Forty years ago, the Tenth Circuit held that a criminal defendant may not invoke the spousal testimonial privilege if his or her spouse is alleged to be a joint participant in the defendant's crime. United States v. Trammel, 583 F.2d 1166 (10th Cir. 1978) affirmed on other grounds by Trammel v. United States, 445 U.S. 40 (1980).
It's time to ask the Tenth Circuit to revisit this holding. This week, the First Circuit refused to adopt a joint-participation exception to the spousal testimonial privilege,* deepening a circuit split on the issue (exception: 2; no exception: 4). The First Circuit relied in part on language from Obergefell v. Hodges waxing poetic about marriage ("[n]o union is more profound," etcetera, etcetera).
Take courage from the First Circuit. The next time the government threatens to force your client's coconspirator spouse to testify,** object.
*Not to be confused with the marital-communications privilege.
**The government may still attempt to bribe (ahem, persuade) the spouse to testify voluntarily (see SCOTUS's Trammel).