At petitioner's trial in a Federal District Court in which he
was convicted of violating the Mann Act, 18 U.S.C. § 2421, by
transporting a girl from Arkansas to Oklahoma for immoral purposes,
his wife was permitted to testify against him over his
objection.
Held: though the wife did not object to testifying,
admission of her testimony over his objection was error. Pp.
358 U. S.
74-81.
(a) Though Congress or this Court, by decision or under its
rulemaking power, can change or modify the rule where reason or
experience dictates, and some specific exceptions have been made,
this Court is not now prepared to abandon so much of the old common
law rule as forbade one spouse to testify against the other over
the latter's objection. Pp.
358 U. S.
75-79.
(b) On the record in this case, it cannot be said that the
wife's testimony did not have substantial influence on the jury,
and its admission was not harmless error. Pp.
358 U. S.
79-81.
249 F.2d 735, reversed.
MR. JUSTICE BLACK delivered the opinion of the Court.
Petitioner was convicted and sentenced to five years
imprisonment by a United States District Court in Oklahoma on a
charge that he violated the Mann Act, 18 U.S.C. § 2421, by
transporting a girl from Arkansas to Oklahoma for immoral purposes.
Over petitioner's objection the District Court permitted the
Government
Page 358 U. S. 75
to use his wife as a witness against him. [
Footnote 1] Relying on
Yoder v. United
States, 80 F.2d 665, the Court of Appeals for the Tenth
Circuit held that this was not error. 249 F.2d 735. As other Courts
of Appeals have followed a longstanding rule of evidence which bars
a husband or wife from testifying against his or her spouse,
[
Footnote 2] we granted
certiorari. 355 U.S. 925.
The common law rule, accepted at an early date as controlling in
this country, was that husband and wife were incompetent as
witnesses for or against each other. The rule rested mainly on a
desire to foster peace in the family and on a general unwillingness
to use testimony of witnesses tempted by strong self-interest to
testify falsely. Since a defendant was barred as a witness in his
own behalf because of interest, it was quite natural to bar his
spouse in view of the prevailing legal fiction that husband and
wife were one person.
See 1 Coke, Commentary upon
Littleton (19th ed. 1832) 6.b. The rule yielded to exceptions in
certain types of cases, however. Thus, this Court, in
Stein v.
Bowman, 13 Pet. 209, while recognizing the "general
rule that neither a husband nor wife can be a witness for or
against the other," noted that the rule does not apply "where the
husband commits an offence against the person of his wife." 13 Pet.
at
38 U. S. 221.
But the Court emphasized that no exception left spouses free to
testify for or against each other merely because they so desired.
13 Pet. at
38 U. S. 223.
[
Footnote 3]
Page 358 U. S. 76
Aside from slight variations in application, and despite many
critical comments, the rule stated in
Stein v. Bowman was
followed by this and other federal courts until 1933, when this
Court decided
Funk v. United States, 290 U.
S. 371. [
Footnote 4]
That case rejected the phase of the common law rule which excluded
testimony by spouses for each other. The Court recognized that the
basic reason underlying this exclusion of evidence had been the
practice of disqualifying witnesses with a personal interest in the
outcome of a case. Widespread disqualifications because of
interest, however, had long since been abolished both in this
country and in England in accordance with the modern trend which
permitted interested witnesses to testify and left it for the jury
to assess their credibility. Certainly, since defendants were
uniformly allowed to testify in their own behalf, there was no
longer a good reason to prevent them from using their spouses as
witnesses. With the original reason for barring favorable testimony
of spouses gone, the Court concluded that this aspect of the old
rule should go too.
The
Funk case, however, did not criticize the phase of
the common law rule which allowed either spouse to exclude adverse
testimony by the other, but left this question open to further
scrutiny. 290 U.S. at
290 U. S. 373;
Griffin v. United States, 336 U.
S. 704,
336 U. S.
714-715. More recently, Congress has confirmed the
authority asserted by this Court in
Funk to determine
admissibility of evidence under the "principles of the common law
as they
Page 358 U. S. 77
may be interpreted . . . in the light of reason and experience."
