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The Pennsylvania Supreme Court has ruled that spousal privilege does not apply to victims of spousal abuse, overturning the Pennsylvania Superior Court’s decision in Commonwealth v. Hatfield. “If the victim’s goal of preserving her relationship with her spouse through forgiveness and understanding is to be achieved, [she] may offer her equal forgiveness and understanding of her truthful testimony,” Justice J. Michael Eakin wrote for the high court in Commonwealth v. Kirkner. In July 1999, police responded to a domestic disturbance at Joseph and Kellie Kirkner’s home. Kellie Kirkner told officers that her husband had choked her, hit her face and shoved her to the ground. Kellie Kirkner then allowed the police to photograph bruises and abrasions that she suffered during the altercation and wrote a two-page statement about the encounter. The police charged Joseph Kirkner with simple assault and harassment. While Kellie Kirkner failed to appear at the preliminary hearing, the commonwealth still presented enough evidence to hold Joseph Kirkner for trial. The prosecutor then issued a subpoena to Kellie Kirkner, which her attorney moved to quash. The trial court granted the motion, finding that Kellie Kirkner’s decision not to testify was her choice, that she did not fear for her personal safety, that she was not financially dependent on her husband and that her decision not to testify was motivated to preserve her family. The Superior Court affirmed the trial court’s decision, because, it said, it was bound by its Hatfield decision. The Pennsylvania Supreme Court granted allowance of appeal to address whether Hatfield contradicts 42 Pa.C.S. � 5913, which relates to spouses as witnesses against each other. While the facts in Hatfield parallel Kirkner, the court said, the Hatfield holding that the trial court could use its discretion in deciding whether to force an unwilling spouse to testify was in error. In Kirkner, the prosecutor argued that if the trial court has discretion to determine whether a victim should testify against an accused spouse, then the trial court will effectively be establishing spousal privilege on a case-by-case basis. The prosecutors also argued that the use of “shall” in � 5913 shows that the General Assembly intended to eliminate the discretion in cases of spousal abuse. In overruling Hatfield and reversing the Superior Court’s order, the state supreme court turned to the codification of the common-law prohibition of one spouse testifying against the other. “In 1887, the General Assembly … delineated specific circumstances when spouses would be competent to testify against each other,” Eakin wrote. “The exceptions found in the original act survive today.” Eakin wrote for a five-justice majority. Chief Justice Stephen A. Zappala concurred in the result without a separate opinion, and Justice Ralph J. Cappy filed a concurring opinion. In part, � 5913 provides that “there shall be no spousal privilege … in any criminal proceeding against either for bodily injury or violence attempted.” The statute, the high court said, cannot be modified by judicial discretion, no matter how well intentioned the trial court might be. And, Eakin said, while the trial and Superior courts’ reliance on Hatfield was understandable, the decision in Hatfield was in error. “The decision in Hatfield contradicts the express intention of the legislature in 42 Pa.C.S. Section 5913,” Eakin wrote. “Therefore the decision in Hatfield is overruled. There being no privilege, the decision of the Superior Court is reversed.” The court then remanded the case to the trial court for reinstatement of the subpoena. In Cappy’s concurring opinion, he said that he chose to dissociate himself from the majority’s discussion of Kellie Kirkner’s goal of preserving her relationship with her husband.

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