Evidentiary Privilege: Privilege of Defendant to Prevent Adverse Spousal Testimony Abolished
Trammel v. United States, 100 S. Ct. 906 (1980).
The privilege of the defendant in a criminal trial to prevent adverse spousal testimony, often called the anti-marital facts privilege,' has been recognized since at least 1580. Although it had undergone some changes, it virtually remained intact, especially in the federal courts, until the recent decision of Trammel v. United States. In its early stages of development, what is today labeled a privilege was not actually a privilege, but instead a disqualification: husband and wife were deemed incompetent to testify for or against each other. This disqualification was believed necessary for two reasons: 1) the existence of the privilege against self-incrimination, and 2) the evidentiary rule which was thought to avoid the risk of perjury by preventing the defendant from taking the stand in his own behalf. These rules, combined with the attitude that husband and wife were one unit, resulted in the disqualification. The defendant could not take the stand in his own behalf because of the risk of self-serving falsehoods, and could not testify adversely because of the privilege against self-incrimination. It followed that the defendant's spouse should also be disqualified, because they were considered to be a single unit. The spouse, therefore, was deemed incompetent to give reliable testimony. In the federal courts this incompetency was eroded gradually, until in Funk v. United States, the Supreme Court ruled that a spouse may testify favorably for a defendant. Procedure had changed to allow defendants to testify in their own behalf, and the Court reasoned that there was no longer any justification for disqualification of spouses. It was apparent to the Court that if the risk of the jury being misled by perjured testimony is not too great to prevent the defendant from taking the stand, then there should be no basis for disqualification of the defendant's spouse to avoid false testimony. The Court in Funk noted further that the domain of competency was being expanded, and that this general trend also required a ruling that favorable testimony by the witness spouse be allowed. Funk changed what had been disqualification into a privilege that allowed the defendant to prevent adverse spousal testimony." The privilege in its post-Funk state persisted, despite a great deal of Criticism, and was soundly reaffirmed by the Supreme Court in Hawkins v. United States. The most frequently expounded modern justification for preserving the privilege is the need to avoid the marital disharmony which would be created if one spouse were to give testimony adverse to the other. The oft-repeated criticism of this rationale is that if one spouse is willing to testify against the other there must be little harmony left to preserve.
Kloos, Brenda M.
"Evidentiary Privilege: Privilege of Defendant to Prevent Adverse Spousal Testimony Abolished,"
University of Dayton Law Review: Vol. 6:
1, Article 10.
Available at: https://ecommons.udayton.edu/udlr/vol6/iss1/10