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Wednesday, November 02, 2005

Ind. Decisions - Supreme Court rules on spousal testimony

The Indiana Supreme Court has issued two opinions today, both written by Justice Boehm, dealing with spousal testimony. The decisions, which make very interesting reading, are John Glover v. State of Indiana and State of Indiana v. Dow Wilson.

In Glover, J. Boehm writes:

In the course of Glover’s trial for murder, the State called his wife to testify against him. In this interlocutory appeal, Glover challenges the denial of his motion to suppress her testimony. We hold that a court cannot require the wife to testify as to confidential communications between her and Glover, but the marital privilege does not bar her voluntary testimony. * * *

Because privileges operate to deny access to relevant and often critical information, they are strictly construed. Roach, 669 N.E.2d at 1010. In light of all of the forgoing considerations, we conclude that the marital privilege is more limited than the privileges attaching to communications to attorneys, physicians, and clerics. The marital privilege prevents a court from requiring a spouse to testify as to confidential marital communications, but does not bar the spouse from testifying if the spouse chooses to do so.

In Wilson, J. Boehm writes:
We hold that one spouse is not precluded from testifying in a criminal prosecution of the other. * * *

When the State called Heidi at Dow’s trial, Dow objected to her testimony on two grounds. First, he argued that the marital privilege, Indiana Code section 34-46-3-1(4), barred Heidi’s testimony as to communications between them. He also contended that because he was the accused in a criminal prosecution he was not required to testify, and therefore Heidi, as his spouse, was barred from testifying by Indiana Code section 34-46-3-2. * * *

The State argues that this new statute, Indiana Code section 34-46-3-2, is merely a re-codification of the Competency Statute, former Indiana Code section 34-1-14-9 (Burns 1986). Dow responds that current Indiana Code section 34-45-2-9 is a verbatim recodification of the former Competency Statute. There is therefore logic to Dow’s claim that the new section 2 of the Privilege chapter must be something other than a restatement of the old Competency Statute. And Dow argues persuasively that the language of this third provision is clear and susceptible to only one interpretation: if a party in a lawsuit is not required to testify, that person’s spouse is not allowed to testify.

On its face this new statute does just what Dow claims. * * * We nevertheless conclude that this new section ef-fected a substantial change in the law and is in conflict with other provisions of the 1998 Recodification Act. Dow’s interpretation of section 34-46-3-2 would permit the defendant in many domestic abuse cases to prevent the only witness—his wife, the victim in the case—from testify-ing. We think it highly unlikely the legislature would have intended such a result. * * *

Dow contends that when there is an irreconcilable conflict between the body of an act and a Purpose provision, the Purpose provision should be rejected. In this case we think the reverse is true—the aberration is ineffective because it conflicts with the “Purpose” provision of the Re-codification Act. The Recodification Bill, P.L. 1-1998, was 534 pages long and included hun-dreds of provisions on a wide variety of subjects. Recodifications are passed by the legislature in reliance on the technical skills of the Commission on Recodification and its staff, and on the provision in the first section of the Recodification that it will do no harm. The legislature was explicit in providing that no change in substantive or procedural law was intended, and we think this provision should be honored. Because the preexisting law was accurately preserved in other provisions, Indiana Code section 34-46-3-2 is an invalid extension of pre-recodification law and is of no effect.

Posted by Marcia Oddi on November 2, 2005 11:26 AM
Posted to Ind. Sup.Ct. Decisions