Indiana Law Review


The Joint Participation Exception to the Marital
Testimonial Privilege: Balancing the Interests ^'In Light of

Reason and Experience"

I. Introduction

Since the adoption of the Federal Rules of Evidence in 1975, the

Supreme Court of the United States has twice had the opportunity to

recognize a joint participation exception to the marital testimonial privilege'

in federal criminal cases. The Court declined both times^ and thereby

allowed a split of authority to develop in the circuit courts with respect

to the recognition of such an exception. This split is evidenced by the

recent decision in In re Grand Jury Subpoena United States.^ In that

case, the United States Court of Appeals for the Second Circuit vacated

a district court order which found the defendant's wife in contempt for

refusing to answer grand jury questions concerning her husband's alleged

conspiracy to communicate national defense information to a foreign

government. The wife was alleged to have participated with her husband

in the illegal activities.'* Her attempt to invoke the marital testimonial

privilege was rejected by the federal district court based on the view

that the privilege was subject to an exception for joint participation in

criminal activity.' On appeal, the Second Circuit Court of Appeals held
that the privilege against adverse spousal testimony is not subject to

such an exception.^ In so holding, the court aligned itself with decisions

from the Third Circuit.^ The Second Circuit's holding, however, was in
direct conflict with decisions from the Seventh and Tenth Circuit Courts

of Appeals that held that joint participation in criminal activity rendered

the privilege inoperative.* The conflict in these decisions is rooted in

'The marital testimonial privilege is sometimes referred to by courts and commentators

as the privilege against adverse spousal testimony or the anti-marital facts privilege.

^In re Grand Jury Matter, 673 F.2d 688 (3d Cir.), cert, denied sub nom. United

States V. Doe, 459 U.S. 1015 (1982); United States v. Trammel, 583 F.2d 1166 (l(Hh Cir.

1978), aff'd on other grounds, 445 U.S. 40 (1980).
'755 F.2d 1022 (2d Cir. 1985), vacated as moot sub nom. United States v. Koecher,

106 S. Ct. 1253 (1986).

'Id. at 1022-23.

7/7 re Grand Jury Subpoena Koecher, 601 F. Supp. 385 (S.D.N.Y. 1984), vacated sub

nom. In re Grand Jury Subpoena United States, 755 F.2d 1022 (2d Cir. 1985), vacated

as moot sub nom. United States v. Koecher, 106 S. Ct. 1253 (1986).
7/1 re Grand Jury Subpoena United States, 755 F.2d at 1025.

'In re Grand Jury Matter, 673 F.2d 688; Appeal of Malfitano, 633 F.2d 276 (3d

Cir. 1980).

'United States v. Clark, 712 F.2d 299 (7th Cir. 1983); United States v. Trammel,

583 F.2d 1166 (10th Cir. 1978); United States v. Van Drunen, 501 F.2d 1393 (7th Cir.

1974).

645



646 INDIANA LA W REVIEW [Vol. 19:645

the courts' contrasting views of the public policy underlying the privilege

and the varied means of dealing with the countervailing interests.

This Note will analyze the development of the joint participation

exception to the marital testimonial privilege and examine the reasoning

behind the conflicting decisions in light of the recognized justifications

for the privilege. The Note will propose that the joint participation
exception to the marital testimonial privilege be abrogated. In place of

the exception, the federal courts should adopt a systematic procedure

to weigh conflicting interests in order to circumvent the privilege in cases

where the public interest mandates the admission of compelled spousal

testimony.

II. Historical Development of the Marital Testimonial Privilege
Through 1975

An analysis of the joint participation exception to the marital testi-
monial privilege requires a recognition that there are two distinct ev-

identiary privileges based on the marital relationship. The two privileges
evolved from different policy considerations and are subject to different

exceptions.^ The confidential marital communications privilege prohibits

the testimony of a spouse or an ex-spouse regarding confidential com-

munications which arise out of the marital relationship. '° Because the

privilege is intended to promote communication between spouses without

fear of disclosure in court, the privilege is possessed by the communicating

spouse." The marital testimonial privilege, to which this Note is ad-
dressed, is more sweeping than the communications privilege. It bars
the prosecution from compelling a defendant's spouse to testify as to

any facts contrary to the defendant's interest.'^ The predominant jus-

tification for the marital testimonial privilege is that it preserves

marital harmony." The privilege is currently held by the witness spouse

»8 J. WiGMORE, Evidence §§ 2227, 2332 (McNaughton rev. 1961).

'"See Blau v. United States, 340 U.S. 332 (1951) (confidential communications between

husband and wife are privileged). This confidential marital communications privilege does

not prevent testimony about communications which were not intended to be confidential.

See Pereira v. United States, 347 U.S. 1 (1954) (communications made in presence of

third party and communications intended to be conveyed to third party are not confidential);

Tabbah v. United States, 217 F.2d 528 (5th Cir. 1954) (statements not intended to be

confidential). See generally 8 J. Wigmore, supra note 9, §§ I'i'il-liAX.
"8 J. Wigmore, supra note 9, § 2340.

'^See generally id. §§ 2227-45.

'V^. § 2228 at 216. Professor Wigmore noted a second justification for the privilege:

There exists a ^^natural repugnance in every fair-minded person to compelling a wife or

husband to be the means of the other's condemnation, and to compelling the culprit to

the humiliation of being condemned by the words of his intimate life partner." Id. at

217 (emphasis in original). Although Wigmore characterized this argument as "the real
and sole strength of the opposition to abolishing the privilege," he rejected it as "not



1986] PRIVILEGE (Al

only.'^ Thus, a defendant spouse is unable to prevent voluntary testimony

against him. The privilege ceases to exist when circumstances lead the court to
recognize an exception to the privilege,'^ and under such circumstances

the witness spouse may be compelled to testify to facts adverse to the
defendant spouse.'^

The marital testimonial privilege is linked historically to the rule of

spousal incompetency.'^ The privilege emerged late in the sixteenth century'*

and thus antedated the rule of spousal incompetency by at least half a

century.'^ Both evolved, at least in part, from the common law fiction
that ''husband and wife were not distinct individuals but a unified

whole. "^° Parties were considered incompetent as witnesses at common
law because of their strong motive for misstatement.^' Thus, it was but

a short step to declare spouses of parties incompetent under the anciently

settled concept of "oneness in law.^^z

Because the common law rule that interested persons were incom-
petent was gradually abrogated,^^ it might well be thought the incom-

petency of one spouse to testify for or against the other would likewise

more than a sentiment," and "not posit[ing] any direct and practical consequence of

evil." Id.

