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Case Scenario Review:

The defendant, charged with murder, asks his wife to tell the police he arrived home on the night of the murder @ 7:30 p.m., about an hour before the victim was killed. Initially, the wife did as requested. However, she subsequently changed her mind and told police her husband came home @ 9:05. At the husband’s trial for the murder, the prosecution wishes to have the wife testify that her husband “Asked me to lie to give a false alibi.”

TASKS:

I. Summarize the facts of the case.

II. Respond to the questions below:

*Q: Is her testimony admissible?

Consider these variables:

• A. Your state has a “testimonial privilege” that permits a spouse to prevent the other spouse from testifying, but the husband and wife are divorced before the murder trial begins.
• B. Your state has only a “marital communication” privilege. Is the statement by the husband to the wife (i.e., lie to the police about when he got home), a confidential communication? If so, does it survive the marriage? (See