☰ Revisor of Missouri

Title XXXVII CRIMINAL PROCEDURE

Chapter 546

< > Effective - 19 Jul 1985, see footnote bottom

  546.260.  Defendant may testify in own behalf — spouse may testify for husband or wife — spouse may testify against husband or wife, when. — 1.  No person shall be incompetent to testify as a witness in any criminal cause or prosecution by reason of being the person on trial or examination, or by reason of being the husband or wife of the accused, but any such facts may be shown for the purpose of affecting the credibility of such witness; provided, that no person on trial or examination, nor wife or husband of such person, shall be required to testify, but any such person may testify at his or her option either on behalf of or against the defendant, and shall be liable to cross-examination, as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case; provided, that in no case shall husband or wife, when testifying under the provisions of this section, be permitted to disclose confidential communications had or made between them in the relation of such husband and wife.

  2.  Notwithstanding subsection 1 of this section or any other provision of law to the contrary, in any criminal prosecution under chapter 565, 566 or 568, involving an alleged victim under the age of eighteen, a spouse shall be a competent witness against a defendant spouse, and no spousal privilege as set forth in subsection 1 of this section or any other provision of law shall exist.

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(RSMo 1939 § 4081, A.L. 1985 H.B. 366, et al.)

Prior revisions: 1929 § 3692; 1919 § 4036; 1909 § 5242

Effective 7-19-85

(1952) The "matter referred to in his examination in chief" means the things he testifies about. If defendant in chief in a general way refers to a subject, he may be examined in detail as to that subject. State v. Christian (Mo.), 245 S.W.2d 895.

(1952) Where defendant ex-policeman testified as to his work as policeman and his training, cross-examination as to whether he got in trouble during training was improper but general objection not sufficient to preserve objection. Specific objection on ground no conviction shown made at close of cross-examination also not sufficient to preserve same. State v. Slaten (Mo.), 252 S.W.2d 330.

(1953) Where defendants on direct examination denied stealing corn, they could be cross-examined as to their signatures to conflicting statements as to crime made in prosecuting attorney's office, even though statements were not introduced and particularly is this so where stenographer testified without objection from her notes as to matters contained in such statements.  State v. Kaufman (Mo.), 254 S.W.2d 640.

(1953) Where defendant in criminal case offered himself as witness and, on cross-examination for purpose of impeachment, gave false answers as to his prior convictions of crime, he was guilty of perjury. State v. Swisher, 364 Mo. 157, 260 S.W.2d 6.

(1956) Where officer was called by defense in robbery prosecution to impeach state's witnesses, his cross-examination, for the purpose of showing defendant had been arrested on another charge, held error. State v. Ingram (Mo.), 286 S.W.2d 733.

(1957) Wife, testifying voluntarily, held competent witness against her husband in prosecution for acts constituting crime of personal violence against her child. State v. Kollenborn (Mo.), 304 S.W.2d 855.

(1958) In prosecution upon charge of performing an abortion where defendant's testimony on direct examination was in effect a general denial, cross-examination of defendant in regard to the right of access to and control of the house in which state's evidence tended to show the abortion took place was proper. State v. Scown (Mo.), 312 S.W.2d 782.

(1958) Under common law court did not err in permitting wife to testify on behalf of state in prosecution of defendant for statutory rape of his eight-year-old daughter as to what she found when she returned home and found defendant and the child. State v. Greer (Mo.), 313 S.W.2d 711.

(1959) Where defendant in criminal case took stand, cross-examination of him with respect to his former convictions was a proper method of impeachment. State v. Reece (Mo.), 324 S.W.2d 656.

(1959) Where husband on trial for murder testified to an alleged confidential communication between him and his wife and by such testimony attempted to blacken her reputation for his own advantage, he was held to have waived her incompetency and her testimony as to the communication and as to the commission of the crime was properly admitted in rebuttal.  State v. Bledsoe (Mo.), 325 S.W.2d 762.

