Spousal privileges in the federal law - Legal Digest

FBI Law Enforcement Bulletin,The, August, 2003 by Robert Kardell

Adverse Spousal Testimony

Until Funk, the rules regarding spousal privileges had remained unchanged for hundreds of years. After the Court in Funk abolished incompetency as a spousal privilege, scholars and other legal institutions began to question the necessity of the adverse spousal testimony privilege. In Hawkins v. United States, (31) the Supreme Court was asked to reconsider the adverse spousal testimony privilege. After much debate, the Court held that one spouse couldn't be compelled to testify against the other. The Court ruled that both the defendant and the witness spouse held the privilege, thereby requiring the consent of both parties before one spouse could testify against the other. The Court, in Hawkins, left the privilege unchanged and reiterated the foundation and reasoning that had justified the privilege for so many years.

The ruling by the Court in Hawkins endured until the Court in Trammel revisited the adverse spousal testimony privilege issue. In Trammel, the Supreme Court was asked to reconsider whether a defendant can invoke the privilege to exclude voluntary testimony of a spouse. (32) The Court again reviewed the history of the privilege and the changes that it had undergone throughout the years. The Court noted that a number of states had changed their rules or laws regarding adverse spousal testimony since Funk. At the time of the decision in Trammel, 26 states either had abolished the privilege in criminal cases or vested the privilege in the witness spouse. (33)

The decision in Hawkins also had received substantial criticism from various legal institutions. In Trammel, the Court took notice of an expanding list of exceptions to the adverse spousal testimony privilege. Over the years, the courts had recognized exceptions for crimes committed by one spouse against another, (34) crimes against spouse's property, (35) and crimes against children. (36) The exceptions to the privilege had expanded as the criticism of the rule increased.

The Court also took notice that no other privilege, attorney-client, priest-penitent, or doctor-patient, goes so far as to exclude all adverse testimony of potential witnesses. The Court opined that this difference was based on anachronistic notions of women not being considered as separate legal entities. (37)

The Court also considered the argument that a change in the rules would force government between a husband and a wife. The Court discussed that one of the original arguments for the privilege is the idea that forcing one spouse to testify against the other would disrupt the marital harmony. In Trammel, the Court reasoned, however, that if one spouse is willing to testify against the other, "there is probably little in the way of marital harmony for the privilege to preserve." (38)

The Court in Trammel concluded that "the existing rule should be modified so that the witnesss-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying. This modification--vesting the privilege in the witness-spouse-furthers the important public interest in marital harmony without unduly burdening legitimate law enforcement needs." (39)