Summary 2008 WY 90

Summary of Decision issued July 31, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Rogers v. State

Citation: 2008 WY 90

Docket Number: S-07-0115

Certified Question from the District Court of Laramie County, the Honorable Nicholas G. Kalokathis, Judge.

Representing Appellant: Diane M. Lozano, State Public Defender; Ryan R. Roden, Deputy Public Defender; Tina N. Kerin, Appellate Counsel; Kirk Allan Morgan, Assistant Appellate Counsel; Scott Mitchel Guthrie, Senior Assistant Public Defender.

Representing Appellee: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Dana Jill Lent, Assistant Attorney General.

Facts/Discussion: Rogers was charged with third degree sexual assault. His wife was the alleged victim of that assault. Prior to trial, the State expressed its intent to call LR as a witness to testify against her husband.
The district court certified this question:
Can an alleged victim spouse be compelled by the State of Wyoming to testify against his or her spouse or does the witness-spouse alone have a privilege to refuse to testify adversely and that the witness may neither be compelled to testify nor foreclosed from testifying?
In the federal system, the application of marital privilege is generally governed by federal common law. Congress has not expressed a particular policy preference regarding marital privilege. The Wyoming legislature however, has implemented policy through legislation. In choosing to provide an exception to spousal privilege, the legislature has decided that in cases of a crime by one spouse against another, the State’s interest in discerning the truth outweighs the State’s interest in preserving marital harmony.

Holding: The marital privilege does not apply when one spouse is charged with a crime against the other. When the exception applies as set forth in Wyo. Stat. Ann. § 1-12-104, the witness spouse may be compelled to testify.

Remanded.

J. Burke delivered the decision.

Link: http://tinyurl.com/6ysm6r .

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