FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
HAMPSHIRE [Hon. Joseph N. Laplante, U.S. District Judge]
R. Aframe, Assistant United States Attorney, with whom Scott
W. Murray, United States Attorney, was on brief, for
L. Rancourt, with whom Brennan Lenehan Iacopino & Hickey
was on brief, for intervenor-appellee.
Eduardo Masferrer, with whom Masferrer & Associates, P.C.
was on brief, for appellee.
Torruella, Thompson, and Barron, Circuit Judges.
TORRUELLA, CIRCUIT JUDGE.
called upon to decide an issue of first impression in this
circuit -- whether to recognize a "joint
participant" exception to the spousal testimonial
privilege. For the following reasons, we affirm the district
court's conclusion that recognition of such an exception
is not warranted.
moving forward, a brief survey of the spousal testimonial
privilege and the rationales that have traditionally
undergirded it is in order.
spousal testimonial privilege is an evidentiary privilege
that protects a defendant's spouse from having to take
the witness stand to testify against the defendant. See
United States v. Breton, 740 F.3d 1, 9-10 (1st Cir.
2014). It has deep and "ancient roots" in the
history of the common law, and descends "from two canons
of medieval jurisprudence." Trammel v. United
States, 445 U.S. 40, 43-44 (1980). The first of these
canons involved the principle that "an accused was not
permitted to testify in his own behalf because of his
interest in the proceeding." Id. at 44. The
second was "the concept that husband and wife were one,
and that since the woman had no recognized separate legal
existence, the husband was that one." Id. Based
on these two rationales, the traditional rule mandated that
"what was inadmissible from the lips of the
defendant-husband was also inadmissible from his wife."
two rationales are now "long-abandoned," and the
modern justifications for the privilege focus instead on a
pair of distinct but related rationales: "fostering the
harmony and sanctity of the marriage relationship,"
id., and the broader societal interest in
"avoid[ing] the unseemliness of compelling one spouse to
testify against the other in a criminal proceeding,"
United States v. Yerardi, 192 F.3d 14, 18 (1st Cir.
1999) (citing Trammel, 445 U.S. at 44-45, 52-53
& n.12); see also Hawkins v. United States, 358
U.S. 74, 77 (1958) ("The basic reason the law has
refused to pit wife against husband or husband against wife
in a trial where life or liberty is at stake was a belief
that such a policy was necessary to foster family peace, not
only for the benefit of husband, wife and children, but for
the benefit of the public as well."). This latter
rationale has been further explained as stemming from
"the 'natural repugnance in every
fair-minded person to compelling a wife or husband to be the
means of the other's condemnation.'" In re
Grand Jury Subpoena, 755 F.2d 1022, 1028 (2d Cir. 1985)
(quoting 8 Wigmore, Evidence § 2228, at 217).
the rationales underlying the spousal testimonial privilege
have changed over time, the nature and contours of the
privilege have themselves evolved since the privilege's
common law origins.
traditional form, the spousal testimonial privilege was, in
fact, an absolute rule that completely barred a spouse from
giving any testimony in his or her defendant spouse's
case, even testimony that would support the defendant's
cause. Trammel, 445 U.S. at 43-44. This rigid rule
"remained intact in most common-law jurisdictions well
into the 19th century." Id. at 44 (citing 8
Wigmore, Evidence § 2333). That was the case
until 1933, when the Supreme Court softened the limitations
of this rule "so as to permit the spouse of a defendant
to testify in the defendant's behalf." Id.;
see also Funk v. United States, 290 U.S. 371, 380-81
(1933). However, it was still the rule that "either
spouse could prevent the other from giving adverse
testimony." Trammel, 445 U.S. at 44 (citing
Funk, 290 U.S. at 373).
Supreme Court next considered the scope of the spousal
testimonial privilege in Hawkins v. United States,
358 U.S. 74 (1958). The defendant in that case sought to
invoke the spousal testimonial privilege to prevent his wife
from voluntarily testifying against him. Id. at
74-75. Despite the Government's invitation to draw a
distinction between compelling a spouse's testimony on
one hand and allowing her to testify voluntarily on the
other, and the Court's acknowledgement of "the
critical comments that the common-law rule had
engendered," the Court nevertheless allowed the
defendant to bar his wife from testifying against him.
