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Lisa Schmidt

Court Tells Spouse She Must Testify

Can the prosecutor make you testify in court?It used to be very hard for prosecutors to get one spouse to testify against the other in criminal proceedings. Over time changes to the law have made it easier. Now a recent Court of Appeals decision has swung the gate wide open, at least in certain kinds of cases.

The case centered on a husband who brought a rifle into the home of his estranged wife and shot the man who was there. The wife was not hurt. At the preliminary examination, the wife was asked to testify against her husband. The husband’s attorney said she wanted to assert her spousal privilege, but the testimony happened anyway. Without that testimony there may not have been enough evidence to take the case forward. But could the witness-spouse refuse to testify?

If this case had happened before 2000, when the prosecutor called the wife, the husband – as the defendant-spouse – might have had the right to assert spousal privilege and prevent the wife from testifying. This allowed criminal defendants to protect admissions made to their spouses in an effort to encourage honest communication between spouses. But because the shooting grew out of a personal wrong done by one spouse to the other, that right to refuse testimony shifted to the witness-wife. It became her decision, as a victim in the case, whether she wanted to testify or not.

In 2000, the law flipped. The new statute says:

In a criminal prosecution, a husband shall not be examined as a witness for or against his wife without consent or a wife for or against her husband without her consent except. . . [t]he spousal privileges . . . do not apply . . . [i]n a cause of action that grows out of a personal wrong or injury done by one to the other . . .

Now the right to refuse testify rests on the witness-spouse, not the defendant-spouse. The wife in the case could have chosen to testify or not regarding the shooting.

But the Court of Appeals took this one step further. Because the shooting grew out of a personal wrong done to the wife (which the court never clearly defines, but can be assumed to be trespassing and firing a weapon in her home), the wife’s privilege not to testify is negated. The court found that she could even be compelled to testify against her wishes. Under the court’s ruling, prosecutors can now subpoena victim-spouses, put them on the stand, and force them to answer questions about the criminal acts of their spouses against them, all backed by the threat of contempt of court.

The power of the prosecutors’ offices to decide whether to charge and to pursue conviction when the victim does not want to be involved has been steadily growing over several decades. Now with this most recent opinion, there will be nothing to stop them from pressing charges when no one else, not even the victim, believes they are necessary.

If you have been charged with domestic violence, contact attorney Lisa J. Schmidt for a consultation.

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