In Georgia, in a civil case, like a family law case, a witness, you can put them under oath at a deposition or put them in a room with a trial and they have a right, it’s called a witness privilege. It’s sort of like the fifth amendment except the person’s not under investigation for a crime. In a civil case, what they can say is they can say, “Well, I don’t want to answer your question because it’s going to make me look bad, it’s going to bring me into disrepute in the community.”
What you get in a family law case is, unlike the fifth amendment, when somebody invokes that witness privilege you get the negative inference. You get the assumption that what they would have said if they’d answered the question is going to harm them or harm their case, and that can be powerful.
I took a deposition of a woman one time who was the girlfriend of my client’s husband. He’s cheating, he had a girlfriend, bring the girlfriend in for a deposition. I asked her if she’s ever had sex with my client’s husband and she says, “Witness privilege.” What the witness privilege allows us to do is to follow-up with other questions so I said, “All right, did you have sex with him in July?”
She says, “Witness privilege.” I said, “What about June?” “Witness privilege.” “May?” “Witness privilege.” Then I asked April, and to evoke the witness privilege the answer has to harm you so her answer for April was no. Now we got witness privilege for May but not for April. Then I brought it forward and said, “All right, what about May 1st?” She said no, and I walked it all the way forward until we got to May 18th. She goes, “Witness privilege.”
It’s funny because sometimes people think that this witness privilege is going to help them out. It just took me a few more questions but we figured out exactly when the affair happened, May 18th. To be able to take a paramour, somebody who’s cheating with my client’s husband, and get them to stop lying or to hold them accountable is really powerful stuff.
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