Concurring Judge Urges Seventh Circuit to Revisit Spousal Testimonial Privilege as Applied to Co-Conspirators

In United States v. Diggs, No. 22-1502 (7th Cir. Sept. 5, 2023), a concurring judge in an opinion otherwise affirming a criminal conviction urges that the circuit revisit its stance on the spousal testimonial privilege as applied to alleged co-conspirators, holding that the standing circuit law was overruled by Trammel v. United States, 445 U.S. 40 (1980).

The defendant was charged with Hobbs Act robbery. “Before trial, Diggs informed the court that his wife . . . Adams (who was his girlfriend at the time of the robbery), would invoke the spousal testimonial privilege if called to testify. The district court denied the privilege on the grounds that Adams fell within the joint-participant exception. See United States v. Clark, 712 F.2d 299, 301 (7th Cir. 1983) (no spousal testimonial privilege when the defendant and spouse jointly participated in the criminal conduct). The district court found that . . . Adams became a co-conspirator on the day of the robbery and only withdrew a few days later when she told police that Diggs had used her car for the robbery. The district court concluded that the joint participant exception deprived Adams of spousal testimonial privilege.”

While the panel held that any error in admitting the spouse’s testimony was harmless, concurring Judge Scudder writes “separately to address the legal issue that the majority understandably leaves for another day—whether a witness who participates in their defendant-spouse’s crime can invoke the spousal testimonial privilege and decline to testify. We answered that question no in 1974 in United States v. Van Drunen. 501 F.2d 1393, 1396–97. Since then, however, four other circuits have relied on the Supreme Court’s 1980 decision in Trammel v. United States, 445 U.S. 40, to reach the opposite conclusion.”

Judge Scudder notes that this case does not concern “the marital communications privilege, which allows any party to prevent their spouse (or ex-spouse) from testifying to certain confidential communications made between them during their marriage.” Instead, it involves “the spousal testimonial privilege [that] allows a witness to refuse to testify against their spouse in a criminal trial.” The former protects confidential marital communications, while the latter safeguards the marital relationship and harmony. The spousal testimonial “privilege may only be invoked by the testifying spouse: they alone decide whether to testify, regardless of the wishes of the defendant-spouse . . . . And when invoked, no testimony can be elicited from the testifying spouse on any topic.”

In Van Drunen, the Seventh Circuit held that the spousal testimonial privilege can be abrogated when the spouse “participated in [the spouse’s] criminal conduct.” But six years later, the Supreme Court in Trammel upheld the spousal testimonial privilege, tweaking it to provide that “the witness-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying.”

“[E]very other circuit to consider the issue post-Trammel has rejected the joint participant exception to the spousal testimonial privilege. See United States v. Pineda-Mateo, 905 F.3d 13, 21–26 (1st Cir. 2018); In re Grand Jury Subpoena, 755 F.2d 1022, 1025–28 (2d Cir. 1985), vacated as moot, 475 U.S. 133; In re Grand Jury, 633 F.2d 276, 277–80 (3d Cir. 1980) (Malfitano); United States v. Ramos-Oseguera, 120 F.3d 1028, 1042 (9th Cir. 1997), overruled on other grounds, 225 F.3d 1053 . . . . That leaves our court isolated on the short end of a lopsided circuit split.”

“Trammel undermines, if not eliminates, our justifications for the joint participant exception. The Supreme Court’s decision to vest the spousal testimonial privilege in the testifying spouse alone addresses our concern that a defendant could loop their spouse into criminal conduct and then prevent that spouse from taking the stand . . . . Our second justification—that a marriage between joint participants in a crime is unlikely to aid in the rehabilitation of the defendant-spouse—likely misses the mark too. Rehabilitating the defendant-spouse was never a justification for the spousal testimonial privilege.”

“To my eye, then, the joint participant exception is unlikely to withstand scrutiny after Trammel and against the backdrop of ‘reason and experience.’ Fed. R. Evid. 501. In the right case, we should revisit our precedent.”