Criminal (spousal privilege): BIXLER V. COM. (SC 8/24/2006)

BIXLER V. COM.
CRIMINAL:  Spousal Privilege
2004-SC-000215-MR.pdf
TO BE PUBLISHED
AFFIRMING; ROACH
DATE RENDERED 8/24/2006
In 5-2 decision, SC affirmed Defendant’s convictions and 29 year sentence for murder and theft.  Because Defendant never invoked his own privilege and cannot claim the benefit of his wife’s privilege, the prosecutor’s comments about Ms. Bixler’s failure to testify were not error.  Defendant’s attorney’s closing argument shows that the decision not to invoke the privilege was strategic and therefore intentional. By not invoking the privilege, Defendant’s attorney was free to comment on Ms. Bixler’s failure to testify.

 

In his dissent, Justice Lambert disagreed with the majority’s ruling that a party wishing to prevent the testimony or comment thereon of any potential witnesses on privilege grounds must invoke all available privileges at the outset or be held to have committed waiver.

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