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  #1  
Old 06-17-2002, 01:42 PM
Eve Eve is offline
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"A Wife Can't Testify Against Her Husband"

I was watching a 1930s movie recently in which a distraught wife was told not to worry about her accused-of-murder hubby, as "she couldn't testify against him." It occured to me that this has been the linchpin of many a murder mystery—but the more I think about it, the shadier it seems.

Has this ever actually been a law in any country? Is it still, anywhere?
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  #2  
Old 06-17-2002, 01:56 PM
Zebra Zebra is offline
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IANAL but I do believe that a spouse can not be compelled to testify.

They can volunteer though.
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  #3  
Old 06-17-2002, 02:05 PM
katie1341 katie1341 is offline
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You are referring to "spousal immunity". It is the law in Georgia (and probably most other states) that one spouse cannot be compelled to testify against another. In other words, the privilege belongs to the testifying spouse.

For example, a woman accuses her husband of domestic violence. When the trial date rolls around, she's decided that she doesn't want to prosecute (this happens more than you even want to know). The prosecutor cannot force her under subpoena to testify- if she wants to, she can testify, but if she doesn't want to, they can't make her.

However, if she gets on the stand and invokes her spousal privilege, they can still prosecute th ecase. There is an evidence rule that allows hearsay evidence if the witness is "unavailable". In Georgia, invoking the spousal privilege is legal "unavailablilty", and the wife's previous statements (to police, investigators, friends, etc.).

So, the short answer to your question is that a spouse can tesify against another spuse, but only if they want to. They can't be compelled. Probably a lot more than you wanted to know, but that's what happens when a lawyer answers a legal question!
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  #4  
Old 06-17-2002, 02:08 PM
In Conceivable In Conceivable is offline
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Zebra tells it the way I always heard it.

Your spouse can't be forced to testify against you if he/she doesn't want to. But they can if they want. Kind of like an extension of the 5th amendment.

So, in otherwords, don't murder anyone in front of your wife unless you are sure she can keep her mouth shut.
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  #5  
Old 06-17-2002, 02:19 PM
Acsenray Acsenray is offline
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The Federal Rules of Evidence recognises all privileges traditionally recognised in common law. California's spousal privilege (Evid. Code § 970) gives the privilege to the person being called to testify, and I assume that most other states do likewise.
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  #6  
Old 06-17-2002, 02:21 PM
Slithy Tove Slithy Tove is offline
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Prosecuters get around this one by charging the wife, too, then offering her immunity if she'll testify against her husband. This is pretty common in the war on drugs.
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  #7  
Old 06-17-2002, 02:50 PM
pravnik pravnik is offline
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Here in Tejas we have, in addition to the spousal immunity Katie describes, a rule regarding confidential communications between spouses during marriage. Where the spousal immunity rule prevents a spouse from being compelled to testify against a defendant spouse in a criminal trial, the confidential communication rule prevents a spouse from being compelled, or allowed in absence of consent of the other spouse, from testifying as to a confidential communication made during marriage (certain exceptions apply to both privileges, e.g. spousal or child abuse).

For instance: Husband comes home covered in blood on the same night Victim is murdered. Wife sees him. If they are still married, wife can't be compelled by Prosecutor to testify as to what she saw at Victim's murder trial under the spousal immunity rule. Wife holds this privilege; she can testify if she desires.

On the other hand: That same night, Wife asks about the blood. Husband says "I just killed Victim". Prosecutor seeks to have wife testify as to Husband's comment. Under the confidential communication rule, Wife can't testify without both Wife and Husband's consent, even if they are now divorced. Both spouses hold this privilege.
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  #8  
Old 06-17-2002, 03:25 PM
EchoKitty EchoKitty is offline
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I live in Illinois, and my SO beat me up really bad. After that, we got married, and when he went to court, they told me I didn't have the right NOT to testify in this type of criminal case. However, they decided not to force me to testify and gave him probation and anger management-type classes. No spousal immunity here!
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  #9  
Old 06-17-2002, 03:35 PM
pravnik pravnik is offline
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They may still have the spousal immunity rule there, EchoKitty, but there are important exceptions to actions or communications "destructive of the family unit", like spousal abuse or child abuse where you do have to testify. Since the rationale of the privileges is preservation of the marriage/family unit, applying the privileges in those cases would defeat their purposes.