Trammel, 445 U.S. at 46. Finding that "the law
should not force or encourage testimony which might alienate
husband and wife, or further inflame existing domestic
differences," the Court elected to maintain the
"rule which bars the testimony of one spouse against the
other unless both consent." Hawkins, 358 U.S.
most recent occasion on which the Supreme Court has addressed
the scope of the spousal testimonial privilege is Trammel
v. United States, 445 U.S. 40 (1980). The Court was once
again confronted with a defendant who sought to assert the
spousal testimonial privilege to prevent his unindicted
co-conspirator wife from voluntarily testifying against him
in his criminal trial. Id. at 42-43. In that case,
the Tenth Circuit had held that the defendant's wife
should be permitted to testify against her husband, declaring
an exception to the spousal testimonial privilege when the
"defendant husband . . . has jointly participated in a
criminal conspiracy with his wife." United States v.
Trammel, 583 F.2d 1166, 1169 (10th Cir. 1978). Instead
of adopting the Tenth Circuit's approach, the Court found
that "[t]he ancient foundations for so sweeping a
privilege have long since disappeared," and held that
"the existing rule should be modified so that the
witness-spouse alone has a privilege to refuse to testify
adversely[.] [T]he witness may be neither compelled to
testify nor foreclosed from testifying."
Trammel, 445 U.S. at 52-53.
joint participant exception to the spousal testimonial
privilege the Government asks us to adopt, by contrast, does
not have anywhere near as long a history as the privilege
itself does. The first court to recognize an exception to the
spousal testimonial privilege for a witness accused of
engaging in a criminal conspiracy with his or her defendant
spouse was the Seventh Circuit in United States v. Van
Drunen, 501 F.2d 1393 (7th Cir. 1974). In recognizing
such an exception, that court found that doing so
appropriately "limits the privilege to those cases where
it makes most sense, namely, where a spouse who is neither a
victim nor a participant observes evidence of the other
spouses's [sic] crime." Id. at 1397.
years later, the Tenth Circuit followed the Seventh
Circuit's lead in adopting the joint participant
exception. Trammel, 583 F.2d at 1170-71. That court
relied in substantial part on the Seventh Circuit's
reasoning in Van Drunen -- that the goal of
preserving the family "does not justify assuring a
criminal that he can enlist the aide of his spouse in a
criminal enterprise without fear that by recruiting an
accomplice or coconspirator he is creating another potential
witness." Id. at 1169-70 (internal quotation
marks omitted) (quoting Van Drunen, 501 F.2d at
other courts of appeals that have considered this issue have
reached differing conclusions. The Second, Third, and Ninth
Circuits have refused to recognize the joint participant
exception. See United States v. Ramos-Oseguera, 120
F.3d 1028, 1042 (9th Cir. 1997), overruled on other
grounds by United States v. Nordby, 225 F.3d 1053 (9th
Cir. 2000); In re Grand Jury Subpoena, 755 F.2d at
1026-28; Appeal of Malfitano, 633 F.2d 276, 278-80
(3d Cir. 1980). By contrast, the Seventh Circuit continues to
recognize such an exception even after the Supreme
Court's decision in Trammel. United States
v. Clark, 712 F.2d 299, 300-02 (7th Cir. 1983) (quoting
Van Drunen, 501 F.2d at 1397).
Third Circuit based its rejection of the exception on several
inter-related grounds. First, that court disputed the premise
that "there is no need in fact to protect"
marriages where the partners are involved in crime because
those marriages "disintegrate and dissolve."
Malfitano, 633 F.2d at 278. The court pointed out
that "[t]he spouses in fact may be very happy," and
"the fact that under Trammel the witness spouse
is the holder of the privilege completely satisfies any
concern that the privilege not be extended to marriages that
in fact need no protection." Id. Second, that
court also disputed the proposition that "marriages with
partners that engage in crime should not be
protected." Id. (emphasis added). The court
emphasized that the assumption that "because of what may
be an isolated criminal act, the marriage has no social value
whatsoever" might not be true in all cases. Id.
the court opined that it was "not confident that courts
can assess the social worthiness of particular marriages or
the need of particular marriages for the protection of the
privilege." Id. at 279. Given the difficulty
that such determinations would involve, the court stated that
it "d[id] not think that the court should 'condition
the privilege . . . on a judicial determination that the
marriage is happy or successful one.'" Id.
(quoting United States v. Lilley, 581 F.2d 182, 189
(8th Cir. 1978)). Finally, the court observed that
"[g]iven the intimacy of marriage and the fact that
conspiracy is a rather flexible concept, it will be quite
easy to allege that the spouses are partners."
Id. Therefore, "recognition of an ...