回複：老貓在嗎？有問題請教

老貓這可是城門失火池魚之殃,您打筆仗把老貓也給帶上了
我們先討論刑事的案件,

基本上允許證人不對其近親屬的罪行作證的規則，自古以來被世界上大多數國家所采用,《1999年統一證據規則》Uniform Rules of Evidence第５條規定：在刑事訴訟中，被告人的配偶享有拒絕作對被指控的配偶不利的證言的特免權。
RULE 504. SPOUSAL PRIVILEGE
(a) Confidential communication. A communication is confidential if it is made privately by an individual to the individual’s spouse and is not intended for disclosure to any other person.
(b) Marital communications. An individual has a privilege to refuse to testify and to prevent the individual’s spouse or former spouse from testifying as to any confidential communication made by the individual to the spouse during their marriage. The privilege may be waived only by the individual holding the privilege or by the holder’s guardian or conservator, or the individual’s personal representative if the individual is deceased.
(c) Spousal testimony in criminal proceeding. The spouse of an accused in a criminal proceeding has a privilege to refuse to testify against the accused spouse.
(d) Exceptions. There is no privilege under this rule:
(1) in any civil proceeding in which the spouses are adverse parties;
(2) in any criminal proceeding in which an unrefuted showing is made that the spouses acted jointly in the commission of the crime charged,;
(3) in any proceeding in which one spouse is charged with a crime or tort against the person or property of the other, a minor child of either, an individual residing in the household of either, or a third person if the crime or tort is committed in the course of committing a crime or tort against the other spouse, a minor child of either spouse, or an individual residing in the household of either spouse; or
(4) in any other proceeding, in the discretion of the court, if the interests of a minor child of either spouse may be adversely affected by invocation of the privilege.

相關的資料您可以參考這個資料
The marital confidences privilege
The marital confidences privilege is a form of privileged communication protecting the contents of confidential communications between hu*****and and wife. This privilege applies in civil and criminal cases. When applied, a court may not compel one spouse to testify against the other concerning confidential communications made during marriage.
The privilege generally applies only where both of the following fact situations are present: (1) a third party was not present during the communication (the presence of a third party would destroy the confidential nature of the communication), and (2) both parties intended that the communication be confidential.
The privilege is usually restricted to confidential communications made during marriage and does not include communications made before the marriage or after divorce. The privilege does, however, generally survive the divorce; that is, a person can be prevented from testifying about confidential communications with an ex-spouse made during the marriage.
Either spouse can invoke this privilege, either refusing to testify against their spouse or preventing their spouse from testifying. Finally, courts may require that the communication relate specifically to the marriage.
[edit] The spousal testimonial privilege
The spousal testimonial privilege (a.k.a. "spousal immunity") can be used to prevent any party in a criminal case from calling the defendant's spouse to testify against the defendant about any topic. Under the U.S. Federal Rules of Evidence, this privilege attaches to the witness spouse; that is, the defendant's spouse can refuse to testify against the defendant, but the defendant may not prevent his spouse from testifying against him or her.
This privilege does not survive the marriage; that is, after divorce, there is no right to refuse to testify against a defendant ex-spouse. This privilege may be restricted to testimony about events that occurred after the marriage, although in some jurisdictions it may apply to testimony about events occurring prior to the marriage (giving rise to a questionable incentive for an individual to marry a potential witness in order to prevent the potential witness from testifying against the individual). A marriage having such a motivation was depicted by Agatha Christie in a detective novel.
[edit] Other rules relating to the privileges
Both rules are suspended in the case of divorce proceedings or child custody disputes, and in cases where one spouse is accused of a crime against the other spouse or the spouse's child. Courts generally do not permit an adverse spouse to invoke either privilege during a trial initiated by the other spouse, or in the case of domestic abuse. The privileges may also be suspended where both spouses are joint participants in a crime, depending on the law of the jurisdiction.
Marital privilege is based on the policy of encouraging spousal harmony, and preventing people from having to condemn, or being condemned by, their spouses.
[
This entry contains information applicable to United States law only.
The right given to a hu*****and and wife to refuse to testify in a trial as to confidential statements made to each other within and during the framework of their spousal rela- tionship.
The marital communications privilege is a right that only legally married persons have in court. Also called the hu*****and-wife privilege, it protects the privacy of communications between spouses. The privilege allows them to refuse to testify about a conversation or a letter that they have privately exchanged as marital partners.
The marital privilege is an exception to the general rule that all relevant evidence is admissible at trial. Similar privileges exist for communications between priest and penitent (one who has confided in the priest), attorney and client, and doctor and patient. Privileges exclude evidence from trial in order to advance some social goal. With the marital privilege, the goal of free and open communication between spouses, which is believed to strengthen and further the marital relationship, is given greater weight than the need for evidence (the information exchanged by the spouses) to resolve a legal dispute.
The marital communications privilege originated at common law. It was made formal in the English Evidence Amendment Act of 1853, which said that neither hu*****ands nor wives could be forced to disclose any communication made to the other during the marriage. In the United States, the privilege came to be recognized in state and federal rules of evidence. By the twentieth century, the U.S. Supreme Court said that it was "regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice" (Wolfle v. United States, 291 U.S. 7, 54 S. Ct. 279, 78 L. Ed. 617 [1934]).
The marital communications privilege is available in most jurisdictions. Most jurisdictions offering it allow a witness spouse to choose whether to testify; some automatically disqualify evidence from a spouse.
The privilege is not absolute. Because its effect is to deny evidence at trial, courts generally interpret it narrowly.
The most important condition for its use is a legal marriage. Courts will not permit its use by partners who merely live together or by those who have a common-law marriage or a sham, or false, marriage. Moreover, the communication must have taken place while the marriage existed, not after a divorce. Generally, the determination of whether a marriage is legal depends on state law.
The privilege also cannot be claimed in certain situations, such as where one spouse is subject to prosecution for crimes committed against the other or against the children of the couple. In addition, the presence of third persons at the time of the communication usually eliminates confidentiality and thus destroys the privilege, although courts have granted exceptions for the presence of children.
Many jurisdictions make the distinction of which spouse "holds," and may therefore assert, the privilege — the defendant spouse or the witness spouse. In these jurisdictions, the spouse who holds the privilege may waive it and testify against the other spouse.


