Court: Court of Appeals of Washington; January 9, 1978; Washington; State Appellate Court
Barbara Ann Ekren Fortun sought discretionary review of an order requiring her testimony before a special inquiry judge regarding marijuana found near her husband’s residence. Review was granted, and the previous decision was reversed. The case involved undisputed facts: on September 14, 1976, deputies discovered 5 to 10 acres of marijuana, and Ekren was subpoenaed to testify on October 21, 1976. On the day of her scheduled appearance, she married Tryg Fortun and subsequently invoked marital privilege to refuse answering questions. A court order on November 18, 1976, mandated her testimony for December 2, 1976, asserting that CrR 6.12 superseded the marital incompetency statute, RCW 5.60.060. The primary issue was whether the trial court erred by concluding that CrR 6.12 eliminated marital privilege in criminal cases. RCW 5.60.060(1) protects spouses from being compelled to testify against each other without consent, except in specific situations. The Supreme Court's adoption of CrR 6.12 aimed to clarify witness qualifications but did not intend to abolish marital privilege. The court found that CrR 6.12 does not supersede RCW 5.60.060, and the trial court's ruling was erroneous.
The State argues that marital privilege does not apply in proceedings before a special inquiry judge, referencing State v. Osborne. In Osborne, the court ruled that RCW 5.60.060(1), which protects a spouse from testifying against the other without consent, is relevant only to trial or hearing testimonies, not to the issuance of search warrants. The court clarified that evidence inadmissible at trial could still establish probable cause for a search warrant. Distinguishing the current case, where Barbara Ann Ekren Fortun was compelled to testify before the special inquiry judge about her husband’s investigation, the court found this examination violated the intent of RCW 5.60.060(1). The decision was reversed, with Justices James and Williams concurring, and reconsideration denied on April 12, 1978, while review was denied by the Supreme Court on October 20, 1978.
