A straight male mistakenly thinks a gay man was making a pass at him. He’s outraged. He goes home, tells his wife. The two of them come after the gay man. The husband kills the gay man. He tells police he did it in self defense. His wife has a different story. In a taped interview, she tells police that the husband hates gay men and killed this victim and made up the whole story. At trial, however, the wife refuses to testify.

Why? Because under federal and state law, spouses can refuse to testify against each other. In California, they can also prevent each other from revealing confidential communications made to each other.

So the prosecutors offer a tape of the wife’s comments to police as proof at the husband’s trial. The husband is convicted of murder. But the US Supreme Court overturns the verdict because the trial court should not have allowed the wife’s statement into evidence because her husband didn’t have the chance to cross-examine her at trial because she was, technically, unavailable to testify.

I’ve changed the facts here only slightly to point out the unfairness of this US Supreme Court case, Crawford v. Washington. I’ve pointed out before that criminal trials in the United States are supposed to guarantee fairness to the accused. The accused should have the opportunity to cross-examine adverse witnesses.

But should those accused of a crime be able to prevent another from testifying solely because they are married to the witnesses?

Earlier this year, the Supreme Court decided the Crawford case, where, based upon the facts I’ve outlined above, the Supreme Court held that the accused – Crawford – was denied his right to “confront” a witness (his wife) when she gave a statement to the police.

The Court said that trial judges should only allow a witness’s statements (to police or others) made before trial, when that witness is unavailable and only where the accused has had a “prior opportunity to cross-examine.”

Legal commentators and prosecutors are in shock over the opinion in the Crawford case, which overruled a previous case that allowed such statements so long as they were reliable. For years the courts have allowed testimony, given to police, from minors and victims of domestic violence, to be used at trials. Often minors refuse to testify in court because of trauma. And it’s the same with victims of domestic violence, where victims have feared that they would be further abused by their spouse.

Prosecutors are worried about whether child-abuse cases can now be prosecuted, because it’s unlikely that child witnesses will testify in court, especially those that are very young.

On the other hand, in the past few months the news has revealed several cases in which men have been jailed or imprisoned based upon statements made by children. Some argue that the accused should have the chance to cross-examine their accusers.

Usually they do have such a chance because the law compels persons to testify at trial unless they are unavailable – and unavailability doesn’t mean you don’t feel like testifying, or have a hair appointment. But “unavailability” can be based on a legal privilege, like spousal privilege. That’s wrong, and the legislature should move to make a change, or the courts should rule such privileges violate equal protection, because no such privileges exist for non-married or non-domestically-partnered couples.

That brings me to the local case involving Brett Marquis, a local man convicted of having oral sex with a 14-year-old boy, and recently sentenced to 365 days in prison. The boy made statements to police investigators and testified against Marquis at a preliminary hearing. But the boy was unavailable to testify against Marquis at his trial, having been removed to a juvenile facility out of the country.

A preliminary hearing is not the same as a trial. There is no jury. There is no finding of guilt or innocence. A judge hears testimony to determine whether there is probable cause for the charges filed against the accused.

It seems to violate the confrontation clause of the Sixth Amendment to try someone without the presence of the complaining witness. The jury can hear the testimony at the preliminary hearing. But the jury doesn’t see the witness. The jury cannot assess the nonverbal clues. And the accused doesn’t have the chance to ask questions. So it may be that Marquis has a basis for an appeal based upon the Crawford case.

Robert DeKoven is a law professor at California Western School of Law.