a. Prepare an outline of the statutory elements.
b. When can a husband or wife testify against each other? When are they prohibited from testifying against each other?
c. Husband, while driving under the influence of alcohol, ran a stop sign, and his vehicle collided with a vehicle driven by Mr. Smith. Husband’s spouse (Wife) and two children were passengers in the car. The day after the wreck, Husband told Wife that he knew he ran the stop sign because he was drunk. Mr. Smith sues Husband for negligence. When answering the following questions, identify any additional information that may be necessary to fully answer the question.
1. Can Wife be compelled to testify concerning her conversation with Husband? Why or why not?
2. Can Wife voluntarily testify concerning the conversation? Why or why not?
3. If Husband and Wife are legally separated, can Wife voluntarily testify concerning the conversation? Why or why not?
4. Is the conversation admissible if they are divorced at the time of the lawsuit? Why or why not?

5. Husband and Wife have lived together as husband and wife for the past 20 years. They have never been formally married. Can Wife testify against Husband concerning the conversation? Why or why not?
6. Is the conversation admissible in a divorce action between Husband and Wife? Why or why not?

Statute: Section 35-1-4, Privileged Communications—Husband and Wife
In all actions, husband and wife may testify for or against each other, provided that neither may testify as to any communication or admission made by either
of them to the other during the marriage, except in actions:
1. between such husband and wife, and,
2. where the custody, support, health or welfare of their children or children in either spouse’s custody or control is directly in issue.