Home   Federal Cases   State Cases   News   Search   Cart   Log In 
Search 591,341 Cases and Articles on TJV!
Minnesota State Categories

State of Minnesota v Zais

Case No. A10-1020 (MN Ct. App., Nov. 30, 2010)

This appeal is from the district court‟s pretrial order in a prosecution for disorderly conduct, concluding as a matter of law that, absent Thomas Zais‟s consent, his wife, Debra Zais, may not testify against him. Because we conclude that Debra Zais's testimony comes within the exception to the marital testimonial privilege in Minn. Stat. § 595.02, subd. 1(a) (2008), which permits spousal testimony in a criminal action or proceeding for a crime committed by one spouse against the other, we reverse and remand.


The facts relevant to this appeal are based on police reports admitted by stipulation and a written offer of proof that relies on Debra Zais's recorded statement to Maple Grove police. For purposes of determining the applicability of the marital testimonial privilege, these facts are undisputed.

Respondent Thomas Zais (Zais), his wife Debra Zais, and their fifteen-year-old daughter live in Maple Grove. The disorderly conduct charge at the center of this appeal stems from a November 15, 2009 incident in the driveway of their house, in front of their attached garage. About 6:20 p.m. Debra Zais called the Maple Grove police and reported that Zais had been drinking, was in the driveway in his pickup truck, and was trying to break down the garage door.

One of the officers responding to the call had been at the Zaises' house the previous evening in response to a phone call by Debra Zais reporting that Zais was arguing with, and had pushed, their daughter. Police told Debra Zais that the pushing conduct was insufficient to support a criminal charge. After the altercation with his daughter, Zais left the house. Debra Zais, who feared for her safety and the safety of her daughter, removed the garage-door opener from Zais's pickup so he could not enter the house.


Judge(s): Harriet Lansing
Jurisdiction: Minnesota Court of Appeals
Circuit Court Judge(s)
Francis Connolly
Thomas Kalitowski
Harriet Lansing

Appellant Lawyer(s) Appellant Law Firm(s)
Lori Swanson Office of the Minnesota Attorney General
Paul Baertschi Tallen & Baertschi

Appellee Lawyer(s) Appellee Law Firm(s)
James Kamin Office of the Public Defender, Fourth Judicial District
William Ward Office of the Public Defender, Fourth Judicial District



With your FREE registration, you can select an unlimited number of Alert categories for daily, weekly or monthly deliveries of the Federal and State Cases most relevant
to you!

Click Here to sign up.


Click the maroon box above for a formatted PDF of the decision.
the state charged zais with second-degree driving while impaired (dwi), third- stated that the reference to the sergeants authorization was only to explain the "channels services or for the "[r]easonable attorney fees and costs" that the governmental unit underlying the complaint? against the other" applies to a prosecution for disorderly conduct when a spouse, who is testimony comes within the exception to the marital testimonial privilege in minn. stat. underlying the charged offense, and surrounding circumstances, including the status of the marital testimonial privilege did not apply to arson charges for burning the jointly the marital privilege has its origins in the common law. trammel v. united anywhere in the record that shows how maple grove pays the prosecutor for his statutes ambiguity. 10 than one reasonable interpretation); minn. stat. 645.16 (identifying list of 19 it would "render the purpose of the privilege valueless." id. at 418; see also feste, 205 privilege provided in minn. stat. 595.02, subd. 1(a), which permits spouses to testify in that is, the degree to which the privilege can or should be asserted should depend in part that minn. stat. 634.20s applicability is governed by "whether the accuseds in either case, the prosecutor explained on the record in the district court that, recognizing that a wifes testimony is admissible against her husband when she has at 44-49, 100 s. ct. at 909-12 (summarizing criticism of rule and state law changes to 1(3) (2008). committed by one [spouse] against the other" for purposes of the marital testimonial wife from testifying for or against each other, it might be urged that it was jurisprudence that are today long abandoned: (1) because of his perceived interest in the adversely affected or endangered the testifying spouse. privilege applies, zais may not invoke the marital testimonial privilege to prevent his 835 p.2d 216, 218 (wash. 1992) (determining that burglary of spouses home was crime law, however, the meaning of the exception was unclear and courts applied varied zaiss testimony to prove that zais engaged in disorderly conduct, defined by statute as specific category of crimes and could reasonably be read to mean any crime, including critical impact zais argues in his responsive brief that the appeal should be dismissed because of privilege." state v. palubicki, 700 n.w.2d 476, 483 (minn. 2005). "authorization" because the police department would be "footing the bill for the appeal." ii other without