Wife Testimony Against Husband Case In Arizona
In State v. Fisher, 176 Ariz. 69, 859 P.2d 179 (1993), defendant James Fisher and his wife, Ann, both had been charged with murder. Id. at 71, 859 P.2d at 181.
Ann signed an agreement allowing her to plead guilty to a reduced charge if her testimony at James's trial did "not vary substantially in relevant areas from statements previously given investigative officers." Id. at James's trial, Ann invoked her Fifth Amendment rights and refused to testify. Id.
At a later hearing on James's motion for a new trial, Ann testified about conflicting statements she had made about whether she or James had killed the victim. Id. at 72, 859 P.2d at 182.
She stated she had invoked her Fifth Amendment right at his trial based equally on her counsel's advice and on her desire to preserve her agreement with the state. Id.
The Fisher court concluded that, although a plea agreement may properly be conditioned upon truthful and complete testimony, "consistency provisions," including the one contained in the wife's agreement, were unenforceable. Id. at 73, 859 P.2d at 183.
It first noted the state's "ethical responsibility to 'scrupulously avoid any suggestion calculated to induce the witness to suppress or deviate from the truth, or in any degree to affect his free and untrammeled conduct when appearing at the trial or on the witness stand.'" Id., citing State v. Fisher, 141 Ariz. 227, 244 n.5, 686 P.2d 750, 767 n.5 (1984) and ABA Canons of Prof'l Ethics 39.
And it pointed out that consistency provisions "taint the truth-seeking function of the courts by placing undue pressure on witnesses to stick with one version of the facts regardless of its truthfulness" and "frustrate the jury's duty to determine the credibility of the witness." Id. at 74, 859 P.2d at 184.
The court acknowledged that, although Ann had not testified at James's trial, she arguably "was prevented from supplying evidence helpful to the defendant by reason of the improper . . . provision." Id.
It cited with approval cases from other jurisdictions holding that "due process prohibits a plea agreement from conditioning leniency upon anything other than truthful and complete testimony," and ultimately concluded "the prosecution should have bargained with Ann only for truthful and accurate testimony." Id. at 73, 74, 859 P.2d at 183, 184.