 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Brown v. State6/9/2000
ed nature of spousal communications[.]
Spousal privilege and spousal competency are distinct legal concepts which interrelate and provide two different levels of protection for communications between spouses. Under R.C. 2945.42, an accused may prevent a spouse from testifying about private acts or communications. However, even when the privilege does not apply because another person witnessed the acts or communications, a spouse still is not competent to testify about those acts or communications unless she specifically elects to testify. While the presence of a witness strips away the protection of the privilege, the protection provided pursuant to Evid. R. 601 remains.
. . . While Evid. R. 601 was amended in 1991 to allow the spouse the decision as to whether to testify against the accused spouse (the decision formerly lay with the accused), the rule still contains important protections for the accused, since it deals with the competency of persons testifying against him.
The rule requires that the testifying spouse elect to testify against her spouse. . . . Thus, under Evid. R. 601(B), a spouse remains incompetent to testify until she makes a deliberate choice to testify, with knowledge of her right to refuse. Id. at 433-34, 650 N.E.2d at 877. State v. Savage, 30 Ohio St. 3d 1, 506 N.E.2d 196 (1987), applied a prior version of the Ohio competency rule in which the decision of whether a spouse could testify rested with the accused. The Court distinguished the rule from a rule of privilege: pousal incompetency received different treatment, not based upon privilege, but upon a rule of absolute incompetency which could not be waived by failure of the defendant-spouse to object. Only when the defendant called his spouse to the stand . . . was the testifying spouse's incompetency waived, and cross-examination allowed.
. . . Furthermore, there are significant differences between a rule granting a particular privilege and one which defines a class of witnesses as incompetent. . . . rule of incompetency defines which witness may not offer testimony and then sets forth limited exceptions for when witnesses may be heard. [Citations omitted.] Id. at 4, 506 N.E.2d at 198. See also State v. Phelps, 100 Ohio App. 3d 187, 192, 652 N.E.2d 1032, 1035 (1995) ("Having demonstrated the uniqueness of the two rules, it becomes apparent that spousal incompetency is not subsumed within spousal privilege." (quotation omitted)).
It appears that at least the intermediate appellate court in Minnesota is in agreement with the holdings of the Ohio courts. In State v. Thompson, 413 N.W.2d 889 (Minn. Ct. App. 1987), the state took an appeal from an order suppressing a statement made to the police by the defendant's wife in respect to a communication between she and her husband. At the time of the communication of the statement, the parties had not been married, but were married at the time of trial. The defendant asserted that "the marital privilege would prevent it from being admitted in his trial." Id. at 890.
The Minnesota statute provided that " husband cannot be examined for or against his wife without her consent, [or vice-versa], . . . nor can either, during the marriage or afterwards, . . . be examined as to any communication made by one to the other during the marriage." Id. at 890-91 (quoting Minn. Stat. ยง 595.02, subd. 1(a), (1986)). The appellate court opined, in part: "The marital privilege statute is twofold, providing for both the incompetency of the spouse and the privilege for marital communications." Id. at 891. Because the parties were not married at the time of the communication at issue, the court held that the "privilege" for marital communicatio
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Maryland Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|