In no way was it used as "a way of claiming AE is not a witness". It has nothing to do with anything I, or anyone else, thinks AE knows or doesn't know. Personal feelings about this case aren't relevant to what I discussed.
I also said from the first conversation on this thread, that it was complicated when it could happen, and I never made it sound like one spouse could NEVER testify against another.
My comments have nothing to do with the specifics of this case, except that they are in the middle of a divorce.
I disagree with your opinion that the laws of privilege are not used in New York courts and could not be applied in this case. I see several precedence cases online. No one can state with certainty what would happen, it is not applied until there is a challenge.
It is not complicated.
The bottom line is spousal privilege has no importance whatsoever.
Rex's defense team may be able to have a tiny part of what she might have to report kept from a jury. Specifically, he might be able to have something said directly to her in when no one else witnessed it in a private space kept from a jury. Yet a judge may allow some private conversation be reported to the jury in some cases, so claiming the privilege isn't even a sure bet in those few instances.
Everthing that AE saw, heard, smelled, or otherwise observed is admissible before a jury, except direct and confidential communication from Rex to Asa. All those things, besides Rex's communication, are going to be far more damning than his communication, anyway. People say, "I'm gonna kill them," type things often without meaning it, so if Rex committed murder around her, and said that to her in confidence, MAYBE that statement would be kept from the jury. And that statement wouldn't mean much without other observations.
But if Asa heard a struggle, a scream, Rex saying incriminating things to the victim, saw someone run away naked, saw clothes being burned, etc., all just hypotheticals, all of that would be fully admissible.
(FWIW, Asa wasn't married to Rex the night that the swinger was there, so there is no spousal privilege about that night , anyway. But I assume scenes like the one the swinger described, if true, which seems likely, continued into the legal marriage. So other nights when they were legally married, the only thing that MIGHT be kept from the jury is communications directly from Rex to Asa in confidence.)
Divorce does not complicate anything because spousal privilege does not get erased retroactively. But in NY almost nothing is going to be privileged.
Spousal privilege is not an obstacle to Asa being a witness. The only obstacle realistically speaking is Asa's potential refusal to cooperate. Macedonio seems to be hostile to cooperation, but he is not an honest actor. And Asa could be more cooperative than we think, being that she gave the DNA sample quietly.
Spousal privilege is simply irrelevant in this case. There is no point in mentioning it except to discourage people from turning to Asa as a witness.
MOO
