When can a witness-spouse refuse to testify at trial?
- Steven Topazio wrote this May 8, 2023 at 2:41 pm
If an argument between husband and wife escalates to one being charged with a crime or accused of domestic violence, the witness-spouse can later refuse to testify at trial.
Under Massachusetts law, a witness-spouse has the right to exercise a marital privilege not to testify against their marital partner even if the prosecutor wants to prosecute the case and even without the witness-spouse’s testimony the criminal case might be dismissed due to lack of evidence. The privilege against testifying rests solely within the province of the witness-spouse and the defendant lacks standing to challenge the decision of his or her spouse to take the stand.
There is also a spousal disqualification law in Massachusetts, GL. Chapter 233, section 20. This law prohibits spouses from testifying about private conversations they have with each other which occurred during their marriage. General Laws c. 233, Section 20, provides in pertinent part:
“Any person of sufficient understanding, although a party, may testify in any proceeding . . .
except as follows: First, Except in a proceeding arising out of or involving a contract made by a
married woman with her husband . . . neither husband nor wife shall testify as to private
conversations with the other.”
The rule established by the statute is one of disqualification rather than privilege and spouses are forbidden, on objection, to testify about the contents of their private conversations. The difference between the two legal principles is that the spousal disqualification applies in all actions, civil and criminal, and regardless of whether one of the spouses is a party or not; the spousal privilege applies only in criminal cases where the spouse is the defendant.
COMMONWEALTH vs. DOUGLAS GARCIA. 89 Mass. App. Ct 67 (2016)
Original holding hands photo courtesy of freestocks