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JLO Legal Ease Jardine, Logan & OBrien, P.L.L.P. JLO legal ease Fall 2009 Qualified Litigation Attorneys Familial Privilege in Minnesota IN THIS by Darwin S. Williams ost people are familiar with the concept of the marital privilege as it relates to criminal issue Mproceedings, where a person cannot be compelled to testify against their spouse. Most people do not know that the marital privilege is not asserted by the testifying spouse, but by the spouse who Familial Privilege in MN . .1 may be adversely affected by the testimony. Most are also unaware that there is a similar privilege protecting communications between a parent and a minor child and that these privileges are not Recorded Statements . .2 limited to the criminal courts; they can be asserted in civil cases as well. JLO Notice . 3 Exclusionary rules and evidentiary privileges are based primarily on the nature of the action generally disfavored by the law because they involved, for instance, cases where one spouse is Firm News . .3 contravene the fundamental principal that the accused of committing a wrong against the public...has a right to every mans evidence. See other spouse (i.e. family law issues such as non- United States v. Bryan , 339 U.S. 323, 331 (1950). support or child neglect). The United States Supreme Court has warned Subscription Information that such rules and privileges must be strictly The confidential inter-spousal construed and accepted only to the very communications privilege protects against the A referral is the best compliment limited extent that permitting a refusal to testify disclosure of any private communications you can give an attorney. If you or excluding relevant evidence has a public good between spouses made during the marriage. know of anyone who may be transcending the normally predominant This privilege is similar to the attorney-client interested in receiving this principle of utilizing all rational means for privilege in that it is a protection of newsletter, please complete the ascertaining truth. See United States v. Nixon , communications that are expected by society to section below and return it via fax 418 U.S. 683, 710, (1974) (citing the dissent of be private and confidential. A legal spouse is to 651-223-5070. You may also use Justice Frankfurter in Elkins v. United States , 364 seen by the law as a confidant, and the law the section below for a change of U.S. 206, 234, (1960)). protects confidential communications that address, etc. Alternatively, you occur during the marriage. may e-mail the information to us Marital Privilege at [email protected]. The marital testimony privilege permits a Despite a general erosion of support for the party to prevent any and all adverse testimony Name: marital privilege in other jurisdictions, by the partys current legal spouse. This is the Company: Minnesota is recognized as one of the states broader of the two privileges because it would Address: that has steadfastly retained the privilege against include knowledge of any adverse information City: adverse spousal testimony. See State v. Gianakos , regarding the spouse, including communications State/Zip: 644 N.W.2d 409, 415 (Minn. 2002) (citing that occurred prior to the marriage, as long as Phone: Trammel v. United States , 445 U.S. 40, 49 (1980)). the couple is still married at the time the E-mail: Minnesota Statute § 595.02 subd. 1(a) (2008) testimony is being sought. The marital sets out two distinct marital privileges: (1) the testimony privilege has the effect of preventing This newsletter is a periodic publication privilege to prevent a spouse from testifying at all adverse testimony by a spouse without the of Jardine, Logan & OBrien, any time concerning confidential inter-spousal pri vilege holders consent. The privilege exists as P.L.L.P. It should not be considered as communications made during the marriage; and long as the witness and party are legally married legal advice on any particular issue, fact (2) the privilege to prevent a spouse from at the time of the testimony. See Minnesota or circumstance. Its contents are for testifying against the other during the marriage. Statute § 517.01 (2008); Baker v. Baker , 222 general informational purposes only. See State v. Palubicki , 700 N.W.2d 476, 483 (Minn. Minn. 169, 171, 23 N.W.2d 582, 583 (Minn. 2005). Minnesota Statute § 595.02 subd. 1(a) 1946). The subject matter of the proposed Comments or inquiries may be directed carves out certain logical and specific exceptions testimony is inconsequential as long as the party to Shannon Banaszewski. Privilege continued on Page 3 8519 Eagle Point Boulevard, Suite 100 Lake Elmo, Minnesota 55042 651-290-6500 www.jlolaw.com Recorded Statements the attorney-client privilege, they would still Use at Trial by Jason A. Koch not be discoverable unless the plaintiff made the required showing set forth in Minn. R. Generally, an out