Let’s say that the complainant (or alleged victim) in an assault case is the wife or husband of the accused. The complainant does not wish to go forward and testify against his or her spouse. The complainant goes up on the stand and invokes his or her marital privilege, thus refusing to testify against their spouse. Is that it? Is the case over and the defendant acquitted?
Most of the time yes, but it’s far from a guarantee. I’d say that in a vast majority of cases that is what happens. Cases where the spouse is cooperative and does not want to proceed usually mean that either the allegations were untrue, the assault was relatively minor, or the alleged abuser is in counseling or taking other steps to remedy the situation. In these situations I’m usually able to reach an agreement with the prosecutor that the only evidence they will present is the spouse who elects to take the marital privilege. If that is the case then, yes–spouse invokes the marital privilege, the state rests their case, and the defense moves for an acquittal–case over.
However, depending on the situation and the prosecutor, the State can still elect to proceed with their case against the defendant, even without the spouse testifying as to what happened. The State may have other eye witnesses to present. The State can still put the arresting officer on the stand. The officer won’t be able to offer all the statements the spouse made to him (since the spouse invoked the marital privilege and is now “unavailable to testify,” there are hearsay and Confrontation Clause defenses available to keep that evidence out of the trial), but he can testify to what the scene was like, what he observed, and present any photographs that he took. The State may also be able to admit the emergency 9-1-1 call, if there was one.
Also remember that the right to invoke the marital privilege belongs to the spouse. The State cannot take away that right, if it is available. The prosecutor or someone from the State’s Attorney’s Office may try to convince the spouse that they should testify, but it is ultimately the choice of the spouse.
I mention all of this not to scare someone into thinking that their case won’t go well, but as a warning that it may not be as easy as it seems at first. A defendant doesn’t want to walk into a situation like this thinking that since their spouse doesn’t want to testify that the case will just go away automatically–it doesn’t necessarily work that way. A defendant is far better off hiring an attorney to handle the case and prepare for all possibilities instead of handling it by themselves and finding out that their spouse changed their mind and now wants to testify or that the prosecutor still has evidence without the spouse and wants to go forward.
If you have an assault case where the complainant is a spouse, contact our office today at 301-875-3472. Consultations are free and we can give you a complete assessment of the case, answer any questions, and fight for the best result in your case.