Defendant Husband indicted for sexual abuse of a child. Defendant Wife indicted for endangering a child bc she knew about abuse and didn't protect child. Both defendants represented by same atty, retained. My motion to Disqualify atty as to one or both defendants was denied pending actual conflict of interest.
Plan is to try Defendant Husband first and Wife says she will not testify. Procedurally, when do I offer her immunity? What if she refuses it? Do I offer it when I call her to stand - then I have issue of actual conflict of interest with the defense atty and mistrial. What if judge puts her in jail for contempt for refusal to testify..how long does she sit? Mistrial? Obviously, I have never had this issue arise and would appreciate any suggestions as to how to handle this properly.
First post more than four years after registering, what have you been waiting for?
I do not think you can call someone as a witness and force them to claim their privilege in front of the jury if you are forewarned that is what will occur. So, I would certainly try to get a hearing before trial or a sub rosa hearing during trial and see if court will grant immunity and find it sufficient to compel the testimony, with the understanding, of course, that any such testimony will not be used against the wife in any other criminal proceeding. If court agrees the privilege has been displaced and wife refuses to answer a proper question during the hearing, then she should be held in contempt and confined. Not sure where that gets you though. You may not get any continuance or recess based on her refusal to cooperate.
Also, unless wife has personal knowledge of the abuse, how important is her testimony? Is the child not a competent witness?
I would, however, fight hard to avoid an instruction that wife's testimony is subject to art. 39.14 (if you get that far). Good luck.
If you offer her immunity for what she says at trial, you can still prosecute her with the evidence you have on hand. Just make sure she doesn't say, "I did it all". If that is a possibility, then you are sunk. However, if the Defense Attorney gets removed from one of the Defendants, it is doubtful that her attorney would recommend her to take all the blame and, if he knows she is lying, he should tell the Court (yeah right).
Whatever you do, I would approach this before trial to give the Judge time to react. He/She is not going to want to have a jury waiting.
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