Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Saturday, June 24, 2006

Case Law Development: Massachusetts Says Spousal Privilege Does not apply to Grand Jury Proceedings

The Massachusetts Supreme Judicial Court ruled Thursday that based upon its reading of current Massachusetts statutes regarding grand jury proceedings, spouses can be compelled to testify against each other before a grand jury investigating a crime. In its opinion, it observed that “in weighing the damage to the marital relationship that would flow from requiring a spouse to testify before the grand jury, the Legislature could also consider that testimony before a grand jury is not public, the witness's spouse is not physically present, the witness would not be subject to cross-examination, and the outcome of the proceedings could result at most in an indictment based on probable cause, still requiring the Commonwealth at trial to prove the defendant's guilt beyond a reasonable doubt without the spouse's testimony.”  It also observed that “establishing the appropriate nature and scope of a privilege protecting family relationships is not a simplistic or lopsided process that automatically favors those family relationships at any price. It is precisely because the balancing of these competing interests is so difficult and must take into account so many factors, and because reasonable minds would likely differ as to where the lines should be drawn, that we have normally left the creation and delineation of privileges to the Legislature.”  A copy of the slip opinion in this case may be downloaded by clicking here.doc (reo)

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