Legal Question in Criminal Law in Michigan

does a husband have to testify against his wife on a felony even tho he told the cops what happened.

also neither party ( husband or wife) was read their rights during the questioning..

so now what should we do


Asked on 5/23/10, 7:24 am

1 Answer from Attorneys

Neil O'Brien Eaton County Special Assistant Prosecuting Attorney

Marital privilege laws will probably allow one or both of you to refuse to testify about things that the spouses said to each other in the privacy of their marriage. Some exceptions to this privilege are when the other spouse or a child of these people is a victim of the defendant-spouse's conduct. But your question does not suggest that these come into play.

If the husband and wife jointly talk to police, privilege laws may be waived because they willingly brought an outsider into their discussions. The question is whether the officer can testify to things that either or both spouses said in his/her presence. Some issues may include whether this is inadmissible hearsay. (Things that the defendant says are not hearsay by definition if the prosecution offers them into evidence; essentially, the prosecution's "party-opponent" is stuck with whatever he says ... as long as it is relevant to the case, and as long as there isn't another legal issue like a constitutional concern.) But if the wife is not a co-defendant, then the officer might not be able to testify about what SHE said.

The fact that the husband "told the cops what happened" is not affected by marital privilege concerns. The suspect talked to the officer and told the officer things. The fact that the wife was present, or may have also said things, doesn't make the husband's statement inadmissible.

As for the "reading of our rights" concern, Miranda rights kick in when a person is "in custody" and then police question the person about topics that may tend to incriminate them. If you were all sitting in your living room, then you would likely not be deemed by a judge to be "in custody". But you don't tell us more about this dialogue to say more about it.

This husband should have a criminal defense attorney review the polcie reports, recordings or transcripts of the statement, etc., etc. and analyze whether any constitutional errors occurred.

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Answered on 5/25/10, 10:43 am


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