"•Trammel v. United States, 445 U.S. 40 (1980). See also infra text accompanying

notes 74-81.

"8 J. WiGMORE, supra note 9, § 2239.

'"See Shores v. United States, 174 F.2d 838, 841 (8th Cir. 1949) ("the wife, not

being within the privilege . . . stood in the same position as any other victim of another's

criminal act, in the matter of the state's right to compel her to testify").

'^See generally 8 J. Wigmore, supra note 9, § 2227 at 211.

'"See Bent v. Allot, 21 Eng. Rep. 50 (Ch. 1580). Privileges have been traced to the

Roman law where the basis for excluding testimony was twofold. First, there existed a
general moral duty not to violate the underlying fldelity upon which protected relationships

were built. Second, a member of a family, as an interested party, could not be believed

because he had a strong motive for misstatement. It is unknown whether the Roman
concept of privilege influenced the recognition of the privilege in England. The policies

underlying the privileges, however, are remarkably similar. See Radin, The Privilege of

Confidential Communications Between Lawyer and Client, 16 Calif. L. Rev. 487 (1928).
''Reutlinger, Policy, Privacy, and Prerogatives: A Critical Examination of the Proposed

Federal Rules of Evidence as They Affect Marital Privilege, 61 Calif. L. Rev. 1353, 1363

(1973). "Although the two concepts are often combined or confused, they are, in fact,

different in both policy and effect. Under the . . . rule of incompetency, testimony was

not a matter of choice by either witness or party spouse; it was simply forbidden, as

would be that of a person incapable of expressing himself or of understanding the duty

to tell the truth. The testimonial privilege, on the other hand, . . . could be waived by

the party spouse and was subject to certain exceptions ....*' Id.

^'^In re Grand Jury Matter, 673 F.2d at 696 (Adams, J., dissenting).

^'C. McCoRMiCK, Evidence § 66 at 144 (Cleary 2d ed. 1972).
""If they were admitted to be witnesses for each other they would contradict one

maxim of law, nemo in propria causa testie esse debit . . . ." ("No one ought to be a
witness in his own case."). 1 E. Coke, A Commentarie upon Littleton 66 (1628).

"C. McCormick, supra note 21, at 144.



648 INDIANA LA W REVIEW [Vol. 19:645

be discarded. Nevertheless, it lingered because of a second reason adduced

in its support — it fosters domestic harmony and prevents discord in
a relationship fundamental to society. ^"^ Thus, it was, and to an extent

still is, considered to be based on sound public policy.^^

The much anticipated demise of the spousal incompetency disqual-
ification came in the United States Supreme Court's 1933 decision in
Funk V. United States.^^ In Funky the petitioner was convicted in federal
district court for conspiracy to violate the prohibition law. At his trial,

the petitioner called his wife to testify on his behalf, but she was not

allowed to do so pursuant to her disqualification as an incompetent

witness. ^^ The Fourth Circuit affirmed the conviction.^^ The Supreme
Court granted certiorari to decide **whether in a federal court, the wife

of the defendant on trial for a criminal offense is a competent witness

in his behalf. "^^ The Court noted that **a rule of evidence at one time

thought necessary to the ascertainment of truth should yield to the

experience of a succeeding generation whenever that experience has clearly

demonstrated the fallacy or unwisdom of the old rule.'*^° After observing
the **manifest incongruity** of preventing a wife from testifying on behalf

of her husband while permitting the husband to testify for himself,^'

the Court held that spouses are competent to testify in favor of one

another. ^2

The question of whether a wife is a competent witness against her

husband in the trial in which he is charged with a criminal offense was

left open until 1958, when the Court, in Hawkins v. United Statesj^^

clearly set forth the rule that controlled the marital testimonial privilege

for the following twenty-two years. ^"^ In Hawkins, the petitioner was
arrested for violating the Mann Act after transporting a girl from
Arkansas to Oklahoma to have her engage in prostitution. Despite the

^"5 B. Jones, Commentaries on the Law of Evidence § 2128 at 4000-01 (2d ed.
1926).

^"290 U.S. 371 (1933).

"/</. at 373.

"Funk V. United States, 66 F.2d 70 (4th Cir. 1933).
^'290 U.S. at 373.

'"'Id. at 381.

''Id.

'^Id. at 387. The United States Court of Appeals for the Tenth Circuit addressed

the question whether a wife is a competent witness against her husband in a federal

criminal case in Yoder v. United States, 80 F.2d 665 (10th Cir. 1935). After recognizing

that the question had not been authoritatively decided in Funk, the court observed trends

challenging the denial of access to facts and committed itself to the view that a wife is

a competent witness against her husband. Id. at 668. The Supreme Court expressly overruled

Yoder twenty-two years later in Hawkins v. United States, 358 U.S. 74 (1958).
"358 U.S. 74 (1958).

'"See infra text accompanying notes 74-81.



1986] PRIVILEGE 649

petitioner's objection, the district court allowed the girl, who had since
become the petitioner's wife, to testify against him." The petitioner was

convicted and sentenced to five years imprisonment.^^ After the Tenth

Circuit affirmed the decision,^^ the Supreme Court granted certiorari to

decide whether to reject the longstanding rule prohibiting one spouse

from testifying against the other without mutual consent. Justice Black

observed:

While the rule forbidding testimony of one spouse for the

other was supported by reasons which time and changing legal

practices had undermined, we are not prepared to say the same
about the rule barring testimony of one spouse against the other.

The basic reason the law has refused to pit wife against husband

or husband against wife in a trial where life or liberty is at

stake was a belief that such a policy was necessary to foster

family peace, not only for the benefit of husband, wife and

children, but for the benefit of the public as well. Such a belief

has never been unreasonable and is not now.^*

Thus, the Court held that one spouse is barred from testifying

against the other unless both consent. ^^ The Hawkins rule, however, was
tempered by the Court's recognition that the privilege remained open

to further modification. Justice Black noted that **this decision does not

foreclose whatever changes in the rule may eventually be dictated by
*reason and experience.' '"^ This concept was manifested by Congress'

enactment in 1975 of Federal Rules of Evidence, Rule 501,^' which

provides:

Except as otherwise required by the Constitution of the

United States or provided by Act of Congress or in rules pre-

scribed by the Supreme Court pursuant to statutory authority,

the privilege of a witness, person, government. State, or political

subdivision thereof shall be governed by the principles of the
common law as they may be interpreted by the courts of the
United States in the light of reason and experience. . . ^^

"358 U.S. at 74-75.

