Undocumented traditional Navajo wedding creates valid marriage for purpose of invoking spousal testimonial privilege

EVIDENCE United States v. Jarvison, No. 04-2093, ___ F.3d ___ (10th Cir. May 23, 2005)(New Mexico). Interlocutory appeal by government involving claim that district court erroneously excluded testimony by defendant’s wife on basis of spousal testimonial privilege because defendant was not validly married. HELD: (1) Despite district court’s failure to make specific findings of fact underpinning its determination of valid marriage under Navajo law, and despite district court’s refusal to permit government to cross-examine defendant’s "wife" to test her testimony that she and defendant were married in undocumented "traditional" Navajo wedding ceremony in 1953, sufficient evidence existed in record (i.e., wife’s testimony), to validate marriage for purpose of spousal testimonial privilege. (2) Although Federal Rules of Evidence permit federal courts to continue evolutionary development of testimonial privileges in federal criminal trials governed by principles of common law as they may be interpreted in light of reason and experience, this case does not present appropriate situation for creating exception to spousal testimonial privilege for testimony relating to child abuse within household. Read the opinion here.