Criminal Defense Q&A: Can the Prosecutor Force Me to Testify Against My Husband?
What are your options if you’ve received a subpoena compelling you to testify against your spouse? Can you be locked up if you refuse to testify? Read on for Michael’s full analysis.
Question:
I’ve been subpoenaed to testify against my husband in court because of domestic violence against me, but I don’t wish to see my husband locked up doing time. I would prefer to get him help and work on my marriage. I would like to know: do I have to be forced to testify against my husband and against my will, because I don’t want to go to court against him. Who do I talk to, and can I get out of my subpoena?
Answer:
Refusing to testify constitutes contempt of court; however, the Court cannot imprison or confine a domestic violence victim for contempt. Code of Civil Procedure sections 1219(a), (b). This means that even though the Court can declare you in contempt of court, it cannot force you to testify.
The prosecutor does have the option to charge you with contempt of court for refusing to testify. This is a misdemeanor punishable by up to 6 months in jail, up to a $1,000 fine, or both jail time and a fine. Penal Code sections 166(a)(4), (6); 19. However, it may not be make sense to prosecute a domestic violence victim if the case cannot be proven without her testimony.
Even if the prosecutor chooses not to prosecute you for contempt of court, there are other tools that the prosecutor can use to prove his or her case. For instance, the prosecutor can confront you with past statements that you gave to police regarding the incident in question. Or the prosecutor can ask you about prior incidents of domestic violence involving your spouse. Evidence Code section 1109(a)(1). Or the prosecutor can show photos of the injuries that you sustained or play the call you made to 911 immediately after the incident.
You should know that though there is such a thing as spousal immunity (AKA marital privilege), it does not apply in domestic violence cases. Evidence Code section 972(e)(1). This means that you cannot assert a privilege to avoid the consequences of refusing to testify against your spouse.
Continue reading criminal defense attorney Michael J. Ocampo’s answer at Avvo: Can the Prosecutor Force Me to Testify Against My Husband?
Attorney Michael J. Ocampo is a former deputy district attorney. He focuses his practice exclusively on criminal law so that he can help those accused of a crime — often ordinary, everyday people — ensure that their rights are honored and that they receive a fair opportunity to be heard.
