Can Husbands or Wives be Forced to be a Witness Against Their Spouse?

Husband and Wife Testify Against Each Other

Michigan Criminal Defense Attorney

Can spouses be compelled through subpoenas to act as a witness against the other? The answer is yes; at least, sometimes. There are some circumstances where a husband or wife can be compelled by the courts to act as a witness against their husband or wife, even if they don’t want to. Failure to honor a subpoena is contempt of court which can land you in jail. There is a difference between spouses acting as a witness against the other spouse as opposed to divulging privileged communication between husband and wife. This article will mainly discuss when a spouse can act as a witness against their spouse in a court proceeding.

When Can a Spouse Act as a Witness Against the Other Spouse?

The general rule is that a husband or wife cannot be forced to act as a witness, either for or against, the other spouse in criminal cases. However, there are exceptions to this rule. A husband or wife can be compelled to testify as a witness against the other spouse in the following types of court cases:

  • A suit for divorce, separate maintenance (legal separation), or annulment
  • Prosecution for bigamy
  • Prosecution for a crime committed against a child of either or both or a crime committed against an individual younger than 18 years old (e.g. child abuse)
  • Cases involving a personal wrong or injury done by one spouse to the other spouse (e.g. domestic violence, assault and battery)
  • Cases growing out of the refusal or neglect to furnish the spouse or children with suitable support (failure to pay child support)
  • Cases of desertion or abandonment.

Privileged Communication Between Husband and Wife

There are several types of communications that are considered privileged due to the nature of the relationship. That means public policy dictates that the protecting the private communication of those special relationships is greater than society’s need to have it disclosed. Some examples of privileged communication are doctor-patient, clergy-penitent, and lawyer-client. Generally, a spouse cannot be compelled to testify as to communications made between that spouse and the other spouse unless it falls into one of the exceptions previously mentioned. It makes no difference whether they are currently married or are formerly married. What matters is if the communication was made while they were married. If the nature of the communication does not fall into one of the previously listed exceptions, the spouse can only testify if they have the permission of the other spouse (whether current or former).

Lansing Michigan Criminal Defense Lawyer

A spouse cannot refuse to testify against their spouse simply because they are married. Likewise, a spouse who is on trial for domestic violence or child abuse cannot stop his or her spouse from being a witness against them by not giving consent. It doesn’t work that way. If it did, it would be virtually impossible to prosecute for domestic violence, child abuse, or sex crimes involving married couples. If you have been charged with a crime and your spouse is a witness, you need an experienced criminal defense attorney on your side. A lawyer with experience in defending domestic violence, criminal sexual conduct, and child abuse charges will know if your spouse can be disqualified as a witness or if certain testimony can be suppressed because of privileged marital communication.

Call Austin Legal Services, PLC to speak to a Michigan criminal defense lawyer today at (517) 614-1983!

Defending domestic violence, criminal sexual conduct (csc), and child abuse charges throughout Michigan in the counties of Ingham, Eaton, Gratiot, Clinton, Jackson, Shiawassee, Calhoun, Kent in the cities of Lansing, East Lansing, Mason, Charlotte, St. Johns, Ithaca, Jackson, Corunna, Battle Creek, and Grand Rapids.

Tether and Electronic Monitoring Devices

Tether

Michigan Criminal Defense Attorney

As a condition of bail, bond, sentencing, or probation, the judge may order you to wear an electronic monitoring device, or tether. An electronic monitoring device allows pretrial services, probation, or parole the chance to closely supervise you by keeping track of where you are at or in some cases, determine if you are consuming alcohol. There are several types of electronic monitoring devices that are commonly used. Tethers are bracelets that are attached to the ankle while breathalyzers can be portable or attached to your car.

Global Positioning System (GPS) Tether

This monitors the defendant’s movement by satellite and reports his movements and whereabouts to the supervising agency. Exclusion Zones or Hot Zones (places where the defendant is not supposed to be) are programmed into a computer program that runs in conjunction with the GPS tether and alerts the supervising agency if the defendant goes someplace that he is not supposed to go such as the home or workplace of an alleged victim. The GPS tether could also be programmed so that the defendant is only allowed to be in or traveling to and from certain places such as work, home, or court. It could also be programmed to alert the supervising agency if defendant leaves beyond a certain radius.

