01-3468 Umhoefer v. Police and Fire Commission of the City of Mequon

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“During both direct and cross-examination, Brennan invoked the marital privilege on her own behalf to avoid testifying about events and communications that occurred during the marriage. However, because the proceeding was one against her husband, the privilege was not hers to invoke…. Because Brennan, the main witness against Umhoefer, erroneously refused to answer his questions on cross-examination, Umhoefer was denied the opportunity to confront and cross-examine her.

“Furthermore, even if we were to assume that Brennan could be the holder of the privilege, Brennan would have waived any privilege she might have had by giving statements to the police. Wisconsin Stat. sec. 905.05 protects communications between spouses that are private, but a communication between spouses is not private where a third party has access to the same information.”

Reversed and remanded for a full rehearing where Brennan testifies without invoking the marital privilege.

Recommended for publication in the official reports.

Dist II, Ozaukee County, McCormack, J., Snyder, J.

Attorneys:

For Appellant: Andrew J. Phillips, Oshkosh

For Respondent: James R. Koron, Milwaukee; Matthew Allan Koch, Milwaukee