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Ulibarri v. Superior Court8/22/1995
Y. 1994) was a civil forfeiture action in which the court held the privilege unavailing. The spouse asserted an "innocent owner" defense which place in issue her knowledge of her husband's drug transactions. A magistrate's order applying the privilege was reversed as "clearly erroneous and contrary to law." 862 F. Supp. at 855.
With all respect, the majority's distinction of Prink and Syosset as directly involving the marital relationship while in the present case the marital relation was unrelated to the lawsuit is unpersuasive. The plaintiffs in those cases and here placed in issue a matter on which privileged communications cast essential light. Permitting the privilege to be invoked would be "far more likely to frustrate Justice than to foster family peace." Trammel v. United States, 445 U.S. 40, 52, 63 L. Ed. 2d 186, 100 S. Ct. 906 (1980). This is the controlling question in a waiver case, not whether or not the claim in the lawsuit directly involved the spouse.
The privilege applies to all confidential marital communications, whether about the marriage or not and the waiver question is the same whether the communications are concerned with the marriage itself or not.
In United States v. Benford, 457 F. Supp. 589 (E.D. Mich. 1978), the court held the privilege waived in a criminal case. The defendant husband proposed to give testimony suggesting that guns found in his residence were not his. The government sought the wife's testimony. The court held the privilege would be waived if the husband were to testify as planned, explaining:
The facts indicate that the wife is in a unique position to confirm or contradict the defendant's claims. If the jury is not permitted to hear the wife's version of the facts, they may be misled into believing that no such testimony exists. . . .
Testimonial privileges, by their very nature, keep relevant and probative evidence from the jury. Because of this, their exercise should be limited to those situations in which the sought after benefit to the privileged party legitimately outweighs the cost to society in terms of judicial inefficiency. . . .
When the defendant attempted to take advantage of his wife's forced silence by testifying to things known only to himself and to her, he attempted to use the privilege for a purpose it was never meant to cover.
457 F. Supp. at 597.
All of these cases found waiver. The decisions of other courts are consistent with the basic principle that evidentiary privileges are strictly construed because they are in derogation of the truth. This view was expressed by the United States Supreme Court in narrowing the marital privilege in Trammel v. United States, 445 U.S. at 50:
Testimonial exclusionary rules and privileges contravene the fundamental principle that "'the public. . . has a right to every man's evidence.'" . . . As such, they must be strictly construed and accepted "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth."
Accordingly, I would not grant extraordinary relief from the trial court's decision that the lawyer-client and marital privileges do not apply.
JEFFERSON L. LANKFORD, Judge
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