By Collin County Criminal Defense Lawyer Jeremy Rosenthal
In Texas the prosecution can and will force one spouse to testify against another — often against their will. I am often asked in disbelief in assault cases “can they really do this?” Unfortunately the answer is, “yes.”
Texas Rule of Evidence 504 governs the husband-wife privilege. Generally speaking, any communication made to one’s spouse is privileged under that rule during and even after the marriage. Either spouse may assert the privilege whether they are a party to a case or not. Unfortunately, the husband-wife privilege is riddled with far more exceptions than other privileges (such as the attorney-client privilege).
Tex.R.Evid. 504(a)(4)(D) is just one of the specific exceptions to this rule of privilege. That rule states a spouse can be compelled to testify against their other spouse if that spouse is considered the victim of the crime or if any other member of the household or any minor child.
Additionally, it is important to note that in some cases, the testimony attempted to be compelled out of the “victim” spouse is not regarding communication but regarding conduct. Obviously the privilege in and of itself only applies to “communications” in the first place. The privilege, therefore, cannot be used to prevent disclosure of facts surrounding an incident where family violence has been alleged.
The state in assault cases must still prove their case beyond all reasonable doubt. Jurors are very sensitive to situations where it is clear one spouse does not want to testify against the other and don’t always appreciate the police and/or the state being overly-invasive of a family… so even where a spouse is compelled to testify against their will — the cases can and do frequently result in acquittals.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered legal advice. For legal advice about any situation you should always directly consult an attorney.