Domestic Violence And The Spousal Privilege: Do I Have To Testify Against My Spouse.

Any Orange County Domestic Violence Lawyer will tell you that a
typical domestic violence arrest in Orange County consists of one spouse being
arrested for some form of domestic violence, be it Criminal Threats,
Domestic
Battery or Corporal
Injury, against the other spouse. When the police respond to a domestic
violence call, they take a statement from the victim and arrest the defendant.
The police forward the report containing the victim spouse’s statement to the District
Attorney’s office.

The DA then reviews the report and files a Complaint with
the court, listing the domestic violence charges against the defendant spouse.
However, the police report, and the statement made by the victim spouse, is NOT
admissible as evidence in court. A statement made out of court is called “hearsay”
and is objectionable to the defendant’s Domestic Violence Attorney in Orange County. In order to prosecute
the defendant spouse at trial, the DA will need to put a witness on the stand
who actually saw the domestic violence occur. In most cases, the only witness
is the victim spouse.

Often, by the time the trial rolls around, which is
typically months after the domestic violence occurred, the victim spouse no
longer wishes to prosecute the defendant spouse. The victim spouse usually does
not want to send their spouse to jail or to have their spouse bear a conviction
for misdemeanor or felony domestic violence. However, it is not up to a victim
of a crime to decide whether prosecution should occur. It is entirely up to the
DA to decide to prosecute for a crime. At this point the victim spouse is
merely a witness to the crime of domestic violence and the DA will subpoena
this reluctant witness to testify against their spouse.

But what about the marital privilege? Doesn’t the law
prohibit forcing one spouse to testify against the other? This is a question we
Domestic Violence
Lawyers in Orange County get all the time. Well yes…sort of. There is a
marital privilege in California, as in many states, which prohibits forcing a
spouse to testify against the other. This privilege is found at Section 971 of
the California Evidence Code and it states:

 

Except as
otherwise provided by statute, a married person



whose spouse is a
party to a proceeding has a privilege not to be



called as a
witness by an adverse party to that proceeding without



the prior express
consent of the spouse having the privilege under


this section
unless the party calling the spouse does so in good faith without
knowledge of the marital relationship.

And if this privilege hadn’t been amended by the legislature
it WOULD prevent forcing one spouse to testify against the other in a domestic
violence trial. However, this privilege WAS amended by Evidence Code Section
972 which specifically states that the marital privilege is not available in a
criminal action where one spouse is accused of committing a crime against the
other. Therefore, criminal defense lawyers in Orange County can no longer rely on
the marital privilege to keep a reluctant spouse off the witness stand in a
domestic violence trial.

If you have been charged with a domestic violence offense,
call The Law Offices of EJ Stopyro today at (949) 559-5500 for a free and
confidential telephonic consultation. You can also visit our website at www.ejesquire.com. We have offices at 32072
Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675 and at
1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627.