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S. Huband, Esq.
S. Huband, Esq., Attorney
Category: Criminal Law
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Experience:  Experienced and knowledgeable criminal defense attorney.
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I am trying to exercise my marital privilege in a case against

Customer Question

I am trying to exercise my marital privilege in a case against my husband. We had a fight, he kept me from leaving the house, and we had anal and vaginal sex. Early in the evening, I suggested both and then later tried to talk him out of the anal sex. He has been charged with 1st degree rape of me. I am trying to understand under what conditions forced sex would be considered consensual? I am trying to help my husband's case. We did normally engage in sex where he was dominating me and this is something I told him that I enjoyed. I even told him that I liked being told what to do.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 1 year ago.

Hello,

As the State's Attorney has already told you, the state can go forward on this case with or without your cooperation. Usually, since the complainant is the star witness against defendant, the State Attorney's hands are pretty well tied up when the complainant seeks to exercise her marital privilege.

Unfortunately, the state has evidence that might make your presence unnecessary. Also, this is a very serious charge, and one in which the prosecutor may be very interested in securing a conviction. While marital rape is generally difficult for a prosecutor to prove beyond a reasonable doubt, he is entitled to try.

If you want to drop and the prosecutor won't let you, and you do wish to help your husband, you must speak to your husband's lawyer and ask how you can help the defense. Let him know that you have tried to drop the charges and let him interview you as to exactly what you told the authorities. If the State Attorney does wish to go forward without you, the lawyer can at least carve out a defense strategy based on the information that you give him.

Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 15945
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
Zoey_ JD and 2 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

I don't really feel that you answered my question before. You seem not to want to give a direct and specific response. But here is another question. I gave a testimony about the domestic violence that I expereinced in a civil court hearing to have a protective order against my spouse. Under what circumstances can this testimony be thrown out or not submissable in a criminal court? Also, do you know what is the penalty for perjury in a civil court testimony in Montgomery County, MD? Are you able to speak confidently on MD law even though you practiced in NYS? Thanks, Monique

Expert:  Zoey_ JD replied 1 year ago.
Hello Monique,

Without knowing as much as the State's Attorney knows and without seeing the court papers and the evidence that both lawyers have, I cannot possibly make more than general observations. It would be incorrect and irresponsible to make definite pronouncements about a case where I know absolutely nothing but what you've written on this forum.

I do know, however, that in Maryland as in New York and in every other state in this country, the States attorney has the final word on what he will prosecute and in what way.He can try to go forward without you and if he can win it without you and is inclined to see this whole case through, he will, regardless of what you want.

On misdemeanor DV charges you can work with the defense lawyer and he can probably eventually get the case if not dismissed then reduced to something that won't hurt your spouse. I've accomplished that many times over for clients of mine. But these charges are very serious, and that puts things in a whole different league. It's been my experience that when the allegations are serious the state will work hard to be able to go forward.

Perjury under oath is a criminal offense. In Maryland it is a misdemeanor that is worth as much as 10 years of prison, though that's probably very unlikely. Here's the link to the Maryland perjury law.

I'd be happy to opt out for a Maryland lawyer if you would feel more confident about it. Please let me know.

Customer: replied 1 year ago.


Okay, I can appreciate your cautious responses. But, are there not well defined legal criteria under which a civil court testimony cannot be used in a criminal court case? It does not appear that you addressed this question. I understand that the State's Attorney's Office may be determined no matter what. It is clear that this is the case. I am trying to educate myself by using the JustAnswer service. The defense appears to be greedy and not doing everything possible to prevent this case from going to court. I sense that he is not employing all the strategies he can to get this case dropped because he wants to milk my spouse for everything he can get. Also, are you saying that I could go to jail for up to 10 years for committing perjury in a civil court hearing?

Expert:  Zoey_ JD replied 1 year ago.

Hi,

I'm not saying that you can go to jail at all. The statute says that this is the maximum penalty the offense is worth. It's been my experience that the States Attorney rarely will charge a witness who is their complainant with perjury. They don't want to get a reputation of turning on their key witnesses and prosecuting them when the case goes wrong. It would discourage victims of a crime to come forward.

In order for civil testimony to come in on a case, it would have to constitute an exception to the hearsay rule. If you testifed differently in court than in your civil matter, the defense attorney would be able to use what you said to impeach your testimony. So even though what the physical evidence (the transcript) would not come in, the jury would know that there was written evidence and would know that at an earlier time closer to the incident, you'd sworn under oath to something else.

I think if you want the ins and outs of Maryland's evidence laws, I'm going to see if I can find a Maryland expert to take it from here

 

Customer: replied 1 year ago.

I don't necessary need the ins and outs of MD law. However, I am confused by what you said about "a civil testimony would have to constitute an exception to the hearsay rule". Are you saying that my civil court testimony would have to qualify as hearsay in order for it to not be used in a criminal court hearing? How could my ciivil court testimony be recognized as hearsay? What is the criteria? Would omission of key facts render my civil testimony meeting the criteria for hearsay?

