Tuesday, December 1, 2009

Spouses Don't Have to Testify Against Each Other


Tiger Woods was in a traffic accident on Friday and had to be hospitalized briefly. Details of the accident have been sparse, but some have speculated that the accident might have been related to a domestic violence incident.

Woods has said relatively little about the incident, and part of the reason could be his fear that his wife could be prosecuted for domestic violence regardless of his desire for her to be prosecuted.

According to Slate's Hanna Rosin, Florida implemented a pro-arrest policy in 1991 which allows the police to make arrests in domestic violence cases regardless of the desires of the alleged victim. "The decision to arrest and charge shall not require the consent of the victim or consideration of the relationship of the parties."

The argument in favor of these aggressive arrest policies is that police and prosecutors have been reluctant to prosecute domestic violence in the past. Frequently, the alleged victim refuses to testify.

Unfortunately, aggressive prosecution of domestic violence when the accused and the alleged victim are married is nearly impossible if the alleged victim does not want to cooperate. The Utah Constitution provides that "a wife shall not be compelled to testify against her husband, nor a husband against his wife." The result is that if the alleged victim is married to the accused, the victim can refuse to testify. Frequently, there is not enough evidence to proceed with prosecution without the alleged victim's testimony.

Sadly, aggressive prosecutors spend resources prosecuting cases that will never result in convictions. Worse, the accused often has to spend time in jail, and money on bail and attorney's fees, despite the fact that there is almost no chance of a conviction.

Our firm recently got a case dismissed based on the marital privilege. The prosecutor had asked our client to plead guilty before he had a lawyer. The client didn't want to and his wife had said she refused to testify. The client hired us and we called the prosecutor a few times. The prosecutor kept insisting that we couldn't tell the client's wife that she was not obligated to testify against her husband. Eventually, though, the prosecutor saw that he was going to lose the case and decided to dismiss the case rather than be embarrassed at a trial.

The Tiger Woods case and our firm's experience show that some aggressive prosecution schemes for domestic violence cases do not jibe with common sense.

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