State v. SavageState v. Savage
It is a well-known rule that a spouse may not testify against the other spouse at a criminal trial.
The prosecution does not contend that Mrs. Savage should have been allowed to testify at trial. Instead, it is argued that the pretrial testimony, including the cross-examination afforded to defense counsel, was fully admissible at trial because defense counsel failed to object, and thereby waived appellant’s rights to assert either the privilege or competency issues, citing Choteau v. Thompson (1854),
The trial court felt that the objection “to the live testimony of Defendant’s wife on the basis of Rule 601(B), [would] * * * render the wife unavailable as a witness, thereby permitting, the transcript of the wife’s testimony taken at the Preliminary Hearing * * The court of appeals agreed with this reasoning, thereupon adding that, in its view, a “witness who is incompetent to testify is obviously a witness who has no privilege to give testimony.”
Having set forth the arguments of appellee, we now consider them, beginning with the foundational assertion that failure to object at the pretrial hearing operated as a waiver to object at trial. The syllabus of the relied-upon case states:
“A waiver of objection to the competency of a witness so as to allow his deposition to be taken in a cause, is a waiver during the whole progress of the cause, and the objection cannot be insisted on when the witness is called to give a second deposition in the same cause.” Choteau, supra, paragraph two of the syllabus.
In that case, one of the party defendants, William H. Campbell, was deposed by the court-appointed master, without objection by the other party defendants. The rules of evidence then prevailing in Ohio were that such persons who were parties or who had an interest in the outcome of the litigation were incompetent and could not be called by the adverse party. After the Act of March 1850, those in whose favor the rule was said to operate could waive its effect by themselves calling such witness, thus allowing effective cross-examination by the adverse party. A failure to object when such witness was called also operated to waive the competency issue since the court was under no duty to inquire. See, e.g.,. 42 Ohio Jurisprudence (1936), Witnesses, Sections 146-161; Legg v. Drake (1853),
By way of contrast, the admission of spousal testimony was then governed by the separate rules of competency and privilege, as it is at the present time. It was accepted that the spousal privilege for communications or acts was in addition to the bar established by incompetency based upon coverture and was added to further protect the marital institution. The two were and are separate, independent rules of exclusion. See Cunningham and Metzler, supra. Mere failure to object at trial was considered sufficient acquiescence of counsel to constitute a waiver of the
The foregoing discussion not only demonstrates the inapplicability of Choteau v. Thompson, supra, to the case before us, but also demonstrates that the law providing for such incompetency and privilege has not been significantly changed since that time by either the General Assembly or the courts. See, e.g., State v. Rahman (1986),
Having demonstrated the uniqueness of the two rules, it becomes apparent that spousal incompetency is not subsumed within spousal privilege. Consequently, while appellant might have inadvertently waived the
Accordingly, the judgment of the court of appeals is reversed, and the cause is remanded for retrial.
Judgment reversed and came remanded.