the latters consent." gianakos, 644 n.w.2d at 416 (quoting state v. feste, responsible for a pretrial criminal appeal must pay to the defendant. see minn. r. crim. (1970) (upholding disorderly conduct charge when group of defendants chanted the district courts order on the applicability of the marital testimonial privilege was in wife from testifying against him in the prosecution of the disorderly conduct charge. we 264, 266 (mich. 1988) (holding that arson of persons dwelling is personal wrong or prosecute the case, and that the order constitutes error. state v. mcleod, 705 n.w.2d language of "crime committed by one against the other" rather than the narrower the police were called, that she had contacted a domestic-abuse advocacy program for a personal injury sufficient to destroy the spousal privilege afforded by [section] 609.72." require the presence of more than one other person. although we do not accord to personal injury or offense). at common law "personal injury" was required to invoke impact on the states ability to prosecute the case, and we turn to the question of whether [when] the behavior forming the basis of the offense presents the threat of bodily harm." interpret a privilege narrowly and its exceptions broadly. see u.s. v. nixon, 418 u.s. vs. into one of privilege. id. which a crime is committed by one spouse against the other. permitted and [we] apply the statutes plain meaning." am. tower, l.p. v. city of grant, 8 wigmore, evidence 2239 at 243 (mcnaughton rev. 1961). injury." it essentially interprets the exception to apply to a category of crimes or criminal paul d. baertschi, tallen & baertschi, minneapolis, minnesota (for appellant) 4 gil. 251, 259 (1860) (quotation omitted) (holding that exception did not apply to specifically include "personal injury," based on the substance of the crime and the have addressed this question of statutory interpretation. other jurisdictions have relied that her testimony, particularly her telephone conversation with zais, would bear directly hennepin county district court knocked out." zais told him that debra zais would not let him in and that he had the marital relationship and the willingness of the witness-spouse to testify. see, e.g., 16 the record does not clarify whether the prosecutor was referring to the bill for his legal that the marital privilege does not apply "to a criminal action or proceeding for a crime and we conclude that neither allegation provides a basis for dismissal of the appeal. committed against spouse when defendant spouse hid heroin on spouse for smuggling); spouse, . . . [or] an action or proceeding for nonsupport, neglect, dependency, or the goal of statutory interpretation "is to ascertain and effectuate the intention of 15 obstruction of legal process is crime against person if underlying conduct creates special he was coming to the house and would break in or do whatever was necessary to gain proceeding, an accused was prohibited from testifying on his own behalf and (2) because significantly, zais does not dispute the critical impact of the excluded testimony. the maple grove police department the decision to appeal or that maple groves subd. 1(a) (2008), which permits spouses to testify in a criminal proceeding for a crime statutes use of the word "crime" is a broad reference that does not limit the term to a we address, in turn, each of these reasons. the first officer to arrive saw the pickup in the driveway and saw zais standing by consequences of the competing interpretations. zaiss argument, distinguishing public without her consent, nor a wife for or against her husband without his consent, nor can evidence destroys the prosecutions ability to prosecute or "significantly reduces the because the exception to the marital testimonial privilege provided in minn. stat. spouses, rather than any ideal concept, should influence the application of the privilege; conduct was directed at and adversely affected or endangered debra zais. according to reversed and remanded error. 636 n.w.2d 309, 312 (minn. 2001). but if the statute is not clear--and is ambiguous-- 52-53, 100 s. ct at 913-14. the court also recognized that the use of the privilege privilege on the ground that it furthers the public policy of protecting the marriage comply with the officers requests to put his hands behind his back and started to run husband and wife and the harm to the public which results from marital discord, and circumstances in which the legitimacy of the marriage was questioned, emphasized that the decision to appeal and that the city of maple groves payment of a fee for the 4 17 "evidentiary privileges constitute barriers to the ascertainment of truth and are therefore in trammel. to constitute disorderly conduct is not at issue in this pretrial appeal. our determination defender, minneapolis, minnesota (for respondent) committed by one [spouse] against the other." id. we agree with the district courts for prosecutorial impropriety in the states decision to appeal. experienced "personal violence," "ill treatment," or a "personal outrage." id. at 341, 595.02, subd. 1(a), for "a criminal action or proceeding for a crime committed prosecution of husband for adultery). first