No Marital Privilege for Husband Charged with Disorderly Conduct

In State v. Thomas Allen Zais, the Minnesota Supreme Court held that marital testimonial privilege does not apply in disorderly conduct cases.

Minnesota law has a marital privilege statute which provides that a spouse cannot testify against his or her spouse or be examined about a communication made by one spouse to the other during the marriage without the other spouse’s consent. The provision not allowing for one spouse to testify against the other without the other’s consent is known as the marital testimonial privilege. However, there is a crime exception to the marital testimonial privilege. The marital testimonial privilege does not apply to a crime committed by one spouse against the other. Minn. Stat. § 595.02.

In this case, the Supreme Court granted review to consider whether the marital testimonial privilege applies in cases involving a disorderly conduct charge.

Among other things, the Defendant Thomas Zais was charged with disorderly conduct arising from an incident on November 15, 2009. Before trial, Zais motioned for the district court to exclude the proposed testimony of his wife on the basis that marital testimonial privilege applied. The district court granted Zais’ motion finding that the crime exception to the martial testimonial privilege did not apply to the disorderly conduct charge, and, therefore, his wife could not testify without Zais’ consent. The State appealed the district court’s order, and the Court of Appeals reversed the finding and remanded the matter.

On review to the Supreme Court, Zais argued that the crime exception to the marital privilege does not apply to a disorderly conduct charge because disorderly conduct is not a crime committed by one spouse against the other. The Supreme Court disagreed. In examining the elements of the crime of disorderly conduct and also the underlying conduct of Zais to determine whether the crime was “committed” by Zais against his wife, the Supreme Court found that Zais’ conduct was done against and directed at his wife. Therefore, the disorderly conduct charged offense was committed by Zais against his wife, and the crime exception to the martial testimonial privilege applies and Zais’ wife can testify against him at trial.

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Categories: Criminal Defense