Petitioner was tried and convicted in a Federal District Court
of knowingly transporting a woman in interstate commerce for the
purpose of prostitution, in violation of 18 U.S.C. § 2421. At the
trial, the woman, who had married petitioner since the date of the
offense, was ordered over her objection and that of petitioner to
testify for the prosecution.
Held: the ruling was correct, and the judgment is
affirmed. Pp.
362 U. S.
525-531.
(a) Though the common law rule of evidence ordinarily permitting
a defendant to exclude the adverse testimony of his or her spouse
still applies in the federal courts, there is an exception which
permits the defendant's wife to testify against him when she was
the victim of a violation of § 2421. Pp.
362 U. S.
526-527.
(b) The privilege accorded by the general rule resides in the
witness, as well as in the defendant. Pp.
362 U. S.
527-529.
(c) In view of the purpose of § 2421, a prostituted witness-wife
may not protect her husband by declining to testify against him.
Pp.
362 U. S.
529-530.
(d) A different conclusion is not required by the fact that the
marriage took place after the commission of the offense. Pp.
362 U. S.
530-531.
263 F.2d 304, affirmed.
MR. JUSTICE HARLAN delivered the opinion of the Court.
Petitioner was tried and convicted of knowingly transporting a
woman in interstate commerce for the purpose
Page 362 U. S. 526
of prostitution, in violation of the White Slave Traffic Act, 18
U.S.C. § 2421. At the trial, the woman, who had since the date of
the offense married the petitioner, was ordered, over her objection
and that of the petitioner, to testify on behalf of the
prosecution. [
Footnote 1] The
Court of Appeals, on appeal from a judgment of conviction, affirmed
the ruling of the District Court. 263 F.2d 304. As the case
presented significant issues concerning the scope and nature of the
privilege against adverse spousal testimony, treated last Term in
Hawkins v. United States, 358 U. S.
74, we granted certiorari. 360 U.S. 908. We affirm the
judgment.
First. Our decision in
Hawkins established,
for the federal courts, the continued validity of the common law
rule of evidence ordinarily permitting a party to exclude the
adverse testimony of his or her spouse. However, as that case
expressly acknowledged, the common law has long recognized an
exception in the case of certain kinds of offenses committed by the
party against his spouse.
Id. at
358 U. S. 75,
citing
Stein v.
Bowman, 13 Pet. 209,
38 U. S. 221.
Exploration of the precise breadth of this exception, a matter of
some uncertainty,
see 8 Wigmore, Evidence (3d ed.), §
2239, can await a case where it is necessary. For present purposes,
it is enough to note that every Court of Appeals which has
considered the specific question now holds that the exception, and
not the rule, applies to a Mann Act prosecution, where the
defendant's wife was the victim of the offense. [
Footnote 2] Such unanimity with respect
Page 362 U. S. 527
to a rule of evidence lends weighty credentials to that
view.
While this Court has never before decided the question, we now
unhesitatingly approve the rule followed in five different
Circuits. We need not embark upon an extended consideration of the
asserted bases for the spousal privilege (
see Hawkins,
supra, at
358 U. S. 77-78;
Wigmore,
op. cit., supra, § 2228(3)) and an appraisal of
the applicability of each here,
id., § 2239, for it cannot
be seriously argued that one who has committed this "shameless
offense against wifehood,"
id. at p. 257, should be
permitted to prevent his wife from testifying to the crime by
invoking an interest founded on the marital relation or the desire
of the law to protect it. Petitioner's attempt to prevent his wife
from testifying, by invoking an asserted privilege of his own, was
properly rejected.
Second. The witness wife, however, did not testify
willingly, but objected to being questioned by the prosecution, and
gave evidence only upon the ruling of the District Court denying
her claimed privilege not to testify. We therefore consider the
correctness of that ruling. [
Footnote 3]
Page 362 U. S. 528
The United States argues that, once having held, as we do, that,
in such a case as this, the petitioner's wife could not be
prevented from testifying voluntarily,
Hawkins establishes
that she may be compelled to testify. For, it is said, that case
specifically rejected any distinction between voluntary and
compelled testimony. 358 U.S. at
358 U. S. 77.
This argument fails to take account of the setting of our decision
in
Hawkins. To say that a witness spouse may be prevented
from testifying voluntarily simply means that the party has a
privilege to exclude the testimony; [
Footnote 4] when, on the other hand, the spouse may not be
compelled to testify against her will, it is the witness who is
accorded a privilege. In
Hawkins, the Government took the
position that the spousal privilege should be that of the witness,
and not that of the party, so that, while the wife could decline to
testify, she could not be prevented from giving evidence if she
elected not to claim a privilege which, it was said, belonged to
her alone. Brief for the United States, No. 20, O.T.1958, pp.