to the specific language of the statute. state v. gorman, 546 n.w.2d 5, 8 (minn. termination of parental rights"). subd. 1(a) (2008) (amended 1969, 1987) (providing that marital testimonial privilege is _________________________ against the other even though the testifying spouse was not at home. state v. hawkins, although not literally drawn from the statute, is reasonable. interpretation, which was adopted by the district court, relies on the specific elements of a 209, 210, 212 (iowa 1971) (holding that husbands arson of marital home is crime testimony in claim, brought before marriage, against husband for fathering her has also been interpreted to include property crimes. see people v. butler, 424 n.w.2d state, 641 n.w.2d 912, 917 (minn. 2002); state v. foss, 556 n.w.2d 540, 540 (minn. 1998). we consider the states evidence as a whole in deciding what impact the we apply the canons of construction. id.; minn. stat. 645.16. dual concepts are reflected in the supreme courts observation that minnesota resulting in structural error. the claims are broadly drawn--both factually and legally-- am. tower, l.p., 636 n.w.2d at 312 (stating statute is ambiguous if it is subject to more against zais without his consent. modern authority that a marriage well on its way to final dissolution will not support a 776, 784 (minn. 2005). the critical-impact requirement is satisfied if the suppression of knocked out the panels to gain entrance to the house. the crime. we agree that it is the underlying conduct that determines whether there is any grove police. for purposes of determining the applicability of the marital testimonial that zais had been drinking, was in the driveway in his pickup truck, and was trying to disorderly conduct is an offense that can be aimed at an individual rather than the public kalitowski, judge. at 482. but the district courts evidentiary ruling is based on its interpretation of the erred in excluding debra zaiss testimony under the marital testimonial privilege. we minnesota rule of criminal procedure 28.04 allows the state to appeal pretrial sobriety tests, which zais failed. a preliminary breath test indicated that zais had a .31 personal injury for the exception to apply and that "[d]isorderly [c]onduct does not create change." id. at 48, 100 s. ct. at 911. determining that the "ancient foundations for so the summary of debra zaiss proposed testimony that was submitted in the states understanding" may testify in a judicial proceeding is commonly referred to as the ii. did the prosecutors decision to appeal this case inject structural error that requires on a determination of whether zais "[knew], or [had] reasonable grounds to know that lansing, judge proceedings and to prosecute wrongdoing. id. we start from the fundamental principle that the minnesota constitution divides i. does the exception to the marital testimonial privilege provided in minn. stat. appeal the district courts pretrial order. privilege. we conclude that, on these facts, the alleged disorderly conduct is a crime after zais said that he had consumed alcohol, the officer administered field statement that "[t]he crux of the issue of the applicability of the spousal privilege is appeal, it is consistent with the more modern approach embodied by the supreme court app. dec. 9, 2008), we held that "others" in the disorderly conduct statute does not privilege for "crime[s] committed by one [spouse] against the other." zaiss 9 behavior. see city of st. paul v. azzone, 287 minn. 136, 140, 177 n.w.2d 559, 562 this appeal is from the district courts pretrial order in a prosecution for disorderly 646, 651 (minn. app. 2010), review denied (minn. oct. 27, 2010). barnslater concluded s y l l a b u s 205 minn. 73, 74-75, 285 n.w. 85, 86 (1939)). 2 1996). courts are constitutionally obligated to defer to prosecutorial decisions of the witness in the proceeding. zais moved to exclude her testimony based on the marital alcohol concentration. the officers told zais that he was under arrest. he refused to the exception to the marital testimonial privilege codified in minn. stat. 595.02, the facts relevant to this appeal are based on police reports admitted by stipulation one against the other," the supreme court has repeatedly held that the similar phrase, 18 harmony "without erecting artificial ,,barriers to the ascertainment of truth" is served armstrong, one of the earliest cases interpreting the statute, uses broad language in specificity and legal coherence to support a challenge to the exercise of prosecutorial because of the resulting head injuries, was transported by ambulance to north memorial [his actions would], or [would] tend to, alarm, anger or disturb others." id. without testimonial privilege and its exceptions or with caselaw considering the crime of whatever he had to do to get inside. whether this conduct will ultimately be determined suggest that its provisions should be retained in the codification. e.g., frey, 76 minn. at categories of offenses, while the states interpretation focuses on the conduct underlying conclude that there was no structural error in the prosecutors discretionary decision to 429 u.s. 245, 250, 97 s. ct 546, 548 (1977). the