 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Brown v. State6/9/2000
ns was not involved, and affirmed the lower court's finding.
The South Dakota Supreme Court in Jaques, 256 N.W.2d at 560, was concerned with "whether or not a defendant in a criminal prosecution . . . can effectively silence the state's star witness . . . by marrying her before trial . . . ." The court held:
The state concedes that she cannot be called as a witness without her husband's consent. We hold that her previous testimony is likewise inadmissible, and reverse.
. . . There can be no question but what the testimony of the witness being the spouse of the defendant [by the time of trial] was not competent unless he waived his privilege against her testifying. Id. at 560, 563.
In Burlington Northern Railroad v. Hood, 802 P.2d 458, 465 (Colo. 1990), the statute stated " husband shall not be examined for or against his wife without her consent, [and vice-versa], and that `during the marriage or afterward' neither spouse shall `be examined without the consent of the other as to any communications made by one to the other during the marriage.'" (quoting Colo. Rev. Stat. 13-99-107(1)(a)(I), 6A (1990) (first alteration in original)). The Colorado Supreme Court held:
This statute creates two distinct privileges with respect to spousal testimony. The first privilege is sometimes referred to as the rule of spousal disqualification and prohibits one spouse from testifying against the other without the other's consent. The second privilege prohibits the disclosure of a spousal communication made by one spouse to the other during the marriage. Id. at 465 (citations omitted). See also Fisher v. State, 690 So. 2d 268, 272 (Miss. 1996), ("We . . . note the difference between the marital privilege and spousal incompetency. Rule 601(a)(2) abolishes spousal incompetence to testify . . . . The non-offender spouse may be called to testify, but the other spouse may still invoke the privilege regarding confidential communications . . . .").
The existing Pennsylvania statute, like Maryland's section 9-105, uses the term "competent" in its treatment of the confidential marital communications privilege: "in a criminal proceeding neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other, unless this privilege is waived upon the trial." 42 Pa. Cons. Stat. Ann. ยง 5914 (West 1982) (emphasis added).
Pennsylvania also has a statute relating to a spouse's testimony while married to a criminal defendant that was once a rule of incompetency. The terminology used was changed to a "privilege" by an Act of 1989. See Commonwealth v. Savage, 695 A.2d 820, 823 (Pa. Super. 1997) ( "The statutory provision dealing with spouses as witnesses against each other . . . was rewritten by Act 16 of 1989. When that section was rewritten, it was changed `from a rule rendering one spouse incompetent to testify against the other to a rule recognizing a privilege not to testify against one's spouse.'" (quoting Commonwealth v. Newman, 534 Pa. 424, 427, 633 A.2d 1069, 1070 (1993))). No such change in Maryland Code, section 9-106 of the Courts & Judicial Proceedings Article has occurred.
The new Pennsylvania testimonial statute was at issue in Newman, 534 Pa. 424, 633 A.2d 1069, a contempt case. The question presented there was whether the statute, effective after the date of the testifying spouse's acquisition of knowledge about the crime but before the defendant's trial, was applicable to compel her testimony against her husband. The court opined:
It has always been permissible for the Commonwealth to use information obtained from one spouse to build a case against the other spou
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.
|
|