Yap Crim. Case No. 1994-270. Rul. 2.Complete.wpd

THE STATE COURT OF YAP

IN THE TRIAL DIVISION

Cite as State of Yap v. Langmed, (1995)

[page 1]

THE STATE OF YAP

Plaintiff,

vs.

LEO LANGMED,

Defendant.

Criminal Case No. 1994-270

RULING ON DEFENDANT'S

MOTION TO PRECLUDE

TESTIMONY OF MARTHA

CHILIF ON THE BASIS OF

MARITAL PRIVILEGE

Defendant moved, by oral motion during trial, to preclude the testimony of Martha Chilif on the basis that any testimony that she might give would be based on information that she learned during her marriage to the Defendant, and that as a result, that testimony is subject to the marital privilege.

The court notes that the Yap State Constitution, article 2, section 6, provides that "[n]o person shall be compelled in any criminal case to be a witness against . . . a member of his family as prescribed by law." Yap Rule of Evidence 501 provides that

the privilege of a witness . . . shall be governed by the principles of the common law a they may be interpreted by the Supreme Court of the Federated States of Micronesia and the Yap State court in the light of reason and experience.

The court further notes that the public policy which supports the existence of the marital communication privilege is to "aid in the preservation of the marriage status . . 81 Am Jur 2d, Witnesses, Sec. 300.

Based on the testimony presented thus far, the court makes the finding that a traditional Yapese marriage existed at the time that the communications upon which the anticipated testimony will be based were made, but that the marriage no longer existed as of the time of trial. Hence, in the view of the court, since there is no longer a marital relationship extant between the parties, the public policy which supports the martial privilege would not be served by precluding the testimony of Martha Chilif. Reason and experience dictate that if the very reason for

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the privilege no longer exists, then the privilege should not operate to preclude the testimony.

Moreover, the court notes that numerous courts have held that, either at the common law or under a statutory provision reciting merely that neither spouse is competent to testify against the other, a divorced spouse may testify in a criminal prosecution directed against the other.

ALR 2d 579, section 3. That annotation discusses cases where the communication was received by the testifying spouse during marriage, but where the parties were divorced at time of trial. In those cases the testimony was admitted. This line of authority provides an additional reason why the court finds that the testimony of Martha Chilif should be admitted.

The court also notes the States' position that Martha Chilif should be allowed to testify, because the alleged crime as to which she will testify was against her person. "[I]n a case involving the prosecution for a crime committed against a spouse by a spouse, the marital communication privilege is inapplicable." 81 Am Jur 2d, section 299. This rule provides yet another basis for allowing the testimony of Martha Chilif; although the court herewith makes it clear that because the marriage between the parties no longer exists, all relevant evidence, provided there is not some sustainable objection to it on a basis other than marital privilege, will be admitted.

In light of the foregoing,

IT IS HEREBY ORDERED denying the Defendant's motion to preclude the testimony of Martha Chilif on the basis of marital privilege.

DONE THIS 27th day of June 1995

/s/

Judge Constantine Yinug

Filed June 27, 1995


	THE STATE COURT OF YAP IN THE TRIAL DIVISION Cite as State of Yap v. Langmed, (1995) [page 1] THE STATE OF YAP Plaintiff, vs. LEO LANGMED, Defendant. Criminal Case No. 1994-270 RULING ON DEFENDANT'S MOTION TO PRECLUDE TESTIMONY OF MARTHA CHILIF ON THE BASIS OF MARITAL PRIVILEGE Defendant moved, by oral motion during trial, to preclude the testimony of Martha Chilif on the basis that any testimony that she might give would be based on information that she learned during her marriage to the Defendant, and that as a result, that testimony is subject to the marital privilege. The court notes that the Yap State Constitution, article 2, section 6, provides that "[n]o person shall be compelled in any criminal case to be a witness against . . . a member of his family as prescribed by law." Yap Rule of Evidence 501 provides that the privilege of a witness . . . shall be governed by the principles of the common law a they may be interpreted by the Supreme Court of the Federated States of Micronesia and the Yap State court in the light of reason and experience. The court further notes that the public policy which supports the existence of the marital communication privilege is to "aid in the preservation of the marriage status . . 81 Am Jur 2d, Witnesses, Sec. 300. Based on the testimony presented thus far, the court makes the finding that a traditional Yapese marriage existed at the time that the communications upon which the anticipated testimony will be based were made, but that the marriage no longer existed as of the time of trial. Hence, in the view of the court, since there is no longer a marital relationship extant between the parties, the public policy which supports the martial privilege would not be served by precluding the testimony of Martha Chilif. Reason and experience dictate that if the very reason for [page 2] the privilege no longer exists, then the privilege should not operate to preclude the testimony. Moreover, the court notes that numerous courts have held that, either at the common law or under a statutory provision reciting merely that neither spouse is competent to testify against the other, a divorced spouse may testify in a criminal prosecution directed against the other. ALR 2d 579, section 3. That annotation discusses cases where the communication was received by the testifying spouse during marriage, but where the parties were divorced at time of trial. In those cases the testimony was admitted. This line of authority provides an additional reason why the court finds that the testimony of Martha Chilif should be admitted. The court also notes the States' position that Martha Chilif should be allowed to testify, because the alleged crime as to which she will testify was against her person. "[I]n a case involving the prosecution for a crime committed against a spouse by a spouse, the marital communication privilege is inapplicable." 81 Am Jur 2d, section 299. This rule provides yet another basis for allowing the testimony of Martha Chilif; although the court herewith makes it clear that because the marriage between the parties no longer exists, all relevant evidence, provided there is not some sustainable objection to it on a basis other than marital privilege, will be admitted. In light of the foregoing, IT IS HEREBY ORDERED denying the Defendant's motion to preclude the testimony of Martha Chilif on the basis of marital privilege. DONE THIS 27th day of June 1995 /s/ Judge Constantine Yinug Filed June 27, 1995