analogy fails because the issuance of the policy the privilege was presumed to further. for example, the decision in gianakos representation. the garage door. the officer also saw that "square panels on the garage door had been 4 gil. at 258 (citing the people v. chegaray, 18 wend. 642; 3 phil. ev. with notes by daughter, zais left the house. debra zais, who feared for her safety and the safety of her the state and zais present competing interpretations of the exception to marital for all of these reasons we conclude that the exception to the marital testimonial "crime against a person," applies to crimes whose elements and classifications do not common-law concept of "personal injury." cf. state v. armstrong, 4 minn. 335, 342, paul v. eldredge, 788 n.w.2d 522, 526-27 (minn. app. 2010) (recognizing that privilege). e.g., state v. gianakos, 644 n.w.2d 409, 416 (minn. 2002). in this appeal the warrants in connally was a judicial action by an officer of the court, not a statute." mauer, 741 n.w.2d at 113. to determine legislative intention we consider, a "personal offense" does not readily coincide with the language of the marital fighting position with clenched fists." the officers again told him that he was under exclusion of evidence will have on the states case. state v. zanter, 535 n.w.2d 624, 631 committed by one against the other" as it relates to conduct between spouses. injury to that person). similarly, in an unpublished opinion from this court, we held that although the sergeant was consulted, his opinion was not conclusive and that the applicable law. he has failed to demonstrate that the prosecutor unlawfully delegated to [spouse] . . . against a child of either or against a child under the care of either away. after running a short distance, zais turned to face the officers and "got into a and a written offer of proof that relies on debra zaiss recorded statement to maple against [debra] zais." if it is a crime "committed against" his wife, then zais cannot warrant that he authorized but no fee for warrants that he denied. connally v. georgia, the marital-privilege statute. see minn. stat. 595.02, subd. 1(a) (omitting any reference "committed by one against the other," applies to a prosecution for disorderly conduct if proving the applicability of the marital privilege rests on the spouse who invokes the testimonial privilege in minn. stat. 595.02, subd. 1(a) (2008). absent . . . deliberate discrimination . . . ." (quoting state v. herme, 298 n.w.2d 454, 455 generally. the powers of government into three distinct departments--two of which are the 595.02, subd. 1(a) (2008), which permits spousal testimony in a criminal action or d e c i s i o n reference to "personal injury"). degree dwi, obstruction of legal process or arrest, careless driving, and disorderly the record indicates that debra zais is the only eyewitness to zaiss conduct and general prohibition against testimony (referred to as the testimonial privilege) and the debra zais, may not testify against him. because we conclude that debra zaiss either, during the marriage or afterwards, without the consent of the other, be examined spouse against the other. this interpretation also relies on a concept of the public nature prosecutors decision to appeal this case is not supported by facts in the record or by issue, characterized as a "structural error," contending that the case should be dismissed the mischief to be remedied and the object to be obtained have evolved over time. only a statutory adoption of the common-law rule, and that it adopted also police discharged a taser. when zais fell to the ground, the police handcuffed him and conduct may occur when peace of only one person or member of public is disturbed). in conduct. in pretrial discovery, the state notified zais that debra zais was a voluntary orders, subject to some restrictions. to prevail in a pretrial appeal, the state must show minnesota has also considered the competing policy interests of protecting the exclude testimony for the supposed purpose of assuring marital harmony may, in many obscenities at officer in police station with no members of public present); reynolds, 243 statutory phrase "a crime committed by one against the other" to mean that there must be claim of the privilege."). this is consistent with legislative amendments to the marital "marital privilege," and this privilege also has exceptions. id. one exception provides 76 minn. at 528, 79 n.w. at 518. but the common law recognized an exception "in all prosecutors decision to appeal is based on the prosecutors comment to zaiss attorney one against the other" to include property offenses with no risk of physical harm. see between the city of maple grove and the prosecutor or how the prosecutor is paid for ha[s], as a general rule, refused for this reason to permit one spouse to testify against the charge can be brought when there is only one witness or one intended victim of the as to any communication made by one to the other during the marriage." minn. stat. william ward, fourth district chief public defender, james a. kamin, assistant public 22 legal status, the husband was the entity for legal purposes. trammel, 445 u.s. at 44, 100 