In United States v. Fomichev, --- F.3d ---, No. 16-50227 (9th Cir. 2018), the Court vacated the district court’s order denying a defendant’s motion to suppress, and remanded for further proceedings.
The issue was whether the sham marriage exception -- which has been applied to the spousal testimonial privilege -- should also apply to the marital communications privilege.
The sham marriage exception is a narrow exception that arises when there is a close temporal proximity between the date of a marriage and the date when a witness-spouse has been expected to testify. The Ninth Circuit has affirmed a district court’s ruling that the spousal testimonial privilege was not available to a witness-spouse because “the purpose of the marriage was for . . . invoking the [spousal testimonial] privilege.”
In this case, the Court held the sham marriage exception should not extend to the marital communications privilege. "We have never applied the sham marriage exception to the marital communications privilege, and doing so would expand the limited application the exception receives in the context of the spousal testimonial privilege. The government bears the burden to persuade us that the sham marriage exception should be extended, and it has offered no convincing reason to modify this longstanding rule."