Expert:  S. Huband, Esq. replied 1 year ago.
Hello. I've reviewed the discussion so far and I'd like to help you if I can.

You asked about hearsay. Hearsay is "a statement made by an out of court declarant offered for the truth of the matter asserted." So, if you were in a civil court testifying about something to do with this alleged rape (i.e. you testified while asking for a protective order, for example) those statements would be (your) out of court statements. If you do not testify at your husband's trial, then you are the out of court declarant. If a transcript of the protective order hearing was offered as evidence of the truth of the matter (i.e. that what you said during the civil hearing was true) during your husband's trial, this would be a hearsay issue. There are literally dozens of hearsay exceptions, however, which vary from state to state, including the "unavailable declarant" exception for prior, sworn testimony. However, the state's attorney may NOT have use your civil hearing testimony at all if he or she has enough evidence otherwise to go forward.

Even if hearsay does NOT apply to your civil hearing testimony, the confrontation clause of the 6th amendment probably does. The general rule is that people on trial have the constitutional right to confront their accusers. So, if you are the alleged victim of your husband's rape (at least according to the state), and YOU do not personally appear at trial as a witness for the prosecution, and the prosecution tries to use your previous testimony from the protective order hearing as an "accusation" against your husband, the state may be prohibited from using the transcript at all since it probably violates your husband's right to confront his accusers. There are lots of nuances to this area of the law, and it's not quite as simple as it sounds. If you wish, you could read more on the 2004 case that rewrote the law for confrontation in the US, Crawford v. Washington. That case is similar to your situation in that Crawford also involved an issue of spousal privilege.

Last, as to spousal privilege, it appears that a legally married spouse in Maryland can claim the spousal privilege for him or herself and refuse to testify at least once in most cases. Thus, you can certainly refuse to testify, but as the other expert said, the state may be able to prove the case without your accusations against your husband.

One final suggestion: Instead of claiming marital privilege, would your truthful testimony help your husband? In other words, you said in your initial post, "We did normally engage in sex where he was dominating me and this is something I told him that I enjoyed. I even told him that I liked being told what to do." If this is the truth, and on the night of the alleged rape, you consented to having sex with your husband, you could tell that to the jury and try to help him convince the jury that he did not "rape" you. However, I assume that, since you are worried about your protective order testimony, you probably said something different in that hearing, i.e. that you did NOT consent?

The problem is that the state's attorney will accuse you of lying then (at the protective order hearing) or lying now (at your husband's trial) if you ever said something that contradicts your claims at trial. This is what the other expert was getting at - the perjury issue. If you swore under oath at the protective hearing that your husband hurt you and raped you, etc., and then you say exactly the opposite at your husband's trial and say he did not hurt or rape you, you could be setting yourself up for a perjury charge. I have seen this happen to witnesses on more than one occasion. So, just be careful, whatever you wind up doing. Obviously, it goes without saying that, if you testify in court under oath, you must tell the truth. End of story.

I hope this information helps you better understand these legal matters. If my answer has been helpful, please rate the answer positively so that I can receive credit for my work. Thank you for the opportunity to assist you. I wish you and your husband the very best with this case.

Shuband
S. Huband, Esq., Attorney
Category: Criminal Law
Satisfied Customers: 999
Experience: Experienced and knowledgeable criminal defense attorney.
S. Huband, Esq. and 2 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

That was without question an excellent and thorough response! This is very complicated because both my testimony and this routine of dominance are true. I was not given an opportunity to explain the latter. Also, there is some information omitted that my lawyer kept me from testifying about- on another occasion my spouse indicated a desire for sex and I told him absolutely not and that I would consider it a violation and he respected my wishes. On the occasion that I gave testimony for, I did not refuse sex, I had even offered it earlier, and when he requested it, I willingly undressed and showered beforehand on my own volition. I guess this previous time that he respected my wishes and the murkiness of how things happened should all help his defense. More importantly, you have educated me that his defense lawyer can contest the my civil court testimony on the grounds that my spouse has the right to confront his accusers. It pays to have access to this information because I fear that the defense lawyer is operating out of greed and simply wants to go to trial and is not employing all the tactics that he can to avoid trial and negotiate out of court. I will read the 2004 Case Crawford v. Washington. This is extremely helpful! Can the defense request that my civil testimony be thrown out at the preliminary hearing?

Expert:  S. Huband, Esq. replied 1 year ago.
Hello there. I am sincerely XXXXX XXXXX you are pleased with the information I provided to you so far.

A preliminary hearing is for the state to show there is probable cause to believe that a crime occurred and that your husband is the person who allegedly committed that crime. It is not a trial. The right of confrontation applies to trials, i.e. proceedings where there is a determination that the defendant is guilty or not guilty. Confrontation does not generally apply at preliminary hearings, although clearly hearsay rules apply there. So, no, I doubt that the issue of your protective order will be addressed or thrown out at the preliminary hearing.

