Q: Can they have me testify against my girlfriend in a criminal case if we get married after they charge her?

A: The short answer is that yes, a couple can marry for the purpose of gaining access to the marital privilege in court actions, even if the charges are pending when the marriage happens. But, Marital privilege for evidentiary purposes is actually two separate privileges:

The first is the privilege not to testify against a current spouse in a legal proceeding. You must assert this privilege in order for it to apply.

The second is the privilege not to testify regarding confidential communications made to a spouse while the couple was married. Both have exceptions (e.g. for crimes in which one of the spouses is the victim or where the parties are suing each other). However, a confidential communication that occurred prior to marriage is not protected by the confidential communications marital privilege even after the couple married. Only the testimonial privilege would be available with regard to those communications, and the testimonial privilege often has more exceptions than the confidential communications privilege.

Given the number of exceptions to the marital privilege doctrine, I would highly recommend consulting with an experienced defense attorney about this.

A: The law yields a more nuanced answer. A witness has the right to legal counsel, and can retain an attorney to help assert the witness's rights. Minnesota recognizes a two-part spousal privilege. Minn. Stat. § 595.02, subd. 1(a); State v. Gianakos, 644 N.W.2d 409, 415 (Minn. 2002) (explaining that "despite the statutory nature of Minnesota's marital privilege, its roots are in the common law, and the Minnesota court retains inherent power to adopt standards by judicial opinion relating to the admissibility of evidence in the interest of justice"). First, a person may not be compelled to testify against his or her spouse during the marriage. Minn. Stat. § 595.02, subd. 1(a). Second, confidential communications between spouses during their marriage are protected from disclosure at any time. Id. There are exceptions to the spousal privilege, including one relating to communications before the marriage. But a lawyer should be able to help the witness find the best way to meet their goals.