Do two people need to be divorced in order for a wife to no longer be able to invoke the spousal privilege to avoid testifying against her spouse?  The purpose behind this Evidence Code Section is to prevent one spouse from having to testify against the other except for cases in which one spouse is the victim of violence at the hand of the other.  A judge in Lancaster has potentially created a dangerous new exception with regard to this privilege. 


In July of 1984, Josif Jurcoane ran into his home and told his wife, ”Susan, I shot them both.”  He was referring to two people he allegedly murdered at a ranch near Palmdale.  Mr. Jurcoane then packed a small suitcase, drove away, and for the next seventeen years, had intermittent, telephonic contact with his wife and three children. 


In April of this year, Mr. Jurcoane was arrested for murder, and at the felony preliminary hearing, his wife Susan invoked the spousal privilege.  The judge claimed that, due to the lack of contact between Susan and Josif over the last seventeen years, this was a “moribund” or dead marriage, and therefore, Susan could not invoke the privilege.  This matter is presently under appeal, and the preliminary hearing has been delayed. 


Back in 1984, after the events in question, Josif Jurcoane, headed to Mexico.  He crossed the border the day after the shootings and created a new life for himself as a truck driver.  Josif lived under aliases for the past seventeen years, and lived with another woman.  He made an occasional phone call to his California family, but that was the extent of the contact.  In April of this year, Mexican police got a tip and arrested Mr. Jurcoane, who was then extradited to California.


The district attorney’s office is arguing that, while the statute pertains to married people, the Court should independently determine the viability of the marriage in this case.  He has argued that if there is not “viable marriage,” then it therefore cannot be disturbed or disrupted by Mrs. Jurcoane’s testimony, and that the perceived disruption to a marriage is what led to this marital testimony exception.  The judge agreed with the district attorney’s office, indicating that this was a marriage “in name only.”


This is absolutely ridiculous.  Are we now going to have courts determine the quality of a marriage when deciding whether or not the marital privilege can be claimed?  Are marriages now going to be examined as to whether or not they are viable at a certain period of time?  What about couples who are in the middle of divorce proceedings;  some of them get back together.  Would their marriage be deemed a viable marriage if they are separated but in therapy attempting to work things out?  Talk about a can of worms or a Pandora’s box; this type of ruling would lead to all of the above. 


A marriage is a marriage.  Certainly some are better than others.  I think it would be extremely dangerous to have courts make a qualitative decision as to the viability or quality of a marriage when determining whether or not the spousal privilege applies.


I understand the strong societal interest in putting a murderer away; however, both sides have to play by the rules, and that, of course, includes the district attorney’s office. 


If it is decided by the powers that be that this is an antiquated law, or that there should be a “moribund marriage” exception, then the remedy should be for the DA’s office to have their lobbyist contact the State Legislature and propose that they pass an amended law.  Or, hey, it’s not like we don’t have enough propositions on our ballots anyway, how about one more, and let the voters decide.  (That was sarcasm.  Those of you who read this column regularly know that I do not favor the proposition system.)  One way or the other, you can’t, or at least you shouldn’t change the rules in the middle of the game.  Perhaps this case will lead to a change in the law if our legislature deems it appropriate; however, the quality of the marriage should not be the determining factor in this case.  The fact that the Jurcoane’s are married is enough.