Court of Appeals of Kentucky Finds Criminal Defendant Waived Spousal Privilege by Calling His Wife to Testify at 2 Pre-Trial Hearings
Kentucky Rule of Evidence 504(a) provides that
The spouse of a party has a privilege to refuse to testify against the party as to events occurring after the date of their marriage. A party has a privilege to prevent his or her spouse from testifying against the party as to events
occurring after the date of their marriage.
So, what happens when a defendant on trial for attempted murder calls his wife to testify at two pre-trial hearings but then wants to invoke spousal privilege to prevent her from testifying at trial? That was the question addressed by the Court of Appeals of Kentucky in its recent opinion in Commonwealth v. Daugherty, 2026 WL 1500838 (Ky. App. 2026).
The court was quickly able to resolve this issue by citing to Kentucky Rule of Evidence 509, which provides that
A person upon whom these rules confer a privilege against disclosure waives the
privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privilege matter. This rule does not apply if the disclosure itself is privileged. Disclosure of communications for the purpose of receiving third-party payment for professional services does not waive any privilege with respect to such communications.
According to the court,
KRE 509 controls. Appellee consented to the disclosure of privileged matters by calling his wife as a witness in two pre-trial hearings. Ms. Daugherty was questioned by both defense counsel and the prosecution regarding the shooting and the events leading up to it. Although her testimony only lasted a few minutes during each hearing, she testified to facts surrounding the shooting; therefore, we believe that the spousal privilege was waived and it cannot prevent Ms. Daugherty from testifying to relevant matters regarding the shooting that are adverse to Appellee’s position.