EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, December 10, 2008

Unhappily Ever After: Criminal Contempt Order Issued Against Minnesota Wife For Refusing To Testify Against Her Husband

In Minnesota, a wife has refused to testify against her husband and now will face a criminal contempt order, that is, if the authorities can find her.  I can't see, however, how the court could require her to testify.

Robert Briard, a prominent hog farmer in Minnesota, was charged in January 2007 with a half-dozen counts of criminal sexual conduct.  Part of what instigated those charges was the fact that Robert's wife, Virginia, gave a statement to sheriff’s investigators on Oct. 25, 2006, allegedly saying that her husband made certain admissions to her regarding the accusations against him.

After the charges were brought, and as trial approached, Robert sought to preclude Virginia from testifying against him, but the judge rejected his argument that Virginia's testimony would be covered by Minnesota's spousal privilege.  Thereafter, Virginia was served with a few subpoenas to testify at Robert's trial, but she has failed to respond and instead "has apparently gone underground," prompting the criminal contempt order.

And I don't see how any of this is proper.  Pursuant to Minnesota's spousal privilege, Minnesota Statutes 595.02(a),

     "A husband cannot be examined for or against his wife without her consent, nor a wife for or against her husband without his consent, nor can either, during the marriage or afterwards, without the consent of the other, be examined as to any communication made by one to the other during the marriage. This exception does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other or against a child of either or against a child under the care of either spouse, nor to a criminal action or proceeding in which one is charged with homicide or an attempt to commit homicide and the date of the marriage of the defendant is subsequent to the date of the offense, nor to an action or proceeding for nonsupport, neglect, dependency, or termination of parental rights."

In other words, unless the articles on Robert's case are omitting some material facts, Robert should have been able to prevent Virginia from testifying against him under Minnesota's spousal privilege.  The only thing I can think is that, despite the absence of any such mention in the articles on the case, one of the charges against Robert is for criminal sexual assault against Virginia, the couple's children, or children in their care.  But in the absence of such a fact, I don't see how Virginia would be able to testify against her husband.

[EDIT:  As the comment below indicates, Robert IS apparently charged with a crime against an immediate family member, which, pursuant to the exception contained in Minnesota Statutes 595.02(a), would explain why the privilege is inapplicable.].



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That's the problem, it does involve an immediate family member of Robert and Virginia. I am a relative of theirs and not proud of it. Too bad you can't pick your family.

Posted by: ohb | Dec 12, 2008 6:51:40 AM

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