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State v. Gianakos5/23/2002
standard. See Minn. R. Evid. 104; State v. Hooper, 620 N.W.2d 31, 38 (Minn. 2000). The determination whether a particular testimonial privilege or exception exists, however, is a question of law which this court reviews de novo. See Lewis v. Equitable Life Assurance Soc'y, 389 N.W.2d 876, 890 (Minn. 1986); Star Trib. v. Bd. of Educ., 507 N.W.2d 869, 870 (Minn. App.), rev. denied (Minn. Dec. 22, 1993).
As a preliminary matter, we note that despite the statutory nature of Minnesota's marital privilege, its roots are in the common law, and this court retains inherent power to adopt standards by judicial opinion relating to the admissibility of evidence in the interest of justice. See State v. Erickson, 589 N.W.2d 481, 485 (Minn. 1999) (recognizing this court's power not only to promulgate court rules, citing Minn. Stat. §á480.059, but also to "suspend the exercise of those rules where appropriate to ensure the proper administration of justice"). Thus, we agree with the dissent as to the nature of our authority, but the issue is whether it is appropriate, given our precedent, for this court to exercise that authority and declare the privilege against adverse spousal testimony unavailable. On this issue we disagree.
The social policy underlying the marital privilege was well set forth many years ago in State v. Feste:
The family is the basic unit of society as the cell is of the body. To cause strife between the parties to a marriage contract is to undermine this institution and thus to weaken the entire social structure. Courts and legislatures have recognized the burden which antagonistic interests impose upon the intimate relations of husband and wife and the harm to the public which results from marital discord, and have, as a general rule, refused for this reason to permit one spouse to testify against the other without the latter's consent. 205 Minn. at 74-75, 285 N.W. at 86.
The marital privilege in Minnesota is embodied in Minn. Stat. § 595.02, subd. 1(a). It provides that parties to a marriage cannot testify for or against each other without the other's consent, and further, that neither spouse can be examined as to any communication made by one to the other during the marriage, absent the other's consent. Id. In effect, the statute identifies two different types of marital privilege: 1) the privilege to prevent one spouse from testifying against the other during their marriage; and 2) the privilege to prevent one spouse from testifying at any time, during the marriage or after, concerning confidential inter-spousal communications during the marriage. Leecy, 294 N.W.2d at 283. The former, known as the privilege against adverse spousal testimony, is at issue here.
The Sham Marriage Exception
The trial court denied appellant's request to invoke the marital privilege in part because both Jamie and appellant had indicated their marriage was motivated by a desire to be shielded from adverse testimony. The court therefore concluded that the interest protected by the privilege – that of preserving the integrity of the marriage – was outweighed by the competing interest in ascertaining the truth and presenting all relevant facts to the jury. The trial court relied heavily on federal case law recognizing a "sham marriage" exception to the privilege against adverse spousal testimony. See, e.g., United States v. Saniti, 604 F.2d 603, 604 (9th Cir. 1979). While acknowledging the differences between the federal common law marital privilege and our corresponding statutory privilege, the trial court concluded that Minnesota had followed a similar progression of narrowing the privilege such that the recognition of similar exceptions was appropriate.
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