v. mauer, 741 n.w.2d 107, 111 (minn. 2007). though crime occurred before marriage). upon the integrity of the union purporting to justify its application. see gianakos, 644 519. although the scope of this exception and its specific phrasing was never precisely ordinarily, "[t]he availability of a privilege is an evidentiary ruling to be "communication." state v. hannuksela, 452 n.w.2d 668, 676 (minn. 1990) (quoting p. 28.04, subd. 2 (6) (allowing defendant fees and costs in prosecutorial appeal of pretrial executive branch and may not probe the reasons for the exercise of discretion without prosecutor and his law partner would make the decision on whether to appeal. he further prosecutorial impropriety in the states decision to appeal the district courts ruling. zais a10-1020 if this statute merely laid down the rule disabling the husband and weighed substantially against positive societal considerations to seek the truth in judicial reflected in the holding that "self-defense is applicable to a charge of disorderly conduct the testimonial privilege is at issue, and more specifically, the exception to the privilege account the specific conduct alleged is consistent with developments in other states that 595.02, subd. 1(a), for "a criminal action or proceeding for a crime committed by one hospital. a consensual blood test registered an alcohol concentration of .23. statutory construction "permit a broad review of the purpose of and occasion for the not by the category of the charged offense. id. 8 committed against wife); dill v. people, 36 p. 229, 233 (colo. 1894) (holding that perjury in court of appeals preserving marital harmony is unpersuasive, the court modified the federal marital- house. illegitimate child); frey, 76 minn. at 527, 530, 79 n.w. at 518-19 (holding that marital conduct was insufficient to support a criminal charge. after the altercation with his in addition to these considerations, four other reasons persuade us that the states (minn. 1995). because statutory interpretation is a question of law, we review the ruling de novo. state began to question whether aspects of this policy-driven doctrine had become "for or against each other in any legal proceeding to which the other was a party." frey, the legislature." minn. stat. 645.16 (2008). to determine legislative intent we look states, 445 u.s. 40, 44, 100 s. ct. 906, 909 (1980); state v. frey, 76 minn. 526, 528, 79 proceeding for a crime committed by one spouse against the other, we reverse and against spouse). a statute excepting a "personal wrong or injury" rather than a "crime" f a c t s husbands were defendants. id. over time this rule of absolute disqualification evolved unpublished opinions may have persuasive value). the caselaw establishes that police arrived at the house around 6:30 p.m. respondent thomas zais (zais), his wife debra zais, and their fifteen-year-old filed november 30, 2010 dissension, are the ultimate ground of the privilege, it is an overgenerous a n a l y s i s reduced. see scott, 584 n.w.2d at 416 (recognizing critical impact can be satisfied not and because the alleged crime in this case was directed at debra zais, the district court cases of personal injuries committed by [one] against the other." id. at 528, 79 n.w. at nature as to affect the peace and quiet of persons who may witness it and who may be ambiguous, and we apply the canons of construction to ascertain legislative intent. see of disorderly conduct in contrast to the private nature suggested by the phrase "crime "a strong showing is required to conclude that the marriage protected" is "so empty" that the unpublished opinion craig v. state, no. a07-1949, 2008 wl 5136170, *5-6 (minn. bedroom floor while wife was in adjoining room, fifteen feet away); state v. thornton, o p i n i o n 11 the complaining witness, is adversely affected by the conduct underlying the complaint one [spouse] against the other." minn. stat. 595.02, subd. 1(a). "the burden of the states interpretation that disorderly conduct, depending on its facts, may disturbed or provoked to resentment . . . ." state v. reynolds, 243 minn. 196, 200, 66 similarly, we have held that the definition of "domestic abuse" focuses on the 14 underlying conduct constitutes domestic abuse," not by whether the charged offense falls some coherent or specific allegation of a clear violation of law. see state v. johnson, 514 committed against spouse when defendant spouse shot two rounds of ammunition into (va. 1982) (holding that "offense committed by one [spouse] against the other" includes "offensive, obscene, abusive, boisterous, or noisy conduct" or "language tending states supreme court determined that it was a violation of the fourth and fourteenth burglary is crime against person if, "as committed," it is against person). between disorderly conduct as a "public offense" and a "private offense"; (2) the lack of daughter live in maple grove. the disorderly conduct charge at the center of this appeal [i]f the promotion of marital peace, and the apprehension of marital interest. expansively construed, for they are in derogation of the search for truth"); larson v. state of minnesota executive and the judicial. minn. const. art. iii, 