Re: Local crime story (And stories like this?)

Kat Richardson wrote:

Francis A. Miniter wrote:

Kat Richardson wrote:
<snip>

Francis (or John P, if you know):  I seem to recall that a spouse cannot
be compelled to testify against their spouse (exes, I believe, don't
count). Is that true or is it a fiction?

<snip> 

Hi Kat,

I purposely avoided that issue in my response.  But, here goes.  The old
common law rule was that a spouse was incompetent to testify in a trial
of the other spouse.  That meant that she or he could not testify even
on behalf of the accused spouse.  Somewhere in the 19th century, if my
recollection serves, that rule was deemed too draconian.  A spouse could
not under that rule even say "He was home with me all night."

So, the rule changed and variants flew off in all directions.  In some
jurisdictions, a spouse cannot testify against the accused spouse [still
a form of incompetency] but can testify for him or her.  In other
jurisdictions, a spouse cannot be compelled to testify against the
accused spouse, but can choose to testify against the accused spouse.
In still other jurisdictions, the rule is that a spouse can be compelled
to testify but not as to communications between the spouses.  Under this
rule, a spouse could be forced to say, "He came home at midnight and his
white shirt was covered with blood and then he burned it,"  but could
not be compelled to say, "I asked him what happened and he said he
killed my boyfriend."   So the variations on the rule have to be
examined from state to state.

Exes do not count as there is nothing in the relationship to preserve -
supposedly.


Francis A. Miniter 


Ah-hah!  I'm sorry to have put you on the spot, Francis.  But thank you very
much for the explanation of the spousal testimony issue.  I hadn't realized
it was so complicated.  It's one of those conventions in Golden Age
mysteries--Witness for the Prosecution being a famous instance--which I
wasn't sure really existed anymore, if it ever had.


Definitely complicated. The writer may have to move the events to another jurisdiction to get the right level of spousal immunity. So much research!


Francis A. Miniter


.

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