22-43. In declining to hold that the party had no privilege, we
manifestly did not thereby repudiate the privilege of the
witness.
While the question has not often arisen, it has apparently been
generally assumed that the privilege resided in the witness as well
as in the party.
Hawkins referred to "a rule which bars
the testimony of one spouse against the other unless
both
consent,"
supra, at
358 U. S. 78.
(Emphasis supplied.)
See Stein v. Bowman, supra, 13 Pet.
at
38 U. S. 223
(wife cannot "by force of authority be compelled to state facts in
evidence");
United States v. Mitchell, supra, 137 F.2d at
1008 ("the better view is that the privilege is that of either
spouse who chooses to claim it"); Wigmore,
op. cit.,
supra, § 2241; McCormick, Evidence, § 66, n. 3. In its
Page 362 U. S. 529
Hawkins brief, the Government, while calling for the
abolition of the party's privilege, urged that the common law
development could be explained, and its policies fully vindicated,
by recognition of the privilege of the witness. Brief, pp. 22-25,
33, 42-43;
see Hawkins, supra, at
358 U. S. 77,
and concurring opinion at
358 U. S. 82. At
least some of the bases of the party's privilege are in reason
applicable to that of the witness. As Wigmore puts it,
op.
cit., supra at p. 264:
"[W]hile the defendant husband is entitled to be protected
against condemnation through the wife's testimony, the witness wife
is also entitled to be protected against becoming the instrument of
that condemnation -- the sentiment in each case being equal in
degree and yet different in quality."
In light of these considerations, we decline to accept the view
that the privilege is that of the party alone.
Third. Neither can we hold that, whenever the privilege
is unavailable to the party, it is
ipso facto lost to the
witness as well. It is a question in each case, or in each category
of cases, whether, in light of the reason which has led to a
refusal to recognize the party's privilege, the witness should be
held compellable. Certainly, we would not be justified in laying
down a general rule that both privileges stand or fall together. We
turn instead to the particular situation at bar.
Where a man has prostituted his own wife, he has committed an
offense against both her and the marital relation, and we have
today affirmed the exception disabling him from excluding her
testimony against him. It is suggested, however, that this
exception has no application to the witness wife when she chooses
to remain silent. The exception to the party's privilege, it is
said, rests on the necessity of preventing the defendant from
sealing his wife's lips by his own unlawful act,
see United
States v. Mitchell, supra, 137 F.2d at 1008-1009; Wigmore, op cit.,
supra, § 2239, and it is argued that where the wife has
chosen
Page 362 U. S. 530
not to "become the instrument" of her husband's downfall, it is
her own privilege which is in question, and the reasons for
according it to her in the first place are fully applicable.
We must view this position in light of the congressional
judgment and policy embodied in the Mann Act. "A primary purpose of
the Mann Act was to protect women who were weak from men who were
bad."
Denning v. United States, 247 F. 463, 465. It was in
response to shocking revelations of subjugation of women too weak
to resist that Congress acted.
See H.R.Rep. No. 47, 61st
Cong., 2d Sess., pp. 10-11. As the legislative history discloses,
the Act reflects the supposition that the women with whom it sought
to deal often had no independent will of their own, and embodies,
in effect, the view that they must be protected against themselves.
Compare 18 U.S.C. § 2422 (consent of woman immaterial in
prosecution under that section). It is not for us to reexamine the
basis of that supposition.
Applying the legislative judgment underlying the Act, we are led
to hold it not an allowable choice for a prostituted witness-wife
"voluntarily" to decide to protect her husband by declining to
testify against him. For if a defendant can induce a woman, against
her "will," to enter a life of prostitution for his benefit -- and
the Act rests on the view that he can -- by the same token, it
should be considered that he can, at least as easily, persuade one
who has already fallen victim to his influence that she must also
protect him. To make matters turn upon
ad hoc inquiries
into the actual state of mind of particular women, thereby
encumbering Mann Act trials with a collateral issue of the greatest
subtlety, is hardly an acceptable solution.
