STATE of South Dakota, Plaintiff and Appellant, v. Joel WITCHEY, Defendant and Appellee.
No. 15071.
Supreme Court of South Dakota.
June 11, 1986.
Rehearing Denied July 18, 1986.
388 N.W.2d 893
Based on the above statutes and constitutional provision, defendants contend they have a right to remove the small claims action to magistrate court for a jury trial, and that the circuit court has no discretion in the matter. With this contention, we agree.
As previously stated, a party has a right to a jury trial if the action is one at law, Orr; and the right to trial by jury is preserved, if in some stage of a proceeding, the right to a jury trial is given. Turner. A small claims plaintiff could initially file his action in circuit or magistrate court. Therefore, his right to a jury trial is preserved. A small claims defendant, however, is involuntarily brought into small claims court, but upon proper application, the small claims defendant can remove the cause to magistrate or circuit court for a jury trial. Therefore, a defendant‘s right to a jury trial in a small claims action is preserved.
We determine that upon proper application, see
We note that a small claims defendant may have numerous reasons for seeking removal for trial by jury. Not only may the defendant desire the resolution of a properly constituted lay jury, but he may also desire adherence to the strict rules of evidence and the advantage of formal discovery. Cf.
Based upon our state constitution, precedent in this Court, and state statutes, this case is reversed and remanded.
FOSHEIM, C.J., and MORGAN, WUEST, and SABERS, JJ., concur.
HENDERSON, J., deeming himself disqualified, did not participate.
Robert Mayer, Asst. Atty. Gen., Pierre, for plaintiff and appellant; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.
George J. Rice, Aberdeen, for defendant and appellee.
FOSHEIM, Chief Justice.
The trial court granted Defendant Joel Witchey‘s (Defendant) pretrial motion to suppress certain voluntary testimony by Defendant‘s former wife (wife). We granted an appeal from that intermediate order and now reverse.
An accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication between the accused and the spouse.
A defendant or his spouse may claim this privilege.
State urges that a well recognized joint-participant exception to the marital communication privilege be adopted in South Dakota. We agree.
A growing number of state and federal courts have refused to classify conversations such as Defendant‘s and his wife‘s as a privileged spousal communication. See, e.g., United States v. Sims, 755 F.2d 1239, 1243 (6th Cir.1985); United States v. Neal, 743 F.2d 1441, 1447 (10th Cir.1984); United States v. Ammar, 714 F.2d 238, 258 (3rd Cir.1983); United States v. Petty, 602 F.Supp. 996, 998 (D.Wyo.1984); State v. Smith, 384 A.2d 687, 694 (Me.1978); see also United States v. Archer, 733 F.2d 354 (5th Cir.1984); United States v. Mendoza, 574 F.2d 1373 (5th Cir.1978); Gill v. Commonwealth, 374 S.W.2d 848, 851 (Ky.1964); contra Johnson v. State, 451 So.2d 1024 (Fla.App.1984).
The exception has been variously expressed. The primary focus, however, is on the nature and purpose of the communication itself. To be privileged the communication must arise from the privacy of marriage, not the joint commission of a crime. Neal, 743 F.2d at 1446. Most simply stated, the communication is not protected if it is one criminal, or potential criminal, talking to another. Sims, 755 F.2d at 1243. Only communications based on or induced by the marital status alone are protected. Gill, 374 S.W.2d at 850; Smith, 384 A.2d at 693.
The joint-participant exception has been created in light of the need to narrowly interpret privileges since privileges “are in derogation of the search for the truth.” United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974). Just as the rule is narrowly interpreted, so must the exception be applied sparingly. All marital communications3 are presumed confidential. Blau v. United States, 340 U.S. 332, 333, 71 S.Ct. 301, 302, 95 L.Ed. 306 (1951); Wolfle v. United States, 291 U.S. 7, 14, 54 S.Ct. 279, 280, 78 L.Ed. 617 (1934); Smith, 384 A.2d at 691. With the introduction of evidence of private communications between spouses goes the burden of showing that either the nature of the communication or the circumstances under which it occurred render the communication not privileged. Id.; see also State v. McMorrow, 314 N.W.2d 287, 289 (N.D. 1982). Under the joint-participant exception, the testifying spouse must be more than a simple receptor of a statement by the defendant-spouse that he committed a crime. Neal, 743 F.2d at 1446. Active participation in, or furtherance of, patently criminal activity by the witness-spouse must be shown. Smith, 384 A.2d at 693; Sims, 755 F.2d at 1243.
