Spousal Privilege Applies to Trad'l Navajo Marriage

U.S. v. Jarvison, 2005 WL 1208928 (5/23/05) - A divided 10th upheld a district court's ruling that the spousal testimonial privilege applied. The 10th held that Navajo tribal law applied and went through an exhaustive history of common law marriage under that law. The 10th affirmed the district court's finding that the defendant and the witness were married under that law because they had substantially complied with the Navajo requirements for conducting a tribal ceremony in 1953. The stormy relationship that resulted in many split-ups, (including 15 years when the defendant was living and producing children with the witness's daughter by another relationship), did not end the marriage because it could not be ended except through a divorce, which had never happened. The 10th chose not to create a new exception to the spousal testimonial privilege, as it had for the marital communications privilege, for testimony regarding child abuse within the household, (the witness allegedly saw the alleged sexual abuse by the defendant). The 10th was reluctant to create a rule that would require coercing the spouse to testify. Dissenting Judge Anderson was unimpressed by the evidence upon which the district court relied, thought it was unfair for the judge to prohibit the government from cross-examining the witness and thought the circumstances indicated the marriage was ended by the intervening 15 year relationship.