Fourth. What we have already said likewise governs the
disposition of the petitioner's reliance on the fact that his
marriage took place after the commission of the
Page 362 U. S. 531
offense. Again, we deal here only with a Mann Act prosecution,
and intimate no view on the applicability of the privilege of
either a party or a witness similarly circumstanced in other
situations. The legislative assumption of lack of independent will
applies as fully here. As the petitioner, by his power over the
witness, could, as we have considered should be assumed, have
secured her promise not to testify, so, it should be assumed, could
he have induced her to go through a marriage ceremony with him,
perhaps "in contemplation of evading justice by reason of the very
rule which is now sought to be invoked."
United States v.
Williams, 55 F. Supp.
375, 380.
The ruling of the District Court was correctly upheld by the
Court of Appeals. [
Footnote
5]
Affirmed.
[
Footnote 1]
Although the record is ambiguous as to the fact and time of
petitioner's marriage, we shall consider established, as the Court
of Appeals did, the sequence of events stated in the text. Further,
the Court of Appeals noted that, while the record did not clearly
establish that the petitioner, as well as his wife, claimed a
privilege with respect to her testimony, it would assume that he
had. 263 F.2d 304, 308. We accept that assumption.
[
Footnote 2]
United States v. Mitchell, 137 F.2d 1006;
Levine v.
United States, 163 F.2d 992;
Shores v. United States,
174 F.2d 838,
overruling Johnson v. United States, 221 F.
250;
Pappas v. United States, 241 F. 665;
Hayes v.
United States, 168 F.2d 996.
[
Footnote 3]
The United States does not question the standing of petitioner
to seek reversal because of the allegedly erroneous refusal to
respect the privilege of his wife. Since such testimony, even if
wrongly compelled, is
per se admissible,
Funk v.
United States, 290 U. S. 371, and
relevant, it has been argued that the party has suffered no injury
of which he may complain. Wigmore,
op. cit., supra, §
2196(2)(a); McCormick, Evidence, § 73; Uniform Rules of Evidence,
Rule 40; Am.L.Inst. Model Code of Evidence, Rule 234; Note, 30
Col.L.Rev. 686, 693-694.
See, e.g., Turner v. State, 60
Miss. 351, 353. However, as the point has not been briefed or
argued, we have thought it appropriate, in view of our disposition
of the case on the merits, not to consider the issue of standing,
and of course intimate no view on it.
[
Footnote 4]
Funk v. United States, supra, abolished, for the
federal courts, the disqualification or incompetence of the spouse
as a witness, thus establishing the admissibility of his or her
testimony, and leaving the question one of privilege only.
[
Footnote 5]
The petitioner's further assertion that, apart from the
testimony of the wife, there was insufficient corroboration of his
admission of transportation thus fails by its own assumption.
MR. CHIEF JUSTICE WARREN, with whom MR. JUSTICE BLACK and MR.
JUSTICE DOUGLAS join, dissenting.
Last Term, this Court held that a wife could not voluntarily
testify against her husband in a criminal prosecution over his
objection.
Hawkins v. United States, 358 U. S.
74. The Court finds the case at bar so different from
Hawkins that it approves overriding not only the husband's
objection, but also the wife's. In both cases, the husband was
prosecuted for violation of the Mann Act, 18 U.S.C. § 2421. The
only relevant difference is that here, the wife herself was the
person allegedly transported by the husband for purposes of
prostitution. Morally speaking, this profanation of the marriage
relationship adds an element of the utmost depravity to the ugly
business of promoting prostitution. Legally speaking, however, this
does not warrant the
Page 362 U. S. 532
radical departure from the
Hawkins rule which the Court
now sanctions.
The Court's analysis of the problem here presented is sound in
so many ways that the unsoundness of its conclusion is especially
disappointing -- and somewhat curious. Briefly, that analysis
appears to be as follows: the Court accepts the principle that the
spousal privilege belongs both to the person charged with the
offense, as we held in
Hawkins, and also to the witness.
