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Spousal privilege and 5th Amendment privilege

If a spouse asserts their 5th Amendment privilege in a criminal trial against their spouse, can the sworn statement she provided to police be used against the defendant spouse at trial? I would think that the statement, although sworn, would be considered hearsay under the double hearsay standard especially as the declarant is not testifying. Please advise. If you can cite to a specific rule or case law that clarifies this, I would greatly appreciate a cite of this rule or case(s) as I have not been able to find anything specifically on point. Thank you in advance.

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Submitted Mon, 03/20/2017 - 10:47

You are confusing multiple overlapping issues on this point here. To begin with, a 5th amendment protection only protects your from testifying about things that personally incriminate you. Your spouse cannot invoke a 5th amendment right to prevent from testifying about you.

Secondly, spousal privilege is the right not to be called to testify against you. Spousal privilege must be invoked by the witness. There is also a related term called spousal disqualification (which is closer to how people think of privilege). This PREVENTS a spouse from testifying about private conversations between them, much the way conversations with a doctor would be protected. There are several exceptions to this rule, and if the other spouse is the victim, it may not apply.

Hearsay, is a completely separate idea. Hearsay means that out of court statements cannot be introduced for their truth except in rare circumstances. It's unclear what you mean by "double hearsay standard" but generally you cannot introduce out of court statements to get around a privilege or disqualification of a witness.

The case law on hearsay especially is very fact specific and very extensive. Without reviewing the entirety of the facts of your case there is no way to point you to a magic bullet caselaw or reference. You need to speak with an attorney about your case or ask to have one appointed by the court. Criminal exclusionary law is the most complex part of criminal defense work and cannot be accurately or completely addressed in a public forum. Additionally, you should not share any public comments as sharing them can waive these protections.

Atty. David Owens

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