'"/£/. at 74.

"Hawkins v. United States, 249 F.2d 735 (10th Cir. 1957).

"358 U.S. at 77.

'"Id. at 79.

*^See generally 1 Bailey and Trelles, The Federal Rules of Evidence: Legislative
Histories and Related Documents (1980).

"^Fed. R. Evid. 501. Congress substituted this single rule in place of thirteen proposed

rules dealing with speciHc privileges drafted by the Judicial Conference Advisory Committee

and prescribed by the Supreme Court. See Fed. R. Evid., Appendix of Deleted and



650 INDIANA LAW REVIEW [Vol. 19:645

In enacting rule 501, Congress intended to leave the law of privilege in

its present state and to "provide the courts with the flexibility to develop

rules of privilege on a case-by-case basis. "'^^

III. The Joint Participation Exception

The common law recognized that the marital testimonial privilege
was subject to an exception based on the "necessity to avoid that extreme
injustice to the excluded spouse which would ensue upon an undeviating
enforcement of the rule.*"*^ Most commonly, the exception emerged in
those situations involving a crime against the spouse."*^

In federal criminal cases, courts have continued to recognize that

the privilege ceases to exist when one spouse commits a crime against
the other.** The courts have also created exceptions when a spouse
commits a crime against the other's children or property,'*^ when two
persons enter into a sham marriage for the exclusive purpose of obtaining
the benefits of the privilege,'** and when the marriage relationship is
recognized to be beyond preservation and without hope of reconciliation.*^

Superseded Materials, Rules 501-13. The language of rule 501 is taken from former rule

26, Federal Rules of Criminal Procedure, which previously governed the admissibility of

evidence in federal courts. The language of Federal Rule of Criminal Procedure 26 was
taken from the decision in Wolfle v. United States, 291 U.S. 7, 12 (1934), in which the

Supreme Court stated:

[T]he rules governing the competence of witnesses in criminal trials in the federal
courts are not necessarily restricted to those local rules in force at the time of

the admission into the Union of the particular state where the trial takes place,

but are governed by common law principles as interpreted and applied by the
federal courts in the light of reason and experience.

*M20 Cong. Rec. H12253 (daily ed. Dec. 18, 1974) (statement of Rep. Hungate),

reprinted in 1974 U.S. Code Cong. & Ad. News 7108. From the outset, it was clear
that the content of the proposed privilege provision was extremely controversial. The
Chairman of the House Judiciary Subcommittee on Criminal Justice, upon presenting the

Conference Report to the House, stated:

Without doubt, the privilege section of the rules of evidence generated more

comment or controversy than any other section. I would say that 50 percent
of the complaints received by the Criminal Justice Subcommittee related to the

privilege section. The House rule on privilege is intended to leave the Federal
law of privilege where we found it. The Federal courts are to develop the law
of privilege on a case-by-case basis.

Id.

^% J. WiGMORE, supra note 9, § 2239 at 242.

''Id.

*^E.g., Wyatt V. United States, 362 U.S. 525 (1960) (wife-victim compelled to testify

in husband's trial).

*'E.g., United States v. Allery, 526 F.2d 1362 (8th Cir. 1975) (wife compelled to

testify against husband for his attempted rape of daughter); Herman v. United States,
220 F.2d 219 (4th Cir. 1955) (wife's testimony to grand jury for husband's fraud).

*^See, e.g.. United States v. Apodaca, 522 F.2d 568 (10th Cir. 1975).

'"See United States v. Cameron, 556 F.2d 752 (5th Cir. 1977) (marriage beyond

hope of reconcihation). But cf. United States v. Lilley, 581 F.2d 182, 189 (8th Cir.



1986] PRIVILEGE . 651

A. Development of the Joint Participation Exception Under Hawkins

/. United States v. Van Drunen. — In 1974, the Seventh Circuit
Court of Appeals became the first federal court of appeals to recognize

an exception to the marital testimonial privilege when both spouses
participate in criminal activity. In United States v. Van Drunen,^^ the

defendant was convicted of illegal transportation of aliens, one of whom
became his wife. On appeal, the defendant, relying on Hawkins, claimed
that the trial court erred in refusing to exclude his wife's testimony.^'

Although the case was one of first impression, the court observed that

an exception to the somewhat related privilege of confidential com-

munications was recognized when the communications involved unlawful
activities in which both spouses participated." Persuaded that preservation

of the family was the underlying reason for both privileges, the court

seized the opportunity to create a joint participation exception to the

marital testimonial privilege."

The primary rationale for the decision in Van Drunen was that the
purpose of the privilege was outweighed by the unjust protection which
**assur[es] a criminal that he can enlist the aid of his spouse in a criminal

enterprise without fear that by recruiting an accomplice or co-conspirator

he is creating another potential witness.'*^'* This reasoning had merit in

light of the Hawkins rule that the witness spouse was precluded from
testifying without the defendant's consent. Nevertheless, it had ques-

tionable applicability to the facts of the case. First, the witness was not

the defendant's spouse at the time that he "enlisted" her aid in the

crime." Second, it is unclear from the case whether the witness spouse's

testimony was even necessary for the defendant's conviction. If sufficient

witnesses were available to obtain a conviction, disallowing the privilege

appears to violate the spirit of the Hawkins rule by causing unnecessary
conflict in the marriage.

A second reason intimated by the court for recognizing the exception
was that preservation of the marriage was socially more desirable when
the marriage might assist the defendant in his or her rehabilitation efforts;

if the witness spouse is a participant in the crime, this partial function

of the privilege is defeated. ^^ This reasoning presupposes that a witness

1978) (court refused to condition the privilege "on a judicial determination that the mar-
riage is a happy or successful one").

*«501 F.2d 1393 (7th Cir.), cert, denied, 419 U.S. 1091 (1974).

