W. Va. Code » §57-3-3. Testimony of husband and wife in criminal cases.
West Virginia Code

W. Va. Code § 57-3-3 (2026)

Testimony of husband and wife in criminal cases

✓ current as of May 2026
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ARTICLE 3. COMPETENCY OF WITNESSES.

§57-3-3. Testimony of husband and wife in criminal cases.

In criminal cases husband and wife 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, nor, without the consent of the other, allowed to be called as a witness against the other except in the case of a prosecution for an offense committed by one against the other, or against the child, grandchild, father, mother, sister or brother of either of them, or minor, as defined in §2-2-10 of this code, or any person deemed incompetent by mental disease, defect, or other disability. The failure of either husband or wife to testify, however, shall create no presumption against the accused, nor be the subject of any comment before the court or jury by anyone.

Notes of Decisions
Cited in 23 cases, 1967–2019 · leading case: State v. Bradshaw, 457 S.E.2d 456 (W. Va. 1995).
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State v. Bradshaw, 457 S.E.2d 456 (W. Va. 1995). · cites it 9× “W.Va.Code, 57-3-3 (1923), 17 prohibits a witness spouse from being compelled or allowed to testify without the consent of the defendant spouse in a criminal case.”
State v. Bailey, 365 S.E.2d 46 (W. Va. 1987). · cites it 10× “Bailey asserts first that the trial court should have excluded the statement under W.Va.Code § 57-3-3 (1966). West Virginia Code § 57-3-3 prohibits adverse testimony of one spouse against another, absent consent, in a criminal trial.”
State v. Delaney, 417 S.E.2d 903 (W. Va. 1992). · cites it 6× “Thus, the marital privilege is not applicable to this case by the specific language of W.Va. Code § 57-3-3. The appellant next argues that the statements made by him to Denver and Joyce Nicholas while in jail were hearsay and thus, should have been held inadmissible by the court…”
State v. Bohon, 565 S.E.2d 399 (W. Va. 2002). · cites it 6× “Two West Virginia statutes, W. Va.Code 57-3-3 and W. Va. Code 57-3-4, create marital testimonial privileges in West Virginia.”
State v. VanHoose, 705 S.E.2d 544 (W. Va. 2010). · cites it 7× “VanHoose invoked the marital testimonial privileges provided by W. Va. Code § 57-3-3 (1923) (Repl.Vol.2005) 33 and W.”
Trammel v. United States, 445 U.S. 40 (1980). “1979); W. Va. Code § 57-3-3 (1966). Nine States entitle the witness-spouse alone to assert a privilege against adverse spousal testimony: see Ala.”
State v. LaRock, 470 S.E.2d 613 (W. Va. 1996). “The defendant contends his wife's testimony violated both W.Va.Code, 57-3-3 (1923), and W.Va.Code, 57-3-4 (1923).”
State v. McGinnis, 455 S.E.2d 516 (W. Va. 1994). “See W.Va.Code, 57-3-3 (1923). Finally, the defendant argues that this collateral evidence was not pertinent and that the prosecution was unable to show that Mrs.”
Brown v. State, 753 A.2d 84 (Md. 2000). · cites it 2× “2d 131 (1995), the Court noted: "There can be no question that W. Va. Code, 57-3-3, absolutely prohibits the spouse of a defendant from testifying against the defendant.”
State v. Jarrell, 442 S.E.2d 223 (W. Va. 1994). · cites it 4× “The appellant contends that by reading Barbara Jarrell’s grand jury testimony into evidence at his trial, the prosecution violated the adverse spousal immunity privilege, W.Va.Code § 57-3-3 (1966), which “prohibits not only the testimony of a spouse but even the calling of the…”
State v. Humphrey, 351 S.E.2d 613 (W. Va. 1986). “, inter-spousal immunity, W.Va.Code, 57-3-3, or the Dead Man’s Statute, W.”
State v. Robinson, 376 S.E.2d 606 (W. Va. 1988). · cites it 2× “This privilege is separate and distinct from the privilege against adverse spousal testimony embodied in W.Va.Code § 57-3-3 (1966). The latter provision permits a defendant in a criminal proceeding to prevent any adverse testimony by his or her spouse, but is available only…”
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