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Wednesday, September 25, 2013

Taking Exception: A Connecticut Case Raises Questions About Exceptions to Spousal Testimonial Privilege

Here's a strange story out of Connecticut.  According to the story,

A Hartford man has pleaded guilty to a charge of sexual assault against a minor just weeks before his wife, whom authorities say engaged in the illegal acts with him, is scheduled to go on trial.

Steven D. Smith, 47, pleaded guilty recently to aggravated sex assault in a deal that calls for him to serve no more than 15 years in prison.

The agreement also lifts the final impediment for Smith to be compelled, if necessary, to testify against his wife. Lucinda Smith, 42, is scheduled to go on trial in October for charges of aggravated sex assault.

In an interview Tuesday, Deputy Windsor County State’s Attorney David Cahill acknowledged the benefit of having Smith available to testify against his wife, but said it was not the primary motivation behind the plea deal.

“The purpose of the plea agreement was to bring closure to the case for the victims and Mr. Smith, and spare the victims the pain of testifying,” Cahill said. “I think right now everyone is working through the collective consequences of Mr. Smith deciding to take responsibility for what he did.”

With his guilty plea, Smith can no longer invoke his fifth Amendment protection against self-incrimination to avoid testifying during his wife’s trial. And while the rules of evidence generally allow spouses to refrain from testifying against each other, there are a handful of exceptions to the rule, including in certain cases involving children. None of the exceptions apply to Steven Smith, Cahill said.

But is the story in fact correct about the law?

Connecticut's spousal testimonial privilege is contained in C.G.S.A. § 54-84a, which reads as follows:


(a) Except as provided in subsection (b) of this section, in any criminal proceeding, a person may elect or refuse to testify against his or her then lawful spouse.
(b) The testimony of a spouse may be compelled, in the same manner as for any other witness, in a criminal proceeding against the other spouse for (1) joint participation with the spouse in criminal conduct, (2) bodily injury, sexual assault or other violence attempted, committed or threatened upon the spouse, or (3) bodily injury, sexual assault, risk of injury pursuant to section 53-21, or other violence attempted, committed or threatened upon the minor child of either spouse, or any minor child in the care or custody of either spouse.


So, let's assume that C.G.S.A. § 54-84a(3) doesn't apply because the sexual assault against a minor was not committed against "any minor child in the care or custody of either spouse." That still leaves us with  C.G.S.A. § 54-84a(1), which provides an exception to Connecticut's spousal testimonial privilege if the other spouse is charged with " joint participation with the spouse in criminal conduct." Isn't that the case here? According to the article, the "authorities say [that the wife] engaged in the illegal acts with" her husband. So, should the exception have applied regardless of the husband's guilty plea?



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This case happened in Vermont, not Connecticut. I know because I am the prosecutor. If you review the affidavit of probable cause in the public court file, you will see that the exceptions to the husband-wife privilege contained in V.R.E. 504(d)(2)&(3) apply here.

Posted by: David Cahill | Nov 16, 2013 5:31:45 AM

The husband's plea eliminated his ability to take the 5th. It has nothing to do with his right to invoke the privilege. Assuming the Conn rules apply, yes, the exception applies, but that's not an exception to his 5th A right to not testify. Also, he probably agreed to testify as part of his plea deal.

Posted by: Fred Moss | Nov 19, 2013 1:21:33 PM

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