''Id. at 1396.

"/£/. (citing United States v. Kahn, 471 F.2d 191 (7th Cir.), rev'd on other grounds,

415 U.S. 143 (1972)).

"/<i.; see also infra note 110 and accompanying text.
"501 F.2d at 1396.

"This fact provided an alternative ground for barring the privilege. The court held
that another exception to the privilege arises when the facts to which the witness spouse
testifies occured prior to the marriage. Id. at 1397.

"^Id.



652 INDIANA LAW REVIEW [Vol. 19:645

Spouse who has participated in the criminal activity is less likely to aid
in rehabilitative efforts than a spouse who is not a participant. The idea
leaves no room for considering a spouse's potential contribution to the
defendant's rehabilitation on a case-by-case basis. The court failed to

cite any authority for this proposition, and no subsequent decisions

indicate that other courts have found this reasoning persuasive."

The Van Drunen court did not view Hawkins as dispositive of the

issue. It noted that even if the Hawkins case were treated as one involving

joint criminal activity, the sub silentio holding that the marital testimonial

privilege remains in such a case is of diminished precedential value. ^^

Moreover, the court noted that the Supreme Court's post-Hawkins de-

cision in Wyatt v. United States^^ had announced an exception to the

privilege when one spouse commits a crime against the other.^ Thus,
the Seventh Circuit declined to read Hawkins as foreclosing the creation

of other exceptions.*'

The problems with the Van Drunen court's application of Hawkins

and Wyatt are two-fold. First, the exception in Wyatt was not a newly-

created exception to the marital testimonial privilege. Rather, it was

based on over three hundred years of common law precedent." Second,
the spousal-victim exception to the privilege is based on the view that

the purpose of the privilege, preserving domestic harmony, would not

be served in such a case. A crime against one's spouse is indicative of
a marriage which is beyond preservation.*^ In the Van Drunen case, the

court did not suggest that the marriage was unworthy of protection for

any reason. Rather, the court found only that the public interest dictated

that the privilege should be limited ''to those cases where it makes the

most sense, namely, where a spouse who is neither a victim nor a
participant observes evidence of the other spouse's crime."**

2. United States v. Trammel. — In 1978, the reasoning in the Van
Drunen opinion persuaded the Tenth Circuit Court of Appeals to rec-

ognize the joint participation exception to the marital testimonial privilege

in United States v. Trammel.^^ Trammel involved a husband and wife

who became extensively involved in criminal activity shortly following
their marriage. Otis Trammel, along with two others, was indicted for

"See In re Grand Jury Subpoena Koecher, 601 F. Supp. at 389 (**Van Drunen cited

[no] authority for the proposition . . . and this Court can find none.").

"501 F.2d at 1397.

"362 U.S. 525 (1960).

"501 F.2d at 1397.

"'Id.

"8 J. WiGMORE, supra note 9, § 2239.

"Id.

"501 F.2d at 1397.

"583 F.2d 1166 (10th Cir. 1978), aff'd on other grounds, 445 U.S. 40 (1980).



1986] PRIVILEGE 653

importation and conspiracy to import heroin.^ TrammeFs wife was
arrested while returning from Thailand when a customs search revealed
heroin in her possession. She agreed to testify as a government witness

against her husband and the other conspirators under a grant of im-

munity.^^

At a hearing on a motion to sever his case from the other defendants,

Otis Trammel asserted both the marital testimonial privilege and the
confidential marital communications privilege. The district court ordered

that all confidential communications were to be excluded, yet denied

Otis Trammel's assertion of the marital testimonial privilege. Accordingly,

the wife was permitted to give testimony which resulted in Otis Trammel's

conviction.^^ Except for the testimony of Trammel's wife, there was no

other evidence presented against Otis Trammel from which a jury could
have convicted him.^^

On appeal, the Tenth Circuit upheld the conviction and ruled that
the Hawkins rule did not apply to the testimony of a spouse who
appeared as an unindicted co-conspirator under a grant of immunity.^^

The court recognized, in keeping with the mandate of Federal Rule of

Evidence 501, that it had the right and responsibility to determine whether

**reason and experience" dictated alteration of the privilege in this case.

Persuaded that United States v. Van Drunen provided the applicable

rule and reason upon which to base its decision, the court concluded

that the privilege, based on the policy of preserving domestic harmony,
had to give way to the more compelling public need for the testimony

necessary to convict Otis Trammel.^' The court failed to articulate why
joint participation in criminal activity makes a marital relationship less

worthy of protection.

In a dissenting opinion, one judge was unconvinced that the record

supported the majority's finding that the Trammels had not established

a home with any of the usual attributes of a family life and that there
was no domestic harmony to be preserved.^^ He suggested that the
majority's findings reflected the view that "spouses who commit crimes
are incapable of achieving a harmonious marriage. "^^

3. Modification of the Hawkins Ruie. — In 1980, the Supreme
Court of the United States unanimously affirmed Otis Trammel's con-

viction, but on different grounds.^"* The Court ignored the joint partic-

«•/(/. at 1167.

''Id.

**Id.

"'445 U.S. at 43.

^"583 F.2d at 1169.

''Id. at 1169-70.

'^Id. at 1173 (McKay, J., dissenting).

''Id.

^4445 U.S. 40.



654 INDIANA LA W REVIEW [Vol. 19:645

ipation exception and seized the opportunity to alter the Hawkins rule
by allowing the witness spouse to give voluntary testimony against the

defendant spouse without the defendant's consent.^'

The Court recognized that the long history of the privilege and its

tendency to protect domestic harmony suggested that it should not be
casually set aside. ^^ Nevertheless, ' the Court echoed the sentiments ar-

ticulated in Funk v. United States^'' by noting that **the reality that the
law on occasion adheres to doctrinal concepts long after the reasons

which gave them birth have disappeared and after experience suggests

the need for change.
"^^

After reviewing the significant erosion and criticism of the marital

testimonial privilege in state jurisdictions, Chief Justice Burger noted

that the trend toward rejection of the privilege was based on the maxim
that ** *the public . . . has a right to every man's evidence.* "^^ Thus,

the Court stated that the appropriate analysis in this case was to "decide

whether the privilege against adverse spousal testimony promotes suf-

ficiently important interests to outweigh the need for probative evidence

in the administration of criminal justice. "*° After finding the ancient

foundation and contemporary justifications for the Hawkins rule un-

persuasive, the Court held:

*'[R]eason and experience*' no longer justify so sweeping a

rule. . . . Accordingly, we conclude that 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. This modification —
vesting the privilege in the witness-spouse — furthers the im-
portant public interest in marital harmony without unduly bur-
dening legitimate law enforcement needs.*'

In light of the Trammel holding that a **witness may be neither
compelled to testify nor foreclosed from testifying," it should be noted

that the Supreme Court did not preclude recognition or creation of

exceptions to the marital testimonial privilege. Thus, compelling a witness

spouse to testify does not violate the Trammel holding when circumstances
give rise to an exception.