Moreover, the Court rejects the notion that the latter may be
barred from asserting the privilege simply because, in a given
case, it may be improper for the former to invoke it. The defendant
may not claim the privilege where he is charged with "certain kinds
of offenses committed . . . against his spouse," and the Court
believes that the instant case involves this type of crime. It
apparently recognizes, moreover, that the policy behind this
exception may be effectuated in the ordinary situation by giving
the injured party the option to testify, without compelling her to
testify. [
Footnote 2/1] In this
case, however, it concludes
Page 362 U. S. 533
that the wife "should be assumed" to be under the sway of the
husband to such an extent that she cannot be entrusted with that
choice. Consequently, the trial court -- and the prosecutor -- must
be given the power to protect her against herself by forcing her to
testify.
The fatal defect in this conclusion lies in the Court's
evaluation of the mental state of the wife, an evaluation which
finds no support in the record and which cannot properly be
justified by any legislative enactment.
The Court does not and could not rely upon the record to prove
that petitioner's wife was somehow mesmerized by him when she was
on the witness stand. The evidence, in point of fact, strongly
suggests that the wife played a managerial role in the sordid
enterprise which formed the basis for the prosecution. [
Footnote 2/2] Apparently this was the
jury's view, since the jurors asked the judge whether it would
"make any difference or -- if the woman had anything to do with the
instigation or planning . . . ." The judge, of course, instructed
then that this would be immaterial, but the jury nevertheless
unanimously recommended leniency. Thus, this case is a strange
vehicle for the Court to use in announcing its "lack of independent
will" theory. Presumably it is to be regarded as the exception
which proves the rule.
The sole ground assigned by the Court for its decision is that
it is a necessary application of the "legislative judgment
underlying the [Mann] Act," which
"reflects the supposition that the women with whom [Congress]
sought to deal often had no independent will of their own, and
embodies, in effect, the view that they must be protected
Page 362 U. S. 534
against themselves."
In support of this hypothesis, the Court cites legislative
history and the fact that, under 18 U.S.C. § 2422, a companion
provision to § 2421, the consent of the woman does not relieve the
defendant of criminal responsibility. [
Footnote 2/3] This equation of the legislative judgment
involved in fashioning a criminal statute with the judgment
involved in the Court's restriction of the husband-wife privilege
is, I submit, entirely too facile, for it overlooks the critically
different nature of these problems. In assessing the pertinence of
the woman's consent to the culprit's criminal responsibility,
Congress chose between the interest of society in eradicating the
importation and interstate transportation of prostitutes and the
interest of women to be protected from clever and unscrupulous
profiteers, on the one hand, and the voluntary engagement of women
in prostitution, on the other. In view of the manifest imbalance of
these competing considerations and the difficulty of definition and
proof of the type of consent which might conceivably be relevant,
it is hardly surprising that Congress passed the Mann Act and made
consent entirely immaterial under § 2422. The testimonial
privilege, however, presents questions of quite a different order,
since there is a significant interest traditionally regarded as
supporting the privilege, as we recognized in
Hawkins --
the preservation of the conjugal relationship. And where the wife
refuses to testify, there is strong evidence that there is still a
marital relationship to be protected.
Page 362 U. S. 535
Not only does prior congressional action provide no support for
the Court's decision, but, without such support, that decision
represents an incursion into what is essentially a legislative
area. It is true, of course, that federal courts have the authority
to interpret the common law principles of evidence "in the light of
reason and experience." Fed.Rules Crim.Proc. Rule 26. This
authority, however, must be exercised with a discriminating
awareness of the distinction between matters which fall within the
special competence of the judiciary and those which are primarily
the concern of the legislature. It is more properly Congress'
business, not ours, to place comparative values upon the quest for
facts in the judicial process as against the safeguarding of the
marriage relationship, and to give -- or deny -- expression to what
has been termed
"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."