1. the prosecution power, including precedential effect to unpublished opinions, the reasoning is persuasive. see city of saint among other factors, the "occasion and necessity for the law," "circumstances under one of the officers responding to the call had been at the zaises house the circumstances, miss the mark: 1024, 1027 (wash. 1987) (holding that burglary of spouses home with intent to commit husband and wife were viewed as a single legal entity and a wife did not have a discrete danger to human life); state v. notch, 446 n.w.2d 383, 385 (minn. 1989) (holding relationship through application of the privilege and ensuring that our judicial processes court decisions applying minnesotas marital privilege distinguish between the because the statute is susceptible to more than one reasonable interpretation it is entry. when debra zais saw him attempting a forcible entry, she called 911 and the that it protects marital harmony produced judicial results that at times seemed to frustrate house, breaking window, slashing waterbed, and stealing suitcase is crime committed also prescribes the application of, and defines and limits the exception to, "consequences of a particular interpretation." minn. stat. 645.16. n.w.2d 886, 889 (1954) (citation omitted). but the disorderly conduct statute discretionary prosecutorial function by the executive branch of government. id. to be disfavored and narrowly limited to their purposes"). by one against the other" apply to a prosecution for disorderly conduct when a at least two minnesota cases have observed that the actual relationship between united states v. smith, 533 f.2d 1077, 1079 (8th cir. 1976) (holding that crime was finally, we note that construing the marital-privilege exception to take into 21 state of minnesota, and private crimes and requiring "personal injury," is focused on distinguishing disorderly conduct, if it was committed against a spouse. and, it is reasonable to in [the] formal discussion." no evidence in the record describes the fee arrangement interpretations of what constituted a personal injury against a spouse. see 8 wigmore, testimonial privilege, which preclude asserting the privilege to bar testimony about under minnesota law, "[a] husband cannot be examined for or against his wife he is receiving fees for representing maple grove in the appeal also lacks the necessary assumption that the wife who has been beaten, poisoned or deserted is still zaiss claim that the prosecutor has an impermissible conflict of interest because proceedings that inherently involve a personal crime against another. this interpretation, zais called his wife at the house on the afternoon of november 15 and told her that arguing with, and had pushed, their daughter. police told debra zais that the pushing trials or appeals. previous evening in response to a phone call by debra zais reporting that zais was charged with "carnally knowing a female child under the age of [sixteen] years," even sweeping a privilege have long since disappeared," and that the modern justification of violation of the prosecutorial power. the claim of improper delegation of the a criminal proceeding for a crime "committed by one against the other," applies to a privilege, these facts are undisputed. criminalizes the prohibited conduct in either a "public or private place." minn. stat. the last criterion that we consider to resolve statutory ambiguity is the on a case-by-case analysis that considers the charged offense, the nature of the conduct marital privilege). the supreme court recognized in trammel that "we cannot escape some caselaw relies on the common-law origins of the marital-privilege rule to 609.72, subd. 1. and minnesota caselaw has established that a disorderly conduct 683, 710, 94 s. ct. 3090, 3108 (1974) (stating that privileges "are not lightly created nor kirby v. commonwealth, 570 s.e.2d 832, 835 (va. 2002) (holding that crime was the common-law application of the rule, including the exceptions. but it invoked the exception but the exception did not extend "to all wrongs done to the wife"). significantly, the minnesota legislature did not adopt the "personal injury" language remand. against spouse even when spouse not at home); hudson v. com, 292 s.e.2d 317, 318-19 crimes against person and property); peters v. dist. court of iowa linn co., 183 n.w.2d therefore reverse and remand to the district court. determine the truth. commentators have suggested that the use of the marital privilege to order). prosecutor about maple grove "footing the bill." again, no evidence is provided evidence 2239 at 242 (mcnaughton rev. 1961) (indicating that bodily injury always the reality that the law on occasion adheres to doctrinal concepts long after the reasons committed by one spouse against the other. because the exception to the marital 6 respondent. disorderly conduct offense to conclude that it is not a crime that is committed by one constitute a "crime committed by one [spouse] against the other" is also reasonable. the 1996). if the statutes language is clear, "statutory construction is neither necessary nor 3 this less-than-flexible application of the privilege and its underlying assumption reflects the legislative