Black and White: Can You be Forced to Testify Against Your Spouse?

We’ve all seen the TV crime shows where a murderer goes free because only his wife has the evidence that will convict him and the prosecution cannot put her on the stand because, as some would have it, “in America one spouse can’t be forced to testify against another.”

But, if a recent case is any indication, that prohibition may not always apply.

In 1985, a 3-year-old girl was brought to a Brockton hospital emergency room and soon after she was pronounced dead. An autopsy showed that she had died as the result of the severing of her small intestine.
A pathologist noted that the child’s injuries suggested that an adult had stomped on the child’s stomach, while she was lying on the floor, and then twisted a foot while pressing it into her abdomen.

Suspects in the case were the girl’s mother, her boyfriend and a cousin — all of whom had access to the child on the night her injuries occurred. No one was charged, however, because the evidence did not point clearly to any one suspect.

Eight years later, the boyfriend of the child’s mother fell in love with another woman and ultimately married her. One night, after both had been drinking heavily, they got into an argument. The husband hit the wife, and he told her that if she called the police, he would kill her.

The husband then went on to say that he had killed someone else and told the wife about how he had become angry while babysitting a crying child in 1985 and had stomped on her violently, causing her death.
When the husband was subsequently indicted for the child’s murder, 17 years after her death and sometime after his divorce, he attempted to keep his former wife from testifying, citing the marital disqualification always referred to on TV.

A trial judge, however, found the disqualification inapplicable here, as did the state’s highest court on appeal.

In its decision in Commonwealth v. Burnham, the Supreme Judicial Court ruled that the wife could testify because of the language of a state law. Specifically, the court found that, according to the law, a wife is allowed to give evidence against her husband in “a proceeding involving abuse of a person under the age of eighteen.”

The court also said that the law makes clear that only “private conversations” between spouses are covered by the usual disqualification.

Here, the court said, the lower court judge was correct to deny the defendant’s motion to disqualify his former wife from testifying, because the conversations in question were not “private.” Private conversations between spouses, the judges said, “do not include abusive or threatening words, which are involved here. Abusive or threatening words directed at one’s spouse do nothing to promote marital harmony, the purpose behind the protection.”

Having so ruled, the high court let stand the defendant’s conviction for first-degree murder with extreme atrocity or cruelty.

In the monthly Black & White feature, senior opinion editor and attorney Paul Lamoureux provides an insightful interpretation of a legal issue in plain English. Lamoureux can be contacted at  

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