The Trammel Court’s Hasty Rejection of Jerry Maguire’s View of Marriage

Abstract

The most significant contemporary American authority on spousal testimonial privilege is the Supreme Court’s 1980 decision in Trammel v. U. S. The facts of Trammel brought the interest of petitioner Otis Trammel into potential conflict with those of his wife, Elizabeth Trammel. The government exploited Elizabeth Trammel’s vulnerability to secure her cooperation in the prosecution of Otis Trammel for importing heroine into the United States, a prosecution in which Elizabeth Trammel was named as an unindicted co-conspirator. Otis Trammel objected to his wife’s testimony against him on the ground of spousal testimonial privilege, but the trial Court ruled that Elizabeth Trammel could testify in support of the government's case. This ruling was crucial to the government -- the testimony of Elizabeth Trammel “constituted virtually [the] entire case” against Otis Trammel, who was convicted on the strength of his wife’s testimony.

The Supreme Court upheld the trial court’s admission of Elizabeth Trammel’s testimony against her husband. Acknowledging that the spousal testimonial privilege had “ancient roots,” the Trammel Court, in the crucial passage of Chief Justice Burger’s majority opinion, asserted that the “spousal disqualification sprang from two canons of medieval jurisprudence: first, 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 and wife were one, and that since the woman had no recognized separate legal existence, the husband was that one.” Like any good advocacy piece, the Court’s opinion in Trammel employed a catchy theme – the defendant’s spousal testimonial privilege is a relic of the medieval oppression of women: “The ancient foundations for so sweeping a privilege have long since disappeared. Nowhere in the common-law world-indeed in any modern society-is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being.” While the Court here, mostly for effect, characterized (or mischaracterized) the original rationale for the spousal disqualification, nothing really turned on the precise rationale of the spousal disqualification, since the disqualification had evolved into a privilege, for which the rationale was somewhat different.

The Trammel Court did address the evolved rationale for the privilege, as opposed to the disqualification – acknowledging that “the modern justification for this privilege against adverse spousal testimony” was the “perceived role in fostering the harmony and sanctity of the marriage relationship.” The Court nevertheless, without apparent hesitation (or evidence) stated that “[w]hen one spouse is willing to testify against the other in a criminal proceeding – whatever the motivation – their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve.” The Court thus officially swept aside American courts’ long-standing reluctance to question the value of individual marriages.

I argue merely that before the Trammel Court rejected a doctrine that had prevailed for centuries, it should at least have analyzed whether our society’s commitment to the essential unity of husband and wife dictates that wives should not testify against their husbands over their husband’s objections. The Court never honestly addressed this question. Instead, the Court rejected a “wife as chattel” straw man. In this day, when the nature and value of marriage is being questioned as it never has before, it might be worthwhile to spend some time thinking about spousal testimonial privilege and whether the direction in which the privilege has been heading over the last few decades is really the direction in which we want to go.

Keywords: spousal privilege, testimonial privilege, evidence, legal history, marriage