intent of the exception for a "crime committed by one [spouse] in minnesota statutes; and (4) the interpretation of similar statutes in other jurisdictions. conduct, concluding as a matter of law that, absent thomas zaiss consent, his wife, testimonial privilege and, at the direction of the district court, the state submitted an offer n.w.2d 551, 556 (minn. 1994) ("[t]he prosecutors decision whom to prosecute and fourth, other jurisdictions with similar statutes have interpreted "committed by placed him in the squad car. in the car he twice hit his head against the interior, and, spouse, who is the complaining witness, is adversely affected by the conduct 23 violent crime was crime committed against spouse); state v. whitaker, 544 p.2d 219, 224 daughter, removed the garage-door opener from zaiss pickup so he could not enter the relationship--both in avoiding the corruption to marital harmony that adversarial (ariz. 1975) (holding that firing shots into wifes apartment was crime committed against it is immaterial that the common law did or did not . . . . minnesotas jurisprudence initially, and for many years, justified the marital testimonial the offer of proof, debra zais would testify that she did not want zais in the home and privilege applied to bar wife, who was victim, from testifying against defendant husband interpretation--focusing on the specific conduct underlying the offense--more accurately minn. at 202, 66 n.w.2d at 891 (depending on facts and circumstances, disorderly determined by the [district] court and reviewed on appeal for an abuse of discretion." id. debra zaiss testimony the likelihood of a successful prosecution would be significantly is confined to whether this action is a criminal action or a proceeding "for a crime communication privilege. in hannuksela, the court determined that protecting marital had left the home the day before because of an altercation with their daughter in which state v. soukup, 656 n.w.2d 424, 429 (minn. app. 2003). this holding recognizes that minn. at 75, 285 n.w. at 86-87 (holding that marital privilege applied to bar wifes 595.02, subd. 1(a). this exception to the general rule that any "person of sufficient 528, 79 n.w. at 519. but the legislature, in enacting section 595.02, chose the broader privilege rule and vested the testimonial privilege entirely in the witness spouse. id. at marital privilege when it codified the common-law exception. see gen. st. 1851, c. 95, 53 (omitting any despite this general proposition that the privilege protects marital harmony, courts file no. 27-cr-10-4809 zaiss claim that the appeal should be dismissed because of structural error in the lansing, judge positions would cause and in avoiding the general corruption to public morality. these underlying conduct. see state v. myers, 627 n.w.2d 58, 62-63 (minn. 2001) (holding montpetit, 275, minn. at 402, 147 n.w.2d at 586). although hannukselas narrowing attached garage. about 6:20 p.m. debra zais called the maple grove police and reported modern approach of properly balancing two conflicting goals: protecting the marital of proof setting forth the substance of debra zaiss proposed testimony. following prosecution for disorderly conduct if the underlying conduct was directed at and appellant, settled, the source of the exception was a general concept of public justice and a whether the charge of [d]isorderly [c]onduct may be considered a crime committed this extension of disorderly conduct to include a "personal offense" is also help, and that zais called her at the home threatening to break into the house or do dismissal of the appeal? n.w. 518, 518 (1899). the common-law rule emerged from two canons of medieval conduct is not a crime that creates "a personal injury sufficient to destroy the spousal disorderly conduct. "conduct is ,,disorderly in the ordinary sense when it is of such only if suppressed evidence destroys prosecutions case but if likelihood of successful disorderly conduct is not limited to general disturbances but can target individuals. the underlying conduct was directed at and adversely affected or endangered the hostile or invidious conduct by one spouse against the other. see minn. stat. 595.02, spouse even though shots did not hit her). against spouse even though spouse was not in home at time); state v. kilponen, 737 p.2d thomas allen zais, specific prohibition against communication testimony (referred to as the communications _________________________ prosecution is significantly reduced). we conclude that the order will have a critical marital relationship and ascertaining the truth in its modern interpretations of the marital which gave them birth have disappeared and after experience suggests the need for zaiss allegations are insufficiently specific or legally coherent to describe a lori swanson, attorney general, st. paul, minnesota; and additionally, this interpretation reads "crime . . . against the other" to require "personal considerations to resolve ambiguity). in construing an ambiguous statute, our rules of and the record, although limited, establishes that the state would rely heavily on debra which it was enacted," "mischief to be remedied," "object to be obtained," and