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State v. Gianakos5/23/2002
anguage and that we have narrowed the privilege without legislative direction. See Leecy, 294 N.W.2d at 283 (relying on modern authority that "a marriage well on its way to final dissolution will not support a claim of the privilege" to hold that trial court erred in sustaining an exercise of the privilege against adverse spousal testimony). The majority's decision portends the abdication of the court's authority to regulate evidentiary matters.
Despite its acknowledgment of the court's inherent authority to establish rules of evidence, the majority provides no justification for its refusal to exercise the court's power to recognize a joint participant exception to the privilege against adverse spousal testimony. Instead, the majority states " t is simply too great a departure from over 100 years of this court's jurisprudence to adopt" the exception. Neither this court nor the legislature has ever adopted or rejected a joint participant exception to the privilege against adverse spousal testimony—100 years of jurisprudence say nothing at all on the subject. Because the legislature has not addressed the issue, the doctrine of comity does not arise. This case presents the first opportunity to rule on an issue that is within the court's inherent authority to decide. The court, therefore, should exercise its authority to determine whether the exception exists.
The policy underlying the privilege against adverse spousal testimony is to preserve marital harmony. Trammel v. United States, 445 U.S. 40, 44 (1980); State v. Feste, 205 Minn. 73, 74-75, 285 N.W. 85, 86 (1939); 1 McCormick on Evidence § 66, at 280 (John W. Strong ed., 5th ed. 1999). The preservation of marital harmony is not, however, an absolute goal to be pursued blindly. See State v. Hannuksela, 452 N.W.2d 668, 676 (Minn. 1990) (refusing to consider the policy of protecting "the serenity of the marital relationship" in isolation); Leecy, 294 N.W.2d at 283 (noting that a marriage nearing dissolution will not support assertion of the privilege against adverse spousal testimony); see also Minn. Stat. § 595.02, subd. 1(a) (listing exceptions).
" videntiary privileges constitute barriers to the ascertainment of truth and are therefore to be disfavored and narrowly limited to their purposes *á*á*." Larson v. Montpetit, 275 Minn. 394, 402, 147 N.W.2d 580, 586 (1966). We have narrowly construed the marital communications privilege to assure a jury's access to relevant facts:
f this policy of affording protection to the serenity of the marital relationship were to be considered in isolation, a strong argument could be advanced justifying a broad construction [of the marital communications privilege]. However, to give such broad construction to the term "communication," would burden another important social policy—to-wit, one concerned with assuring that a jury in a criminal trial have access to all relevant facts. *á*á* " loyal spouse should not, in our view, become a partner in crime with the blessing of the law bestowed through a strained construction of the statute which is said to be supported by a policy of promoting marital bliss." Hannuksela, 452 N.W.2d at 676 (quoting People v. Simpson, 350 N.E.2d 517, 524 (Ill. App. Ct. 1976), rev'd on other grounds, 369 N.E.2d 1248 (Ill. 1977)).
The majority ignores our refusal in Hannuksela to condone the transformation of a marriage into a criminal enterprise. In effect, the majority "'secures, to every [spouse], one safe and unquestionable and ever ready accomplice for every imaginable crime.'" Trammel, 445 U.S. at 52 (quoting 5 Jeremy Bentham, Rationale of Judicial Evidence 340 (1827)). The goal of preserving marital harmony, however, "does not justify assurin
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