As for your husband's attorney, you mentioned twice that he or she may not be doing enough to negotiate or get charges dropped before trial. I do not know who your husband's attorney is or anything about that person. But, perhaps you should give him or her the benefit of the doubt for the time being. Let me give you a little insider info to help you understand why I make this suggestion...

When I defend criminal cases, I assume from the first meeting with the client that the case will go to trial, and I continue thinking that way up until the case is finished. This way, I am always on the lookout for helpful information and tactics and I am constantly thinking about what I have to do once this case gets to court in front of a jury. Like many other competent attorneys, I then file motions, demand information, investigate, talk to witnesses, and generally fight, fight, fight. At every opportunity I can, I throw a giant monkey wrench into the works of the governmental machine, with the hope that one day I can break the whole thing into a million pieces!

After I am done thoroughly punching the daylights out of the government the best I can, and the prosecutor's nose is bloodied and he or she is missing a few teeth (all in a proverbial sense, of course!), and the judge is worn down and tired from seeing me ranting and raving about this or that, I usually find THAT is the time to broach the topic of negotiating a plea. If I START with the proposition that says, "Hey Mr. Prosecutor, nice to meet you, I haven't heard the evidence from your witnesses yet and we haven't even exchanged formal discovery at this time, but would you like to offer my client a plea?" I would then be negotiating from a position of weakness, and that is the worst way to negotiate.

If you go to buy a car, you want a dealership that has WAY too many cars on the lot with very few interested buyers so that the dealership is motivated to sell. That way, you have the upper hand in negotiating; they'll do everything they can to get you to buy a car. If I go to buy a car and there are 20 other customers there, ALL of whom want exactly the same car I want, I'm going to have exactly zero power to negotiate. My position is weak in this scenario since it's the dealer who's going to sell the car to the highest bidder.

Your husband's attorney needs to be in a position of strength before negotiation can begin. Once he shows the government all the weaknesses in its case, (and there always are weaknesses, no matter what prosecutors say), and lets the prosecutor know he's going full throttle to trial and is going to embarrass the prosecutor by winning the trial in front of all his other little prosecutor buddies, maybe a good plea deal will be offered. Maybe the charge will be dropped to a lesser charge, maybe there will be an agreement on sentencing, maybe your husband will have to take an anger management class, perform community service, be on probation, pay a fine, who knows. Good deals are often offered at the very last minute. One of the biggest lessons I had to learn as a young lawyer is to be patient, wait it out, and not panic!

My point is that you are understandably worried about what's going to happen to your husband, and you want to make sure that he's getting the best legal representation he can. Good lawyering, however, sometimes takes longer before you see positive, concrete results. I cannot vouch for whoever the attorney is...I don't even know him or her! But, try to be patient, don't panic, and give the attorney a chance to do his or her job properly. If you see bloody noses and teeth flying at the preliminary hearing, you know he or she is on the right track. Wink

Thanks again for the opportunity to help you. I hope this case works out well for you and your husband. Take care.

Shuband
S. Huband, Esq., Attorney
Category: Criminal Law
Satisfied Customers: 999
Experience: Experienced and knowledgeable criminal defense attorney.
S. Huband, Esq. and 2 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

Is there anyway that I can have my civil court testimony expunged
from court records? Also, if I wanted to alter the protective order to allow him to move back in the home that I have now moved out of, how can I do this?

Expert:  S. Huband, Esq. replied 1 year ago.
Hello again!

1. Is there any way that I can have my civil court testimony expunged from court records?

I think you are using the wrong legal term to describe what you actually want. Expungement is generally the process of having a criminal charge, which resulted in something other than a guilty verdict, taken off one's criminal history or record.What you want is to have the record of your protective order hearing sealed. Sealing a court record does not destroy it, but it makes the record inaccessible to the general public. (There is a presumption of open access to court records for the public in most states. Sealing the record is the exception to that presumption.)

So, go back to the court where you got the protective order from and ask if there is a process to go through to request that the record of that hearing be sealed. You might have to get an attorney to help you with this.

2. If I wanted to alter the protective order to allow him to move back in the home that I have now moved out of, how can I do this?

You have to go back to the court where you got the protective order and ask for the order to be modified (changed) or lifted (erased altogether). Some states call the latter process "staying an order." Since the protective order is a court order, you would have to have the judge's permission before doing anything the order says you and/or your husband are prohibited from doing. The judge may or may not grant your request. Where I work, it is common for a judge to say in a situation like yours, "No, sorry, not while there is still a pending trial for the husband..." So, you might be out of luck on this one.

I hope this information helps you better understand these legal matters. If my answer has been helpful, please rate the answer positively so that I can receive credit for my work. Thank you for the opportunity to assist you. I wish you and your husband the very best with this case!

Shuband
S. Huband, Esq., Attorney
Category: Criminal Law
Satisfied Customers: 999
Experience: Experienced and knowledgeable criminal defense attorney.
S. Huband, Esq. and 2 other Criminal Law Specialists are ready to help you

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