8 Wigmore, Evidence, 227. That this decision is uniquely
legislative, and not judicial, is demonstrated by the fact that,
both in England and in this country, changes in the common law
privilege have been wrought primarily by legislatures. [
Footnote 2/4] And perhaps
Page 362 U. S. 536
it is worth noting that the essentials of the privilege have
survived with remarkable sturdiness through the course of continued
consideration by legislative bodies. [
Footnote 2/5]
Of particular interest is the past action and attitude of
Congress with respect to the privilege. As the Court
Page 362 U. S. 537
pointed out in
Hawkins, in 1887, Congress passed a
statute which permitted either spouse to testify in prosecutions of
the other for the crimes of bigamy, polygamy, or unlawful
cohabitation, but stipulated that neither should be compelled to
testify. 24 Stat. 635. Apparently Congress believed that this
provision gave sufficient protection to the spouse-witness, and
that the interest of the State in securing convictions was
outweighed by the considerations supporting the right of the
spouse-witness not to testify against her will. Even more in point
is the 1917 legislation by which Congress made spouses competent to
testify against each other in prosecutions for the importation of
aliens for immoral purposes. 39 Stat. 878-879, reenacted as 66
Stat. 230, 8 U.S.C. § 1328. Thus, Congress has acted with respect
to the scope of the privilege in prosecutions under a statute
kindred to § 2421, but has remained silent so far as § 2421 itself
is concerned. The negative implication does not require
elaboration. [
Footnote 2/6]
Page 362 U. S. 538
Moreover, it should be noted that, even under § 1328, the
testimony of the spouse is made only "admissible and competent,"
not compellable. [
Footnote 2/7]
In my judgment, the Court in this case strays from the course of
appropriate judicial reserve marked by
Hawkins. I am
unwilling to join in a decision based upon an assumption of fact
which is without support in the record and which involves a
delicate, and essentially legislative determination. I therefore
dissent.
[
Footnote 2/1]
Perhaps the Court is merely assuming this to be true
arguendo. Since the basic purpose of the exception is to
prevent the husband from abusing the wife with impunity, the
assumption is amply warranted.
See, e.g., Lord Audley's
Trial, 3 How.St.Tr. 401, 402, 414 (1631);
Bentley v.
Cooke, 3 Doug. 422, 424 (1784) ("[T]hat necessity is not a
general necessity, as where no other witness can be had, but a
particular necessity, as where, for instance, the wife would
otherwise be exposed without remedy to personal injury." Mansfield,
L.C.J.); 8 Wigmore, Evidence (3rd ed.), § 2239; Comment, 4
Ark.L.Rev. & Bar Assn.J. 426, 427; Note, 38 Va.L.Rev. 359, 361.
All that is necessary to fulfill this purpose is to provide the
injured spouse with the means for redress. If she chooses not to
utilize that means, there is no greater justification for
compelling her testimony in such a case than there is in the normal
situation. Although there is concededly authority to the contrary,
in my view, it is not well reasoned. Since the Court does not
disagree, it is unnecessary at this time to discuss the matter in
detail.
[
Footnote 2/2]
The most important testimony regarding the petitioner's purpose
in providing for his wife's transportation was given by a hotel
bellboy, who related various conversations which he had with
petitioner. The clerk also testified as to his conversations with
the wife, and there is little if anything to distinguish the
evidence relating to the wife from that relating to the
husband.
[
Footnote 2/3]
Section 2421, generally speaking, makes it a crime (a) to
transport in interstate or foreign commerce any woman for the
purpose of prostitution or other immoral purpose, or with the
intent of inducing her to engage in prostitution or other immoral
practice, and (b) to secure interstate or foreign transportation
for any woman for the above purposes or with the above intent.
Section 2422, generally speaking, makes it a crime to induce a
woman to travel on common carriers in interstate or foreign
commerce for the above purposes or with the above intent.
[
Footnote 2/4]
Every State has a statute governing the matter. For discussion
of these statutes,
see 3 Vernier, American Family Laws,
585-586; 2 Wigmore, Evidence, § 488, 8
id., § 2245; 43
Marq.L.Rev. 131, 132; 33 Tulane L.Rev. 884; Note, 38 Va.L.Rev. 359.
The many differences among these statutes is further evidence of
the divergent views which may be held with respect to the relative
importance of the factors involved. It is interesting to note in
this connection that apparently only a small minority of States
have passed statutes which make the wife competent to testify in a
prosecution against her husband for pandering or white slavery when
she is the female involved, and only some of these make her
compellable as well as competent.
See, e.g.,
Me.Rev.Stat.1954, c. 134, § 22; Ore.Comp.Laws Ann.1940, § 23-921;
Utah Code Ann.1943, § 103-51-14; Va.Code 1950, § 18-97; W.Va.Code
Ann.1955, §§ 6062, 6063.
