If I was subpoenaed to testify against my husband for domestic violence in nevada, what happens if I show up but refuse?

Marshal Shawn Willick
Family Law Attorney
• Las Vegas, NV


There is indeed a spousal privilege in Nevada law, although the authorities do not usually tell folks about it. From a draft treatise on family law:
Under NRS 49.295, a spousal privilege attaches, under which, generally, neither a husband nor a wife may be examined without that person’s consent in any prosecution or civil suit against the other, and neither may be examined during the marriage or thereafter, as to any communication by one to the other during the marriage, without the consent of the other. In other words, the “refusing to testify” privilege belongs to the spouse called to the stand, to invoke or not, and the confidential communication privilege belongs to the other spouse. [FN: Franco v. State, 109 Nev. 1229, 866 P.2d 247 (1993). Notably, this is apparently the reverse of the California law of spousal privilege, where the spousal privilege belongs to and may be waived by the witness. People v. Lankford, 127 Cal. Rptr. 408 (Cal. App. 3d 1976).] There are many exceptions.
The privilege is inapplicable in any suit by one spouse against the other, [FN: NRS 49.295 (2)(a).] or in a guardianship or similar proceeding, [FN: NRS 49.295 (2)(b).] or an examination as to the competence of the husband or wife, [FN: NRS 49.295 (2)(c).] or in any abuse or neglect proceeding in juvenile court or family court. [FN: NRS 49.295 (2)(d).] It is likewise inapplicable in any criminal proceeding where either is charged with a crime against the person or the property of the other spouse or of a child of either, or of a child in the custody or control of either, whether the crime was committed before or during marriage, [FN: NRS 49.295 (2)(e)(1).] or for bigamy or incest, [FN: NRS 49.295 (2)(e)(2).] or any crime related to abandonment of a child or nonsupport of a wife or child. [FN: NRS 49.295 (2)(e)(3).] Finally, the statute is inapplicable in any criminal proceeding as to events which took place before the husband and wife were married. [FN: NRS 49.295 (3).]
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You really should discuss the matter with qualified criminal defense counsel before deciding what to do -- or not do.
Of course, our providing information directly or by means of our web site does not create an attorney-client relationship or make us attorney of record in any case. It is our practice to have a written retainer agreement with every client we represent, so if we do not have such an agreement, you should presume that we are not (yet) your lawyers, and we are not providing legal advice, but only general legal information.
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