We often get questions at our firm about how to defend a domestic violence charge when it is a he-said versus a she-said case and the wife/spouse does not want to testify.   I have had several of these of the years and routinely get them thrown out notwithstanding the prosecutor threatening to sanction my client’s wife for not wanting to testify against her husband.  A good example is a case that was recently dismissed by the court.  The prosecutor threatened to subpoena my wife to testify knowing she did not want to pursue the matter.  A subpoena is a written and legally binding command from the court to compel a witness to testify or submit to some command such as bring documents for examination.

My client’s wife did not want to testify against her husband and was not aware of her constitutional right to not be compelled to testify against her husband.  The prosecutor tried to persuade me that the spousal communication privilege applied (the right given to a husband and wife to refuse to testify in a trial as to confidential statements made to each other during their time as a married couple) did not apply in cases where one spouse committed and assault against the other spouse and, therefore, the victim spouse could be compelled to testify.  He was partially right.  However, the prosecutor confused the communication privilege with the spousal testimonial privilege.   The testimonial privilege is the right of a spouse to not be compelled to testify against her spouse, whereas the communication privilege is the right of one spouse to prevent the other spouse from testifying about any communication that was expressed during the marriage.  The prosecutor misunderstood the difference between the two.  Had an inexperienced attorney represented this particular husband and believed the prosecutor, the case would have likely been pled out and the defendant would have had a permanent blemish on his record and would have been denied the right to carry a firearm, and many other negative consequences.  Instead, this case was ultimately dismissed.

In other cases prosecutors, realizing that there actually is a difference between the spousal communication privilege and the testimonial privilege, have nonetheless still attempted to threaten the spouse into testifying by sending a subpoena and threatening sanctions for non-compliance.  Their objective is to scare the spouse into testifying, hoping she is unaware of her legal rights under Article I, section 12 of the Utah Constitution.   However, to counter the prosecutor’s argument, I have successfully convinced courts to bar the prosecutor from subpoenaing her to testify, even just to invoke her right to not testify in front of a jury.  My argument was that my client could be unfairly disadvantaged if the jury saw my client’s wife take the stand just to invoke the spousal testimonial privilege because the jury could infer she was trying to hide something or cover up a wrong her husband did out of fear of retaliation for what he may do to her if she testified against him.  The judge was persuaded by my motion and barred the prosecutor from issuing the subpoena to my client’s wife when she had made it clear that she wanted to invoke her spousal testimonial privilege (immunity from testifying against her husband).  This case, too, was ultimately dismissed.

If you or a loved one has found yourself in a difficult situation involving domestic violence or similar to the example given above don’t hesitate to contact me.  I am an experienced Utah domestic violence attorney and can be reached at 801-532-1717.  I will help you find out what your options are.  It’s vital that you understand what your legal rights are and how they can work to your benefit.

Druyon Law Offices does not currently represent any of the parties referenced in the article at the time it was written.  We have cited and linked all the sources of our information.  If you were or are involved in a similar situation and have questions about your rights and possible remedies, then call us. Do not act based on the above information without getting a consultation from a qualified attorney.  The information and opinions expressed above are from actual cases but should not be used in your particular case since every case is fact-sensitive and should be analyzed by a qualified attorney.

Many people wonder what domestic violence actually is and what they should do about it.  The basis of domestic violence lies in behaviors used by one person in a relationship to control the other.  Domestic violence can include things from withholding money and keeping you from contacting family members to threatened or actual physical harm.

The penalties for such a charge, if convicted are:

- Up to 6 months in jail for a first misdemeanor offense

- A felony offense could mean 5 years to life in the Utah State Prison

- Fine of up to $10,000 plus an 85% surcharge, bringing to total fine up to $18,500 for a felony assault

- Assessments and anger management classes, domestic violence classes, and other therapy

- Possible child custody implications

Unfortunately some people accuse others of domestic violence or abuse for unjust or selfish reasons.  How can you over rule or beat such a charge?  There are many tactics, but to name a few, it must be established that the accuser has a history of untruthfulness.  You can expose the accuser’s motive to lie about you. Expose a bias in one of the prosecution’s eyewitnesses.  Expose inconsistent statements of the alleged victims or other prosecutor witnesses.  The officer may have used threats and/or coercion to get you to make incriminating statements to them.  And there are many other options that can be employed to counter a domestic violence charge.

In either case, whether you are a victim of domestic violence or you have been wrongfully accused of such you need to get in contact with a criminal defense attorney to help you get the situation under control and help you get on with your life.  Contact the best Utah criminal defense attorney at 1-888- 7- no-jail today to schedule a free consultation and find out what your options are.