Do Ihave the right not to testify against my husband?

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Do Ihave the right not to testify against my husband?

I called 911 because my husband was yelling on me. I have a restraining order that was he can stay with me but not yell, abuse, etc. The police arrested him. I have now changed my mind.

Asked on December 11, 2011 under Criminal Law, California

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

First of all, have you been subpoenaed? If so, you can't just not show. A subpoena is a direct order from a court requiring your appearance. If you ignore it, you can he held in contempt of court and a warrant for failure to appear can be issued for your arrest; you can also face fines and/or jail time.

Some victims try to refuse to testify by invoking the Fifth Amendment (i.e. the right against self-incrimination). However, this right doesn't apply simply because a witness doesn't want to testify. This right only applies if their own testimony would cause them to incriminate themselves. A witness who refuses to testify can also be held in contempt and jailed and/or fined.

Furthermore, in these type cases (domestic violence), many spouse's think that they can invoke "spousal privilege"; that is the right of one spouse not to have to give testimony against the other spouse. However, the majority of states have amended their spousal privilege statute to carve out an exception for DV victims. Bottom line, one spouse can be made to testify against the other.


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