IN SICKNESS AND IN HEALTH ... AND EVEN ON THE STAND: ANALYZING CIRCUIT SPLIT REGARDING THE ADOPTION OR REJECTION OF THE JOINT PARTICIPATION EXCEPTION AND ITS FUTURE IN LITIGATION.

• Author: Quick, Margaret

1. INTRODUCTION

   Marriage is one of society's oldest and most celebrated institutions. (1) The importance of this long-standing institution has been highly regarded by the United States judiciary. (2) The significance of the marital relationship to the courts is illustrated by the creation of an evidentiary privilege that serves to protect the intimacy of the marital relationship and promote society's interest in the institution. (3) The government has a strong interest in truth finding at trial, and this interest has also been considered to be of great importance to the courts. (4) These two divergent interests have been a point of friction in the adoption of different rules regarding who may testify: the adverse testimonial privilege and the joint participation exception. (5) The adverse testimonial privilege allows the witness spouse to refuse to testify or voluntarily testify at their spouse's trial, while the joint participation exception asserts that, when both spouses have jointly participated in a crime, the adverse testimonial privilege should not be available. (6)

   First, this Note examines the circuit split between the treatment of the joint participation exception and the adverse testimonial privilege. (7) Despite the Supreme Court's decision in Trammel v. United States, which modernized the adverse testimonial privilege, the Court did not touch the joint participation exception--meaning the exception may still be used in litigation. (8) The question of adoption or rejection of the joint participation exception has been the epicenter of judicial tension, leading courts to weigh the importance of protecting marital harmony against the cost of losing valuable evidence at trial, and raising questions of whether a marriage between co-conspirators is even worth protecting at all. (9) This tension between the adverse testimonial privilege and the joint participation exception raises an important question for future litigation: even if the joint participation exception can be adopted in future litigation, should it be? (10)

   To answer this question, this Note explores the justifications for using the adverse testimonial privilege and the joint participation exception. (11) A backdrop of relevant caselaw is provided to better understand how the adverse testimonial privilege has shifted over time, especially the transformation after the Supreme Court's decision in Trammel (12) Ultimately, the Trammel Court struck the proper balance between preserving marital harmony and lowering the burden on the prosecution. (13) This Note then delves into the circuit split between the Seventh and Tenth Circuits--who adopted the joint participation exception--and the First, Second, Third, and Ninth Circuits--which all expressly rejected the joint participation exception and upheld the adverse testimonial privilege. (14) Next, this Note analyzes the arguments in favor and against adopting or rejecting the joint participation exception using relevant case law, arguments from critics, and modern rationales regarding the evolving realities of marriages, finding that both are similarly compelling and persuasive. (15)

   Finally, this Note concludes by explaining how the circuits are clearly leaning toward the rejection of the joint participation exception and that the Trammel Court struck the right balance between preserving martial harmony and lessening the burden on the prosecution; ultimately, they conclude that that courts should not engage in value judgements regarding the marital relationship and the future outcome of litigation should continue to protect and promote the marital relationship, rather than set it aside for the government's interest of truth finding at trial. (16)

2. FACTS

   1. The Adverse Testimonial Privilege

      1. Common Law

         The adverse testimonial privilege is an evidentiary privilege that protects the defendant's spouse from having to take the witness stand and testify against their husband or wife. (17) The privilege has "deep and 'ancient roots' in the history of common law" for the promotion of marital harmony. (18) Traditionally, the privilege allowed the defendant to completely bar their spouse from providing any testimony in a criminal case. (19) The privilege "sprang from two canons of medieval jurisprudence:" disqualification and incompetency. (20) The justification for the disqualification theory was that a spouse's testimony should be disqualified where the spouse has a strong interest in the case. (21) The justification for the theory of incompetency then reasoned that a husband and wife were incompetent witnesses against each other because they are seen as one unit. (22) At the time, the courts were concerned with fostering marital harmony and disruption of the marital unit; they were reluctant to "provide forums for the display of one spouse testifying against the other," finding that this display would be "labeled a sight of natural repugnance" both legally and socially. (23)

