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Will getting married tomorrow save me from having to appear in court to testify against my boyfriend?

Arlington, MA |
Filed under: Family law

my boyfriend, child's father is scheduled for a trial for domestic assault. details in the police report was misconstrued and i want the case to be dismissed and go on with our lives as a family. i understand that the court may serve me a subpoena any day now. we have full intentions to staying together and just want to resolve this mess.

i want to know if it would be beneficial for us to get married tomorrow? (marital/spousal privilege)

I have NO intentions of testifying against him if i do get called upon to testify in court. is the DA going to manipulate me into incriminating him? is it best for our case if I avoid having to step foot in court (even if i am supporting/on the same side of my boyfriend) ??


thanks for your time

Attorney Answers 6

Posted

Marrying your boyfriend will exempt you from having to testify against him. However, it does not mean the Commonwealth would necessarily drop the case if they have other evidence. Talk to your boyfriend's lawyer to find out if invoking the marital privilege would be the best thing for your boyfriend's case, or if your truthful testimony that the police report was wrong would be more helpful.

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Andrew W. Cowan

Andrew W. Cowan

Posted

As Attorney Kelly rightly pointed out, any statements that you previously made about the case could be used as evidence against your bf if you invoke your marital privilege.

Posted

This would be what your marriage is based around? To avoid testifying against a boyfriend? The prosecution may have other evidence to pursue charges.

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Posted

The spousal privilege prevents the Commonwealth (DA) from making you testify against your spouse in a crime that does not involve you as a victim. You can waive this right and testify.

Disqualification of a spouse means that a spouse may not testify against the other, even if they both want to, regarding private o communications between the two of you. This disqualification does not apply in cases where you are the victim. It also only applies if the communication happened while you were married. If he threatened you, you do not have the privilege not to testify about that if you get married after it happens.

The only real exclusion I can see is if you were involved in some way--equally responsible because you assaulted him as well. Then you can refuse to testify to implicate yourself. 5th Amendment.

Good luck.

In other words, you would not be protected by the spousal privilege for a case where you are the victim.

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Henry Lebensbaum

Henry Lebensbaum

Posted

I am not sure I agree.

Terri D. Leary

Terri D. Leary

Posted

http://www.mass.gov/courts/sjc/guide-to-evidence/504.htm

Henry Lebensbaum

Henry Lebensbaum

Posted

I see

Andrew W. Cowan

Andrew W. Cowan

Posted

Look at Guide to Evidence 504(a). While the disqualification does not apply, the privilege does. In other words, the defendant cannot keep the OP off the stand, but if they get married she can refuse to testify.

Posted

There may be other privileges that you can use to keep from testifying. You should consult a lawyer other than your boyfriend's lawyer to understand your options. Maybe you can have the same result without getting married.

THIS COMMUNICATION DOES NOT CONSTITUTE THE CREATION OF AN ATTORNEY-CLIENT RELATIONSHIP. Legal rights vary greatly depending on specific facts, and it is impossible on the basis of the recitation of a few facts to determine whether or not an individual has a viable case, what is the full range of options, or what limitations exist which may bar an individual's potential claims. ON THE BASIS OF THE INFORMATION PROVIDED TO ME, I RECOMMEND THAT YOU PROMPTLY CONSULT AN ATTORNEY TO DETERMINE THE SCOPE OF LEGAL RECOURSE, IF ANY, YOU MAY HAVE. YOU SHOULD NOT RELY ON ANYTHING I HAVE STATED AS ADVICE TO DO ANYTHING OTHER THAN TO CONSULT AN ATTORNEY TO DISCUSS FULLY AN APPROPRIATE COURSE OF ACTION.

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Posted

Massachusetts has a "marital privilege" statute which generally speaking allows a husband or wife to refuse to testify at a criminal trial against the other. Both the Federal and State Consitutions provide for a privilege of any person not to incriminate themself. If your truthful testimony could in any way subject you to prosecution for a crime then you could exercise your Fifth Amendment privilege and refuse to testify without having to take the dramatic step of marriage. Marrying the guy (who allegedly beat you) seems like quite a drastic step, don't you think? Would you say that it is a good environment for your child to be living in the household with a man who allegedly beats his/her mother? You two have a child and have not yet married; why not? I am not trying to get moralistic on you here; I just feel you should have a better reason to marry someone other than it may get him out of the case. Good Luck.

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Posted

Any statements you made to police that tend to demonstrate his guilt would be admissible if you purposely got married to avoid from having to testify under the doctrine of forfeiture by wrong doing. Here the your boyfriend would forfeit the right to cross examine and confront witnesses if the court finds that you and him purposely got married to prevent the testimony. This was decided recently in a case called Commonwealth v szerlong. So you're decision to get married would be a bad one based on what you have said here. However, if you had another privilege - such as the privilege against self incrimination - that would not open the door to your statements being admitted. I also agree that if there is other evidence such as a 911 call or photographs that show injuries or other witnesses obviously, the commonwealth will go forward without you. If you have questions beyond that you should consult a lawyer. Only an attorney who practices criminal law can assess whether you have a valid privilege. Good luck

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Andrew W. Cowan

Andrew W. Cowan

Posted

Thanks Brian. I had missed the Szerlong decision and haven't had the issue come up since then.

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