Now that we know former Patriots tight end Aaron Hernandez has been charged with first degree murder, a lot of questions arise as to how the State will put their case together against him. They already detailed a number of pieces of evidence against Hernandez at the hearing earlier today, including a gum wrapper and security footage, but they do not have the proverbial or literal smoking gun (the gun used to shoot Odin Lloyd has not yet been found). In light of that, a valid question to ask is will Hernandez’s fiance, Shayanna Jenkins, be compelled by the prosecution to testify against him and if so then will they try to get married prior to a trial?
Generally it’s been held in Massachusetts that despite the timing of the marriage or the timing of the conversation between the husband and wife, a wife cannot be compelled to testify against her husband. A few cases in Massachusetts have addressed the issue of defendants marrying to be able to take advantage of this statute. In State v. Chrismore, 223 Iowa 957 (Iowa 1937), in which the defendant married the witness after the indictment had been handed down, the court held that “no matter what the motive was or might have been….the witness thence forward became the lawful wife of the defendant and was prohibited from testifying against her husband”. In Commonwealth v. Di Pietro, 373 Mass. 369 (Mass. 1977), the court held the defendant’s marriage to a prosecution witness 4 days prior to the beginning of the trial prevented her from being compelled to testify. However, in Di Pietro, the court did allow transcripts of testimony from the defendant’s probable cause hearing that took place prior to the marriage. So although Massachusetts courts have been known to allow the so-called ‘Spousal Privilege’ despite the motive of the marriage, there is a slight possibility that the court can allow information taken prior to their marriage as admissible testimony.
If the prosecution in Hernandez’s case believes his fiance can provide information that will be useful to them, it would be in their best interest to depose her as soon as possible. They may then be able to argue that the transcripts of her testimony should be admissible as evidence despite the marriage occurring prior to the trial.
Of course this is all hypothetical until we know whether Hernandez and his fiance intend to marry to take advantage of the statute, but if she knows anything that can help the prosecution, it would be in their best interest to get married before she is compelled to testify by the prosecution.