 323, 107 L. Ed. 2d 313 (1989) (decided under former O.C.G.A. § 24-9-23).

Privilege created by former O.C.G.A. § 24-9-23 did not apply in proceedings in which the husband or wife was charged with a crime against the person of a minor, albeit testimony was compellable only with respect to the specific act for which the defendant was charged. Pirkle v. State, 234 Ga. App. 23, 506 S.E.2d 186 (1998) (decided under former O.C.G.A. § 24-9-23).

With regard to a defendant's conviction on child molestation charges, the defendant's trial counsel was not deficient in failing to object to certain testimony of the defendant's ex-spouse, the parent of the victim, concerning a prior bad act on the ground that the testimony violated the marital privilege, because the defendant was not on trial for the prior act; therefore, the ex-spouse was competent, although not compellable, to testify concerning the prior act, and thus since the ex-spouse did not invoke the privilege and was able to waive the privilege by voluntarily taking the stand and testifying, trial counsel was not ineffective for failing to object to the testimony of the ex-spouse on the basis of marital privilege. Nichols v. State, 288 Ga. App. 118, 653 S.E.2d 300 (2007) (decided under former O.C.G.A. § 24-9-23).

Email from the defendant to the defendant's spouse was not evidence given under compulsion by the defendant's spouse and so was not subject to the marital privilege under former O.C.G.A. § 24-9-23(b) in a case charging the defendant with malice murder and related offenses in connection with the death of the defendant's 11-year-old step-daughter. Reaves v. State, 284 Ga. 236, 664 S.E.2d 207 (2008) (decided under former O.C.G.A. § 24-9-23).

Because O.C.G.A. § 16-12-80 prohibited a person from disseminating obscene material of any description, and the definition of obscene material made no reference to a minor, distributing obscene materials was not a crime against the person of a minor child within the plain meaning of former O.C.G.A. § 24-9-23(b). Peck v. State, 300 Ga. App. 375, 685 S.E.2d 367 (2009) (decided under former O.C.G.A. § 24-9-23).

Defendant's alleged violation of O.C.G.A. § 16-5-70(d), cruelty to children, was a "crime against the person of a minor child" within the meaning of former O.C.G.A. § 24-9-23(b), which provided an exception to the marital privilege against testifying in cases of crimes against the person of children, even though no physical contact was involved. Therefore, a trial court did not err in compelling defendant's spouse to testify against the defendant despite invoking the privilege. Sherman v. State, 302 Ga. App. 312, 690 S.E.2d 915, cert. denied, No. S10C0961, 2010 Ga. LEXIS 545 (Ga. 2010) (decided under former O.C.G.A. § 24-9-23).

Trial court did not err in ruling that the state could compel the defendant's spouse to testify even though the spouse was not a witness to the specific act charged, child molestation, because the spouse testified that the spouse did not know that the defendant had been applying ointment to the victim, and that evidence was sufficiently relevant to the molestation acts charged against the defendant so that the spouse's testimony was compellable under former O.C.G.A. § 24-9-23(b). O'Neal v. State, 304 Ga. App. 548, 696 S.E.2d 490 (2010) (decided under former O.C.G.A. § 24-9-23).

Subsequent marriage of a minor victim.

- Trial court did not err in concluding that the victim, who subsequently married the defendant, could be compelled to testify against the defendant with regard to the charge of sexual exploitation of children because that charge qualified as a crime against the person of a minor based upon the public policy expressed in former O.C.G.A. § 24-9-23(b), the particular pictures involved in the case, and the specific subsection of O.C.G.A. § 16-12-100 with which the defendant was charged; the pictures in the defendant's possession showed the victim personally engaged in sexually explicit conduct. Peck v. State, 300 Ga. App. 375, 685 S.E.2d 367 (2009) (decided under former O.C.G.A. § 24-9-23).

No privilege when case involved a minor.

- Any error in advising the defendant's wife that she could invoke the marital privilege, despite the fact that the case involved a minor, was harmless as the wife would have confirmed the defendant's erectile function diagnosis but was in no position to testify as to his ability to achieve sexual arousal and her testimony would not have negated an element of the crime. Underwood v. State, 344 Ga. App. 403, 810 S.E.2d 315 (2018).

