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State v. Gianakos5/23/2002
g a criminal that he can enlist the aid of his spouse in a criminal enterprise without fear that by recruiting an accomplice or coconspirator he is creating another potential witness." United States v. Van Drunen, 501 F.2d 1393, 1396-97 (7th Cir. 1974) (recognizing joint participant exception to the privilege against adverse spousal testimony); see United States v. Clark, 712 F.2d 299, 300-01 (7th Cir. 1983) (citing Van Drunen); United States v. Trammel, 583 F.2d 1166, 1169-70 (10th Cir. 1978) (same), aff'd on other grounds, 445 U.S. 40 (1980).
This court's precedent belies the majority's characterization of federal case law as being "of little persuasive value." This court has relied on federal case law to interpret the privilege against adverse spousal testimony. See Leecy, 294 N.W.2d at 283 (citing United States v. Fisher, 518 F.2d 836 (2d Cir. 1975)); cf. Hannuksela, 452 N.W.2d at 676 & n.11 (interpreting the marital communications privilege in accord with federal case law).
The majority imposes substantial costs on the criminal justice system. The majority's refusal to recognize a joint participant exception to the privilege against adverse spousal testimony prevents the jury from hearing the testimony of appellant's spouse because of appellant's—not the witness's—exercise of the privilege. Thus, the majority deprives the jury of access to highly relevant facts, to-wit, the testimony of a person who helped commit the crime.
Although the majority imposes substantial costs on the criminal justice system, it does not advance the interest underlying the privilege against adverse spousal testimony. Appellant admitted he married Jamie to take advantage of the privilege against adverse spousal testimony to prevent her from testifying about the robbery they committed before they murdered Camp. Jamie acknowledged the same, adding that her marriage to appellant was a "sham." Thus, rather than preserving marital harmony, the majority preserves a relationship in which each partner really has secured "'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)). Appellant's clarification that he married Jamie to take advantage of the privilege and because he loved her does not alter the conclusion that the majority fails to advance the interest underlying the privilege. "When one spouse is willing to testify against the other in a criminal proceeding—whatever the motivation—their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve." Id. Here, Jamie agreed to testify against appellant. The barrier to the ascertainment of truth erected by the majority could not be more complete. The majority banishes from the witness stand a person who committed a crime and is willing to testify about it.
A spouse who is willing to testify against his or her spouse about crimes they committed together will suffer perverse consequences as a result of the majority's decision:
he [state] is unlikely to offer a [spouse] *á*á* lenient treatment if it knows that [the other spouse] can prevent [the spouse] from giving adverse testimony. If the [state] is dissuaded from making such an offer, the privilege can have the untoward effect of permitting one spouse to escape justice at the expense of the other. It hardly seems conducive to the preservation of the marital relation to place a [spouse] in jeopardy solely by virtue of [the other spouse's] control over [the spouse's] testimony. Id. at 52-53.
The majority fails to explain its refusal to exercise the court's inherent authori
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