May an invocation of spousal privilege support an adverse inference? A sues B. At trial, B asks A about statements he made to his wife. A objects, invoking the spousal communications privilege. The court sustains the objection, so the statements do not come in. B then calls A's wife as a witness. A objects, invoking the spousal testimonial privilege. The court sustains the objection, so the wife does not testify. B asks for a jury instruction saying that the jury may make adverse inferences against A about the testimony that was excluded based on the spousal privilege. A objects. Must/may the court give that instruction? Does the answer change depending on whether it is the litigant or the spouse who invokes the privilege?
Must/may the court give that instruction? No. It would be error for the court to give that instruction. The only privilege for which an adverse inference instruction is generally authorized in civil litigation is the 5th Amendment privilege against self-incrimination. This is because when you invoke it, you are implicitly asserting that your testimony could be used against you, if you gave it, to show that you were guilty of a crime, and because a relevant question will be about events pertinent to the lawsuit. An adverse inference is also not allowed for invoking the 5th Amendment when you are a defendant in a criminal case because that would undermine its purpose in the the criminal justice system. An invocation of a marital privilege, in contrast, merely implies that you are married, which is not something that would normally and naturally suggest that you did something for which there is civil liability. One could probably imagine a fact pattern in which being married was a disputed issue that could give rise to liability (e.g. under the &quot;family car doctrine&quot;), of course, in which the invocation of the privilege would estop A from asserting a defense on the ground that he isn't married to A's wife (either at the time of the communication if the confidential communication privilege is raised, or at the time of the testimony, if the right to not testify against a spouse privilege is raised, as the case might be). Tricky cases would involve people who were unmarried at the time of the accident but subsequently married. But, outside very unusual facts, people generally don't deny that they are married in a lawsuit and then try to assert the marital privilege in a lawsuit. Does the answer change depending on whether it is the litigant or the spouse who invokes the privilege? No.
Even before the police have any idea who did it, Bob is guilty of whatever wrong he did. However, if you want this to be a legal question and not a moral one, we should assume that you really want to know "Can Bob be convicted of murder, if the evidence proves that he did do it?". Yes, he can. See Morris v. State, 214 S.W.3d 159. The critical question was whether the defendant understood the charges (he did) and whether he could assist in his defense (he could). The desideratum of being able to assist in your own defense only goes so far. On the other hand, maybe no, per Wilson v. US. A government expert witness "testified that appellant had permanent retrograde amnesia and would not be able to aid in his own defense in terms of remembering any of the acts alleged in the indictment". The crucial difference seems to be whether one just has loss of memory, vs. loss of memory connected with some other mental disorder. [Addendum] Per Dusky v. United States 362 U.S. 402, competence to stand trial depends on whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him. I am not aware of any exceptions e.g. whether this is not the case with strict liability crimes like statutory rape, and since it is generally held that "competency" is a requirement mandated by the due process clause, I don't think there could be an exception.
In principle, the victim can be granted immunity for his testimony. At that point, since his testimony cannot incriminate him, the 5th Amendment protections no longer apply. He can be ordered to testify and held in contempt of court if he refuses.
We don't have enough facts to know. What Bob said about having violated the injunction, which could expose him to criminal contempt of court liability, was not true. But, the precise details of what he said, to whom he said it, and his relationship to the case, are not clear. Saying something that isn't true isn't always against the law, and even when it is against the law, the consequences depend upon the context. An intentionally false statement of fact to a police officer or to the court under oath would probably be a crime (but, unlike U.S. practice, criminal defendants who testify are not generally required to testify under oath). An unintentionally false statement of fact to the same persons (e.g. because Bob misheard the question or was drunk at the time and assumed that the statement of fact he was making was true or had dementia) would probably not have legal consequences for him. A mere confession - I am guilty of violating the civil injunction - would probably not be perjury or fraud because guilt of a civil injunction includes opinions and legal conclusions which are not actionable, as well as implied statements of fact, which might be actionable. But, if he confessed in the form of a plea, there probably wouldn't have been a trial at all. Once he made his plea, his factual guilty or innocence might be irrelevant in the face of a judicial admission. Courts can sometimes sanction parties to lawsuits for wasting everyone's time under quite specific circumstances, but we don't know precisely what relationship Bob has to the case in which the injunction was entered.
This is largely congruent with* the doctrine of laches. The basic idea, under common law, is that you can lose rights by failing to assert them. This is generally important for many reasons, but specifically in the case of appeals: The argument should have been brought before the trial court. Justice is not a game, but it's important to recognize that the party trying to raise the argument had an opportunity to do so already. They have given up their right to raise this argument, and extending them the privilege of doing so is (for the following reasons) not good for the system. Courts of appeals are typically not well-equipped to evaluate factual evidence. It is not their area of expertise. Witnesses or evidence may be less available. It's just not practical to try to adjudicate factual issues on appeal, most of the time. If anyone could get an appeal by bringing new factual arguments, then everyone would do that. You'd bring your strongest argument before the district court, and then if that fails, bring the second strongest before the circuit court. That way, you get an extra trial. This is inefficient. Allowing factual arguments on appeal would encourage attorneys and their clients to strategically bring different facts before different courts. This kind of forum-shopping is harmful because it has little to do with who has the stronger overall case, and more to do with who has the better lawyer. * "Congruent with" is not the same as "an instance of"; this rule is not formally an application of laches. It just happens to share the same justification.
The Miranda warning only has to be given to a person being interrogated in custody, and on the premise that the wife is not in custody, the police do not need to read her the warning. Therefore, anything she says can be used against her, or somebody else, unless there is a separate reason why the statement could not be used. The wife may invoke the spousal testimony privilege, in which case she cannot be compelled to testify against the husband. The officer could theoretically testify that the wife said "I washed blood out of his clothing", but this is an assertion made by an out-of-court declarant to prove the truth of the question at hand, i.e. hearsay. There are numerous exceptions to the definition so that in some cases, the statement would not be hearsay. If the wife refuses to testify, that cuts out half of the exceptions, but maybe the wife is a co-conspirator.
