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I am being subpoenaed in a criminal case to testify against my husband. How can I use my 5th amendment?

Oxnard, CA |
Attorney answers 6


The 5th Amendment privilege you referenced relates to the right an accused party has to remain silent. You are not an accused party and thus, you do not have that right. Now, if you are concerned about being placed in a situation where you may make incriminating responses, that is a different matter. Sit down with a local criminal defense attorney and discuss your concerns.

Good luck.


In no way am I offering you legal advice, and in no way has my comment created an attorney-client relationship. You are not to rely upon my note above in any way, but insted need to sit down with counsel and share all relevant facts before receiving fully-informed legal advice. If you want to be completely sure of your rights, you must sit down with an experienced criminal defense attorney to be fully aware of your rights.


Your Fifth Amendment privilege comes into play when your testimony might incriminate you in a crime. There is an additional privilege called the marital privilege, that you might be able to exercise in regards to testify against your spouse. I would speak with your husband's attorney and he should be able to get this worked out for you. Good luck with the situation.

I will be happy to speak with you at no cost with a FREE phone consultation if you have a San Diego or California matter. Please call my office at 619-238-1905 or visit my website at


California Evidence Code sections 970-973 are applicable here. A married person generally has the privilege not to testify against other spouse, however there are numerous exceptions to the privilege including that involving a crime against a third person. You may be required to testify. Without knowing more about the specifics of your situation it is uncertain whether you would be allowed to raise this privilege and be excused from your obligation to testify. The 5th Amendment is a testimonial privilege against self incrimination. Unless you were a participant that likely would not apply to your situation.

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If this is a Domestic Battery case, you are covered by Marsy's Law. Under Marsy's Law, you cannot be jailed for refusing to testify, however the Judge can find you in contempt and force you to pay a fine.

Seth Weinstein, Esq.
Practicing throughout Southern California
(310) 707-7131

This reply should NOT be considered a legal opinion of your case / inquiry. At this time I do not have sufficient factual/legal documentation to give a complete answer to your question and there may be more to the issues you raised then I have set out in my brief reply.


Based on how you presented your question it appears you do not have the right to claim the 5th. Additionally no privilege exists in a criminal case, where you are the alleged victim and your husband is the defendant, for you not to testify. You can refuse and in that case the court can hold you in contempt and fine you, and the fines depending on the judge can be on every question you refuse to answer. You need to consult with a lawyer to really go through your options.


You should get the help of your own local lawyer.

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