Imagine your spouse engaged in a struggle, watching someone deliver a fatal blow. Soon the police are on the sidewalk. The officers want to know from you, as a witness, what happened. What a dilemma. Should you tell the truth? Should you make up a story? Can you retract a statement once made? In a panic, you tell the police everything that happened before your eyes, which lands your husband in jail for a long time.
By law, a witness cannot be compelled by the police to make a statement. In court, on the other hand, one must tell the truth. This means not only that a witness can be forced to testify, but also that he is punishable if, under oath, he lies.
However, the obligation to testify does not apply to everyone. For example, immediate family members of a defendant are not required to testify. The legislature, in some cases, places more value on preserving certain family relationships than on establishing the truth.
The right not to testify against a family member, for example, is called the "right of privilege" in the law. Thus, because of this right to privilege, a wife does not have to testify against her husband and a mother does not have to make a statement about one of her children.
But what can a person entitled to privilege do if he, or she, has made a statement to the police anyway? Often I hear clients say that they "then just retract the statement anyway." After all, they were not under oath. However, that is not possible!
A witness may make a new statement to the court, but this does not delete a previous statement. All statements made remain part of the record. And it is up to the judge to judge the reliability of all statements in that file.
Therefore, my advice is:
Be aware that you are not always required to testify. In the case of a suspected family member, you can invoke your right to privilege. If you do wish to testify, be aware that once you have made a statement, it cannot be retracted. Always consult your lawyer before making a statement. He can advise you about your rights and obligations.
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