Mate vs. Mate

Spouses can spat in court

One of the most durable judicial traditions has been that spouses should not be allowed to testify against each other in court. In ancient times the reasoning was that a married woman had no legal status separate from her husband's; more recently this "spousal privilege" has been justified as a measure to preserve marital harmony. But last week the Supreme Court ruled unanimously that in federal criminal cases a husband or wife may choose to testify against his or her mate.

Specifically, the court overturned the "Hawkins Rule," a 1958 decision that gave a spouse on trial the right to veto the intention of the other spouse to offer incriminating evidence in court. This latest ruling concerned Otis Trammel Jr., a California man who in 1976 was convicted, partly on the testimony of his wife, of conspiring to import heroin. In the opinion, Chief Justice Warren Burger explained that the old notions about married women having no separate legal identity had broken down "chip by chip," and that marriage was not what it used to be. When a spouse is willing to testify against his or her partner, he wrote, "there is probably little in the way of marital harmony" left to preserve.

The ruling is narrow; it states that mates still cannot be compelled to testify against each other if they do not want to. It also allows spousal testimony only in the case of conversations that were not intended to be private (pillow talk is still protected), or when the husband or wife has actually witnessed criminal acts of the other. Moreover, the high bench is not really breaking new ground with the Trammel decision. Over the past several years, 26 states have gone at least as far as the new federal rule.

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