In criminal cases, persons married to each other shall be allowed, and, subject to the rules of evidence governing other witnesses, may be compelled to testify in behalf of each other, but neither shall be compelled to be called as a witness against the other, except (i) in the case of a prosecution for an offense committed by one against the other, against a minor child of either, or against the property of either; (ii) in any case where either is charged with forgery of the name of the other or uttering or attempting to utter a writing bearing the allegedly forged signature of the other; or (iii) in any proceeding relating to a violation of the laws pertaining to criminal sexual assault (§§ 18.2-61 through 18.2-67.10), crimes against nature (§ 18.2-361) involving a minor as a victim and provided that the defendant and the victim are not married to each other, incest (§ 18.2-366), or abuse of children (§§ 18.2-370 through 18.2-371). The failure of either spouse to testify, however, shall create no presumption against the accused, nor be the subject of any comment before the court or jury by any attorney.
Except in the prosecution for a criminal offense as set forth in clause (i), (ii), or (iii), in any criminal proceeding, a person has a privilege to refuse to disclose, and to prevent anyone else from disclosing, any confidential communication between his spouse and him during their marriage, regardless of whether he is married to that spouse at the time he objects to disclosure. For the purposes of this section, "confidential communication" means a communication made privately by a person to his spouse that is not intended for disclosure to any other person.
Code 1950, § 8-288; 1950, p. 664; 1958, c. 231; 1960, c. 469; 1977, c. 624; 1988, c. 482; 1993, c. 637; 1996, c. 423; 2005, c. 809; 2020, c. 900.
Notes of Decisions
Cited in
43
cases (
2 in the last 5 years), 1978–2026 · leading case:
Pryor v. Commonwealth, 628 S.E.2d 47 (Va. Ct. App. 2006).
Pryor v. Commonwealth, 628 S.E.2d 47 (Va. Ct. App. 2006).
· cites it 42× “Pryor also contends both convictions should be overturned because the trial court violated Code § 19.2-271.2 by admitting into evidence the testimony of Pryor's wife previously given at his preliminary hearing.”
Wolfe v. Commonwealth, 554 S.E.2d 695 (Va. Ct. App. 2001).
· cites it 14× “*139 Next, Wolfe moved to prohibit the Commonwealth from introducing evidence of statements made by Christy Terry, his wife, on the ground that those statements were barred by Code § 19.2-271.2. The trial court denied Wolfe’s motion, ruling: [Ms.”
Kirby v. Commonwealth, 570 S.E.2d 832 (Va. 2002).
· cites it 9× “The question presented by this appeal involves the application of Code § 19.2-271.2, which deals with the “[tjestimony of husband and wife in criminal cases.”
Bennett v. Commonwealth, 374 S.E.2d 303 (Va. 1988).
· cites it 8× “*455 In his effort to exclude Mary’s testimony, Bennett relied upon Code § 19.2-271.2 which provides in pertinent part that “[i]n criminal cases .”
Carpenter v. Commonwealth, 654 S.E.2d 345 (Va. Ct. App. 2007).
· cites it 18× “There is no dispute that the admission of both pieces of evidence violated the provisions of the evidentiary privilege preventing the disclosure of certain confidential marital communications (Code § 19.2-271.2 and Code § 8.01-398) effective at the time of the communication and…”
Livingston v. Commonwealth, 466 S.E.2d 757 (Va. Ct. App. 1996).
· cites it 26× “Before trial, appellant moved to suppress the drugs, arguing that the search warrant violated the marital privilege of Code § 19.2-271.2 because it was based upon Mrs.”
Gazette, Inc. v. Harris, 325 S.E.2d 713 (Va. 1985).
· cites it 4× “But see Code § 19.2-271.2. Consequently, we hold the trial court did not err in ruling that the question of identification was an issue of fact to be decided by the jury.”
Turner v. Commonwealth, 531 S.E.2d 619 (Va. Ct. App. 2000).
· cites it 10× “He further argues that the court erroneously permitted wife to testify in violation of the marital privilege afforded by Code § 19.2-271.2. Finding no error, we affirm both convictions.”
Trammel v. United States, 445 U.S. 40 (1980).
· cites it 2× “§ 78-24-8 (1977); Va. Code § 19.2-271.2 (Supp. 1979); Wash.”
Brown v. Commonwealth, 292 S.E.2d 319 (Va. 1982).
· cites it 8× “*604 The Commonwealth filed a motion to allow Brown’s wife to testify against him on the ground that Brown had killed Hubbard by mistake while attempting to wound or kill Norma, and that under Code § 19.2-271.2 1 Norma could testify against him as for an offense committed…”
Cairns v. Commonwealth, 542 S.E.2d 771 (Va. Ct. App. 2001).
· cites it 8× “On appeal, Cairns alleges the trial court erred in admitting his codefendant’s statement against him in their joint trial because: (1) the admission of the statement violated the marital privilege under Code § 19.2-271.2; (2) the statement constituted inadmissible hearsay; and…”
Burns v. Commonwealth, 541 S.E.2d 872 (Va. 2001).
· cites it 2× “01-398 is separate and distinct from the privilege granted in Code § 19.2-271.2, and that the former privilege applies in any case irrespective of whether the spouse of an accused testifies.”
— Va. Code Ann. § 19.2-271.2(i) — 1 case
— Va. Code Ann. § 19.2-271.2(ii) — 1 case
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