United States v. Allery, 526 F.2d 1362 (8th Cir. 1975).
The United States Court of Appeals for the Eighth Circuit in a case of first impression among the federal courts, considered whether the federally recognized anti-marital facts privilege which bars the adverse testimony of one spouse against the other should be applied where the defendant is charged with a crime against the child of either spouse. By its holding in United States v. Allery, the court broadened the established exception to the anti-marital facts privilege, which federal courts had previously limited to offenses committed against the person or property of the testifying spouse.
The appellant had been charged with the rape and incest of his twelve-year-old daughter and was convicted of the lesser charge of attempted rape in violation of 18 U.S.C. § 11531 and § 12-30-01 of the North Dakota Century Code. He appealed his conviction on two grounds, his major contention being that by permitting his wife to testify against him the trial court had violated the common law anti-marital facts privilege, which one spouse could invoke to bar the other spouse’s adverse testimony. The latter was one of three types of rules which the common law applied to the testimony of husband and wife.
Grandjean, Dalma C.
"Child Abuse: Exception to the Anti-Marital Facts Privilege,"
University of Dayton Law Review: Vol. 1:
2, Article 6.
Available at: https://ecommons.udayton.edu/udlr/vol1/iss2/6