Public policies which lead to the creation of the privilege are not forsaken by recognition of this exception. Rather, when the witness-spouse and defendant-spouse are engaged in joint criminal activity, the public‘s interest in discovering the truth about criminal activity outweighs the public‘s interest in protecting the privacy of such a communication. Trammel v. United States, 445 U.S. 40, 51-53, 100 S.Ct. 906, 912-914, 63 L.Ed.2d 186 (1980); Sims, 755 F.2d at 1243.
Our State Legislature has created specific exceptions to the interspousal privilege.
Finally, we note that our legislature has mandated that our state‘s rules of evidence shall be construed to promote “growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.”
We reverse and remand.
MORGAN and HENDERSON, JJ., concur.
WUEST and SABERS, JJ., dissent.
WUEST, Justice (dissenting).
I dissent.
The majority rely mostly upon federal cases to add another exception to the confidential communications between an accused and spouse.
SABERS, Justice (dissenting).
I dissent.
The communication in question is confidential because it was made privately by the accused to his spouse during their marriage and was not intended for disclosure to any other person.
Therefore, the privilege is for the benefit of the accused as opposed to being for the benefit of the spouse of the accused. It follows that the wife of the accused cannot waive the privilege by voluntarily testifying against the accused against his will.
None of these exceptions apply to this case, and there are no other statutory exceptions to the interspousal privilege.
The question before us is whether this court should adopt the joint participant exception to the marital communication privilege set forth in
The purpose of the marital communication privilege rule is many: the protection of the marital relationship; to protect marital privacy; and to insure the ability of one spouse to communicate privately with the other. Obviously, we want spouses to communicate freely and honestly with each other without fear of public disclosure of the communication, just as we want people to communicate honestly with their lawyers, physicians, and clergymen as spiritual advisors. It can even be argued that the rule is a logical extension to the constitutional prohibition against self-incrimination.
The United States Supreme Court recognized the confidential marital communication privilege in Wolfle v. United States, 291 U.S. 7, 54 S.Ct. 279, 78 L.Ed. 617 (1934), and in Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306 (1951). In Wolfle, the Court stated:
The basis of the immunity given to communications between husband and wife is the protection of marital confidences, regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails.
Id. 291 U.S. at 14, 54 S.Ct. at 280.
As noted by the majority, the confidential marital communications privilege and the doctrine of spousal incompetency (“testimonial privilege“) are two separate and distinct privileges. In Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958), the Supreme Court enunciated the testimonial privilege as a rule that bars the testimony of one spouse against the other unless both consent. Id. 358 U.S. at 78, 79 S.Ct. at 138-139. Although Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980), modified the Hawkins rule by holding that the testimonial privilege vests in the witness spouse alone, who may be neither compelled to testify nor foreclosed from testifying; the Court stated that the confidential marital communications privilege was not at issue in Trammel, and thus left undisturbed the rulings in Wolfle and Blau, supra. Trammel, 445 U.S. at 45 n. 5, 100 S.Ct. at 909 n. 5. The Court stated in pertinent part:
It is essential to remember that the Hawkins privilege is not needed to protect information privately disclosed between husband and wife in the confidence of the marital relationship—once described by this Court as ‘the best solace of human existence.’ Stein v. Bowman, 13 Pet [209], at 223 [38 U.S. 209], 10 L.Ed. 129. Those confidences are privileged under the independent rule protecting confidential marital communications. [Blau, supra] The Hawkins privilege is invoked, not to exclude private marital communications, but rather to exclude evidence of criminal acts and of communications made in the presence of third parties.
Id. 445 U.S. at 51, 100 S.Ct. at 913.
The confidential marital communications privilege is a good rule, it has been with us for 109 years. The source is in statutory form, CCivP 1877, § 446, subdiv 1. I submit that the rule has served the people of this state well since 1877.