Fed.Rules Crim.Proc., 26. The Government does not here suggest that
authority, reason, or experience requires us wholly to reject the
old rule forbidding one spouse to testify against the other. It
does ask that we modify the rule so that, while a husband or wife
will not be compelled to testify against the other, either will be
free to do so voluntarily. Nothing in this Court's cases supports
such a distinction between compelled and voluntary testimony, and
it was emphatically rejected in
Stein v. Bowman, supra, a
leading American statement of the basic principles on which the
rule rests. 13 Pet. at
38 U. S. 223.
Consequently, if we are to modify the rule as the Government urges,
we must look to experience and reason, not to authority.
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. Moreover, it is difficult to see how family harmony is
less disturbed by a wife's voluntary testimony against her husband
than by her compelled testimony. In truth, it seems probable that
much more bitterness would be engendered by voluntary testimony
than by that which is compelled. But the Government argues that the
fact a husband or wife testifies against the other voluntarily is
strong indication that the marriage is already gone. Doubtless this
is often true. But not all marital flare-ups in which one spouse
wants to hurt the other are permanent. The widespread
Page 358 U. S. 78
success achieved by courts throughout the country in
conciliating family differences is a real indication that some
apparently broken homes can be saved provided no unforgivable act
is done by either party. Adverse testimony given in criminal
proceedings would, we think, be likely to destroy almost any
marriage.
Of course, cases can be pointed out in which this exclusionary
rule has worked apparent injustice. But Congress or this Court, by
decision or under its rulemaking power, 18 U.S.C. § 3771, can
change or modify the rule where circumstances or further experience
dictates. In fact, specific changes have been made from time to
time. Over the years, the rule has evolved from the common law
absolute disqualification to a rule which bars the testimony of one
spouse against the other unless both consent.
See Stein v.
Bowman, supra; Funk v. United States, supra; Benson v. United
States, 146 U. S. 325,
146 U. S.
331-333;
United States v. Mitchell, 137 F.2d
1006, 1008. In 1887, Congress enabled either spouse to testify in
prosecutions against the other for bigamy, polygamy or unlawful
cohabitation. 24 Stat. 635.
See Miles v. United States,
103 U. S. 304,
103 U. S.
315-316. Similarly, in 1917 and again in 1952, Congress
made wives and husbands competent to testify against each other in
prosecutions for importing aliens for immoral purposes. 39 Stat.
878 (1917), reenacted as 66 Stat. 230, 8 U.S.C. § 1328 (1952).
Other jurisdictions have been reluctant to do more than modify
the rule. English statutes permit spouses to testify against each
other in prosecutions for only certain types of crimes.
See Evidence of Spouses in Criminal Cases, 99 Sol.J. 551.
And most American States retain the rule, though many provide
exceptions in some classes of cases. [
Footnote 5] The limited nature of these exceptions
Page 358 U. S. 79
shows there is still a widespread belief, grounded on present
conditions, that the law should not force or encourage testimony
which might alienate husband and wife, or further inflame existing
domestic differences. Under these circumstances, we are unable to
subscribe to the idea that an exclusionary rule based on the
persistent instincts of several centuries should now be abandoned.
As we have already indicated, however, this decision does not
foreclose whatever changes in the rule may eventually be dictated
by "reason and experience."
Notwithstanding the error in admitting the wife's testimony, we
are urged to affirm the conviction upon the alternative holding of
the Court of Appeals that her evidence was harmless to petitioner.
See Fed.Rules Crim.Proc. 52(a). But, after examining the
record, we cannot say that her testimony did not have substantial
influence on the jury.