"/d/. at 53. The Trammel decision did not affect the independent marital commu-

nications privilege. The Court expressly noted the need to protect confidential commu-

nications between husband and wife, priest and penitent, attorney and client, and physician

and patient. /</. at 51.

'"•Id. at 48.

"290 U.S. 371 (1933).
'«445 U.S. at 48.

'•"Id. at 50 (quoting United States v. Bryan, 339 U.S. 323, 331 (1950)).

"^Id. at 51.

"'A/, at 53.



1986] PRIVILEGE 655

B. The Joint Participation Exception Following Trammel

1. Appeal of Malfitano. — The Third Circuit Court of Appeals
unanimously rejected the recognition of the joint participation exception

in Appeal of Malfitanoj^^ a case in which the government claimed that

a wife and husband were co-offenders in a scheme to obtain illegal

loans from a union pension fund. The district court denied the wife's
attempt to assert the marital testimonial privilege based on her alleged

joint participation in the criminal activity.*^ Upon her refusal to testify,
the district court issued an order holding her in contempt.*"* On appeal,
the Third Circuit emphatically rejected a broad rule that marriages

involving partners in crime should not be protected.*' Instead, the court

sought to determine only whether the rationale of the marital testimonial

privilege would be served in that case.*^

The court's rejection of the joint participation exception was based

on four underlying observations. First, the court could find no public

policy supporting the proposition that a marriage should be dissolved

when the partners engage in crime. The court detected an impropriety
in using evidentiary rules to impose a penalty on a marital relationship

when neither state nor federal substantive law attaches such a penalty
to spouses engaged in a crime. *^

Second, the court observed that the marital relationship may deserve
protection because of its rehabilitative effect on the individuals and its

^^restraining influence on couples against future antisocial acts."** These

first two arguments assume that compelling a witness spouse to testify

will tend to trigger a marital dissolution. This hypothetical impact on

the marital relationship, however, has little or no evidentiary support

in behavioral science.*^

Third, the court conceded that the joint participation exception might

be justified in cases where a particular marriage has no social value.

The court was not confident, however, that judicial tribunals are capable

of assessing the social worthiness of particular marriages.^

Finally, the court indicated a concern that recognition of the joint

participation exception would open the door for prosecutorial abuse.

The court stated, **[T]he very nature of conspiracy cautions against this

exception. . . . Where the spouse does not want to testify, the only way

«^633 F.2d 276 (3d Cir. 1980).

"/</. at 277.

^Id. at 276.

'''Id. at 278.

"''See Rosenburg, The New Looks in Law, 52 Marq. L. Rev. 539, 541-42 (1969).
'«633 F.2d at 279.



656 INDIANA LAW REVIEW [Vol. 19:645

to get her testimony will be to accuse her."" This concern is persuasive

in light of the fact that conspiracy is such a flexible concept. A similar
problem already exists under the Trammel rule vesting the privilege in
the witness spouse. Under Trammel, the government may accuse a
defendant's spouse of conspiracy and then dismiss the charge in return

for "voluntary" testimony. The witness spouse could, however, refuse
to testify without fear of being held in contempt. Recognition of the

joint participation exception would carry the problem one step further.

If the government successfully charged the spouse as a co-conspirator,

the government could compel the witness spouse to testify without any

agreement to dismiss the charge. If the witness spouse refused, a contempt

order would issue.
Neither the Seventh nor the Tenth Circuit Courts of Appeals have

addressed this problem of potential prosecutorial abuse. Neither has

suggested, however, that a simple allegation of conspiracy would be an

adequate basis for recognizing the exception. Presumably, the government

would have to make an adequate offer of proof regarding the spouse's
participation in joint criminal activity.

The primary distinction between Malfitano and those cases recog-
nizing the joint participation exception is that the Malfitano court's

analysis focused on whether the policy underlying the privilege would

be served in that particular case. The Seventh and Tenth Circuits at-

tempted to balance the underlying policy against the unjust protection

of joint participants in criminal activity. Although the Malfitano court

recognized that **[ijn any case where a proposed exception to a privilege

is asserted there must be a balancing of the need for the evidence against
the validity of the privilege,"'^ the court failed to analyze what, if any,

specific countervailing considerations pertaining to the public's interest

in ascertaining the truth might justify a denial of the privilege.

2, United States v. Clark.—The Seventh Circuit Court of Appeals

followed its Van Drunen holding in United States v. Clark,^^ the only

post-Trammel decision to recognize the joint participation exception to

the marital testimonial privilege. Prior to their marriage, Richard Clark

and his wife, Christine, were involved in a scheme to steal money from
a bank where Christine worked. She set up an account in the name of
**Eric Westberg" and allegedly caused two cashier's checks to be drawn

"/t/. This observation echoes the concern articulated by Justice Stewart twenty-two

years earlier. When considering whether to vest the privilege solely in the witness spouse,
he noted:

[S]uch a rule would be difficult to administer and easy to abuse. Seldom would

it be a simple matter to determine whether the spouse's testimony were really

voluntary, since there would often be ways to compel such testimony more subtle

than the simple issuance of a subpoena, but just as cogent.

Hawkins v. United States, 358 U.S. at 83 (Stewart, J., concurring).
'^633 F.2d at 280.

"712 F.2d 299 (7th Cir. 1983).