The cases cited in the majority opinion indicate that the seventh circuit was the first circuit to expressly recognize the joint participant exception. United States v. Sims, 755 F.2d 1239, 1241 (6th Cir.1985). In 1974, United States v. Van Drunen, 501 F.2d 1393, 1396-97 (7th Cir.) cert. denied, 419 U.S. 1091, 95 S.Ct. 684, 42 L.Ed.2d 684 (1974), set forth two rationales for holding that the marital privilege against adverse spousal testimony does not apply if the witness spouse is a victim or a
It is interesting to note the factual circumstances of Van Drunen, supra. In that case, the defendant/husband was charged with transporting an illegal alien from Brownsville, Texas to Chicago Heights, Illinois in October of 1971. The alien became defendant‘s wife one month after his indictment in June, 1973. After creating the joint participant exception, the court concluded that the wife‘s testimony concerned matters which took place prior to their marriage. Therefore, the confidential communication which defendant sought to suppress fell outside the scope of the privilege and afforded them no protection from the outset. Id. 501 F.2d at 1397.
Here, it is undisputed that the Witcheys were husband and wife when the accused made the alleged statement. That they were divorced at the time of trial is of no consequence. The following cases have held or recognized that the privilege protecting confidential marital communications under Rule 501 of the Federal Rules of Evidence, survives termination of the marriage. United States v. Lilley, 581 F.2d 182, 189 (CA 8 N.D.1978) (“The confidential communication privilege continues even after the parties are no longer married, so long as a confidential communication was made during the marriage.“); United States v. Lustig, 555 F.2d 737, 747 (CA 9 Alaska), cert. denied, 434 U.S. 1045, 98 S.Ct. 889, 54 L.Ed.2d 795 (1977) (“... [the confidential marital communications] privilege survives the termination of the marriage.“); United States v. Pensinger, 549 F.2d 1150, 1152 (CA 8 Iowa 1977) (“[C]onfidential communications between husband and wife during the course of marriage are privileged even after the marriage is ended by divorce ...“). See also: Pereira v. United States, 347 U.S. 1, 7, 74 S.Ct. 358, 362, 98 L.Ed. 435 (1954) (“Petitioners rely on the proposition that while divorce removes the bar of incompetency [testimonial privilege], it does not terminate the privilege for confidential marital communications. [citations omitted] This is a correct statement of the rule ...“). See generally: 46 A.L.R.Fed. 735 (1980).
The majority opinion‘s statement in footnote 5 that “this decision is limited to voluntary testimony by a witness-spouse“, is an insufficient basis to abrogate the privilege. To relate the many circumstances in which future over-zealous prosecutors, frustrated by the possibility of “not getting a conviction,” might compel one‘s spouse to testify against the other are too numerous to consider. There are many forms of compulsion which can be used to compel “voluntary” testimony. All of this “voluntary” testimony would then be admissible under the exception to the rule being created by the majority opinion today. If the accused did all of the things the State claims, the State should be able to obtain a conviction on one of them without the testimony of the wife of the accused.
The Second Circuit Court of Appeals held that the testimonial privilege was not subject to the joint participant exception in In Re Grand Jury Subpoena United States, 755 F.2d 1022, 1025 (2d Cir.1985). In this case, the wife was held in contempt for failure to answer grand jury questions pertaining to her husband‘s alleged conspiracy to transmit national defense secrets to a foreign government. It was also alleged
In rejecting the exception for joint participation in criminal activities, the court was unpersuaded by the Government‘s reliance on the well-recognized exception to the attorney-client privilege for communications made to an attorney for advancing criminal ends. Id. at 1027. The court stated:
The attorney-client privilege, valuable as it is, is hardly of the same social importance as that of husband and wife. Here, as said in Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510 (1965), “We deal with a right of privacy older than the Bill of Rights ... Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.”
In Re Grand Jury, 755 F.2d at 1027 quoting Griswold, 381 U.S. 479, 486, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510 (1965).
The law of the State of South Dakota provides that the State cannot base a conviction on the confidential communication of the spouse against the will of the accused. As stated above, it is a good law. It has been with us for over 100 years, and it has served the people of the State of South Dakota well. The reasons for the rule still exist and most of them apply here. We should enforce the rule and not “create an exception to it.” Accordingly, we should affirm the trial court and require the State to obtain a conviction without using the testimony of the accused‘s wife.
Judy R. LAMPERT, Plaintiff and Appellee, v. Arthur A. LAMPERT, Defendant and Appellant.
No. 15124.
Supreme Court of South Dakota.
June 11, 1986.
Considered on Briefs March 19, 1986.
Decided June 11, 1986.