Child-Abuse Exception To The Spousal Testimonial Privilege

Where the law of an Indian Nation, rather than that of the state in which the reservation is located, governs whether claimants of the spousal testimonial privilege are married, one spouse may decline to testify against the other and there is no “child abuse” exception to the witness-spouse’s privilege to decline to testify, in United States v. Jarvison, 409 F.3d 122 (10th Cir. May 23, 2005) (No. 04-2093)

The general rule in federal courts is that the holder of the privilege against spousal testimony is the spouse called to be a witness, not the defendant spouse in a proceeding. Trammel v. United States, 445 U.S. 40, 53 (1980) (“the witness spouse alone has a privilege to refuse to testify adversely;” noting that the witness cannot be forced to testify nor prevented from testifying under this privilege). Typically in cases arising on an Indian Reservation located in a State, the substantive law of the State is controlling in such situations. With regard to the Navajo Nation, however, the tribe can regulate domestic relations laws, including marriage of its Indian subjects, Navajo law is applied on many issues. Montana v. United States, 450 U.S. 544, 564 (1981) (“Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members”)The definition of what constitutes a marriage is a matter of state law; how is marriage conceived in Indian Country for purposes of applying the spousal testimonial privilege? The Tenth Circuit addressed this issue in a case decided several years ago.

In the case, defendant Jarvison, a Navajo tribal member, was indicted for aggravated sexual abuse of a minor child in Indian Country. As part of its prosecution, the government attempted to compel the woman who lived with the defendant, who was also a resident of the reservation and a member of the tribe, to testify as to statements made by the victim and by the defendant regarding the alleged sexual abuse.

The woman to be called as a witness claimed the benefit of the federal spousal testimony privilege, contending that she was the wife of the defendant. The government served the woman with a subpoena to compel her testimony and the district court conducted a hearing during which the woman “emphatically stated that she did not want to testify against her husband and that she and [defendant] Jarvison had been married in a traditional Navajo ceremony . . . within the Navajo Reservation on June 25, 1953.” Jarvison, 409 F.3d at 1223. The district court found that a valid marriage had been established based on the 1953 traditional Navajo ceremony and that the spousal testimonial privilege could be asserted by the wife. Jarvison, 409 F.3d at 1223.

The government filed an interlocutory appeal, contending that the district court erred in determining that the defendant was married to the witness. The prosecution argued that she could not assert the spousal testimonial privilege. The circuit affirmed the district court’s findings.

The circuit stated that the law of the Navajo Nation, not the law of New Mexico would apply in determining if the witness was married to the defendant for purposes of applying the federal spousal testimonial privilege. The Navajo Nation law applied to members of the Navajo Nation who lived “completely” within the boundaries of a Navajo Reservation. Jarvison, 409 F.3d at 1225. The circuit then examined the relevant Navajo law at the time (1953) when the witness claimed she was married in an unlicensed traditional Navajo ceremony. The circuit then determined that the ceremony undergone by the witness and the defendant “establish[ed] the elements of common law marriage” under Navajo law and that there was “sufficient evidence . . . in the record validating the . . . marriage for purposes of the spousal testimonial privilege.” Jarvison, 409 F.3d at 1230-31.

The circuit noted that:

The government invites us to create a new exception to the spousal testimonial privilege akin to that we recognized . . . to the marital communications privilege for voluntary spousal testimony relating to child abuse within the household. Federal courts recognize two marital privileges: the first is the testimonial privilege which permits one spouse to decline to testify against the other during marriage; the second is the marital confidential communications privilege, which either spouse may assert to prevent the other from testifying to confidential communications made during marriage. . . . In order to accept the government's invitation, we would be required not only to create an exception to the spousal testimonial privilege in cases of child abuse, but also to create an exception--not currently recognized by any federal court--allowing a court to compel adverse spousal testimony.
Jarvison, 409 F.3d at 1231.

The circuit declined to take this step. Recognizing its authority “to continue the evolutionary development of testimonial privileges in federal criminal trials governed by the principles of the common law as they may be interpreted ... in the light of reason and experience,” Jarvison, 409 F.3d at 1232 (quoting Trammel v. United States, 445 U.S. 40, 47 (1980))] the circuit concluded “we do not consider this to be the appropriate case to examine” whether the spousal testimony privilege as articulated in Trammel “can or should be reexamined.” Jarvison, 409 F.3d at 1232. Accordingly, the circuit affirmed the district court’s application of the spousal privilege to the witness.

Jarvison reaffirms that the spousal testimonial privilege covers only the actual giving of testimony by a spouse. See Trammel, 445 U.S. at 53 n.12 (noting that under the privilege the government can not “enlist[] one spouse to give information concerning the other or to aid in the other’s apprehension”). But this does not necessarily preclude testimony by others about what the witness-spouse said, if otherwise admissible (e.g., not excludable hearsay or not falling within a hearsay exception).

As applied by the courts, the privilege provides a bar to testimony by a spouse and does not extend to extrajudicial statements of a spouse, that might be testified to by others under an exception to the hearsay doctrine. Of course, in light of the U.S. Supreme Court decision in Crawford v. Washington, 541 U.S. 36, 68-69 (2004) (“[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation"), whether the government in Jarvison would be able to get in any of the statements made by the witness to the FBI and Navajo police investigators or other law enforcement officials is problematic.


Federal Rules of Evidence