Key points
- In a Michigan criminal case, a husband or wife generally cannot be examined as a witness for or against the other spouse without the witness-spouse's own consent.[1]
- That privilege does not apply in a case that grows out of a personal wrong or injury done by one spouse to the other.[2]
- When the exception applies, the Michigan Court of Appeals has held that no spousal privilege exists at all and the spouse named as the victim may be compelled to testify.[3]
- A confidential communication made in a consultation with a sexual assault or domestic violence counselor is not admissible without the victim's prior written consent, except as provided in the child protection law.[4]
Michigan has a spousal privilege, but it does not apply when one spouse is prosecuted for a wrong done to the other. The statute lets a husband or wife decline to testify for or against the other in a criminal prosecution, and then removes that privilege in any case that grows out of a personal wrong or injury done by one spouse to the other.[1][2]
If you are in danger, call 911. The National Domestic Violence Hotline is free, confidential and open 24/7: call 1-800-799-SAFE (7233) or text START to 88788.[5] Michigan's statewide VOICES4 hotline takes calls and texts at 855-864-2374.[6][7]
This page explains the two marital privileges in that statute, the exception that applies to domestic assault, what the Court of Appeals has said about compelling a spouse to testify, and the separate privileges that protect conversations with counselors and doctors.
What does Michigan's spousal privilege say?
The testimonial privilege is in MCL 600.2162(2). In a criminal prosecution, a husband "shall not be examined as a witness for or against his wife without his consent or a wife for or against her husband without her consent," except as the statute otherwise provides.[1]
Two features of that sentence matter. First, the consent that counts is the consent of the spouse being called as a witness, not the spouse on trial.[1] Second, the privilege is subject to a list of exceptions in subsection (3).[2]
Why the privilege does not apply when one spouse is charged with a wrong against the other
Subsection (3) lists the situations in which the privilege does not apply. Two of them come up in domestic cases:
- A cause of action that grows out of a personal wrong or injury done by one spouse to the other.[2]
- A prosecution for a crime committed against a child of either or both spouses, or against anyone younger than 18 years of age.[2]
In People v Szabo, the Court of Appeals applied the first of these to a prosecution for felonious assault against the defendant's wife.[3] The offense itself is explained in domestic assault under MCL 750.81.
Can the spouse be forced to testify?
Yes, when the exception applies. In People v Szabo, a case involving felonious assault against the defendant's wife, the Court of Appeals explained that the effect of the exception "is not that the ownership of the spousal privilege transfers from the one spouse to the other"; rather, "no spousal privilege exists at all," and the victim-spouse may be compelled to testify against the defendant-spouse.[3]
The exception is not limited to the charge involving the spouse. In People v Hill, the court held that a wife could be compelled to testify where the charged crime against a third party grew out of the defendant's assault on her.[8]
What happens when a subpoenaed witness does not appear, and how a case can proceed without that testimony, are covered in Can a victim refuse to testify? and When the victim does not come to court.
The second privilege: confidential communications during the marriage
MCL 600.2162(7) protects something different: what spouses said to each other. A married person, or a person who was previously married, "shall not be examined in a criminal prosecution as to any communication made between that person and his or her spouse or former spouse during the marriage without the consent of the person to be examined."[9]
This privilege begins with the words "Except as otherwise provided in" subsection (3), so the same exceptions apply to it, including the exception for a personal wrong or injury done by one spouse to the other.[9][2]
| Privilege | What it covers | Whose consent is needed | Applies when one spouse is charged with a wrong against the other? |
|---|---|---|---|
| Spousal (testimonial) privilege, MCL 600.2162(2) | Being examined as a witness for or against a spouse in a criminal prosecution | The witness-spouse | No[1][2] |
| Marital communications privilege, MCL 600.2162(7) | Communications between spouses made during the marriage | The person being examined | No[9][2] |
How the privilege interacts with statements to police
Michigan has a statute, MCL 768.27c, that allows certain statements made to law enforcement officers in domestic violence cases to be admitted as evidence. That statute says that nothing in it "shall be construed to abrogate any privilege conferred by law."[10] Where the case grows out of a wrong done by one spouse to the other, no spousal privilege exists for that language to preserve.[3] The statute itself is explained in Statements to police under MCL 768.27c.
