Do I have a right to plead the 5th as a witness against my husband in a domestic violence case?

UPDATED: Sep 30, 2022

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Do I have a right to plead the 5th as a witness against my husband in a domestic violence case?

They subpoenaed me to testify against my husband for domestic violence but we had both been out drinking

separately with our friends before the incident. I don’t remember most if the night. Can I plead the 5th to avoid

getting myself in trouble?

Asked on May 24, 2017 under Criminal Law, Virginia


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

First of all, the case may be prosecuted without your testimony if there is other strong evidence to support the charge. Since you have been subpoenaed, you must appear in court or risk being found in contempt. The fact is that a subpoena is a direct order from the court. If you ignore it a warrant for failure to appear can be issued for your arrest and you can face fines and/or jail time. While some victims try to refuse to testify by invoking their Fifth Amendment right against self-incrimination (i.e. "pleading the 5th"), this right can't be invoked merely because the witness doesn't want to testify. This right only applies if their testimony would cause them to incriminate themselves in some way. A witness who refuses to testify can also be held in contempt of court and arrested and jailed and/or fined. Further, in domestic violence cases, some spouse's think that they can invoke "spousal privilege"; that is the right of one spouse not to have to give testimony against the other spouse. However, the fact is that the majority of states have amended their spousal privilege laws to carve out an exception for victims of domestic violence. In other words, in such a case one spouse can be made to testify against the other spouse.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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