In many states, people are entitled under law to refuse to testify against their spouse in a court proceeding. Commonly known as the spousal testimonial privilege (one of several privileges referred to as the spousal privilege or marital privilege), the privilege is meant to preserve harmony within a marriage by protecting a person from being forced to testify against the person’s spouse. In other words, a witness can invoke the spousal testimonial privilege to avoid providing damaging testimony against the witness’ spouse, and the witness will not run the risk of being found in contempt of court and fined or jailed for refusing to testify.
What happens when a person is being prosecuted for committing a domestic violence crime against the person’s spouse, and the spouse invokes the spousal testimonial privilege to avoid testifying about the alleged abuse? Can the defendant still be prosecuted?
The short answer is yes. A prosecutor can continue prosecuting a defendant even though the alleged victim cannot be compelled to testify. Whether the prosecutor will want to go forward with prosecuting a defendant when the alleged victim-spouse invokes the privilege to avoid testifying is another matter.
The prosecutor’s decision of whether to proceed with the prosecution when the alleged victim has invoked the spousal testimonial privilege will often depend on the strength of other evidence in the case. Such evidence may include photographs of the spouse’s injuries, such as bruises, scratches, or black eyes. Even though the defendant’s spouse will not testify, police officers and medical professionals may testify as to any injuries that they observed on the spouse. In some states, witnesses may testify to statements made by the spouse to police, medical providers, and others.
A prosecutor may also consider the defendant’s criminal record when deciding whether to continue with a domestic violence prosecution without the alleged victim-spouse’s testimony. The defendant's past becomes particularlyrelevant when the prior convictions are for domestic violence crimes, especially when the prosecutor believes that evidence of these past crimes can be brought to the jury's attention (whether the past convictions will be admissible at trial depends on state law and the prosecutor's approach to proving the case).
The prosecutor may choose not to proceed with the case if convicting the defendant appears unlikely without the spouse's testimony. In some cases, the absence of the alleged victim-spouse’s testimony leaves the prosecutor with an entirely circumstantial case; that is, although the remaining evidence (such as a police officer’s testimony about observing scratches and bruises on the spouse) is consistent with domestic violence, other explanations exist that do not involve the commission of domestic violence. Because the defendant has the right not to testify at trial, the prosecutor may have no way to disprove reasonable alternative explanations that do not involve the defendant committing a crime, and under these circumstances a defendant is legally entitled to the judge declaring the defendant not guilty without the jury even getting the opportunity to decide the verdict.
Even where the prosecutor decides not to dismiss the case, the defendant may receive a more favorable plea offer (such as reducing the charge in exchange for the defendant’s guilty plea) than the prosecutor would offer if the spouse was willing to testify at trial.