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First Circuit Announces No Joint Participation Exception to Spousal Testimonial Privilege

by Matt Clarke

The U.S. Court of Appeals for the First Circuit declined to recognize a joint participation exception to the spousal testimonial privilege for married criminal co-conspirators. In deciding upon this issue of first impression in the circuit, the Court affirmed the district court’s determination that such an exception is not warranted.  

An informant and recorded telephone conversations revealed that Eric Pineda-Mateo and his wife were both involved in drug trafficking. He was indicted on one count of conspiracy to possess with intent to distribute and conspiracy to distribute heroin and fentanyl in violation of 21 U.S.C. §§ 841(a)(l) and 846. She pleaded guilty to multiple counts.

The Government subpoenaed her with the intent of calling her as an involuntary witness against Pineda-Mateo at his trial. She moved to quash the subpoena, citing spousal testimonial privilege. The Government sought a ruling that jointly participating in a criminal conspiracy is an exception to that privilege. The district court quashed the subpoena, and the Government appealed. 

The First Circuit reviewed the long history of spousal testimonial privilege back to medieval jurisprudence rooted in the idea that the wife had no separate legal existence apart from the husband, and her testifying against him would be tantamount to him testifying against himself. 

A more modern justification for the privilege is rooted in the notion that it helps foster “the harmony and sanctity of the marriage relationship” and avoid the “unseemliness” of forcing one spouse to testify against the other.  

The privilege was originally an absolute bar to all testimony, even if favorable to the defendant-spouse. In 1933, the Supreme Court decided to permit testimony but allow the defendant-spouse to assert the privilege. 

When ruling on the Seventh Circuit’s finding of a so-called “joint participation exception” to the spousal privilege that would permit the voluntary testimony of the unindicted co-conspirator spouse in 1980, the Supreme Court did not recognize the proposed exception, but it did modify the privilege to permit a spouse to voluntarily testify against the defendant-spouse, regardless of joint-participant status. Trammel v. United States, 445 U.S. 40 (1980). That is, the “witness-spouse alone” may decide whether to testify, and neither the government nor the defendant-spouse can force the other spouse to testify or bar the spouse from doing so.

Since Trammel, only the Seventh Circuit still recognizes the joint participation exception while the Second, Third, and Ninth Circuits all reject it. 

The Court determined that Trammel is not a categorical bar to the possibility of recognizing such an exception. Therefore, it analyzed the issue based on Federal Rule of Evidence 501 and the decisions of other courts. 

Rule 501 provides that the common law governs claims of privileges. It empowers courts to “develop rules of privilege on a case-by-case basis.” Two marital privileges are recognized under Rule 501—spousal testimonial privilege and marriage communications privilege. 

The Government argued that (1) collective criminal conspiracy presents a greater threat to the public than individual wrongdoing; 2) conspiracies are by their nature secretive, making it difficult to collect evidence; and 3) society’s interest in preserving marital harmony is diminished when spouses are co-conspirators. 

The Court noted that the Government’s first two arguments are common to all conspiracy prosecutions and are not exacerbated by co-conspirator spouses. It observed that the Government’s logic regarding the difficulties of prosecuting conspiracies would similarly justify overriding other privileges such as the Fifth Amendment right against compelled self-incrimination. 

Further, the Court dispensed with the Government’s argument that the witness-spouse’s testimony is required due to the difficulty in obtaining evidence by quoting the Government’s own language: “[t]here are many types of evidence that a court may consider to determine whether a couple was engaged in a criminal agreement, without requiring testimony from the unwilling spouse.” According to the Court, this acknowledgement belies the Government’s assertion that the need for testimonial evidence from a witness-spouse is uniquely high in spousal conspiracies. 

Thus, the First Circuit declined the Government’s invitation to recognize the joint participation exception, announcing: “We therefore join the majority of our sister circuits that have considered this issue and conclude … against recognizing the joint participation exception to the spousal testimonial privilege.”  

The Court clarified that a non-defendant spouse may choose to voluntarily testify against a defendant-spouse. Its holding only precludes the Government from compelling a non-defendant spouse to testify in a conspiracy prosecution against his or her spouse.

Accordingly, the Court affirmed the decision of the district court. See: United States v. Pineda-Mateo, 905 F.3d 13 (1st Cir. 2018). 

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United States v. Pineda-Mateo




 

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