Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.There is no prohibition per se as to this type of gathering of evidence. However, in Texas, like some other states, spouses cannot be forced to testify against their husband/wife. Moreover, any communications between husband and wife during the marriage is also confidential. Ergo, unless some privilege applies like spousal communication or attorney-client privilege
, there is no general rule precluding the prosecutor from gathering possible evidence even from somebody with a disability.That said, the court will consider the defendant's physical and mental state in deciding whether the defendant exercised free will in confessing or providing information in the criminal prosecution of the defendant. Unfortunately, the Constitutional safeguards protected by Miranda Warnings do not exactly apply to witnesses (who are not potential suspects) as opposed to defendants.Title
II of the Americans with Disabilities Act of 1990 (“ADA”) has
potential to protect persons with mental disabilities during police interrogation. The
ADA is a sweeping statute with the objective of eliminating discrimination against
the disabled; it requires public entities to “reasonably modify” their practices to
prevent discrimination on the basis of disability. Therefore, there could potentially be a violation of ADA by the police or prosecutor for failing to make reasonable accommodations to the disabled witness including examples such as the witness having access to counsel or a mental health professional present during questioning; or toning down of the questioning (e.g., limiting duration or avoiding using false evidence ploys to elicit information).