CAN YOUR SPOUSE BE FORCED TO TESTIFY AGAINST YOU IN SOUTH CAROLINA?
With the recent plot of Breaking Bad, I’ve received some inquires about whether a person can be compelled to testify against their spouse during a trial (civil or criminal) in a South Carolina State Court. In most cases, the answer is ‘no’ unless the communication was not vocal or if it concerned or was based on child abuse, neglect, the death or a child, or criminal sexual conduct involving a minor. See SC Code 19-11-30.
In this season (season 5) of Breaking Bad it will be interesting to see whether Jesse Pinkman divulges any information about a child’s death that would make an otherwise valid spousal immunity privilege that may be invoked by Walter or Skyler invalid if they were charged with a crime in South Carolina.
In short, Skyler can choose to testify against Walter, but she can’t be forced to unless it involves the death of a child, or an exception like the one stated above.
Once can only presume the legislatures intent when drafting this law was to promote confidential communication amongst spouses.
The spousal immunity privilege is not as strong as an attorney-client privilege because this privilege can be enacted by a spouse but a spouse can also choose not to enact the privilege. Further, the South Carolina Supreme Court held that the physical act of assault may not be considered as communication. In the case of State v. Govan, 320 S.C. 392 the Court held a spouse can be compelled to testify to what occurred between spouses if the occurrence is an action. Essentially, acts are not considered communication that would be eligible for the spousal immunity privilege.
Alex Kornfeld is a Criminal Defense and Family Law Attorney in Greenville, SC. If you, or someone you know has been arrested, or is under suspicion of a crime, it may be in your best interest to consult with an attorney first.