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MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience:  I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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Can I exercise the 5th Amendment or Marital Privilege in Wa?

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I live in Washington state. My husband is facing a DV2 charge and is taking it to trial. Its coming up soon. There was no battery. I received a subpoena to appear to trial. I don't want to testify against him. I was wondering If I could exercise the 5th amendment and or marital privilege in my state.

Hello and thank you for your question.

Under RCW 5.60.060 a wife cannot be compelled to testify against her husband. So, if you don't want to testify against him, you don't have to. It may be that the prosecutor has issued the subpoena to give you the opportunity to reconsider. You must honor the subpoena and appear, but advise the prosecutor that you do not wish to testify under the spousal privilege not to testify.

The only reason you could invoke the Fifth Amendment is if your testimony would incriminate you. The judge would likely inquire into the grounds of the invocation of the privilege, and if there are no grounds for the invocation you would not be permitted to rely on it to get out of testifying. Under the circumstances, the Fifth Amendment does not appear to apply to you.

Please feel free to ask any follow up questions.
Customer: replied 3 years ago.

I have spoken with my spouses defense attorney some time ago. He recorded our phone conference. I told him that I had over exaggerated and even changed my story a bit. That is where the 5th amendment question comes in. And was wondering if there are any other rights I could exercise to excuse me from testifying against my spouse in my state.

In that case, if you do invoke the Fifth Amendment right and the judge inquires, ask for counsel to advise you. Generally, a judge will appoint an attorney to speak with you about exercising your right. It may be that you might be charged with obstruction of justice if you lied to police, or filed a false report, but you cannot be charged with any crime for relying of your Fifth Amendment right. Another alternative would be to request immunity from prosecution if you do choose to testify. This can only be granted by the prosecutor. However, exercising your spousal privilege seems to be the most straightforward way not to testify. You really don't need to rely on anything more than that if you don't want to testify.

The recording of the phone conference will likely not be admissible at trial because it constitutes hearsay. It would not be admissible whether you testified or not, because prior recorded statements cannot be used for the substance of what they contain. However, the statements could be used to impeach your testimony at trial, if they differ from your testimony.
Customer: replied 3 years ago.

Could he be prosecuted with DV2 if there was no assault and no other witnesses? He has already done 5 months and for a short period of time been on house arrest and work release.

I don't know all the circumstances and wouldn't be able to say. It seems the prosecutor believes the state has enough to prosecute as they are going ahead with the trial. It may be if you don't testify the prosecutor will be forced to drop the case for insufficient evidence. However, evidence can be circumstantial - if there were photographs, if there was a 911 call that might be admissible - that might be enough. I don't know and I can't advise you as to whether or not there would be sufficient evidence without your testimony. That is up to the prosecutor to determine and attempt to prove beyond a reasonable doubt at trial.

You could contact your husband's attorney to ask what he or she would want you to do with regard to relying on the privilege not to testify and if not testifying would be best in the circumstances. Of course, your interests are not necessarily your husband's interests and his attorney would only be representing your husband's interests, but these questions might be better put to your husband's attorney. But, keep in mind that these are your rights and your privileges to exercise.

MyraB and 2 other Criminal Law Specialists are ready to help you

I was just checking in to see if there was anything else I could help you with regarding this question.

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Thank you.

Customer: replied 3 years ago.

Thank you so much! You have been very helpful :)


You're very welcome. Thank you for the positive rating. If you need any further assistance, this thread will stay open for a week and you can feel free to ask further questions.

I wish you well.

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