1986] PRIVILEGE 657

on the account in the name of two of Clark's friends. The friends then
gave the money to Clark. Clark was convicted for his role in the scheme
and received a two-year sentence.'^ At Christine's trial, the government

subpoenaed Clark as a hostile witness. Clark asserted the marital tes-

timonial privilege. The district court found the privilege did not apply

because of Clark's joint participation in the criminal activity. After Clark

refused to testify, the court held him in contempt.^^

The Seventh Circuit Court of Appeals upheld the contempt conviction

because of Clark's joint participation in the crime.^ The court expressly

rejected the holding of the Third Circuit in Malfitano, complaining that

the Malfitano court had failed to consider the principal rationale in Van

Drunen.^^ The Clark court reaffirmed the Van Drunen position that the

public interest in discouraging a criminal from enlisting the aid of his

spouse as an accompHce outweighs the interest in protecting the mar-

riage.'® This rationale, however, retained only questionable vitality fol-

lowing the Supreme Court's holding in Trammel granting the privilege

to the witness spouse only. Because a defendant can no longer prevent

a spouse from testifying, a criminal can no longer be assured that he

can enlist the aid of his spouse without creating another potential witness.^

The creation of the joint participation exception in Van Drunen was

necessary to obtain voluntary testimony. The Clark court, however, failed

to reassess the rationale or articulate any additional justification for

using the exception to compel spousal testimony. The Clark court merely

deemed it consistent with the general policy of narrowly construing the

privilege.'^ Moreover, the court did not suggest that the marriage was

unworthy of protection. It spoke of balancing interests, yet it applied

the joint participation exception as a rigid evidentiary rule. In so doing,

the court pigeonholed the case and based its decision on established

precedent rather than subjecting the facts to careful scrutiny and balancing

the specific interests.
'°'

•^id. at 300.

"'Id.

^Id. at 300-02. The court also relied on the rationale that the acts about which

Clark would have testified occurred prior to marriage. Id. at 302. The Seventh Circuit

had previously created this "pre-marital facts" exception in United States v. Van Drunen

because of a concern that collusive marriages would interfere with the factfinding process.

Id. The Clark court found such a general rule desirable to avoid "mini-trials" on the

issue of sincerely of the parties' marriage. Id.

''712 F.2d at 301-02.

'^Id. at 302.

"See In re Grand Jury Subpoena Koecher, 601 F. Supp. 385, 389 (S.D.N.Y. 1984)

("[S]ince Trammel, a defendant can no longer prevent his spouse from voluntarily testifying

against him. The assurance the Van Drunen court spoke of is thus no longer absolute
— it accrues only to a criminal with a loyal spouse.").

'«712 F.2d at 302.

'"'As one commentator noted, "[T]he [Clark] opinion ... is unsound, and it strikes

in the most outrageous way at the very heart of the privilege. . . . [T]he only real question



658 INDIANA LAW REVIEW [Vol. 19:645

3. In re Grand Jury Subpoena United States. — In February, 1985,
the Second Circuit Court of Appeals held, in agreement with the Third

Circuit and in conflict with the Seventh and Tenth Circuits, that the

marital testimonial privilege is not subject to a joint participation ex-

ception. '°^ In vacating the district court's contempt order against the

defendant's wife, the court noted that if the Supreme Court had looked

upon the joint participation exception with favor, it was peculiar that

it affirmed the Trammel case on different grounds. '°^

The Second Circuit rejected the rationale supporting the exception

in Van Drunen. Since Trammely **[a] person desiring to enlist the aid
of his spouse as an accomplice . . . takes the risk that the spouse may
choose to testify.'"** As for the Van Drunen court's assertion that in
circumstances of joint participation, the marriage is less likely to con-

tribute to the defendant's rehabilitation, the Second Circuit stated,

**[R]ehabilitation ha[s] never been regarded as one of the interests served

by the spousal privilege and . . . participation in a joint crime would

not necessarily remove the remorse which would trigger rehabilitation. "'°^

The court also rejected the government's attempt to analogize the

joint participation exception to similar exceptions applicable to the at-

torney-client privilege and the confidential marital communications priv-

ilege. For example, courts recognize an exception to the attorney-client

privilege for communications made to enable or aid anyone to commit
a crime. '°^ Also, a number of jurisdictions recognize an exception to

the confidential marital communications privilege when the communi-
cations are made in furtherance of a criminal activity. "^^ In disposing
of the first analogy, the Second Circuit merely asserted that **[t]he

attorney-client relationship, valuable as it is, is hardly of the same social

importance as that of husband and wife."'°* With respect to the con-

fidential marital communications privilege, the court noted a distinction

between the purposes of the marital testimonial privilege and the con-

fidential marital communications privilege. The communications privilege

seeks to promote communications by protecting their intimacy. Those

which remains after such an assault on the privilege is whether there is enough left to

be worth preserving." D. Louisell and C. Mueller, Federal Evtoence § 218 at 407

(Supp. 1984).

'"^/« re Grand Jury Subpoena United States, 755 F.2d 1022, vacated as moot sub

nam. United States v. Koecher, 106 S. Ct. 1253 (1986).

'"VcT. at 1026.

''^See, e.g.. In re John Doe Corp., 675 F.2d 482 (2d Cir. 1982).
'"'See, e.g., United States v. Kapnison, 743 F.2d 1450 (10th Cir. 1984); United States

V. Neal, 743 F.2d 1441 (10th Cir. 1984), cert, denied, 105 S. Ct. 1848 (1985); United

States V. Broome, 732 F.2d 363 (4th Cir.), cert, denied, 105 S. Ct. 181 (1984).
'°«755 F.2d at 1027.



1986] PRIVILEGE 659

discussions regarding criminal activity are justifiably excluded from pro-

tection. The marital testimonial privilege, however, is concerned with
protecting domestic harmony. Thus, compelled testimony may cause the
debilitating effect on the marriage which the privilege was designed to

avoid. '^

This reasoning is flawed in two respects. First, compelled testimony

involving confidential communications may also cause a negative impact
that the communications privilege was designed to protect. Forcing dis-

closure of communications intended to be confidential may have a chilling
effect on husband-wife communications. Second, courts and commen-
tators are not all in agreement on the purpose of the confidential
communications privilege. Some would suggest that the purpose under-
lying both privileges is to protect marital harmony. "° If the purpose of

the two privileges is identical, then an exception which permits the

introduction of confidential communications but bars all other testimony

seems illogical.'"

