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State v. Gianakos5/23/2002
ty to establish rules of evidence to recognize a joint participant exception to the privilege against adverse spousal testimony. In my view, the substantial burdens the majority imposes on the criminal justice system by permitting appellant to deprive the jury of the testimony of one of Camp's murderers are not justified by its thin reasoning and citation to family law cases. The legislature has not explicitly said that the testimonial privilege should extend to joint participants, and not even comity demands this perverse result. I would accept for the judiciary the responsibility of determining whether a joint participant exception to the privilege against adverse spousal testimony exists. Having accepted that responsibility, I would conclude that such an exception does exist, and affirm the conviction.
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