Mississippi Judge Calls For Elimination of Spousal Testimonial Privilege

Mississippi Rule of Evidence 601(b) states the following:

(b) Competency of Spouse. If one spouse is a party, the other spouse may not testify as a witness in the case unless both consent, except:

(1) when called as a witness by the spouse who is a party;

(2) in a controversy between them; or

(3) in a criminal case for:

(A) a criminal act against a child;

(B) contributing to the neglect or delinquency of a child;

(C) desertion or nonsupport of a child under 16; and

(D) abandonment of a child.

Meanwhile, Mississippi Rule of Evidence 504(b) states the following:

(b) General Rule of Privilege. A person has a privilege to prevent the person’s current or former spouse from testifying in a civil or criminal case about any confidential communication between them.

So, in 2025, does the spousal testimonial privilege in Rule 601(b) still make sense? The answer is "no" according to a concurring judge in Gibson v. State, 2025 WL 87130 (Miss. App. 2025).

In Gibson, 

Following a jury trial, Richard Gibson was convicted of first-degree murder and sentenced to life imprisonment. On appeal, Gibson argues that the trial court committed plain error by allowing Gibson's wife to testify against him and that the jury's verdict is contrary to the overwhelming weight of the evidence.

The majority resolved the spousal testimonial privilege issue by noting that Gibson failed to object to his wife's testimony, finding that he "consented to [his wife's] testimony when he failed to object at trial."

In a concurring opinion, Judge Lawrence went further, finding as follows:

I concur with the majority opinion in this case. I write to raise a concern about our continued attachment to spousal competency rules that are no longer necessary in our modern legal society. Spousal competency rules do little to protect the sanctity of marriage. They do, however, provide the opportunity and potential for the justice system to reach improper and wrong results. I believe it is time for Mississippi to strike Mississippi Rule of Evidence 601 from the rules of evidence and let Mississippi Rule of Evidence 504 control whether a spouse should be prohibited from testifying. Alternatively, Mississippi should add a violent crime exception to Rule 601.

For purposes of discussion and clarification of the position I take in this separate opinion, assume a defendant is married to his spouse, and the defendant is charged with a crime of violence against another individual. Unknown to the defendant, the spouse actually observed strange actions of the defendant after the crime of violence in an effort to cover up the crime. Also, assume the defendant later admitted to the spouse that he actually committed the crime. Finally, assume the spouse was so distraught over what she was told and what she observed, she told her best friend everything shortly after it happened. The spouse leaves the defendant but cannot afford to hire an attorney to obtain a divorce. Further, the defendant refuses to agree to a divorce, and the spouse has no fault grounds under Mississippi law to force the divorce issue here. So, the spouse and the defendant are married and living separate lives when years later, the defendant is charged with the crime of violence against the other individual. If the State of Mississippi tried to call the spouse as a witness at the trial, the defendant could object and prevent the spouse from testifying under Mississippi's present rule of competency. The jury would not hear what the spouse observed as evidence because of a rule designed in medieval times when women were considered chattel of their husbands. The potential rises for a defendant/husband to be found not guilty when he clearly committed the crime. The important and legitimate government interest in protecting its citizens, enforcing its law, and ensuring legal results is based in truth, and justice would stand subservient to our attempt to protect an already-broken marriage (under the example I gave). How is this possible? We can look at the applicable rule for its effect....

The need for juries and judges to hear all relevant evidence in the administration of criminal justice is vital to guaranteeing the criminal justice system gets it right in its quest for truth and justice. Mississippi has an overwhelming public interest in making sure a trial is indeed a search for the truth, and outdated and archaic rules of competency should not prevent the jury from hearing otherwise admissible relevant evidence.

Rules of competency should not prevent the jury from hearing important evidence from the defendant's spouse solely to protect marital harmony. It is likely that a relationship between a spouse who witnessed his or her spouse commit an act of violence has already lost its harmony. In the example I gave at the beginning of this opinion, the marriage was already broken, and no further harm to it could occur. Instead of trying to protect one broken marriage, Mississippi should protect a more vital and bigger interest in holding those committing crimes of violence accountable through the criminal justice system. I respectfully suggest that Rule 601 be modified or abolished. Marital competency rules from a bygone era should not inhibit the essential function and purpose of the criminal justice system. Trials, which are a search for the truth, should not be subjected to manipulation and abused by outdated marital legal theories that do nothing in aiding the administration of justice but could do everything in allowing the guilty to potentially to avoid accountability and the innocent to be potentially wrongfully convicted.

-CM