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Ely
Ely, Counselor at Law
Category: Criminal Law
Satisfied Customers: 101381
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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In a domestic assault case can wife prevent the D.A. from

Customer Question

In a domestic assault case can wife prevent the D.A. from using the 911 call she made, Can police testify as to what she told them? She was subpoenaed to testify but she does not have to b/c she is the wife, is that correct?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Ely replied 1 year ago.
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can wife prevent the D.A. from using the 911 call she made
I am sorry, but no. The tape is the property of the police, who can indeed provide it if subpoenaed by the DA.
Can police testify as to what she told them?
Yes.
She was subpoenaed to testify but she does not have to b/c she is the wife, is that correct?
No, incorrect.
While under Rule 504 of the Texas Rules of Evidence, one spouse cannot be made to testify against the other, there is an exception to the rule in a proceeding in which the party is accused of conduct that is a crime against the person of the spouse, any minor child, or any member of the household of either spouse or in a prosecution for bigamy or to matters that occurred prior to the marriage. Assuming the charge is for something related to the above, then this does not apply.
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Customer: replied 1 year ago.

So then rule 504 does not apply & wife can be made to testify against her will? What if wife is called to the stand & refuses to answer questions or takes the fifth b/c she is the one who began hitting H b/c he was packing up & getting ready to leave her. When he tried to restrain her they both slipped on their dog's poop & fell to the floor.

Expert:  Ely replied 1 year ago.
So then rule 504 does not apply & wife can be made to testify against her will?
If the charge fits the description above, then yes.
What if wife is called to the stand & refuses to answer questions or takes the fifth b/c she is the one who began hitting H b/c he was packing up & getting ready to leave her.
The wife can do so. If she simply refuses to answer, she may be held in contempt of court. If she pleads the 5th Amendment, then the D.A. may simply be stuck but then she maybe charged with something, although unlikely.
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