See Kotteakos v. United States,
328 U. S. 750,
328 U. S.
764-765. Interstate transportation of the prosecutrix
between Arkansas and Oklahoma was conceded, and the only factual
issue in the case was whether petitioner's dominant purpose in
making the trip was to facilitate her practice of prostitution in
Tulsa, Oklahoma. [
Footnote
6]
Page 358 U. S. 80
The prosecutrix testified that petitioner agreed to take her to
Tulsa where she could earn money by working as a prostitute with a
woman called "Jane Wilson." Petitioner denied any intention on his
part that the prosecutrix engage in such activity, and testified,
in effect, that her transportation was only an accommodation
incidental to a business trip he was making to Oklahoma City,
Oklahoma. Petitioner's dominant purpose for the trip was thus a
sharply contested issue of fact which, on the evidence in the
record, the jury could have resolved either way depending largely
on whether it believed the prosecutrix or the petitioner. The
Government placed "Jane Wilson" on the stand. In response to
questions by the Assistant United States Attorney, she swore that
she was petitioner's wife and that she was a prostitute at the time
petitioner took the prosecutrix to Tulsa. Not wholly satisfied with
this testimony, the prosecutor brought out for the first time on
redirect examination that "Jane Wilson" had been a prostitute
before she married petitioner. The mere presence of a wife as a
witness against her husband in a case of this kind would most
likely impress jurors adversely. When to this there is added her
sworn testimony that she was a prostitute both before and after
marriage, we cannot be sure that her evidence, though in part
cumulative, did not tip the scales against petitioner on the close
and vital issue of whether his prime motivation in making the
interstate trip was immoral.
See Krulewitch v. United
States, 336 U. S. 440,
336 U. S.
444-445. At
Page 358 U. S. 81
least use of the wife's testimony was a strong suggestion to the
jury that petitioner was probably the kind of man to whom such a
purpose would have been perfectly natural.
Reversed.
[
Footnote 1]
While the wife had been placed under bond to appear in District
Court, she offered no objection in court to testifying against her
husband.
[
Footnote 2]
See e.g., Paul v. United States, 79 F.2d 561 (C.A. 3d
Cir.);
Brunner v. United States, 168 F.2d 281 (C.A. 6th
Cir.);
United States v. Walker, 176 F.2d 564 (C.A. 2d
Cir.).
[
Footnote 3]
Stein v. Bowman was a civil action involving testimony
of a wife about conversations she had with her husband. The opinion
shows, however, that the Court was concerned with the broader
question here involved.
[
Footnote 4]
See, e.g., Miles v. United States, 103 U.
S. 304,
103 U. S. 305;
Graves v. United States, 150 U. S. 118;
Jin Fuey Moy v. United States, 254 U.
S. 189.
Compare Benson v. United States,
146 U. S. 325,
146 U. S.
331-333. For criticism of the rule,
see 7
Bentham, Rationale of Judicial Evidence (Bowring ed. 1843),
480-486; 2 Wigmore, Evidence (3d ed. 1940), §§ 600-620; 8
id., §§ 2227-2245; Hutchins and Slesinger, Some
Observations on the Law of Evidence: Family Relations, 13
Minn.L.Rev. 675.
[
Footnote 5]
See 2 Wigmore, Evidence (3d ed. 1940), § 488; 8
id., § 2240; Note, 38 Va.L.Rev. 359, 362-367.
[
Footnote 6]
The Mann Act, 18 U.S.C. § 2421, provides:
"Whoever knowingly transports in interstate or foreign commerce
. . . any woman or girl for the purpose of prostitution or
debauchery, or for any other immoral purpose . . ."
"
* * * *"
"Shall be find not more than $5,000 or imprisoned not more than
five years, or both."
In construing this Act, we have held:
"The statute thus aims to penalize only those who us interstate
commerce with a view toward accomplishing the unlawful purposes. .
. . An intention that the women or girls shall engage in the
conduct outlawed by Section 24 must be found to exist before the
conclusion of the interstate journey, and must be the dominant
motive of such interstate movement. And the transportation must be
designed to bring about such result. Without that necessary
intention and motivation, immoral conduct during or following the
journey is insufficient to subject the transporter to the penalties
of the Act."
"
* * * *"
". . . What Congress has outlawed by the Mann Act . . . is the
use of interstate commerce as a calculated means for effectuating
sexual immorality."
Mortensen v. United States, 322 U.
S. 369,
322 U. S.
374-375.
See Cleveland v. United States,
329 U. S. 14,
329 U. S. 19-20.
Cf. Hansen v. Haff, 291 U. S. 559,
291 U. S.
563.
MR. JUSTICE STEWART concurring.