Other privileges that come up in domestic violence cases
Domestic violence counselors
A confidential communication made in connection with a consultation between a victim and a sexual assault or domestic violence counselor, and any report or working paper from that consultation, is not admissible in any civil or criminal proceeding without the victim's prior written consent. The statute carves out the child protection law.[4]
Doctors
Except as otherwise provided by law, a physician may not disclose information acquired in attending a patient if the information was necessary to treat the patient.[11] The privilege belongs to the patient: only the patient may waive it, and a hospital or physician cannot invoke it when the patient does not wish to.[12] How medical records are used as evidence is covered in Photographs and medical records.
Child protective proceedings
In child protective proceedings, Michigan law abrogates every legally recognized privilege except the attorney-client privilege and the privilege for a confession made to a member of the clergy.[13]
What people get wrong
The common belief is that a married person "cannot be made to testify against a spouse." In Michigan that is true only where no exception applies. Where the prosecution grows out of a wrong or injury done to the spouse, the Court of Appeals has said there is no privilege, and the spouse can be compelled.[3]
A second mistake is to treat the privilege as belonging to the defendant. Under subsection (2) the consent that counts is the consent of the spouse who would be examined.[1]
Finally, the privilege has nothing to do with whether charges are filed or dismissed. A witness who does not want to testify is in a different position from a witness who has a legal privilege not to. Anyone thinking about changing or withdrawing a statement should read Recanting: when the accuser changes the story, and anyone asked by a defendant not to testify should read Witness tampering and pressuring a victim not to testify.
Common questions
Can a wife or husband refuse to testify against a spouse in a Michigan domestic violence case?
Not where the case grows out of a wrong done by one spouse to the other. The spousal privilege in MCL 600.2162(2) does not apply to a case that grows out of a personal wrong or injury done by one spouse to the other.[1][2] In People v Szabo, the Court of Appeals held that when that exception applies there is no privilege at all, so the victim-spouse may be compelled to testify.[3]
Who holds the spousal privilege in a Michigan criminal case?
The witness-spouse. In a criminal prosecution the statute bars examining a husband for or against his wife without his consent, or a wife for or against her husband without her consent.[1] The person on trial does not get to block a spouse who is willing to testify under that subsection.
Does the privilege apply if the couple is divorced or was never married?
The testimonial privilege in MCL 600.2162(2) speaks only of a husband and a wife.[1] A separate rule covers confidential communications made during a marriage and extends to people who were previously married, but it is subject to the same exceptions, including the one for a wrong done by one spouse to the other.[9][2]
Are conversations with a domestic violence advocate or counselor confidential?
Under MCL 600.2157a(2), a confidential communication made in connection with a consultation between a victim and a sexual assault or domestic violence counselor is not admissible in any civil or criminal proceeding without the victim's prior written consent, except as provided in the child protection law.[4]
Sources
- MCL 600.2162(2) — Michigan Legislature
- MCL 600.2162(3)(c), (d) — Michigan Legislature
- People v Szabo, 303 Mich App 737, 748-749 (2014) — Michigan Judicial Institute, Domestic Violence Benchbook
- MCL 600.2157a(2) — Michigan Legislature
- National Domestic Violence Hotline, thehotline.org (home page) — National Domestic Violence Hotline
- State of Michigan, VOICES4 Hotline — Domestic Violence page — State of Michigan
- MCEDSV, Hotline page — mcedsv.org
- People v Hill, 335 Mich App 1, 12-13 (2020) — Michigan Judicial Institute, Domestic Violence Benchbook
- MCL 600.2162(7) — Michigan Legislature
- MCL 768.27c(4) — Michigan Legislature
- MCL 600.2157 — Michigan Legislature
- Dorris v Detroit Osteopathic Hosp Corp, 460 Mich 26, 34 (1999); Samson v Saginaw Bldg Prof, Inc, 44 Mich App 658, 670 (1973) — Michigan Courts
- MCL 722.631 — Michigan Legislature
This page is general legal information about Michigan law, published by the office of Attorney Shawn Haff. It is not legal advice and reading it does not create an attorney-client relationship. Laws change and every case turns on its own facts — check the sources linked above and talk to a licensed Michigan attorney about your situation. If you are in danger, call 911. The National Domestic Violence Hotline is 1-800-799-7233.