Sorry about your troubles.
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  #10  
Old 06-17-2002, 03:41 PM
EchoKitty EchoKitty is offline
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Thanks for your concern. All is OK now that the cocktail hour is out of the equation.
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  #11  
Old 06-17-2002, 03:47 PM
Eve Eve is offline
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Hmmm, interesting—and here I'd thought it was all an invention of Hollywood! I wonder if a gay man could sue, because his "husband" must testify against him, as their marriage is not legal?
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  #12  
Old 06-17-2002, 03:54 PM
EchoKitty EchoKitty is offline
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I don't believe a gay couple would have the protection. They don't get the benefit of any other marital type laws, so I can't imagine this one would apply.
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  #13  
Old 06-17-2002, 03:55 PM
katie1341 katie1341 is offline
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Eve, that's a very interestsing question, but I think I know how they'd answer it in Georgia, given that consensual sodomy was a felony here up until about 2 years ago. I remember when I first started practicing way back in the dark ages, we would go to some lengths to prove common-law marriage to try to get spousal immunity if the spouse didn't want to testify. It's not as simple as livning together for some period of time.
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  #14  
Old 06-17-2002, 04:03 PM
Whack-a-Mole Whack-a-Mole is offline
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I think you guys are getting this a little bit wrong. I discussed this in a thread around here awhile ago but two searches haven't turned it up and I'm tired of searching when the board is so slow. However, this is the way I remember it:

Spousal immunity adheres to you...not your spouse. That is, your spouse cannot testify if you do not wish it. Even if your spouse wants to blab they can't, or at least the blabbing can't be used in court against you. So, if I tell my wife I killed person X today she cannot testify against me if I do not wish it. Further, this covers issues from before we were married. If I tell my wife I killed person X when I was 16 (before I knew my wife) she still can't tell her story in court unless I agree to it. Likewise, if we get divorced, she can't testify in court about anything she found out while we were married.

The only allowance for this is if I do something to her. That is, if I beat her up she is free to testify against me on her own behalf.
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  #15  
Old 06-17-2002, 04:10 PM
EchoKitty EchoKitty is offline
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Like I said earlier, not only is she free to testify if she wants to, but she can be forced to testify, even if she doesn't want to.
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  #16  
Old 06-17-2002, 04:24 PM
pravnik pravnik is offline
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Quote:
Originally posted by Whack-a-Mole
I think you guys are getting this a little bit wrong. I discussed this in a thread around here awhile ago but two searches haven't turned it up and I'm tired of searching when the board is so slow. However, this is the way I remember it:

Spousal immunity adheres to you...not your spouse. That is, your spouse cannot testify if you do not wish it. Even if your spouse wants to blab they can't, or at least the blabbing can't be used in court against you. So, if I tell my wife I killed person X today she cannot testify against me if I do not wish it. Further, this covers issues from before we were married. If I tell my wife I killed person X when I was 16 (before I knew my wife) she still can't tell her story in court unless I agree to it. Likewise, if we get divorced, she can't testify in court about anything she found out while we were married.

The only allowance for this is if I do something to her. That is, if I beat her up she is free to testify against me on her own behalf.
You're confusing two different rules of law, the spousal immunity privilege and the confidential communication privilege. Everything you said is correct, but it isn't because of spousal immunity.

The things you tell your wife in confidence during your marriage are protected by the confidential communications rule, including things occurring before the marriage. Both spouses hold the privilege for this, even after the marriage is over, meaning your wife can't testify as to something you told her without your consent (or an exception). This applies (in TX) to both civil and criminal trials. This is what you're describing

Spousal immunity is somewhat different. It doesn't apply to things you tell your wife, but things she sees and otherwise knows about. This privilege is only available in criminal trials, and is only available if the two of you are still married at the time of trial. Also, this one is different from the confidential communications privilege in that the testifying spouse holds the privilege, not the defendant spouse. So she can testify if she wants about anything she saw, but still not about anything you told her in confidence.
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  #17  
Old 06-17-2002, 04:39 PM
Whack-a-Mole Whack-a-Mole is offline
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Quote:
Originally posted by EchoKitty
Like I said earlier, not only is she free to testify if she wants to, but she can be forced to testify, even if she doesn't want to.
It looks like this depends. Searching around the internet I found a bunch of different answers. It seems that while spousal immunity used to exist in some fairly strong forms it has been whittled away in different states to varying degrees. In Maryland, for instance a woman can only be forced to testify under some very particular conditions:

Quote:
Q: Can I be forced to testify against my husband if I file charges of assault and battery?

