Spousal Testamony against an accused :: essays research papers fc

Dating back to the 16th century, spouses were not deemed to be competent to testify evidence against their spouse. The reasons were a lot simpler than they are today. Anyone with a perceived interest in litigation was deemed to be biased and therefore unfit to testify. Under common law spouses are considered to be one and the same. Since the 16th century the issue of spouse’s and their ability to give evidence against their partners has become more and more complicated. Modern day courts rely more on preserving the sanctity of the marriage than preserving the incompetence standard.   Ã‚  Ã‚  Ã‚  Ã‚  The ability to block spousal testimony does not however apply to all couples under the law. Those in common law relationships are not considered to be one and the same and these spouses’s are able to give testimony about events that occurred during the relationship. Ultimately, because the issue falls under common law the question of whether a husband or wife to can be compelled to give evidence against there spouse was at the justices discretion. Most justices are more likely to compel spousal testimony in cases of violence and domestic abuse. The majority of these offences are committed on a one on one basis with either no one to witness the abuse, or a child incapable of being called as a witness. The testimony evidence of the spouse is often the only proof that an offence occurred. In R. v. McGinty, Justice McLachlin concluded that competence included compellability and added a new policy dimension to the analysis. She observed: â€Å"policy interests favoured compelling testimony in cases of domestic violence. Competence without compellability would more likely [contribute to] family discord than prevent it.† In the matter of appearance, she noted that: â€Å"fair-minded persons generally find it abhorrent that persons who commit crimes go un-prosecuted. The state’s duty to protect the safety of its citizens, underlies the testimonial competence in cases of violence against a spouse, also dictates that the spouse be complellable.† Fundamentally the main factors facing a Justice in their decision is the matter of public safety and the harmony of the marriage. Compelling a spouse to testify against their partner is in direct conflict with that ideology. Therefore divorced or legally separated couples do not fall under this category. In R. v. Bailey it was determined that spousal incompetence does not survive divorce. Justice Morden observed that: â€Å"The modern policy justification for the rule in question is that is supports marital harmony.