GEORGIA’S SPOUSAL PRIVILEGE LAW IN DOMESTIC VIOLECE CASES

The Georgia state legislature approved a change to Georgia’s new evidence code
dealing with Spousal Privileges that went into effect as of January 1, 2013.
Georgia’s evidence law, which followed that of many states, protected spouses
from having to testify against one another in criminal cases.  As of January 1, 2013, Georgia’s new Evidence code went into effect and in doing so the brought about the end of Spousal Privilege as many people have come to know it.  You should be aware of this law as it changes a long standing Georgia rule concerning marital privileges.  As with many sections of the new law, it is yet to be tested with through the appeals process.

The new law was proposed in 2012 amid the work of lawmakers who
were then working on providing specific changes to Georgia’s evidence
code.  This was happening at a time when Georgia was in the midst of switching from Georgia’s older (some would say cumbersome and outdated evidence laws) to a newer set of laws that mirror the federal rules of evidence thus bringing Georgia’s code into line with many other states.  The new provision concerning the privilege was brought up by HB-711, the text of which can be found here:

http://www.legis.ga.gov/legislation/en-US/display/20112012/HB/711

SOME BACKGROUND ABOUT
PRIVILEGES

 

Georgia’s new evidentiary rules are modeled after the Federal
Rules for evidence that are taught in every law school prior to young attorneys
learning the state specific rules for the jurisdictions in which they will be
practicing.  Rule 501 of the Federal
Rules reads as follows:

 

Except as otherwise
required by the Constitution of the United States or provided by Act of
Congress or in rules prescribed by the Supreme Court pursuant to statutory
authority, the privilege of a witness, person, government, State, or political
subdivision thereof shall be governed by the principles of the common law as they
may be interpreted by the courts of the United States in the light of reason
and experience. However, in civil actions and proceedings, with respect to an
element of a claim or defense as to which State law supplies the rule of
decision, the privilege of a witness, person, government, State, or political
subdivision thereof shall be determined in accordance with State law.

 

What this means is that state laws regarding privileges
recognized by the state trump anything else.
Examples of privileges are such things as: Attorney-client privilege, Psychotherapist-patient
privilege, Communications to clergy privilege, etc.  While none of these privileges are in fact
written into the federal rules, they are widely recognized by most states in
one form or another.  However, each state
gets to choose which privileges it will recognize.

 

There is another form of privilege related to marriage but in
this article we are specifically speaking of the privilege of a husband and
wife not to be forced to testify against their spouse if their spouse is
accused of a crime.  The privilege not to
testify is held by the testifying spouse, not the accused.  So if a husband or wife chose to testify
against their spouse, there is really nothing that would stop them.  But if the testifying spouse chose not to
testify they could not be forced to do so unless certain things were alleged
against the spouse.  For instance, a
spouse could not refuse to testify if the crime alleged was that of some form
of child abuse or molestation.

 

The reasoning behind the privilege is fairly simple, the rules
looked at the relationship of the husband and wife as superior to the necessity
of compelling a spouse to testify against their husband or wife.  The idea is that doing so would harm the very
structure of the family by undermining the sanctity of marriage.  The reasoning for such a privilege pre-date
any common law and the very nature can be traced back to Roman laws and within
the Biblical book of Genesis.  The
marital privilege is typically invoked in domestic violence cases where the
(supposed) battered victim recants and doesn’t want the (supposed) batterer
prosecuted.

 

THE OLD LAW

 

Georgia has long recognized the importance of the privilege of
spouses.  However, it created a legal
courtroom problem for prosecutors who wanted to convict someone of spousal
abuse when the supposedly abused spouse asserted the privilege.  It essentially prevented the prosecution from
having a victim / witness.

 

Until 2004, prosecutors were using a bit of legal maneuvering to
get the evidence of their case before a jury without the supposed victim
testifying.  Once spouses exercised their
privilege to refuse to testify, the witness could be deemed to be legally “unavailable”.  This allowed the admission of hearsay statements
of the victim to 911 operators and law enforcement officers at trial. While
this exception allowed the prosecutor to be able to admit some pretty powerful
evidence, the fact that the victim was noticeably absent from testimony also
sent a powerful message to the jury about the validity of the prosecutor’s
case.

 

In 2004, prosecutors were dealt a crushing blow when the Supreme
Court Of The United States, in the now famous case of Crawford v. Washington, found that the admission of hearsay
statements of unavailable witnesses was a violation of the Sixth Amendment in
that an accused has a right to confront his accuser in court. This left
prosecutors without a witness and without the ability to enter her statements
to police.  This cut off a once valuable
shortcut to prosecutors.  Since that
time, prosecutors have looked for different legal maneuvers to get the evidence
before a jury in whatever format they could.

 

THE NEW LAW

 

As Georgia’s lawmakers dealt with specific changes to Georgia’s
evidence law, they received a great deal of input from prosecutors who sought
to find a way to work around the Supreme Court’s ruling so they could present
this evidence once again.  The bulk of
the wording of the law was supposedly submitted by a Douglas County Georgia
prosecutor.  Once the bill was approved
and became part of the new Georgia evidence code it went into effect January 1,
2013.

 

It should be noted that most of the spousal privilege against
testifying is still in place except in circumstances such as where the
testifying spouse is the victim or the victim is a child of the marriage.  In these cases, there is absolutely no
privilege to assert.  The new law allows prosecutors
to compel victims of domestic violence to testify against their abusive spouse.
It also protects the communications between victims of domestic violence and
sexual abuse and the agencies that are created to help them.  The law doesn’t guarantee the cooperation of
victims, however.  There is nothing about
the new law that prevents victims from taking the stand and saying “I don’t
want to prosecute”.  But the facts and
statements surrounding the arrest are now fair game for prosecutors where they
were once not allowed if the victim refused to testify.

 

The new law strips away the privilege in a domestic violence
case amongst spouses.  Without a
privilege to fall back on, the spouse is forced to testify and can’t then be
“unavailable” due to her asserting the privilege.  This effectively ended the issue with the
Supreme Court’s ruling in the Crawford case because the witness is now
“available” to testify.

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