Can They Make Me Testify Against My Husband/ Wife?

May 2, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

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.

1 Comment | Assault, Uncategorized | Tagged: , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Am I Guilty Just Because I was There?

March 1, 2010

By Collin County Criminal Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

In Texas, mere presence at a crime scene alone is insufficient to sustain a conviction.  The difference between just being at a crime scene and doing something which can be considered aiding or abetting is paper thin, however.  And if you’re complicit in an offense — you can be held equally responsible.

Texas has what is called the law of parties in criminal cases.  It is governed by Section 7.02 of the Texas Penal Code.

Tex.Pen.C. 7.02(2) says that if a person, “solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense…” then they are criminally liable as well.  I’ve italicized the words above to show just how liberal the application of that law can be.

Let me give you a hypothetical of how this rule applies.  Take two 18-year old boys at the mall.  One decides he’s going to shoplift and the other doesn’t know about it.  If the friend doesn’t see and doesn’t know that the other was trying to steal as they all walk out of the store — it would be very difficult to say the non-stealing friend is guilty under the law of parties.  Certainly the shop owner and police may think so; but they would have to prove that in court.

On the other hand, let’s say the one guy is trying to shoplift and friend sees it.  He doesn’t participate, but he gets nervous and when the shop owner looks over at him, he “acts natural.”  Are both guilty of theft?  It’s a tough question.  Some jurors may consider that aiding or attempting to aid in the furtherance of the offense.

Issues like these are why criminal defense lawyers experienced in trial are crucial.  A criminal defense lawyer can force the prosecution to prove the complicit beyond all reasonable doubt.  If the prosecution can’t, then there will be an acquittal.  The burden is on the state to prove your intent and your actions.  The burden isn’t on you to show you were innocent!

It should be noted that there are many offenses where people have an affirmative duty to report the crime that they’ve witnessed.  This generally includes felony offenses and other cases where the witness owes a special duty to the victim.  Also anytime a person suspects abuse or neglect of a child, they have a legal duty to report the same to Child Protective Services.

*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 is intended to be legal advice.  For legal advice, please consult an attorney.

2 Comments | Theft | Tagged: , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

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