Another factor persuading the Second Circuit to reject the joint

participation exception was the difficulty of establishing the witness
spouse's role in the criminal activity without invalidating the privilege."^

This argument echoes the Malfitano court's concern with prosecutorial

abuse. "^ In In re Grand Jury Subpoena United States, the witness spouse
continually maintained that she did not participate in her husband's

affairs, despite their twenty-one-year marriage. The court was reluctant

to find that their close marriage provided a sufficient basis to conclude

that both spouses were involved in the alleged conspiracy.'"*

In concluding its opinion, the Second Circuit indicated its reluctance

to assume a definite responsibility for any modification of the privilege:

**[I]n light of its existence since the early days of the common law and
of the importance of the interests which the marital privilege serves, we
would leave the creation of exceptions to the Supreme Court or to

Congress.""^

In taking a conservative approach, the court failed to articulate what

countervailing interests might be at stake. Because the case arose in the

context of espionage and concerns with national security, the case raises

questions regarding the public's substantial interest in ascertaining the

'^Id. at 1027-28.

"°See United States v. Price, 577 F.2d 1356 (9th Cir. 1978); United States v. Mendoza,

574 F.2d 1373 (5th Cir. 1978).

'"See In re Grand Jury Subpoena Koecher, 601 F. Supp. at 390.

"^755 F.2d at 1028.

'''See Appeal of Malfitano, 633 F.2d at 299; see also supra text accompanying note

91.

"^755 F.2d at 1028.



660 INDIANA LAW REVIEW [Vol. 19:645

truth. The court interpreted the marital testimonial privilege and Federal

Rule of Evidence 501 in a manner indicating its eagerness to protect
the marriage from society. In so doing, the court may have failed to
protect society from the marriage.

IV. Reconciling The Differences: A Proposed Solution

Although evidentiary rules protecting marital harmony have prevailed

for over four hundred years in Anglo-American jurisprudence, they have

been subjected to numerous attacks."^ Critics of the marital testimonial

privilege argue that the stability of the family depends little upon a

spouse's immunity from compulsory testimony,"^ that it is unjust and

illogical to permit a wrongdoer to secure immunity from giving redress

in the name of preserving his own marital peace,"* and that there is
an inconsistency in providing the privilege to spouses while denying it

to parents, children, and siblings, because the peace of the family is no

less dependent on the harmony of those relationships."' Ultimately,

society may benefit more from the marital partners' incarceration than
it would from making every effort to preserve their marital relationship.

The exclusionary effect of the marital testimonial privilege is also

inconsistent with the general principle that "the public has a right to

every man's evidence." Limitations upon this principle are acceptable

**only to the very limited extent that permitting a refusal to testify or

excluding relevant evidence has a public good transcending the normally

predominant principle of utilizing all rational means for ascertaining the

truth. '"^^ Thus, the Supreme Court has admonished the judiciary to

construe privileges narrowly. '2'

It is clear today that the marital testimonial privilege is to be

construed in accordance with its purpose of protecting the family as a

socially beneficial institution. Like other rules of exclusion, however, it

should not be applied without a judicial inquiry into whether the ap-

plication will promote its objectives sufficiently to justify the substantial

cost to society of excluding probative evidence. '^^

"*5ee 8 J. Wigmore, supra note 9, § 2228 at 216-17; C. McCormick, supra note

21, § 66 at 162-63 ("The privilege is an archaic survival of a mystical religious dogma

and a way of thinking about the marital relation that is today outmoded."); see also

Comment, Questioning the Marital Privilege: A Medieval Philosophy in a Modern World,
7 CuMB. L. Rev. 307 (1976).

'''See 8 J. Wigmore, supra note 9, § 2228 at 216. See generally Hutchins and Slesinger,

Some Observations on the Law of Evidence: Family Relations, 13 Minn. L. Rev. 675,

682 (1929).
"•'8 J. Wigmore, supra note 9, § 2228 at 216-17.

'"/«/. at 217 n.2.

'^Trammel v. United States, 445 U.S. at 50 (quoting Elkins v. United States, 364

U.S. 206, 234 (1960) (Frankfurter, J., dissenting)).

'"See United States v. Nixon, 418 U.S. 683, 710 (1974).

'"The Supreme Court, for example, has held that a balancing test weighing the costs

and benefits of preventing the use of evidence seized in violation of the fourth amendment



1986] PRIVILEGE 661

Most courts have consistently allowed the marital testimonial privilege

to be asserted unless circumstances indicate that the particular marriage

is undeserving of protection. Some courts, however, have gone beyond
a judicial determination of whether the marriage is worthy of protection.

They have sought to decide whether the countervailing interest in receiving

material information outweighs the concern for protecting marital har-

mony. A classic example of this type of analysis is found in United
States V. Allery,^^^ In Allery, the defendant was convicted of the attempted

rape of his daughter following damaging testimony from his wife.'^'*

Analyzing the marital testimonial privilege **in hght of reason and ex-

perience,'* the United States Court of Appeals for the Eighth Circuit

held that an exception to the privilege exists in cases involving crimes

against either spouse's child. '^' The court stated:

We recognize that the general policy behind the husband-wife
privilege of fostering family peace retains vitality today as it did

when it was first created. But, we also note that a serious crime
against a child is an offense against that family harmony and

to society as well. Second, we note the necessity for parental
testimony in prosecutions for child abuse. It is estimated that

over ninety percent of reported child abuse cases occurred in

the home, with a parent or parent substitute the perpetrator in

eighty-seven and one-tenth percent of these cases. Third, we
recognize that . . . **[a]ny rule that impedes the discovery of truth

in a court of law impedes as well the doing of justice.*""

A spouse*s crime committed against his child is not necessarily
indicative of a marriage relationship which is unworthy or undeserving

of protection. Yet, the Allery court determined that the problem of child

abuse in the home outweighs any concern with marital tranquility.'^^
The disagreement among the federal circuit courts of appeals in

recognizing the joint participation exception may be partially explained
by the courts* different modes of analysis. Both approaches are policy
oriented, but each emphasizes different factors. The Second and Third
Circuits, in rejecting the joint participation exception, seek to determine

only if the purpose of the privilege would be served by allowing the
privilege to be asserted.'^* This approach takes the view that joint

be used rather than indiscriminately applying the exclusionary rule. See United States v.