Is it normal under German law to just assume the accused will never go after a witness? This is not a question that can be answered here, or probably anywhere with any degree of certainty. The form seems to allow giving a different address (like a work address), but this seems to require a &quot;good reason&quot;. What are acceptable reasons? These include an imminent risk of serious detriment to her well-being and a well-founded reason to fear she (or anyone else) might be improperly influenced if she gives here address. Staying anonymous; She is asked to provide a written statement. SHORT ANSWER A witness is not obligated to give the material witness statement to the police. Instead, a witness is only obligated to appear before and make a statement to the German public prosecutor (Staatsanwalt). AND... every (potential) witness is obligated to give their particulars at the hearing, including full names, maiden name, age, occupation and place of residence. Some or all of these details may be omitted, however, if there is a specific risk. In those cases, the identity of the witness may be kept undisclosed. LONG ANSWER Book1, Chapter 6 of the German Code of Criminal Procedure, Strafprozeßordnung (StPO), gives the rules for examining, and protecting, witnesses. Section 48 (Obligations on witnesses; summons): (1) Witnesses shall be obliged to appear before the judge on the date set down for their examination. They shall have the duty to testify if no exception admissible by statute applies. (2) ... (3)... An examination shall, in particular, be made as to whether an imminent risk of serious detriment to the witness’s well-being requires measures to be taken pursuant to section 168e or section 247a, as to whether any of the witness’s overriding interests meriting protection require that the public be excluded pursuant to section 171b (1) of the Courts Constitution Act and as to what extent it is possible to refrain from asking non-essential questions concerning the witness’s personal sphere of life pursuant to section 68a (1) [see below] Account is, further, to be taken of the witness’s personal situation and the nature and circumstances of the offence. Section 68 (Examination as to witness’s identity; limitation of information, victim protection): (1) The examination shall begin with the witness being asked to state his first name, last name, name at birth, age, occupation and place of residence... (2) A witness shall, furthermore, be permitted to state his business address or place of work or another address at which documents can be served instead of stating his place of residence if there is well-founded reason to fear that legally protected interests of the witness or of another person might be endangered or that witnesses or another person might be improperly influenced if the witness states his place of residence. If the conditions of sentence 1 obtain at the main hearing, the presiding judge shall permit the witness not to state his place of residence. (3) If there is well-founded reason to fear that revealing the identity or the place of residence or whereabouts of the witness would endanger the witness’s or another person’s life, limb or liberty, the witness may be permitted not to provide personal identification data or to provide such data only in respect of an earlier identity. However, if so asked at the main hearing, he shall be required to state in what capacity the facts he is indicating became known to him. (4) ... (5) Subsections (2) to (4) shall also apply after conclusion of the examination of the witness. Insofar as the witness was permitted not to provide data, it must be ensured in the course of the provision of information from or inspection of the files that these data are not made known to other persons, unless a danger within the meaning of subsections (2) and (3) appears to be ruled out. Section 68a (Limitation of right to ask questions to protect privacy): (1) Questions concerning facts which might dishonour the witness ... or which concern their personal sphere of life are to be asked only if they cannot be dispensed with. Section 168e (Separate examination of witnesses): If there is an imminent risk of serious detriment to a witness’s well-being in the event of his being examined in the presence of persons entitled to be present and if that risk cannot be averted in some other way, the judge shall examine the witness separately from those entitled to be present. There shall be simultaneous audio-visual transmission of the examination to the latter. The rights of participation of those entitled to be present shall otherwise remain unaffected. Sections 58a and 241a shall apply accordingly. The decision referred to in sentence 1 shall not be contestable. Section 247a (Order for witness examination via audio-visual means): (1) If there is an imminent risk of serious detriment to the well-being of the witness were he to be examined in the presence of those attending the main hearing, the court may order that the witness remain in another place during the examination; such an order shall also be admissible under the conditions of section 251 (2) insofar as this is necessary to establish the truth. The decision shall not be contestable. Simultaneous audio-visual transmission of the testimony shall be provided in the courtroom. The testimony shall be recorded if there is a concern that the witness will not be available for examination at a future main hearing and the recording is necessary to establish the truth. Section 58a (2) shall apply accordingly.
Your silence can be used against you: this is known as an adoptive admission. It is an exception to the hearsay rule, and is based on the premise that if a person hears and understands an accusation against them (even framed very indirectly), and &quot;adopts&quot; the truth of the accusation by directly acting in a certain way or by failing to dispute the accusation, this can be introduced as a form of admitting to the accusation. For instance, B might say to A &quot;I laughed when you shot Smith in the foot&quot; and A might say &quot;That was pretty funny, right&quot;, that can be admitted and interpreted as a confession. The same goes for A saying nothing. What's crucial is that the accusation has to be made in the defendant's presence, they must hear and understand it, they must be able to deny the accusation and it would be natural to deny the accusation. There is a relationship between this and the Fifth Amendment, see Salinas v. Texas (and prior law), that &quot;To prevent the privilege against self-incrimination from shielding information not properly within its scope, a witness who “‘desires the protection of the privilege . . . must claim it’&quot;. During a non-custodial interview, defendant was asked asked if his shotgun “would match the shells recovered at the scene of the murder”, and he said nothing (and actually gave non-verbal indicators that the accusation was true). He did not invoke his right to silence, thus the court reasoned that &quot;Because he failed to do so, the prosecution’s use of his noncustodial silence did not violate the Fifth Amendment&quot;.