Transdermal Alcohol Tether

This type of tether monitors (usually SCRAM tethers) the defendant’s skin to determine if any alcohol has been ingested into the body. While it is designed to monitor any alcohol from alcoholic drinks or alcohol-based products (mouthwashes, cough syrups, etc.) that the defendant may be ingesting, they are not designed to detect only ethyl alcohol (the type contained in alcoholic beverages). They will detect only forms of alcohol that can come from anything ranging from certain foods, hand lotions, body washes, or cleaning products. It also alerts the agency if the defendant has tried circumventing the tether in any way or tampering with it.

Standard Tether

This device records and reports when a defendant enters and exits certain locations, such as his residence. This ankle bracelet needs a landline phone in order to properly work.

Breathalyzers

Breathalyzers are either portable devices or installed to a fixed setting like a car or home. The court may require a defendant to submit to a preliminary breath test (PBT) at regular times (everyday by a certain time, each time defendant enters or leaves the residence), or when certain events occur (e.g. driving a car). These units are often equipped with cameras to verify that it is actually the defendant providing the breath sample. Breathalzyers are often ordered by the court for substance-related offenses such as DUIs, driver’s license restorations, any offense involving alcohol, or if the defendant has a history of alcohol abuse.

Ignition Interlock Devices

An ignition interlock device is a breathalyzer that is specifically designed for installation in cars to prevent defendants from operating the car until they prove they have not been drinking. They require a significant breath sample that requires the defendant to blow and hum at the same time. A breath sample of approximately 1.5 ml of breath is normally required before the car will start. The ignition interlock device also requires you to submit to “rolling tests” meaning you have to give a breath sample at spontaneous times while the car is in motion to determine you haven’t been drinking since you started the car. The slightest thing can cause them to malfunction. These are frequently required for driver’s license restorations, High BAC (Superdrunk) charges, subsequent OWI offenses (OWI 2nd, OWI 3rd) and felony DUIs (OWI 3rd, OWI Causing Injury or Death).

Lansing Michigan Criminal Defense Attorney

Tethers, breathalzyers, and ignition interlock devices as a bond or probation condition can be costly in terms of money (rental and maintenance costs) as well as convenience. It also creates another possibility for a violation if anything goes wrong. A violation could get your bond or probation revoked and land you back in jail for a long time. If you have been charged with a tether or ignition interlock violation or if you are required to have a tether as a bond condition, you need to have an experienced criminal defense attorney on your side to defend against the violation or convince the judge the requirement is too costly, burdensome, or unnecessary.

If you are facing misdemeanor or felony criminal charges call Austin Legal Services, PLC today at (517) 614-1983 for a free, no obligation consultation!

Defending misdemeanor and felony criminal charges throughout Michigan in the counties of Ingham, Eaton, Livingston, Jackson, Clinton, Gratiot, Calhoun, Kent, Kalamazoo in the cities of Lansing, East Lansing, Mason, Brighton, Howell, Jackson, St. Johns, Ithaca, Battle Creek, Grand Rapids, Kalamazoo, Jackson, Charlotte, Corunna.

Should I Talk to the Police?

Should I Talk to the Police

Lansing Michigan Criminal Defense Lawyer

The police come knocking on your door or perhaps a detective calls and asks you to come down to the station. He just wants to talk. Ask you some questions. Should you go? The answer is “No!” At least, not without consulting with a lawyer first. Here are some of the reasons why you should never talk to the police without first consulting with an attorney.

The police might misunderstand you

Talking to the police is somewhat unnerving for most people. Just because the police use the word “talk” rather than “interrogate” doesn’t make it any less intimidating. The police are trained in the art of interrogation and know how to get information out of people. Most people don’t express themselves with exact precision. If you say something that the officer misunderstands or comes out with a different meaning than what you intended, it will be used against you.

The police may not accurately remember everything you say

Even if the officer takes notes during the interrogation, er… talk, it is quite possible, if not highly probable, that he won’t remember everything your say verbatim. Missing statements leads to lack of context which leads to misunderstandings. Or worse, the police may inaccurately recall what you said. The officer may also make incriminating inferences about your gestures, body language, and attitude that may be inaccurate.

You may lie to the police

Under the pressure and stress of a police interrogation, innocent people have been known to lie, even if it’s inadvertently. It happens quite frequently. Innocent people, in an attempt to vehemently assert their innocence, may deny some seemingly innocent fact to appear as innocent as possible. The police will pounce on any lie you tell, no matter how trivial. It can destroy your credibility at trial and make you look guilty.