See also Note, 38 Va.L.Rev. 359,
366. Nor does the comprehensive British legislation give comfort to
the Court. For a description of these statutes,
see
Evidence of Spouses in Criminal Cases, 99 Sol.J. 551.
See
also Nokes, Evidence, A Century Of Family Law (Graveson and
Crane ed.), 146-149; Scots L.T. (1956), 145.
Compare Leach v.
Rex, [1912] A.C. 305,
with Rex v. Lapworth, [1931] 1
K.B. 117. The experience of the Alabama Supreme Court is
instructive. That court, in an "exception of necessity" case, held
that the wife was not only competent to testify, but also
compellable.
Johnson v. State, 94 Ala. 53, 10 So. 427. The
Alabama Legislature, however, abolished this decision by statute.
Ala.Code, 1940, Tit. 15, § 311.
[
Footnote 2/5]
See the sources cited in
362
U.S. 525fn2/4|>note 4,
supra. To be sure, the
privilege has been strongly attacked by commentators, most of whom
rely upon Wigmore's treatise. Wigmore's lengthy criticism of the
privilege is best summarized in his own words:
"This privilege has no longer any good reason for retention. In
an age which has so far rationalized, depolarized, and
de-chivalrized the marital relation and the spirit of Femininity as
to be willing to enact complete legal and political equality and
independence of man and woman, this marital privilege is the merest
anachronism in legal theory, and an indefensible obstruction to
truth in practice."
8 Wigmore, Evidence 232.
It is arguable that this is as much an
ipse dixit as
the statements in favor of the rule which Wigmore criticizes upon
that very ground.
Id. at 226-228. In any event, it is
evident that his conclusion involves value judgments which the
legislature is far better adapted to accept or reject than the
judiciary.
For a view contrasting with Wigmore's,
see Bassett v. United
States, 137 U. S. 496,
137 U. S.
505-506, where this Court narrowly construed a
legislative provision regarding the privilege:
"We do not doubt the power of the legislature to change this
ancient and well supported rule, but an intention to make such a
change should not lightly be imputed. It cannot be assumed that it
is indifferent to sacred things, or that it means to lower the holy
relations of husband and wife to the material plane of simple
contract. So, before any departure from the rule affirmed through
the ages of the common law . . . can be adjudged, the language
declaring the legislative will should be so clear as to prevent
doubt as to its intent and limit."
[
Footnote 2/6]
The nature of relevant action by Congress and by the state
legislatures,
see 362
U.S. 525fn2/4|>note 4,
supra, distinguishes this
case from
Funk v. United States, 290 U.
S. 371, which held that one spouse was competent to
testify on behalf of the other in a criminal trial. As the Court
there pointed out, the disqualification was based upon interest,
and
"[t]he rules of the common law which disqualified as witnesses
persons having an interest, long since, in the main, have been
abolished both in England and in this country. . . ."
Id. at
290 U. S. 380.
The contrast between this case and
Funk, where the Court
was able to rely upon "the general current of legislation and of
judicial opinion,"
id. at
290 U. S. 381,
is striking. In this connection, perhaps it should be emphasized
that the federal decisions cited in
note 2 of the Court's opinion stand as the Court
indicates, only for the proposition that a Mann Act prosecution
falls within the common law exception so that the wife may testify,
and not for the rule that a wife in such a case may be
compelled to testify.
But see Shores v. United
States, 174 F.2d 838, 841, where the Court of Appeals for the
Eighth Circuit stated in dicta that the wife may be
compelled to testify in
any exception case -- a
view much broader than that here adopted by this Court.
[
Footnote 2/7]
This seems to be the plain meaning of the statutory language,
though similar language in state statutes has received both broad
and narrow constructions.
Compare McCormick v. State, 135
Tenn. 218, 186 S.W. 95,
with Richardson v. State, 103 Md.
112, 117, 63 A. 317, 319-320. For the view of an English court,
see Leach v. Rex, [1912], A.C. 305, 311 (not compellable)
("The principle that a wife is not to be compelled to give evidence
against her husband is deep-seated in the common law of this
country, and I think, if it is to be overturned, it must be
overturned by a clear, definite, and positive enactment, not by an
ambiguous one. . . ." Lord Atkinson).
See also 8 Wigmore,
Evidence § 2245(
a); Note, 38 Va.L.Rev. 359, 362-363.