The rule of evidence we are here asked to reexamine has been
called a "sentimental relic." [
Footnote
2/1] it was born of two concepts long since rejected: that a
criminal defendant was incompetent to testify in his own case, and
that, in law, husband and wife were one. What thus began as a
disqualification of either spouse from testifying at all yielded
gradually to the policy of admitting all relevant evidence, until
it has now become simply a privilege of the criminal defendant to
prevent his spouse from testifying against him.
Compare
38 U. S.
Bowman, 13 Pet. 209;
Wolfle v. United States,
291 U. S. 7,
291 U. S. 14;
Funk v. United States, 290 U. S. 371.
[
Footnote 2/2]
Any rule that impedes the discovery of truth in a court of law
impedes as well the doing of justice. When such a rule is the
product of a conceptualism long ago discarded, is universally
criticized by scholars, and has been qualified or abandoned in many
jurisdictions, it should receive the most careful scrutiny.
[
Footnote 2/3] Surely "reason and
experience" require that we do more than indulge in mere
Page 358 U. S. 82
assumptions, perhaps naive assumptions, as to the importance of
this ancient rule to the interests of domestic tranquillity.
[
Footnote 2/4]
In the present case, however, the Government does not argue that
this testimonial privilege should be wholly withdrawn. We are asked
only to hold that the privilege is that of the witness, and not the
accused. Under such a rule, the defendant in a criminal case could
not prevent his wife from testifying against him, but she could not
be compelled to do so.
A primary difficulty with the Government's contention is that
this is hardly the case in which to advance it. A supplemental
record filed subsequent to the oral argument
Page 358 U. S. 83
shows that, before "Jane Wilson" testified, she had been
imprisoned as a material witness and released under $3,000 bond
conditioned upon her appearance in court as a witness for the
United States. These circumstances are hardly consistent with the
theory that her testimony was voluntary. Moreover, they serve to
emphasize that the rule advanced by the Government would not, as it
argues, create "a standard which has the great advantage of
simplicity." On the contrary, such 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.
Upon the present record, and as the issues have been presented to
us, I therefore concur in the Court's decision.
[
Footnote 2/1]
See Comment, Rule 23(2) of the Uniform Rules of
Evidence.
[
Footnote 2/2]
We are not dealing here with the quite different aspect of the
marital privilege covering confidential communications between
husband and wife.
See Wolfle v. United States,
291 U. S. 7.
[
Footnote 2/3]
Apparently some nineteen States have either abolished or
substantially modified this privilege.
See Note, 38
Va.L.Rev. 359, 365. In England, the process has been a selective
one, accomplished by legislation.
See Evidence of Spouses
in Criminal Cases, 99 Sol.J. 551. In 1938, the American Bar
Association's Committee on Improvements in the Law of Evidence
favored the abolition of the privilege on the part of the accused,
63 A.B.A.Rep. 595.
[
Footnote 2/4]
The facts in the present case illustrate how unrealistic the
Court's basic assumption may be. At the time of the acts complained
of, the petitioner's wife was living apart from him under an
assumed name. At the time she testified, they were also living
apart. In his testimony, the petitioner referred to her as his
"ex-wife," explaining when his counsel corrected him that he and
his wife had never lived together very much.
Before assuming that a change in the present rule would work
such a wholesale disruption of domestic felicity as the Court's
opinion implies, it would be helpful to know the experience in
those jurisdictions where the rule has been abandoned or modified.
It would be helpful also to have the benefit of the views of those
in the federal system most qualified by actual experience with the
operation of the present rule -- the district judges and members of
the practicing bar. The Judicial Conferences of the several
Circuits would provide appropriate forums for imparting that kind
of experience. 28 U.S.C. § 333.
It is obvious, however, that all the data necessary for an
intelligent formulation "in the light of reason and experience"
could never be provided in a single litigated case. This points to
the wisdom of establishing a continuing body to study and recommend
uniform rules of evidence for the federal courts, as proposed by at
least two of the Circuit Judicial Conferences.
See Annual
Report of the Proceedings of the Judicial Conference of the United
States, September 18-20, 1957, p. 43.
See Joiner, Uniform
Rules of Evidence for the Federal Courts. 20 F.R.D. 429.