Even if you’re innocent and tell the truth, you could still reveal information that could be used against you

For example, let’s say you are being questioned about a murder you are truly innocent of. In the course of denying the killing, you could admit to having a strong dislike for the victim and being in the area of the killing around the time of the murder. Now the police and prosecutor are armed with motive and can place you at the scene of the crime. Things like this easily snowball and you can find yourself being charged with a crime you didn’t commit.

You might confess to a crime you didn’t commit

Police are very skilled at the art of interrogation. Not only do they know how to illicit incriminating information through deceit, threats, and false promises, but they can also use physical techniques such as barraging you with questions for hours on end, depriving you of sleep and bathroom breaks. This has led to many false confessions, especially to those who may not have the mental and physical wherewithal to withstand a hostile interrogation. Next to false identification, false confessions are probably the second biggest reason why innocent people get convicted.

It’s difficult to tell a story the same way twice

Even for a completely innocent and honest person, it is quite difficult to tell a story the exact same way twice. The slightest slip or discrepancy on even the most trivial matter gives fodder for a great cross-examiner to expounded upon at trial to show that you are a liar and inconsistent in your story. This can be very damaging infront of a jury, even if it is completely innocent.

Even if you are guilty and want to confess, you shouldn’t do it to the police

At least not right away. There will be time for confessing and admitting responsibility later if that is what you want to do. More than 90% of cases end up pleading out. It is better to retain a lawyer who can exchange a benefit for your guilty plea through plea negotiations with the prosecutor. You may get a reduction in the charge(s) or a sentencing agreement. If you confess to the police, you get nothing in return. In fact, your chances of getting a good plea deal or any kind of deal at all may be gone because with your confession the prosecution’s case is air tight, or at least a lot stronger than it was.

Nothing good can come from talking to the police

Or at the least, it’s unlikely. Think of it this way, when the police ask to talk to you it’s generally one of two scenarios. First scenario: they believe you committed a crime and they have the goods on you. They don’t need your confession, but it will be icing on the cake. By confessing, incriminating yourself, or being contradictory, all you’ve done is made a strong case for the police even stronger. Second scenario: They believe you committed a crime and they don’t have the goods on you or they have very little on you. It’s a fishing expedition. By talking to the police, all you can do is provide them with ammunition to be used against you as mentioned above in the many reasons given why you shouldn’t talk to the police. All you’ll be doing is helping the police build a case against you and dig a deeper hole for yourself. Even if you are innocent, it is unlikely you are going to change their mind by talking to them.

You Have the Right to Remain Silent

Under the Fifth Amendment you have the right to remain silent. Use it! No one ever has to talk to the police. Ever. Even when you get pulled over all you are required by law to do is provide your driver’s license, proof of insurance, vehicle registration, and step out of the car if they ask you to. No talking is required. If the police come knocking on your door, you still don’t have to talk to the police. If the police ever ask you to come to the station and talk, always consult with a lawyer first. If not, it may be too late for a lawyer to undo the damage you’ve done by voluntarily speaking to the police. Remember, Miranda warnings are not required if you voluntarily speak to the police because you are not being detained by the police.

Lansing Michigan Criminal Defense Attorney

If the police have asked you to talk or take a polygraph (lie detector test) call Austin Legal Services, PLC at (517) 614-1983 for a free consultation today!

Defending criminal charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Livingston, Jackson, Washtenaw, Calhoun, Kalamazoo, Shiawassee in the cities of Lansing, East Lansing, Mason, Charlotte, St. Johns, Ithaca, Jackson, Brighton, Howell, Ann Arbor, Kalamazoo, Battle Creek, Corunna, Durand.

Insanity Defenses

 

Insanity Defense

Lansing Michigan Insanity Defense Criminal Lawyer

If charged with a crime, you may be able to use insanity as a defense to the crime if you lacked the mental capacity to realize what you were doing was wrong and you could not conform your behavior to the standards of the law. Despite its frequent depiction in movies and pop culture as a common tool by the defense in criminal trials, in real life it rarely happens. It is even rarer to use it successfully. A defendant that has a mental health history, is being treated with psychotropic medications, or lacks memory of the events that occurred should discuss the possibility of an insanity defense with an experienced Michigan criminal defense attorney as a possible plea option or trial strategy.

Legal Insanity

The definition that law uses for legal insanity is different than what we might think it would be. A defendant is considered legally insane if he suffered from significant mental health problems at the time the charged offense occurred. It means the defendant is not capable of forming the intent necessary to be found guilty of crimes, specifically those that require a specific intent element. Insanity is a complete defense and a successful insanity defense means the defendant is acquitted. However, that does not mean he is completely let go and off the hook.

