I heard on the TV while getting ready for work, that they are considering charging the widow of the Orlando shooter because she knew before had.
I’ve been trying to do research to determine when spousal privilege is waived, and my google-fu is weak and returning just the waiver during court cases. Does this mean that spousal privilege does not exist prior to a crime being committed and any spouse can be charged if they had prior knowledge that a crime was imminent and failed to notify proper authorities?
Spousal privilege is a privilege against having to testify against your spouse. It’s not immunity from being prosecuted for, e.g., conspiracy if your co-conspirator happens to be your spouse.
If she committed an offence, the fact that the offence also involved her spouse does not give her any defence or immunity from prosecution. Spousal privilege has never meant that.
Let’s pretend they had got him alive. Then they found out she knew he was going to do it before hand, so they wanted to use her to prove premeditated murder. But they can’t because of spousal privilege.
Now, it seems unethical that since they couldn’t use her testimony to prove what they wanted, that they would turn around and charge her with conspiracy in an attempt to force her cooperation.
So, to me, ethically, it would be wrong to charge her if they failed to capture him alive, because they wouldn’t have charged her if they had.
I know my mind has made a convoluted mess, but that’s why I was trying to figure it out.
The purpose of spousal privilege is to protect the spousal relationship. You just shouldn’t be expected to testify against your spouse, or breach the confidence of your spouse as confidant.
Neither of those rationales apply here, since the spouse has checked out.
Add ‘battered.’
I can’t be forced to rat out my spouse in court but I can if I want to? Or I have to be out on the steps and I can anything to the authorities?
So the accused has no defense against their spouse telling in court that the other planned a crime or talked about it or talked in his sleep about it.
So why are not all the bad spouses in jail as the battered spouse can say anything and the one on trial can not do anything but say ‘they are lying?’ “She/he said he was going to break my arm.” and then did so, “see” which means premeditation (?) and the one on trial has no protection? So they go to prison.
Because even bad spouses don’t stay in jail forever. They might get short terms, probation, be out on bail etc and they come home and beat the shit (or kill) the wife who testified against them.
There seem to be two questions here that are getting mixed up. If she conspired with him, then she certainly ought to be charged. If she merely knew that he was planning something and did nothing, is she guilty of anything? If I see someone parking illegally, am I required to inform the authorities? So where is the line drawn?
I think that’s most likely sloppy reporting, with a lack of detail about the elements of the possible crimes.
I welcome correction on the point, but I am unaware of any general duty enforced by the criminal law to notify police if you’re merely aware of a pending crime.
However, there may well be probable cause for a grand jury to indict her for being a co-conspirator, or for making false statements to the FBI when questioned, or for aiding the commission of a crime. For example, if she drove him to buy ammunition, or to visit the club while aware of his plans, that can support the inference that she was assisting him. In that circumstance, she could rebut that inference by showing that she reported the pending crime to the police. But she’s not being charged for that failure, but for the positive act of assisting him in planning the act or procuring supplies.
Finally, she could be indicted under 18 U.S. Code § 4, “Misprision of felony.” But this, again, requires the government to prove not only that her husband planned and committed a federal felony, she had knowledge of that fact, and that she failed to notify the authorities, but also that she took actual affirmative steps to conceal the crime. Mere passive knowledge is insufficient.
Here, for example, is the Florida spousal communication privilege. In general, if Spouse A is on trial, Spouse B can refuse to testify about communications, and Spouse A can prevent Spouse B from testifying even if Spouse B wants to. There are three exceptions, though, where the privilege does not exist: 1) Civil cases between the spouses; 2) criminal cases alleging crimes by one spouse against the other or their child; 3) any other criminal case where one spouse is the defendant – but only the defendant can override the privilege, not the prosecution.
Thus, in cases of domestic violence, the prosecution can introduce statements made between spouses without being barred by privilege. In other cases where the alleged crime is something outside the marriage, the defendant can prevent the spouse from testifying.
Note that where there is a privilege, it continues even after the marriage ends, and arguably even after a spouse’s death.
There are exceptions for specific crimes and specific circumstances – mandatory reporting laws, for example, that require certain people with knowledge of abuse of minor children to report that knowledge.
But the general rule is that as long as the knowledge is purely passive and there is no active step to conceal or assist, there is no duty to report.
Consult a lawyer licensed in your jurisdiction for specific legal advice about a specific factual situation. This is general commentary on the law, and not legal advice to you or any reader.
Correct. I’m not sure if Florida recognizes the common law “accessory before the fact” charge or not. At least in my state, if someone materially assists someone in committing a crime prior to the fact and shares the criminal intent of the perpetrator, that person is just as guilty as the actual perp. Under those circumstances, his wife could be facing 49 murder charges and 53 attempted murder charges.
