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Testifying against a spouse

Discussion in 'Other Family Law Matters' started by jahbush, Apr 6, 2005.

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  1. jahbush

    jahbush Law Topic Starter New Member

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    My wife was charge with misdemeanor battery. This followed an altercation between her and I. She has bipolar disorder. During the altercation she had bitten me in self defense after i had trapped her in a corner while verbally accosting her. She then called the police because she wanted the situation to stop. The police ended up taking her away. I told them i did not want to press charges. A couple days later my wife was charged with misdemeanor battery. I have recently received a subpoena to testify against her. I do not want to. I have asked the DA to drop charges and they have refused to do so.
    Do i have to testify against her? Can she be prosecuted without my testimony? How can i get them to drop the charge? This action will cause my wife and i harm mentally and financially.
     
  2. NYClex

    NYClex New Member

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    First of all we would have to know in which state this all happened.

    Usually in criminal cases there is a so called spousal privilege, meaning that a spouse cannot be compelled to testify against another.

    But some states have changed the law in domestic violence cases. In a situation where the spouses fight each other, in what is commonly called "domestic violence", this privilege is abolished, so the spouse has to testify. In many places it is also the policy of the state attorney not to drop the charges of domestic violence once they have been filed, even if the other spouse requests it. It could be that you are in such a jurisdiction.
     
  3. jahbush

    jahbush Law Topic Starter New Member

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    Testify against my spouse

    This occured in Door County, Wisconsin.
     
  4. NYClex

    NYClex New Member

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    Yes, Wisconsin applies the exception to spousal privilege. Here is the law:

    Wis. Stat. §905.05(1):

    (1) General rule of privilege. A person has a privilege to prevent the person's spouse or former spouse from testifying against the person as to any private communication by one to the other made during their marriage.

    Exception in §905.05(3)(b) which provides:

    (3) Exceptions. There is no privilege under this rule:

    ....

    (b) In proceedings in which one spouse or former spouse is charged with a crime against the person or property of the other or of a child of either, or with a crime against the person or property of a 3rd person committed in the course of committing a crime against the other.
     
  5. jahbush

    jahbush Law Topic Starter New Member

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    Testify against my spouse

    May I invoke the Fifth Amendment if I feel I may be incriminating myself by answering some questions as to how the situation evolved? Is it even possible to be charged with disorderly conduct for giving testimony that may incriminate me ? May I ask the "privilege" of not answering questions that do not pertain to the actual alleged assault? Where does the District Attorney find the justice in this?
     
  6. NYClex

    NYClex New Member

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    Let me answer your last question first: the problem in many domestic violence cases is this: Eduardo beats up Ana. The police come, Eduardo gets arrested, posts bail. He comes home and tels Ana: if you testify against me I will kill you. Go and tell them to drop the charges. Ana very much believes Eduardo would do that so she goes and tells the DA she won't testify and that he should drop the charges. Next night Eduardo beats Ana up again. The cops come and arrest Eduardo... repeat the scene until Ana is beaten to death some day.

    That is what really happened all over the nation all the time. That is why the lawmakers changed the law so that in these cases spouses do not have the privilege any more and that is why DAs do not drop the charges any more on request of the battered spouse.

    Now to your case: Yes, you can take the fifth if you really would incriminate yourself. But the judge and the DA might be pretty suspicious of this, so if your really have concern that you might incriminate yourself or you really want to go this way you should consult an attorney first. Of course it is possible to be charged if your testimony really would show that you broke some law. In that case you would have a valid claim to take the fifth.
     
  7. jahbush

    jahbush Law Topic Starter New Member

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    Testify against my spouse

    Full scenario of this event was; I entered her locked bedroom. I verbally abused her. I physically pulled her fro her bed. I physically kept her in front of me while continueing to verbally abuse her. I physically poured water on her from a spray house by our kitchen sink while physically keeping her from getting away and not allowing her to get away from the situation. Can I be proven the perpetrator? Can I be charged with anything from this? Can it be reasonably argued she acted in self defense or feared for her safety?
     
  8. NYClex

    NYClex New Member

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    Hm, here we are reaching the limits of what this forum can do. We cannot give legal advise here like you would get it in an attorney's office in a regular client-attorney relationship. On first glance this sounds very much as if you could be held liable, for assault, and may be other things. BUT, a thorough analysis needs to be done, exploring justifications and defenses etc. This must be done in a regular legal consultation. Therefore I advise you to seek a consultation with a criminal defense attorney, one experienced in domestic violence situations. Your wife, by the way, should have one, too, if she is being charged.
     
  9. jahbush

    jahbush Law Topic Starter New Member

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    Previously unknown to me, my wife has signed a waiver to the right to an attorney and the case is being fast tracked to a jury trial. Does this mean she can no longer be represented by an attorney in this matter?
     
  10. NYClex

    NYClex New Member

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    I assume that it was a waiver to have an attorney present at questioning by the police. That by no means would preclude her to have an attorney at any other stage of the proceedings. On the contrary, if this is going to be a jury trial, she definitely needs to have an attorney.
     

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