Leon, 104 S. Ct. 3405 (1984); see also Stone v. Powell, 428 U.S. 465 (1976); United

States V. Janis, 428 U.S. 433 (1976).
'"526 F.2d 1362 (8th Cir. 1975).

'"/</. at 1363.

'"/fl^. at 1367.

'"/</. at 1366 (citations omitted); see also Note, United States v. Allery, 7 Cumb. L.

Rev. 177 (1976).
'"526 F.2d at 1366.

^^See supra text accompanying notes 82-93, 102-15.



662 INDIANA LA W REVIEW [Vol. 19:645

participation by spouses in criminal activity is not necessarily indicative

of a marriage undeserving of protection. These courts, however, ignore

the countervailing interests. The Seventh and Tenth Circuits, on the

other hand, look beyond the question of whether the purpose of the

privilege would be served and attempt to balance the conflicting in-

terests.'^^ In United States v. Clark, however, the Seventh Circuit viewed

the joint participation exception as a rigid evidentiary principle and

applied the exception without even considering whether the purpose of

the privilege would be served in that particular case.'^^

In an effort to remedy possible unjust assertions of the marital

testimonial privilege, the federal courts should adopt a systematic bal-

ancing test. Such a test could serve to protect the marital relationship

yet allow the privilege to be circumvented in those cases where the

pubHc's interest mandates the admission of compelled spousal testimony.

Such a process would necessarily involve an evaluation of the privilege

in light of the specific facts on a case-by-case basis. Courts and com-

mentators have expressly acknowledged the need to balance competing

considerations in determining whether a privilege should be allowed in

a particular case.'^'

The probable effect of adverse spousal testimony on a particular

marriage, as well as the damage that exclusion of the testimony would
do to the factfinding process, will vary substantially from case to case.

Although it would be difficult to establish criteria of general application

that will strike the best balance in all cases, it would be essential that

a case-by-case evaluation of the privilege initially involve a judicial

assessment of whether the particular marriage deserves protection. Should

the court find the marriage unworthy of protection, assertion of the

privilege should be denied. When a particular marriage is deemed worthy
of protection, however, the court should carefully weigh society's interest

in protecting the marriage against several factors. These factors include

the nature and magnitude of the crime involved, whether the testimony

is expected to be material, and whether the information sought to be

introduced could be obtained from a less intrusive source. Completion

of the balancing process would then require the court to consider the

extent of the potential harm to the marriage itself.

'^'United States v. Trammel, 583 F.2d 1166; United States v. Van Drunen, 501 F.2d

1393; see also supra text accompanying notes 50-73.

'^12 F.2d 299; see also supra text accompanying notes 93-101.

"•f.^., Ryan v. Commissioner of Internal Revenue, 568 F.2d 531, 543 (7th Cir.

1977), cert, denied, 439 U.S. 820 (1978); United States v. Cameron, 556 F.2d 752, 756

(5th Cir. 1977); Reutlinger, Policy, Privacy, and Prerogatives: A Critical Examination of
the Proposed Federal Rules of Evidence as They Affect Marital Privilege, 61 Cal. L.

Rev. 1353, 1391 (1973) ('*[R]ather than abolish the testimonial privilege, I would merely

leave it to the court's discretion to disallow it in exceptional circumstances where testimony

is absolutely necessary in the interests of justice.'*).



1986] PRIVILEGE 663

Procedurally, a witness spouse, prior to trial or a grand jury hearing,

should have an opportunity to assert the privilege by filing a request

with the court. The government would then be required to present a
summary of the nature of the knowledge the witness spouse is believed
to have of the crime and the testimony expected to be elicited. The

court would then make a preliminary decision as to whether an extensive
hearing on the issue is required.

The approach is not free from imperfections. Critics argue that such

an approach requires inquiry into collateral issues and that successful

assertion of the privilege would be unpredictable, thereby leading to a

further lack of uniformity in the federal courts. '^^ With the privilege in

its present form, however, partners to a marriage cannot now be certain
that assertion of the privilege will be successful. A court*s decision to
grant or deny assertion of the privilege should be a determination of

which interest is more important to society in specific situations. Such

a determination does not guarantee that other societal interests will not

suffer as a result. But because this balancing process considers both the

marriage and the countervailing interests in obtaining material testimony,

the effects of the harm will be minimized. Despite the inherent difficulties
in conducting a balancing of interests on a case-by-case basis, the bal-

ancing approach would minimize the injustice that emanates from the

rigid application of evidentiary rules and exceptions.

V. Conclusion

Whether there exists any real justification for the marital testimonial

privilege remains the subject of debate. That the social policy of pre-

serving marital harmony has no relation in fact to the privilege and is
"merely a sentiment'* will continue to be asserted by some and denied
by others. Nevertheless, the Supreme Court has indicated that the privilege

is not apt to disappear soon as an evidentiary concept. It is, however,

subject to further modification.

The joint participation exception was created upon the premise that

a marriage comprised of partners who engage in criminal activity is
unworthy of the protection that the privilege affords. When the exception
is applied without consideration of the actual need for the evidence, it

undermines the policy supporting the privilege. Conversely, when the
privilege itself is applied without consideration of countervailing interests,

it undermines the public's interest in securing the truth.

ReconciUng the opposing positions requires only that the courts adopt

a systematic balancing test to weigh the conflicting interests on a case-

by-case basis. Such a test is congruent with Congress' intent in enacting

'"See Note, The Husband-Wife Testimonial Privilege in the Federal Courts, 59 B.U.L.

Rev. 894, 914, 917 (1979).



664 INDIANA LAW REVIEW [Vol. 19:645

Federal Rule of Evidence 501.'" Only through such a balancing approach

can the contours of the marital testimonial privilege be shaped to strike

the best balance between the competing interests of preserving marital

harmony and securing material testimony in criminal proceedings.

James Calvin McKinley

'"With regard to the application of common law privileges under Federal Rule of
Evidence 501, the Report of the Senate Committee on the Judiciary stated:

[I]n approving [Rule 501], the action of Congress should not be understood as

disapproving any recognition of a . . . husband-wife or any other of the enum-

erated privileges contained in the Supreme Court rules. Rather, our action should

be understood as reflecting the view that the recognition of a privilege based

on a confidential relationship and other privileges should be determined on a

case-by-case basis.

S. Rep. No. 1277, 93rd Cong., 2nd Sess. 13 (1974).