Short version: Arizona recognizes two protections often called “spousal privilege.” One can sometimes keep a spouse off the witness stand, and the other can keep private marital communications out of evidence. Both have important exceptions—especially in domestic-violence (DV) cases. Here’s a clear, Tempe-focused rundown so you know what’s protected, what isn’t, and what to do if you’re subpoenaed.
The Two “Spousal Privileges” in Arizona
1) Spousal Testimonial Privilege (keeping a spouse from testifying)
-
Generally, a spouse can refuse to testify for or against the other spouse in a criminal case.
-
The couple must be legally married at the time of testimony (lawful same-sex marriages included). Arizona doesn’t create common-law marriages, but a valid common-law marriage from another state can count.
2) Marital Communications Privilege (keeping certain statements private)
-
Confidential communications made between spouses during the marriage for the purpose of privacy are privileged.
-
This privilege typically survives divorce—meaning private statements made while married can stay protected later.
These protections are reflected in Arizona’s evidence and criminal statutes (often referenced as A.R.S. § 13-4062 for criminal matters).
Big, Real-World Exceptions (When Privilege Won’t Help)
Even if you’re married, Arizona law carves out exceptions where prosecutors can compel testimony or admit evidence:
-
Crimes by one spouse against the other (classic DV scenarios).
-
Crimes against a child of either spouse or a child living in the home.
-
Certain serious felonies and human-trafficking–type offenses.
-
Acts and events that occurred before the marriage (testimonial privilege won’t block those).
-
Joint criminal activity (courts may treat communications furthering a crime as non-privileged).
Also, non-confidential facts (what you saw, injuries you observed, public acts) aren’t “communications” and may be fair game even if private conversations are protected.
Subpoenas, DV, and “Do I Have to Testify?”
-
In Maricopa County DV cases, it’s common for the State to subpoena spouses.
-
If an exception applies, the prosecutor can often compel a spouse’s testimony despite “spousal privilege.”
-
Confidential marital communications may still be excluded—unless an exception applies—even if the spouse must take the stand.
-
If you’re served: do not ignore it. Talk to a defense lawyer about asserting the right privilege, the right way (motions to quash, motions in limine, or narrowing the scope).
FAQs We Hear in Tempe
Does spousal privilege apply to fiancés, partners, or roommates?
No. It’s limited to legally married spouses (with the common-law caveat noted above).
Can I waive the privilege if I want to testify?
-
Testimonial privilege belongs to the witness-spouse—you can choose to testify, but communications privilege also protects the accused spouse. Courts often require the accused spouse’s consent to disclose truly confidential marital communications.
What about texts and emails between us?
If they were intended to be private marital communications, they may be covered—unless an exception applies or they were shared with third parties (which kills confidentiality).
We reconciled—can we “drop” the DV charge?
No. In Arizona, the State prosecutes, not the reporting party. Non-cooperation can affect the case, but it’s the prosecutor’s call, not the complainant’s.
Practical Tips if You’re Facing a DV Case in Tempe
-
Do not contact the other party if any no-contact order or release condition is in place—violations create new charges.
-
Bring any subpoena or police paperwork to a lawyer immediately.
-
Let counsel determine whether testimonial privilege, communications privilege, or no exception applies to your situation.
-
Expect the State to rely on body-cam footage, 911 calls, medical records, and third-party witnesses if a spouse declines to testify.
Talk With a Tempe Domestic-Violence Defense Lawyer
Spousal privilege can protect you—but only if it’s invoked correctly and an exception doesn’t apply. Get tailored advice before you take a position in court or speak to law enforcement.
Ted Law | Tempe Criminal & DV Defense
2233 W Baseline Rd, Ste C101, Tempe, AZ 85283
Call 602-453-3100 (Free Consultation, 24/7)
We’ll review your subpoena, identify which privilege applies, push back on improper demands, and build a defense strategy that protects your rights and your future.
What Is Entrapment?