United States v. Allery

United States Court of Appeals for the Eighth Circuit · 1975 · Evidence

526 F.2d 1362 (8th Cir. 1975)

Updated August 22, 2026

EvidenceMarital privilegeWitness competency and privilegesRule 26Federal Rule of Evidence 501anti-marital factsspousal testimonychild abuse

Facts

Allery was prosecuted in federal court for rape and incest involving his twelve-year-old daughter and was convicted by a jury of the lesser included offense of attempted rape. At trial, his wife testified about his actions on the evening of the charged offense and about prior alleged sexual misconduct involving the prosecutrix and other minor female children in the family. Allery argued that this testimony was barred by the common law marital privilege and by a North Dakota statute. The opinion states that no claim was made that the testimony involved confidential marital communications.

Issue

In a federal criminal prosecution, is a wife barred by the marital privilege from testifying against her husband about his conduct and prior alleged sexual misconduct toward their children, or does the exception for offenses against the other spouse extend to crimes against a child of either spouse?

Rule

In federal criminal cases, witness privileges are governed by federal common law as interpreted by the federal courts in the light of reason and experience, rather than by state evidentiary privilege rules. Under that federal common law, the anti-marital facts privilege's exception for offenses against a spouse extends to crimes committed against a child of either spouse, though the separate privilege for confidential marital communications remains distinct.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a federal prosecution in Montana for assault within Indian country, Owen Mercer is charged with abusing his wife’s 10-year-old son. Montana has a statute that would bar one spouse from testifying against the other except in narrow circumstances, and Lena Mercer is called to testify about what she personally saw during the incident.

Which is the strongest argument for admitting Lena’s testimony over Owen’s privilege objection?

Explanation. In a federal criminal case, privileges are governed by federal common law under the principles reflected in Rule 26 and Rule 501, not by state privilege rules. The majority held that a federal court may consult state approaches if appropriate, but state law does not control. The other choices overstate the rule: family-home location is irrelevant, marital privileges were not entirely abolished, and the case did not eliminate all privileges.