One Spouse May Testify Against Other Spouse on Charge of Disorderly Conduct.

State v. Zais, Minn.S.Ct., 10/26/2011.  The state charged Mr. Zais with disorderly conduct.  When his wife swiped his garage door opener Mr. Zais began to remove some of the panels in the garage door.  The stated wanted to put his wife on the stand to testify to these acts and to the threats he’d made the previous evening to “do whatever he had to to get in” the house.  Mr. Zais asserted marital privilege to prevent his wife from testifying to these threats.  The trial court agreed with Mr. Zais and excluded her testimony. 

The marital privilege statute, Minn.Stat. 595.02, does not apply to “a criminal action or proceeding for a crime committed by one against the other.”  Mr. Zais argued that the applicability of this exception should be determined solely by the elements of the crime; the state, on the other had, said the court should examine the underlying conduct to make that determination.  The appellate court says that you have to do both.  When you do, then the exception kicks in and she can testify.