Back in the day, the spousal privilege applied in assault cases. Spouses had an absolute right to refuse to testify in these situations. But the law changed several decades ago. The domestic assault trial of former Houston Oilers quarterback Warren Moon was one of the first times that the state forced a wife to testify against her husband.
In a criminal case, the alleged victim is a witness. Witnesses do not have the authority to bring charges or to stop the process. Only that state has the power to do these things. However, a Fort Worth criminal defense attorney still has some cards to play in these situations.
Assault Claim Nuts and Bolts
There is a lot at stake in a Domestic Violence assault case. The offense is a Class A misdemeanor, which could mean up to a year in jail. The collateral consequences, however, might be even worse.
Assault is a crime of moral turpitude. So, this offense could have significant employment and immigration consequences. Furthermore, people with these convictions on their records are essentially incompetent to testify in any subsequent civil or criminal proceeding.
A conviction could significantly affect a current or future family law case as well. Even if the conviction is quite old and involved another family, it could prevent the person from winning a child custody case. It could even result in contact restrictions, like limited or supervised visitation.
Spousal Refusal Instances
Although people cannot drop assault charges against their spouses, they can refuse to cooperate. If that occurs, one of three things will probably happen.
Prosecutors could drop the matter for lack of evidence or agree to a reckless conduct plea bargain. But tenacious prosecutors very rarely give up this easily.
The so-called Warren Moon rule is a much greater possibility. The state can subpoena the alleged victim to compel her appearance. During the trial, the state can treat her as a hostile witness and force her to answer questions.
However, such an approach has some fallout. The woman has already been victimized once. If prosecutors victimize her again by forcing her to testify against her husband and against her will, it’s hard to say that justice is served.
Alternatively, prosecutors could admit part of the police report into evidence. Normally, the statements in this report are inadmissible hearsay. But a hearsay exception, the excited utterance rule, could apply. If the alleged victim told a police officer “He hit me” and the officer included that statement in the report, it could be admissible.
Excited utterances are made in the heat of the moment and therefore more reliable. But by the time officers arrive, the alleged assault could have happened an hour previously. So, a statement in a police report was arguably not made in the heat of the moment.
Alleged assault victims cannot drop charges against their spouses, but they can make life difficult for the state. For a free consultation with an experienced criminal defense attorney in Fort Worth, contact Herreth Law. We routinely handle matters in Tarrant County and nearby jurisdictions.