Common-law marriage, when recognized, is sufficient to invoke the husband-wife privilege. However, in face of conflicting evidence as to a common-law marriage, the trial court is authorized to find that no common-law marriage exists. Jordan v. State, 267 Ga. 442, 480 S.E.2d 18 (1997) (decided under former O.C.G.A. § 24-9-23).

Factual determination by the state court that a witness was not the defendant's common-law spouse was required to be deferred to by the federal courts in a habeas corpus proceeding; therefore, the testimony of this witness was not a violation of the marital privilege and did not render the defendant's trial fundamentally unfair. Holton v. Newsome, 750 F.2d 1513 (11th Cir. 1985) (decided under former O.C.G.A. § 24-9-23).

There was substantial evidence in support of the trial court's finding that there was no common-law marriage between the trial witness and the defendant. Therefore, the defendant could not assert the marital privilege. Schirato v. State, 260 Ga. 170, 391 S.E.2d 116 (1990) (decided under former O.C.G.A. § 24-9-23).

In view of conflicting evidence, no common-law marriage.

- Former O.C.G.A. § 24-9-23 was not applicable when, in view of the conflicting evidence as to the existence of a common-law marriage between the defendant and the state's witness, the trial court was authorized to find that no common-law marriage existed. Brown v. State, 187 Ga. App. 347, 370 S.E.2d 203, cert. denied, 187 Ga. App. 907, 370 S.E.2d 203 (1988) (decided under former O.C.G.A. § 24-9-23).

If evidence was in conflict as to existence of marriage, the trial judge may hear evidence to determine whether a marriage existed, and the judge's decision will not be disturbed on appeal if there was any evidence to support the judge's finding or the trial court may submit to the jury with appropriate instructions the question of whether or not a marriage exists. Sheffield v. State, 241 Ga. 245, 244 S.E.2d 869 (1978) (decided under former Code 1933, § 38-1604).

Jailhouse conversations between the defendant and a boyfriend or fiance were properly admitted despite a claim of marital privilege because there was sufficient evidence to support the trial court's implicit finding that no legal marriage existed; it was the defendant's burden to prove a valid marriage, and the defendant failed to do so. Wiggins v. State, 338 Ga. App. 273, 787 S.E.2d 357 (2016).

Waiver of privilege presumed.

- When the witness voluntarily took the stand and testified, it would be presumed that the witness did so pursuant to a waiver of the witnesse's privilege. Mapp v. State, 191 Ga. App. 622, 382 S.E.2d 618, cert. denied, 191 Ga. App. 922, 382 S.E.2d 618 (1989) (decided under former O.C.G.A. § 24-9-23); White v. State, 211 Ga. App. 694, 440 S.E.2d 68 (1994);(decided under former O.C.G.A. § 24-9-23).

Trial court was not obligated to advise the defendant's spouse of the marital privilege under former O.C.G.A. § 24-9-23(b) relating to the spouse's testimony at defendant's sentencing hearing, and as the defendant's spouse testified voluntarily, it was presumed that the spouse waived the marital privilege. Ingram v. State, 262 Ga. App. 304, 585 S.E.2d 211 (2003) (decided under former O.C.G.A. § 24-9-23).

Trial court did not err in allowing a probationer's spouse to testify without informing the spouse of the marital privilege pursuant to former O.C.G.A. §§ 24-9-21 and24-9-23 (see now O.C.G.A. §§ 24-5-501 and24-5-503) because the spouse was aware of the privilege but never asserted the privilege to the trial court, and it was assumed that the spouse waived the right not to testify; the spouse was informed by defense counsel of the spouse's rights under the marital privilege, and the spouse did not assert the privilege even after defense counsel voiced objections to the testimony in the spouse's presence. Geter v. State, 300 Ga. App. 396, 685 S.E.2d 342 (2009) (decided under former O.C.G.A. § 24-9-23).

Termination upon death or divorce.

