You Be The Judge

In the days of the common law, spouses could not testify either for or against each other, even if they wanted to do so. The only exception was in situations where one spouse was the victim of the other’s violence. Then the state could force the victim spouse to testify against the defendant spouse.

Then, in 1915, Alabama passed the following statute (now codified at 12-21-227):

The husband and wife may testify either for or against each other in criminal cases, but shall not be compelled so to do.

The question for you is whether or not the statute eliminated the common law exception. Does this statute mean that in a domestic violence case the witness/victim spouse can refuse to testify against the defendant spouse?  

There are two rules of statutory construction that may help.

First: 

Statutes in derogation or modification of the common law are strictly construed. . . . Such statutes are presumed not to alter the common law in any way not expressly declared.

Based on this rule, you could argue that the common law exception survives, because the statute does not expressly eliminate it.

But then there is the second rule:

Words used in [a] statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is clear and unambiguous, then there is no room for judicial construction and the clearly expressed intent of the Legislature must be given effect.

This statute says the husband and wife “shall not” be forced to testify against each other. That is an unambiguous command:

The word ‘shall’ is clear and unambiguous and is imperative and mandatory. . . . The word “shall” has been defined as follows: As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary signification, the term “shall” is a word of command, and one which has always or which must be given a compulsory meaning; as denoting obligation. The word in ordinary usage means “must” and is inconsistent with a concept of discretion.

So what say you? Does this statute leave room for the common law exception? Remember, whether the exception is a good idea or bad idea is irrelevant. All that matters is whether or not the statute allows it.

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3 Comments on “You Be The Judge”

  1. Dan Says:

    Sounds like something I should ask a lawyer about.

  2. Dan Says:

    Honestly, though, I say the common law ability to compell testimony was removed by the statute. “Shall not” is a powerful mandate. By saying that husband and wife “shall not be compelled to testify against each other”, without modifying when that rule was ineffective and without using softer language so that someone could assume it had room to be ineffective in certain circustances, the entire common law was modified by the statute. Any common law ability to compel testimony was covered by that statute (assuming it isn’t taken out of context somehow).

  3. Wheeler Says:

    that’s the entire statute. there is nothing else to it.


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