§ 5913. Spouses as witnesses against each other.
Except as otherwise provided in this subchapter, in a criminal proceeding a person
shall have the privilege, which he or she may waive, not to testify against his or
her then lawful spouse except that there shall be no such privilege:
(1) in proceedings for desertion and maintenance;
(2) in any criminal proceeding against either for bodily injury or violence attempted,
done or threatened upon the other, or upon the minor children of said husband and
wife, or the minor children of either of them, or any minor child in their care or
custody, or in the care or custody of either of them;
(3) applicable to proof of the fact of marriage, in support of a criminal charge of bigamy
alleged to have been committed by or with the other; or
(4) in any criminal proceeding in which one of the charges pending against the defendant
includes murder, involuntary deviate sexual intercourse or rape.
(Apr. 28, 1978, P.L.202, No.53, eff. 60 days; June 29, 1989, P.L.69, No.16, eff.
imd.)
1989 Amendment. Section 2 of Act 16 provided that Act 16 shall apply to all criminal cases pending
on the effective date of Act 16.
Notes of Decisions
Cited in
37
cases (
3 in the last 5 years), 1983–2025 · leading case:
Commonwealth v. Maxwell, 477 A.2d 1309 (Pa. 1984).
Commonwealth v. Maxwell, 477 A.2d 1309 (Pa. 1984).
· cites it 6× “The lower court was correct when it reasoned that "there was a likelihood of a living, but injured, human being inside the premises." [6] Appellant next argues that the trial court erred in allowing Ann Gasper to testify against him at his trial.”
Commonwealth v. Weiss, 81 A.3d 767 (Pa. 2013).
· cites it 3× “See 42 Pa.C.S. § 5913 (1987) (barring’ spouses from testifying against each other).”
Commonwealth v. Hancharik, 633 A.2d 1074 (Pa. 1993).
· cites it 6× “42 Pa.C.S. § 5913." Opinion at 2. The majority opinion of the en banc Superior Court employed the same analysis of section 5913, concluding that it was "an express and complete exception to the spousal testimonial privilege on the facts of this case.”
Commonwealth v. Hancharik, 565 A.2d 782 (Pa. 1989).
· cites it 18× “Since this case involved violence done upon a minor child in the care or temporary custody of the defendant/husband, an enumerated exception found in § 5913, the wife was a competent witness against her husband.”
Commonwealth v. Newman, 633 A.2d 1069 (Pa. 1993).
· cites it 6× “At issue in this appeal is the applicability of Act 16 of 1989, which rewrote the statutory provision dealing with spouses as witnesses against each other, 42 Pa.C.S. § 5913 (Supp.1993), and the interplay between that section and the provision dealing with confidential…”
Commonwealth v. Kirkner, 805 A.2d 514 (Pa. 2002).
· cites it 8× “This Court granted allowance of appeal to address whether Hatfield contradicts the mandatory language of 42 Pa.C.S. § 5913 (relating to spouses as witnesses against each other).”
Commonwealth v. Luster, 71 A.3d 1029 (Pa. Super. Ct. 2013).
· cites it 2× “The Commonwealth countered that Section 5914 had to be read in conjunction with 42 Pa.C.S. § 5913. Specifically, Section 5913 reads, in relevant part, Except as otherwise provided in this subchapter, in a criminal proceeding a person shall have the privilege, which he or she may…”
United States v. Banks, 556 F.3d 967 (9th Cir. 2009).
· cites it 2× “any minor child in [the] care or custody [of either spouse]"); Tenn.”
Commonwealth v. Spetzer, 813 A.2d 707 (Pa. 2002).
· cites it 2× “The panel further concluded that trial counsel lacked a reasonable basis for failing to object to those communications which were privileged, noting that counsel had testified on post-verdict motions and stated that the only reason he failed to object was because he believed the…”
Commonwealth v. Scott, 532 A.2d 426 (Pa. 1987).
· cites it 5× “The defense asserted that she was incompetent to testify by force of section 5913 of the Judicial Code, 42 Pa.C.S. § 5913. The trial court disagreed and ruled that Mrs.”
Commonwealth v. May, 656 A.2d 1335 (Pa. 1995).
· cites it 2× “[3] Stanley May told the police about this statement at the time of Appellant's arrest in connection with the 1982 rape-assaults; however, the import of the first sentence of this statement was not then understood, since Kathy Fair's remains had not yet been found.”
— 42 Pa. Cons. Stat. § 5913(1) — 1 case
— 42 Pa. Cons. Stat. § 5913(2) — 1 case
— 42 Pa. Cons. Stat. § 5913(4) — 2 cases
Commonwealth v. Luster, 71 A.3d 1029 (Pa. Super. Ct. 2013).
“The Commonwealth countered that Section 5914 had to be read in conjunction with 42 Pa.C.S. § 5913. Specifically, Section 5913 reads, in relevant part, Except as otherwise provided in this subchapter, in a criminal proceeding a person shall have the privilege, which he or she may…”
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