      2. Federal Law

         In 1958, the Supreme Court decided Hawkins v. United States, which maintained the common law's structure of adverse testimonial privilege. (24) The Hawkins Court found it important to protect the marital relationship, felt voluntary testimony "by one spouse would likely cause more bitterness on the part of the other spouse," and such testimony would "disturb marital harmony." (25) Rule 501 of the Federal Rules of Evidence was then adopted by Congress in 1974 in an effort to continue the development of testimonial privileges. (26) Under this rule, the courts were given the ability to control the existence of the adverse testimonial privilege and mold it, based on their reason and experience." (27)

         In 1980, the Supreme Court significantly transformed the adverse testimonial privilege in Trammel v. United States. (28) After Trammel, a defendant could not preclude his spouse from voluntarily testifying. (29) The Court weighed the government's interest in discerning the truth at trial against the societal interest of preserving the marital relationship and found that narrowing the privilege struck an appropriate balance between both interests. (30) This shift in rationale reflected a movement away from justifying the privilege because spouses operated as one unit speaking with one voice to considerations of martial harmony and a marriage's broader impact on society. (31) The modern rationale for the privilege is grounded in the promotion of the marital relationship and the belief that "permitting one spouse to testify against the other is disfavored because it may damage the relationship[.]" (32)

   2. The Joint Participation Exception

      The joint participation exception is a modern theory which challenges the adverse testimonial privilege and has sparked debate in courts regarding its adoption or rejection. (33) Courts apply the joint participation exception when both spouses have participated in a crime and are considered co-conspirators, precluding the spouses from invoking the adverse testimonial privilege. (34) Proponents argue three popular justifications to support the Court's adoption of the joint participation exception. (35) The first justification asserts that spouses who engage in joint criminal activity do not have a harmonious marriage, so the purpose of the adverse testimonial privilege--which promotes marital harmony--would not be properly served by allowing adverse testimonial privilege. (36) The second justification finds that marriages between spouses who jointly commit crimes together do not deserve protection. (37) The third--and likely the most persuasive--justification acknowledges the difficulty in obtaining evidence when spouses jointly commit a crime, finding that the use of the adverse testimonial privilege in these cases has "adverse effect on truthfinding." (38)

3. HISTORY

   Multiple jurisdictions have considered whether to adopt or reject the joint participation exception to the adverse testimonial privilege. (39) Several circuits are spilt on this question. (40) The Seventh and Tenth Circuits both recognize the joint participation exception, while the Third, Second, Ninth, and First Circuits agree that the rationale of marital harmony and protection of the marital relationship prevails, and therefore, the adverse testimonial privilege is not subject to the joint participation exception. (41)

   1. Recognizing the Joint Participation Exception

      In 1974, in United States v. Van Drunen, the Seventh Circuit became the first circuit to recognize the joint participation exception in 1974. (42) Ultimately, the Seventh Circuit decided not to apply the adverse testimonial privilege and instead recognized the joint participation exception. (43) The court found the joint participation exception appropriately limited the adverse testimonial 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 spouse's crime." (44) The Seventh Circuit additionally adopted the joint participation exception to prevent "collusive marriages" which did not have the "rehabilitative aspect that worthwhile marriages possess." (45)

      In 1978, in United States v. Trammel, the Tenth Circuit followed the Seventh Circuit's lead in adopting the joint participation exception in 1978. (46) The Tenth Circuit held the trial court did not err in allowing the defendant's wife to testify and did not allow the defendant to assert the adverse testimonial privilege. (47) Similar to the Seventh Circuit, the court denied the defendant the use of the adverse testimonial privilege and adopted the joint participation exception. (48) The court reached its conclusion by finding a lack of "domestic harmony" in marital relationships where the spouses jointly commit crimes. (49) Additionally, the court found it imperative to weigh the government ability to "grant of immunity is to reach the truth" against the adverse testimonial privilege and held the...