We normally do not discuss criminal cases, but this special action involves the anti-marital fact privilege and Arizona’s statute applies in both criminal and civil cases. Under A.R.S. § 13-4062, a husband cannot be examined without his wife’s consent and vice versa. There are exceptions. The privilege does not apply if a spouse is prosecuted for a serious criminal offense and the testifying spouse makes a voluntary statement or wants to testify.  Here, husband is charged with second-degree murder and aggravated assault after firing his rifle at a group of border crossers. Deputies interviewed the wife and later arrested the husband. The trial court held the exception ended upon the defendant’s arrest and could be re-asserted for conversations after the arrest.  Since the statute does not draw such a distinction, the court of appeals reverses.  But is it that easy? Maybe. The statutory exception is one long run-on sentence, and we are a little confused whether the phrase “makes a voluntary statement” means the privilege bubble is burst. The trial judge drew a distinction between voluntary statements before her husband’s arrest and conversations she had with her husband after his arrest citing the defendant’s rights under the Fifth and Sixth Amendment. The court of appeals brushes this aside: “The anti-marital fact privilege is statutory and does not implicate any constitutional right.” We thought the statute recognizes the harm coerced testimony does to a marriage as did the common law. Did the statutory privilege completely swallow the common law privilege? Can a spouse be coerced to testify against the other for whatever was said between the two after an arrest because of a brief statement to inquiring officers before his arrest? This needs a closer look and a more thoughtful analysis.

link to opinion