(1959) Where defendant took stand as witness, his cross-examination as to prior convictions, including misdemeanor convictions, held proper. State v. Ivory (Mo.), 327 S.W.2d  870.

(1960) Where defendant makes sweeping denial of commission of crime in testimony on his own behalf, he is liable to cross-examination, contradiction and impeachment as any other witness. State v. Beishir (Mo.), 332 S.W.2d 898.

(1960) Spouse of individual charged with crime is not precluded from testifying against coindictee of spouse where such coindictee is separately tried. State v. Gyngard (Mo.), 333 S.W.2d 73.

(1960) Where defendant in criminal case takes stand as witness in his own behalf he may be cross-examined as any other witness with respect to former convictions upon the issue of his credibility as a witness. State v. Morton (Mo.), 338 S.W.2d 858.

(1961) After asking a series of prejudicial and improper questions of defendant which related to matters beyond scope of direct examination objections to which were sustained by the court, comment by prosecuting attorney that "if the court please, we have got the right to put on some testimony from this witness" prejudiced the rights of defendant and was not relieved by direction of court to disregard the statement. State v. Sarten (Mo.), 344 S.W.2d 1.

(1962) Where defendant, in prosecution for subornation of perjury, testified as to his truthfulness it was proper for state to cross-examine defendant regarding prior jail sentence and fine for contempt of court for false swearing. State v. Baldwin (Mo.), 358 S.W.2d 18.

(1962) Admission in evidence of photograph of defendant taken after arrest showing defendant's hair to be long where at time of trial he had a crew cut and identity of defendant was disputed, upheld against contention it compelled defendant to testify against himself. State v. Sanders (Mo.), 358 S.W.2d 45.

(1962) Defendant in robbery prosecution, by taking the stand and testifying in his own defense, waived the error, if any, in requiring him to be sworn before exhibiting himself before jury in hat, sweater, gloves and stocking mask worn by robber.  State v. Byrd (Mo.), 360 S.W.2d 614.

(1963) In prosecution for carrying a concealed weapon it was prejudicial error to admit testimony in rebuttal that defendant had remained silent when asked by officer at time of arrest why he was carrying the pistol. State v. Vainikos (Mo.),366 S.W.2d 423.

(1966) Credibility of defendant who elects to take stand in his own behalf may be attacked like that of any other witness by showing prior convictions. State v. McClain (Mo.), 404 S.W.2d 186.

(1970) The right of an accused to testify in his own behalf is a statutory and not a constitutional right. State v. Hutchinson (Mo.), 458 S.W.2d 553.

(1974) Cross-examination as to whether defendant changed coats with a codefendant before a police lineup was proper since on direct examination the denial of guilt by the defendant was broad enough to allow evidence of consciousness of guilt or a disposition to conceal the alleged crime as indicated by the changing of coats. State v. Kirk (A.), 510 S.W.2d 196.

(1976) When defendant testified that he did not shoot victim but that third person did, evidence that defendant attempted to suborn perjury in support of his testimony constitutes direct contradiction of his examination in chief and is admissible to impeach him. State v. Moore (A.), 546 S.W.2d 10.

(1977) Held, a person may testify against his spouse, the privilege belongs to the witness and must be asserted by the witness.  State v. Frazier (A.), 550 S.W.2d 590.

(1977) Where defendant testified on direct examination that he had never been "in trouble" except for one instance, cross-examination as to prior arrests was permissible. State v. Payton (A.), 559 S.W.2d 551.

(1986) The husband-wife privilege does not apply to communications relating to contemplated future crimes. State v. Heistand (Mo.banc), 708 S.W.2d 125.

(1987) Person on trial for selling marijuana who testified in his own behalf was subject to cross examination on subject of identity of supplier pursuant to this section in view of defendant's numerous references to supplier and defendant's implication that defendant was motivated to sell marijuana to pay a cocaine debt owed to supplier. State v. McClintic, 731 S.W.2d 853 (Mo.App.S.D.).


---- end of effective  19 Jul 1985 ----

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