Tuesday, November 30, 2010
What is "Spousal Privilege," and why you need to be nice to your spouse
The Ohio Supreme Court just issued an opinion this week that addresses the implications an old but often misunderstood doctrine called the "spousal privilege." Under the codified version of this doctrine, the spouse of a criminal defendant is not competent (i.e. not legally eligible) to testify against his or her spouse at trial unless the defendant is charged with a crime against the spouse or their children, or unless the spouse freely elects to testify. In the old mobster movies, the mobster would always try to marry the star witness against him so that his wife could not testify against him - but this is not how the privilge actually works in Ohio. As set forth above, a spouse is permitted to testify against the other spouse ONLY if either (i) the testifying spouse (or their child) is the victim of the crime or (ii) the spouse simply decides to testify by their own volutary decision. Stated another way, a prosecutor cannot force a spouse to testify against the other spouse unless (i) the testifying spouse or their child is the victim in the crime or (ii) the testifying spouse decides he or she just wants to. So fellas, be nice to your wives.