of court statement is Discoverability Civ. P. 26.02(d). In analyzing the issue, the inadmissible hearsay. But the statement may Court noted Federal Courts applying be admitted if it is a non-hearsay statement n Minnesota, parties to a lawsuit may identical Rule 26(b) have held that mere against interest or subject to an exception to Igenerally obtain discovery regarding any surmise that a statement might include the hearsay rule. Even if not admissible to matter, not privileged, that is relevant to a impeachment material does not constitute prove the fact of the matter asserted, a claim or defense of any party. Frequently, substantial need. Id. The Court also noted statement may be used at trial for the limited the issue arises as to whether a recorded that the requesting party ultimately served purpose of impeaching a witness if he/she statement taken by an insurance adjuster interrogatories on and deposed the party gives trial testimony which is inconsistent prior to commencement of a lawsuit may witness. Id. at 682. The Court further noted with his/her previous statement. ultimately be discoverable. that the requesting party made no claim that the party witness was hostile or his memory The use of statements at trial is further The Minnesota Rules of Civil Procedure faulty. Id. Absent a showing of substantial restricted by Minn. Stat. § 602.01, which define a statement as (1) A written need and the inability to obtain the provides: Any statement secured from an injured statement signed or otherwise adopted or substantial equivalent, the Court held that person at any time within 30 days after such injuries approved by the person making it, or (2) A the statements of the party were not were sustained shall be presumably fraudulent in the stenographic, mechanical, electrical, or other discoverable. trial of any action for damages for injuries sustained recording, or a transcription thereof that is a by such person or for the death of such person as the substantial verbatim recital of an oral Courts have made an interesting distinction result of such injuries. No statement can be used as statement by the person making it and when the party is a business, rather than an evidence in any court unless the party so obtaining the contemporaneously recorded. Minn. R. individual. Courts have held that statements statement shall give to such injured person a copy Civ. P. 26.02(d). of non-party witnesses who were employees thereof within 30 days after the same was made. of a party were discoverable. See Wiggin v. Minn. R. Civ. P. 26.02 provides that a party Apple Valley Medical Clinic, Ltd. , 459 N.W.2d The purpose of Minn. Stat. § 602.01 is to may obtain discovery of documents and 918, 920 (Minn. 1990). In Wiggin , the prevent unfair practices in the procurement tangible things, otherwise discoverable, and defendant was a medical clinic. The of statements from injured parties. See prepared in anticipation of litigation or for statement at issue was that of a doctor Yeager v. Chapman , 233 Minn. 1, 10, 45 trial by or for another party or by or for that employed by the clinic. Despite the fact that N.W.2d 776, 782 (1951). The exclusionary partys representative (including insurer) plaintiff was seeking to impute the doctors clause of the statute, like the presumption of only upon a showing that the party seeking negligence to the clinic, the court held that fraudulence, only applies to statements given discovery has substantial need of the the statement of the doctor was discoverable by an injured person who seeks to recover in materials in the preparation of the partys and noted that the corporate employee who an action for injuries sustained. See Hilleshiem case and that the party is unable, without was not a named party to the litigation was v. Stippel , 283 Minn. 59, 65, 166 N.W.2d 325, undue hardship, to obtain the substantial not a party within the meaning of Minn. 330 (1969). The statute does not bar the equivalent of the materials by other means. R. Civ. P. 26.02. Similarly, in Leer v. Chicago, admission of statements in other types of The Rule is clear that a party may obtain, Milwaukee, St. Paul and Pac. Ry. Co. , 308 actions, even if closely related to a personal without the required showing, a statement N.W.2d 305 (Minn. 1981), a plaintiff sued a injury action. See, e.g., Dike v. American Family concerning the lawsuit which was previously railroad, in part, for negligence in executing Mut. Ins. Co ., 284 Minn. 412, 420, 170 made by that party. A party is also entitled, a r ailroad car switching movement. The N.W.2d 563, 567 (1969) (holding no without the required showing, to obtain plaintiff did not bring an action against statutory protection existed for statement statements related to the lawsuit previously members of the switching crew, but sought made by injured insured in his declaratory made by any non-party witness.
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