- Unlike the evidentiary prohibition of former O.C.G.A. § 24-9-21(1) (see now O.C.G.A. § 24-5-501), excluding interspousal communications, the spousal privilege against compellability in former O.C.G.A. § 24-9-23 ceased when the marriage was terminated by death or divorce. Chadwick v. State, 176 Ga. App. 296, 335 S.E.2d 674 (1985), aff'd, 255 Ga. 376, 339 S.E.2d 717 (1986) (decided under former O.C.G.A. § 24-9-23).

Defendant's claim that the former spouse's testimony was improperly admitted was rejected as the spouse's former O.C.G.A. § 24-9-23 privilege ceased before the trial when the marriage was terminated by divorce. Young v. State, 280 Ga. 65, 623 S.E.2d 491 (2005) (decided under former O.C.G.A. § 24-9-23).

Spouse's forced testimony not reversible error.

- Even if the trial court erred in compelling the defendant's wife to testify concerning an assault of the wife as a similar transaction, such error was not reversible since there was no reasonable possibility of a different verdict; in addition to the wife's testimony, the state also presented testimony of the defendant's girlfriend, the victim of defendant's assault, a neighbor who witnessed parts of the altercation, other corroborating witnesses, as well as evidence of prior difficulties between defendant and the girlfriend. Phillips v. State, 278 Ga. App. 439, 629 S.E.2d 130 (2006) (decided under former O.C.G.A. § 24-9-23).

Instructions to jury.

- Defendant accused of voluntary manslaughter was entitled to a new trial since the trial court failed to give curative instructions to the jury following closing remarks by the state noting the failure of the defendant's spouse to testify. Ferry v. State, 161 Ga. App. 795, 287 S.E.2d 732 (1982) (decided under former O.C.G.A. § 24-9-23).

Am. Jur. 2d.

- 81 Am. Jur. 2d, Witnesses, §§ 230, 284.

C.J.S.

- 98 C.J.S. (Rev), Witnesses, §§ 227 et seq., 350 et seq.

ALR.

- Rule rendering husband or wife incompetent as a witness for the other in a criminal case as changed without the aid of a statute expressly abrogating it or comprehensively removing disqualification of witnesses, 93 A.L.R. 1144.

"Communications" within testimonial privilege of confidential communications between husband and wife as including knowledge derived from observation by one spouse of acts of other spouse, 10 A.L.R.2d 1389.

Effect of divorce or annulment on competency of one former spouse as witness against other in criminal prosecution, 38 A.L.R.2d 570.

Calling or offering accused's spouse as witness for prosecution as prejudicial misconduct, 76 A.L.R.2d 920.

Husband or wife as competent witness for or against co-offender with spouse, 90 A.L.R.2d 648.

Competency of one spouse to testify against other in prosecution for offense against child of both or either, 93 A.L.R.3d 1018.

Effect, on competency to testify against spouse or on marital communication privilege, of separation or other marital instability short of absolute divorce, 98 A.L.R.3d 1285.

Spouse's betrayal or connivance as extending marital communications privilege to testimony of third person, 3 A.L.R.4th 1104.

Communication between unmarried couple living together as privileged, 4 A.L.R.4th 422.

Existence of spousal privilege where marriage was entered into for purpose of barring testimony, 13 A.L.R.4th 1305.

Communications between spouses as to joint participation in crime as within privilege of interspousal communications, 62 A.L.R.4th 1134.

Crimes against spouse within exception permitting testimony by one spouse against other in criminal prosecution - modern state cases, 74 A.L.R.4th 223.

Competency of one spouse to testify against other in prosecution for offense against third party as affected by fact that offense against spouse was involved in same transaction, 74 A.L.R.4th 277.

Adverse presumption or inference based on party's failure to produce or examine spouse - modern cases, 79 A.L.R.4th 694.

Competency of one spouse to testify against other in prosecution for offense against child of both or either or neither, 119 A.L.R.5th 275.

"Communications" within testimonial privilege of confidential communications between husband and wife as including knowledge derived from observation by one spouse of acts of other spouse, 23 A.L.R.6th 1.

Marital privilege under Rule 501 of Federal Rules of Evidence, 46 A.L.R. Fed 735.