It is defined under the Mental Health Code as someone who because of mental illness or mental retardation “lacks substantial capacity either to appreciate the nature and quality of the wrongfulness of his conduct, or conform his conduct to the requirements of the law.” Insanity is a substantial thought or mood disorder that impairs a person’s judgment, behavior, or capacity to recognize reality or cope with the ordinary demands of life. Retardation refers to significantly sub-average intellectual functioning. If either of these exist and made it so a person cannot understand that his actions are wrong, he may be found not guilty by reason of insanity.

Diminished Capacity and Guilty but Mentally Ill

Diminished capacity is a “mental abnormality less severe than insanity.” It is still used by many jurisdictions. The Michigan Supreme Court nixed diminished capacity as a possible defense in 2011 so it is no longer an option in Michigan. Although, mental conditions at the time of the offense can still be relevant in many ways. Guilty but Mentally Ill is another plea option. It is different than the standard insanity defense as it is not a defense to the crime; the defendant is still found guilty and can be imprisoned. The only benefit is that the Department of Corrections has the option to give the inmate special accommodations for mental health treatment and any confinement in a mental health facility will count towards his prison sentence.

Notice of Special Defense

Insanity is a special defense that the defendant must give advance notice of using both to the court and the prosecutor. There will be a mandatory psychiatric evaluation, usually at the Forensic Center for Psychiatry around Ypsilanti, Michigan. The defendant should also provide a list of doctors who will testify as well as any previous diagnosis and mental health history. Not Guilty by Reason of Insanity (NGRI) is an affirmative defense, meaning it is a rare instance in which the defendant has a burden of proof. Normally a defendant is not required to prove or disprove anything. Affirmative or special defenses must be proven by a preponderance of the evidence. It is a low standard that is usually reserved for civil cases.

If the defendant disagrees with the findings of the Forensic Center, the defendant may petition the judge for another independent evaluation or the defense may hire their own expert to conduct a forensic evaluation. The prosecution is entitled to seek another independent evaluation of the defendant as well upon motion to the judge if they disagree with the findings of the Forensic Center.

What Happens If a Defendant is Found Not Guilty by Reason of Insanity?

Despite the popular misconceptions, a defendant that is found not guilty by reason of insanity is not let off the hook and free to go back out into society. Far from it. After a successful insanity defense, the defendant must immediately report to the Forensic Center (where the initial evaluation took place) for a period of 30 days. During this period the defendant will be observed, monitored, and treated to see if he is safe to re-enter society. If the Forensic Center does not feel the defendant is mentally stable to come out, they must petition the court and state the reasons why. A court hearing will be ordered and the probate judge will make the decision on whether to keep or release the defendant. If the judge decides the defendant shall remain in the Forensic Center or some other facility, the judge will determine the length of the new period and schedule a review hearing. Once a successful insanity plea is entered, the jurisdiction of the defendant is transferred from the criminal court to the probate court.

The insanity defense is very complex and quite confusing. It can only be raised as a defense at trial if the court allows it. The problem with the insanity defense as many potential jurors do not realize that finding a defendant not guilty by reason of insanity does not mean they are thrusting a crazy person back out into society. A lot of jurors may be leery of voting not guilty by reason of insanity for that reason. The problem is that defense attorneys cannot inform the jury that there is a mandatory evaluation period by law that the judge has no discretion over. It is possible that some defendants may end up in a mental hospital for many years, even longer than the jail or prison sentence could be for the crime they were charged with. Some may even stay there for the rest of their lives. There has been a public outcry and backlash against the insanity defense since John Hinckley, Jr. successfully used the defense for his attempted assassination of President Reagan.

Michigan Insanity Defense Attorney

If you have been charged with a crime, you need to discuss the possibility of an insanity defense and other options with an experienced Michigan criminal defense attorney. Call Austin Legal Services, PLC today at (517) 614-1983 for a free consultation.

Defending misdemeanor and felony criminal charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Calhoun, Kalamazoo, Jackson, Livingston, Washtenaw, Kent, Shiawassee in the cities of Lansing, East Lansing, Mason, Charlotte, St. Johns, Ithaca, Battle Creek, Brighton, Howell, Ann Arbor, Grand Rapids, Corunna, Durand, Kalamazoo, Jackson.