WYATT v. UNITED STATES

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Argument of Robert R. Rissman

Chief Justice Earl Warren: Number 119 James Ivy Wyatt, Petitioner vs. United States.

Mr. Okrand.

Mr. Robert R. Rissman: I am Mr. Rissman Mr. Chief Justice.

Chief Justice Earl Warren: Mr. Rissman.

I beg your pardon.

Mr. Robert R. Rissman: Mr. Chief Justice and may it please the Court.

This is a matter that comes before the Court on petition from the Circuit Court of Appeals for the Fifth Circuit on the question of a conviction of the petitioner who was convicted of transporting a woman in violation of the Mann Act in interstate commerce.

The Circuit Court of Appeals affirmed the conviction.

Now although we have two questions involved, namely whether a woman transported in violation of the Mann Act by a man she subsequently marries maybe compelled to testify against her husband in the face of his assertion of the common law privilege.

And secondly, whether there was sufficient collaboration of the petitioner's admissions of interstate commerce or interstate transportation.

It appears from the Government's brief at page 19 that the second point is virtually conceded, and that if the Court finds that the admission of the wife's testimony was in error, then we need not to consider the second point.

The facts very simply are these - There was an indictment of the petitioner for transporting a female Mary Kathleen Byrd from Columbus, Georgia to Dothan, Alabama.

There's testimony of a bell boy at the hotel in the Alabama city that he saw the petitioner and this woman in the hotel room, that there were various conversations between the bell boy and the petitioner and the woman regarding business, referring apparently for the business of prostitution.

There's testimony of a city detective of the Alabama city to the effect that he found bus ticket stubs in the possession of the petitioner and that their was a confession taken from the petitioner, and as related by the city detective, the petitioner told him that he had purchased two tickets in Columbus, Georgia, that he was going to Laguna Beach, Florida but that they stopped in Dothan, Alabama, and then on this trip, he was accompanied by Mary Byrd.

Mary Byrd, the wife then was called to testify and it appears that she testified that she was formally known as Mary Kathleen Byrd, that at the time of her testimony, she was married to the defendant, the petitioner here.

And she then stated that she refused to testify on grounds that she was married to the defendant.

She offered to exhibit to the Court a marriage license.

The Court refused to examine the license and the Court overruled her objection and required her to testify.

Unknown Speaker: She was not indicted herself?

Mr. Robert R. Rissman: Pardon sir?

Unknown Speaker: She was not indicted?

Mr. Robert R. Rissman: She was not indicted no sir.

It merely called as a witness for the prosecution.

Unknown Speaker: Were they married before or after the indictment?

Mr. Robert R. Rissman: They were married after the indictment.

The -- the record indicates that and the Court of Appeals assumed that the transportation occurred before the marriage.

So, we have clearly the question of whether her testimony of events that occurred before the marriage should have been allowed over her objection and over the objection of the defendant himself.

Justice Felix Frankfurter: Before the marriage and -- and the marriage that you replied to the Chief Justice was supervening the indictment.

Mr. Robert R. Rissman: Yes sir.

That is correct Mr. Justice Frankfurter.

Now --

Justice William J. Brennan: Mr. Rissman, it is not crystal clear as to (Inaudible).

Mr. Robert R. Rissman: No it is not crystal clear but the record indicates that the indictment in the -- at page 1 refers to her as Mary Kathleen Byrd and there is her testimony of the marriage at page 22 of the record, in which the prosecutor asked her and apparently from the examination there when she says, he asked, “What is your name ma'am please?”

Answer - Mary K. Wyatt.

The prosecutor - “Mary K. Wyatt” (unbelievingly), because apparently he expected her answer to be Mary K. Byrd.

Question - “Are you the lady who was formally known as Mary Kathleen Byrd?”

Answer - “I certainly am.”

Question - “Are you related to the defendant Mr. Wyatt?”

Answer - “That is my husband.”

Question - “Were you formerly married to a Rudolph Lindbergh (ph)?”

Answer - “Yes I was.”

And then came the objection by counsel for the defendant.

The Court says, get along.

And next question - “But you are now married to this defendant?”

And then at record 57, I believe it is, the Circuit Court for the Fifth Circuit says, “The fact that the transportation occurred before marriage certainly would not any the more disqualify the wife.”

So that the Court assumed that the --

Justice Potter Stewart: It also appears to be in the defendant, petitioner there at one stage again told an FBI agent that he was married at the time of transportation.

Mr. Robert R. Rissman: Yes and --

Justice Potter Stewart: Married to this woman, this witness?

Mr. Robert R. Rissman: Yes sir.

And they testify -- the same witness testified that the defendant also told him in subsequent statements that he was married to the woman after the transportation.

So, there is some -- some ambiguity in the record at most on this question, but the Court below assumed that the marriage occurred after the transportation.

Justice Potter Stewart: The Court below in fact said it didn't make any difference when they -- whether they are married at the time of transportation or were subsequently married or not married at all, isn't that it?