Yes. The state can compel a spousevictim to testify against the spouseabuser if:

i. the charge is the second offense; and
ii. the spousevictim refused to testify when sworn in at a previous trial by invoking spousal privilege.

[[i]SOURCE: http://www.peoples-law.com/peoples/m...iol/faqdom.htm
This web page has a lot of legal code posted but I don't claim to be able to decipher a lot of it. Still, read the following and see what you think (bolding is mine):

Quote:
Rule 505. Husband-Wife Privileges.
Evidence Rule 505 has been substantially revised since this commentary was first published.

In most states the marital relationship gives rise to two distinct privileges. One, the spousal immunity privilege, enables a party to bar a current spouse from testifying against that party. The other, the privilege for marital communications, protects confidential communications made to one's spouse during the course of a marriage. Although the Proposed Federal Rule of Evidence dealing with Husband-Wife privilege (PFRE 505) adopted only the spousal immunity privilege, Rule 43(h) (1), Alaska R. Civ. P., and Rule 26(b) (2), Alaska R. Crim. P., both superseded by this Rule, recognized both privileges. This Rule makes no change in the basic state of the law. Both marital privileges are recognized in civil and criminal cases.
(a)0Spousal Immunity. (1) Spouse Immunity. The spousal immunity privilege belongs to the party spouse. See Hawkins v. United States, 358 U.S. 74, 3 L.Ed.2d 125 (1958). If the party fails to object to a spouse being called to testify, the party waives any right to object to any portion of the testimony on the ground of spousal immunity.
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  #18  
Old 06-17-2002, 04:41 PM
Iguana Boy Iguana Boy is offline
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In Scotland, a spouse cannot be compelled to give evidence against their wife/husband, although they can if they wish.

There is an exception though - A spouse can be compelled if it is a crime of violence.
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  #19  
Old 06-17-2002, 05:08 PM
pravnik pravnik is offline
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Well, I have to concede that the old common law rule [i]did[/d] vest the privilege in the defendant spouse, but this has been largely reversed today in the U.S.

The page you quote was good research, but it's a bit misleading. It quotes a proposed federal rule of evidence and makes it seem as though it's actually now in effect, rule 505, and quotes the Hawkins case as authority, now overruled.

Hawkins v. United States, 358 U.S. 74 (1958). stated the traditional rule that the defendant spouse was the holder of the spousal immunity, or the "husband/wife privilege". Hawkins was overruled by Trammel v. United States 445 U.S. 40 (1980), where the Supreme Court reversed the traditional rule . The Proposed Rule 505 is an attempt to reinstate Hawkins, but so far it hasn't been adopted. A minority of jurisdictions do still follow the traditional rule, but most states and federal courts today vest the privilege solely in the testifying spouse.

So, yes, if a minority of states still follow the traditional common law rule, I suppose you're right, it depends.
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  #20  
Old 06-17-2002, 05:29 PM
pravnik pravnik is offline
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I gotta admit, though, that you did have me scratching my head on that one, and I had to go pull out the ol' evidence book.
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  #21  
Old 06-17-2002, 05:37 PM
peepthis peepthis is offline
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re: Maryland law, when I was present for a court hearing in that state, there was a case up before the one I was there for. A woman took the stand, and claimed spousal immunity in the case against her husband. The judge explained to her that she was allowed to do this just once, and asked if she was sure she wanted to use this "Get Out of Testifying Free" card at that time. She was sure.
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  #22  
Old 06-17-2002, 05:52 PM
Whack-a-Mole Whack-a-Mole is offline
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Quote:
Originally posted by pravnik
I gotta admit, though, that you did have me scratching my head on that one, and I had to go pull out the ol' evidence book.
Glad to help rattle the old neurons pravnik (that's half the fun of this board not too mention that I am now wiser for it as well).

