Family Law Keyed to Weisberg

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Trammel v. United States

Citation. Trammel v. United States, 445 U.S. 40, 100 S. Ct. 906, 63 L. Ed. 2d 186, 1980 U.S. LEXIS 84, 5 Fed. R. Evid. Serv. (Callaghan) 737 (U.S. Feb. 27, 1980)

Brief Fact Summary. Petitioner was convicted of importing heroin into the United States and conspiracy to import, based upon the testimony of his wife. Petitioner appealed, claiming that the admission of the adverse testimony of his wife, over his objection, contravened prior precedent and therefore constituted reversible error.

Synopsis of Rule of Law. The witness-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying to evidence that does not consist of confidential marital communications.

Facts. Petitioner Otis Trammel was indicted for importing heroin into the United States from Thailand and the Philippine Islands and for conspiracy to import heroin. The indictment also named six unindicted co-conspirators, including petitioner’s wife. Petitioner’s wife agreed to cooperate with the Government, and prior to trial the petitioner advised the court that the Government intended to call his wife as an adverse witness and he asserted his claim to privilege to prevent her from testifying against him. At hearing on this motion, the Government called Mrs. Trammel and granted her use immunity. She testified that she was married to Trammel and that her cooperation was based on assurances that she would be given lenient treatment. The District Court ruled that Mrs. Trammel could testify to any act she observed during the marriage and to any communication made in the presence of a third person. Confidential communications between petitioner and his wife were held privileged
and inadmissible. At trial, Mrs. Trammel’s testimony constituted virtually its entire case against petitioner. He was found guilty, and on appeal petitioner’s only claim of error was that the admission of the adverse testimony of his wife, over his objection, contravened prior precedent and therefore constituted reversible error. The Court of Appeals rejected this contention.

Issue. May an accused invoke the privilege against adverse spousal testimony so as to exclude the voluntary testimony of his wife?

Held. The existing rule should be modified so that the witness-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying.
The privilege claimed by petitioner has ancient roots. It sprang from two canons of medieval jurisprudence: the rule that an accused was not permitted to testify in his own behalf because of his interest in the proceeding; second, the concept that husband wife were one, and that since the woman had no recognized separate legal existence, the husband was that one. The rule evolved into one of privilege, rather than one of absolute disqualification.

The modern justification for the privilege is its perceived role in fostering the harmony and sanctity of the marriage relationship. The rule has been criticized, and it has been suggested that it should be modified to protect only private marital communications, modeled on the privilege between priest and penitent, attorney and client, and physician and patient. The American Law Institute in response advocated a privilege for marital confidences, but rejected a rule vesting in the defendant the right to exclude all adverse testimony of his spouse. Several state court enacted similar provisions.

The long history of the rule suggests it should not be casually cast aside. This Court must decide whether the privilege against adverse spousal testimony promotes sufficiently important interests to outweigh the need for probative evidence in the administration of criminal justice. The complete privilege provided by prior precedent is unnecessary to protect information privately disclosed between husband and wife in the confidence of the marital relationship. Those are privileged under the independent rule protecting confidential marital communications. The privilege addressed is intended to exclude evidence of criminal acts and of communications made in the presence of third persons.

The privileges between priest and penitent, attorney and client, and physician and patient limit protection to private communications. The ancient foundations for so sweeping a privilege have long since disappeared. The contemporary justification for allowing such a privilege is also unpersuasive. If one spouse is willing to testify, their relationship is almost certainly in disrepair, with little in the way of marital harmony to preserve. It seems far more likely to frustrate justice than to foster family peace.

Discussion. This case presents an overview of the historical privilege against spousal immunity, with the Court altering the rule to permit non-confidential marital communications to be testified to when the witness chooses to testify.