no. c3-97-857, 1997 wl 834952, at *2 (minn. app. feb. 10, 1997). discretion. this claim relies on the same exchange between zaiss attorney and the the decision of what cases to prosecute, resides in the executive department. johnson v. state v. thornton, 835 p.2d 216, 217-18 (wash. 1992) (holding that entering spouses payment of a fee for the prosecution of the appeal creates an impermissible conflict of recognition that enforcing the privilege without the exception would deny an injured break down the garage door. that makes it inapplicable "to a criminal action or proceeding for a crime committed by defendants conduct rather than on a list of offenses. state v. barnslater, 786 n.w.2d "recognized the burden which antagonistic interests impose upon the intimate relations of and the district court judge that he was contacting a police department sergeant for montpetit, 275 minn. 394, 402, 147 n.w.2d 580, 586 (minn. 1966) (recognizing that a "personal injury" requirement in the exception; (3) the interpretation of similar phrases marital harmony to protect, and therefore any purpose to be served by the privilege. third, although no minnesota case has interpreted the phrase "crime committed by stems from a november 15, 2009 incident in the driveway of their house, in front of their first, zaiss categorization of disorderly conduct as a "public offense" rather than inapplicable in "a criminal action or proceeding for a crime committed by one was fearful for her safety and her daughters safety on the day of the incident, that zais second, neither "personal injury" nor "personal offense" is a term that is used in the privileges exception. frey, 76 minn. at 528, 79 n.w. at 518-19. even at common spouse a remedy. id.; 8 wigmore, evidence 2239, n.1 (mcnaughton rev. 1961). injury is not required to trigger the exception to marital privilege for proceedings in through a narrow interpretation of the meaning of confidential interspousal privilege," and therefore, as a matter of law, debra zais was precluded from testifying testifying spouse. huot v. wise, 27 minn. 68, 69-70, 6 n.w. 425, 426 (1880). accordingly, a personal amendments for a state to pay a non-salaried justice of the peace a fee for each search 12 reversed and remanded. cow. and hill, p. 76). in huot, decided in 1880, the court identified the marital-privilege considered and decided by connolly, presiding judge; lansing, judge; and s. ct. at 909. the result was that wives were prohibited from testifying when their clearly and unequivocally that the order will have a critical impact on its ability to how far the rule shall prevail, and what cases shall be excepted from it. so 20 against the other." these reasons are: (1) the lack of substance in zaiss distinction marital privilege); state v. leecy, 294 n.w.2d 280, 283 (minn. 1980) ("[t]here is arrest. following a sequence of zaiss yelling and failing to comply with directives, in minnesota the common-law privilege prevented either spouse from testifying intended to deprive victim spouse of financial rights and interests is crime committed breath of disparaging testimony. n.w.2d at 417 (acknowledging that "[the supreme] court has at least implicitly on such terms of delicate good feeling with her spouse that her testimony prosecution of the appeal creates an impermissible conflict of interest for the prosecutor, zais analogizes the circumstances in this prosecution to a case in which the united the state and zais submitted memoranda on the applicability of the marital what charge to file is a discretionary matter which is not subject to judicial review argues that the prosecutor improperly delegated to the maple grove police department declining to adopt a "sham marriage" exception to the testimonial marital privilege under (minn. 1980))). i s s u e s invoke the privilege to prevent her from testifying. the rule of disability. this excludes resort to the common law to determine admissibility of prior acts of "domestic abuse" is determined by the underlying conduct, reasonably to arouse alarm, anger, or resentment in others." minn. stat. 609.72, subd. interpretation does not directly address the marital testimonial privilege at issue in this 5 i anachronistic and even harmful to the administration of justice. see trammel, 445 u.s. the state appeals this pretrial order. in his response brief, zais raises an additional thus, we conclude that the states interpretation more reasonably advances the 7 13 recognized the legitimacy of the marriage as a factor" when determining applicability of submission of the memoranda and argument, the district court concluded that disorderly within the statutory definition of a "domestic abuse" crime. id. accordingly, the likelihood of a successful prosecution." state v. scott, 584 n.w.2d 412, 416 (minn. owned home because the act of burning the house was a crime committed by one spouse must not be enforced lest the iridescent halo of peace be dispelled by the offer of proof and the stipulated police reports establishes that zaiss alleged disorderly

All Content © 2007-2012 The Judicial View, L.L.C. All Right Reserved.
About The Judicial View ®  | Privacy Policy   |  Terms of Use   |  Contact Us  |  Advertise