雖然
In Trammel v. United States, 445 U.S. 40 (1980), the Supreme Court ruled that the fifth amendment extended the right not to testify against oneself to include not testifying against one's spouse.

但是如果您接到法院的SUBPOENA,您仍然需要出庭,但是您是否可以引用 Fifth Amendment to the United States Constitution 要求拒絕作證,仍然需要由法官來裁定,如果法官認為您的情況不符合使用SPOUSAL PRIVILEGE那麼您仍然需要依據法官的命令來作證,否則您有可能會因為refuse to testify and the judge sentence you several days in jail.

現在來看看民事的案件,因為在英美法係國家，證人證言占有十分重要的地位，尤其是在當今的美國，由於使用陪審團審理方式，訴訟過程以證人證言為中心，證據幾乎都是證人出庭作證的口頭證言.一般而言，對於民事案件美國各州的法律大都不過多地對證人的資格予以限製幾乎所有的人都被假定為具有作證能力 (這點在台灣,民事訴訟法”第307條第2款規定，因證人作證，足以使證人或與證人存在有關親屬關係的人的財產上直接造成損害的，該證人享有拒絕證言權。可見台灣的法律確實比中國的民法有一些人性 :-)
但是在美國,一般的民事案件,除非當事人認為其個人所提供的證辭有可能could incriminate yourself by what you say您可以考慮Pleading the Fifth,但是個人的建議是如果真的遇到這種情況,您應該諮詢您的律師.


附錄:
Fifth Amendment to the United States Constitution
No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation


最後老貓要指出在英美法律中,除了下列六種情況之外,一般兄弟姐妹或是父(母)子(女)關係並不受到 Spousal Privilege
在民事訴訟中，證人不得具有以下身份:1、訴訟法事人；2、訴訟當事人之近親屬；3、訴訟代理人；4、訴訟代理人之近親屬；5、與訴訟當事人有利害關係，該關係可影響到其證言的真實性；6、與案件有利害關係的第三人，
所以您們在家壇的問題,子女,或是婆媳仍然可以就對方不法的行為在訴訟中提供證辭.

希望這個說明應該可以解釋一些您們的問題....

所有跟帖： 

• 有勞了，謝謝，我就知道老貓是好人～～～～～～～ -白豆豆- ♀ (0 bytes) () 01/16/2009 postreply 11:29:22

• I really think parents/children should not be forced to -Comfort.- ♀ (83 bytes) () 01/16/2009 postreply 12:57:56

• 回複：I really think parents/children should not be forced to -單身老貓- ♂ (460 bytes) () 01/16/2009 postreply 14:08:44

• 回複：回複：I really think parents/children should not be forced to -Comfort.- ♀ (204 bytes) () 01/16/2009 postreply 15:54:52