So, it would seem that the answer to the OP, "Has this ever actually been a law in any country? Is it still, anywhere?", would be:

Yes, it has been a law in this (the US) country and the law, to varying but mostly lesser degrees, does still exist. As for other countries I couldn't say but I bet men, at least, are pretty well protected from their wives in places like Afghanistan or Iran (just a guess though).
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  #23  
Old 06-17-2002, 07:23 PM
Acsenray Acsenray is offline
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Quote:
re: Maryland law, when I was present for a court hearing in that state, there was a case up before the one I was there for. A woman took the stand, and claimed spousal immunity in the case against her husband. The judge explained to her that she was allowed to do this just once, and asked if she was sure she wanted to use this "Get Out of Testifying Free" card at that time. She was sure.
You have got to be kidding me. I never learned this when I was studying for the Maryland bar.
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  #24  
Old 06-17-2002, 09:40 PM
clairobscur clairobscur is offline
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There's something similar in France, though I don't remember the specifics. What I remember if that some relatives (spouse, children and parents, I believe) don't swear to say the truth in courts, and can't be charged if they lie. I don't know whether they can plainly refuse to testify or not.
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  #25  
Old 06-17-2002, 11:47 PM
Whack-a-Mole Whack-a-Mole is offline
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Quote:
Originally posted by acsenray
You have got to be kidding me. I never learned this when I was studying for the Maryland bar.
Did you read my quote and link earlier in this thread? I can't vouch for th accuracy of the website linked but it does seem to support what peepthis said.

Quote:
Q: Can I be forced to testify against my husband if I file charges of assault and battery?

Yes. The state can compel a spousevictim to testify against the spouseabuser if:

i. the charge is the second offense; and
ii. the spousevictim refused to testify when sworn in at a previous trial by invoking spousal privilege.

SOURCE: http://www.peoples-law.com/peoples/m...iol/faqdom.htm
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  #26  
Old 06-18-2002, 01:19 AM
Hup the Fool Hup the Fool is offline
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We have a strange case in my state that is being appealed because of the "wife can't testify against the husband" law. I haven't been following this real close, but I will state this as I understand the case.

A man and a woman faked a robbery at the womans workplace. Their babysitter found out somehow, so they killed her. The couple then got married, and even told police this, so they couldn't testify against each other. Both were charged with murder. The wife was given a deal(she got a shorter sentence) because the police/DA believed the husband had been the one that actually killed the babysitter. She testified against the huband and he was convicted. Upon appeal, the husband was granted a new trial because of the "wife can't testify against the husband" law. The new trial has not started yet, should be interesting to see how it comes out.
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  #27  
Old 06-18-2002, 02:43 AM
Cerowyn Cerowyn is offline
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Quote:
Originally posted by katie1341
given that consensual sodomy was a felony here up until about 2 years ago. I remember when I first started practicing way back in the dark ages
I'm somewhat ashamed to admit that I had to read this twice to be sure that you weren't talking about practicing consensual sodomy.

Carry on.
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"He who fights with monsters might take care lest he thereby become a monster. And if you gaze for long into an abyss, the abyss gazes also into you."
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  #28  
Old 06-18-2002, 11:01 PM
Little Nemo Little Nemo is offline
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Quote:
I live in Illinois, and my SO beat me up really bad. After that, we got married, and when he went to court, they told me I didn't have the right NOT to testify in this type of criminal case. However, they decided not to force me to testify and gave him probation and anger management-type classes. No spousal immunity here!
It may be legally significant that you were not married at the time the crime occurred. Some jurisdictions may have laws prohibited creating an immunity by marrying a witness after the crime occurred.
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  #29  
Old 06-19-2002, 11:06 AM
Northern Piper Northern Piper is online now
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The English common law was that a spouse was not a competent witness, period. Neither the Crown nor the defence could call the accused's spouse.

This was a variant of the fact that the accused was not a competent witness, either, and could not testify in his/her own defence. The law took the view that a married couple was one entity for this purpose, and therefore since the accused was not competent, neither was the spouse.

In Canada, at the federal level this position has been modified so that both the accused and the spouse are competent witnesses for the defence, but not compellable. The Canada Evidence Act, R.S.C. 1985, c. C-5 provides:
Quote:
4. (1) Every person charged with an offence, and, except as otherwise provided in this section, the wife or husband, as the case may be, of the person so charged, is a competent witness for the defence, whether the person so charged is charged solely or jointly with any other person.
Similarly, the Canada Evidence Act carries forward the privilege for spousal communications:
Quote:
(3) No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage.
There are exceptions to both of these provisions which I've not included where the spouse is the victim of the crime, or the victim is a young person, and a few other such situations.
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