Mr. Robert R. Rissman: The -- the trial court said it didn't make any difference and the Court of Appeals assumed that the transportation occurred after the -- before the marriage.

Justice Felix Frankfurter: Now, it's assuming I say assuming that it is legally relevant whether the transportation occurred before marriage and further assuming that it is legally relevant that the indictment preceded the marriage.

Assume those two things --

Mr. Robert R. Rissman: Yes sir.

Justice Felix Frankfurter: -- then the claim of -- of disqualification, the claim of immunity from the duty to testify would rest on the witness, would it not?

Whether -- all right, I've put that in one sided, it all there's in -- there was the burden of showing that there were these immunizing elements namely that the marriage was -- the marriage preceded the transaction in controversy and the marriage preceded the indictment, the burden of showing that certainly was not undertaking or -- or established by the witness, is that right?

Mr. Robert R. Rissman: That's right there was an attempt by the prosecutor to establish that there was no valid merit, but the trial court did not permit them to go in to that question.

Justice Felix Frankfurter: That's a different showing --

Mr. Robert R. Rissman: Yes.

Justice Felix Frankfurter: -- that would undercut the whole case, would it not?

Well, assuming their was a marriage and assuming that -- that the marriage couldn't colloquially be contested, if it be relevant that the transactions precede the marriage and if it be relevant that the indictment preceded marriage assuming whether the burden of establishing relief from the duty of testifying is on a witness, that burden was not undertaken or established here, is that right?

Mr. Robert R. Rissman: That's correct.

Of course --

Justice Felix Frankfurter: I'm not saying any of these things are relevant I'm just wondering what -- where we are at?

Mr. Robert R. Rissman: It is our position that they're not relevant because I think it makes no difference under the rule and the exception whether they were or were not married at the time of the event.

Justice Felix Frankfurter: I fully appreciate that I just --

Mr. Robert R. Rissman: That -- I think it makes it a stronger case in the -- in favor of the petitioner here if they were not married but actually the question involved and the question to be decided by the Court does not have to rest upon that fact.

Now, the common law rule of course --

Justice Felix Frankfurter: Are you saying it's stronger if -- if they were unmarried at the time of the event?

Mr. Robert R. Rissman: That's correct.

Justice Felix Frankfurter: That is your position?

Mr. Robert R. Rissman: Yes.

Unknown Speaker: Your case is stronger --

Mr. Robert R. Rissman: Yes sir.

Unknown Speaker: -- if they were unmarried?

Mr. Robert R. Rissman: If they were unmarried at the time of the event, because the exception to the general rule, the general rule would be that the wife cannot be compelled or not permitted to testify against the husband except for an injury to the wife.

Now, if she was not his wife at the time of the alleged incident then --

Justice Charles E. Whittaker: Do you cite in the act (Inaudible) against her?

Mr. Robert R. Rissman: That's right.

Justice Charles E. Whittaker: Then you shouldn't.

Mr. Robert R. Rissman: No.

I -- I think the case has seemed to say an offense against the wife and -- and presumes a marriage at the time of the offense.

So if she was not a wife at the time of the offense.

There would be no reason to apply the exception and as I will attempt to indicate that the fact that marriage comes later would seem to support the general principle that the privilege is to be permitted and the testimony is not to be allowed in order to obtain the reason for the general rule in the first instance namely to preserve marital harmony and to prevent any marital breach.

Justice Charles E. Whittaker: You would say I think if you put it (Inaudible) your point of view, it is not marriage at the stage determined by Hawkins?

Mr. Robert R. Rissman: That is correct.

Well, the Hawkins --

Justice Charles E. Whittaker: Well, the exception doesn't commend?

Mr. Robert R. Rissman: The exception does not commend because there was no injury to the wife.

Justice Charles E. Whittaker: Because she was not?

Mr. Robert R. Rissman: Because there was no wife at the time.

Justice Charles E. Whittaker: Well, are you going to argue the question of whether or not the fact the transportation across state lines (Inaudible)?

Mr. Robert R. Rissman: No sir.

Justice Charles E. Whittaker: You're not contesting?

Mr. Robert R. Rissman: No, because the transportation is an offense against society but that is not the -- the test as to whether the wife should or should not be permitted to testify.

Justice Charles E. Whittaker: I find this is an offense against the United States (Inaudible).

Mr. Robert R. Rissman: I -- I think it could be, yes.

Justice Charles E. Whittaker: (Inaudible)

Mr. Robert R. Rissman: I -- it -- it certainly could be an offense against her.

Justice Charles E. Whittaker: All right, but is it proper on these facts (Inaudible) offense against her?

Mr. Robert R. Rissman: It was an offense against the woman, I don't -- but it was not an offense against the wife, and the exception prevails not because of an offense against a person but an offense against a person who is a wife.

The exception being necessary to support the rule itself, which says, we will not permit such testimony because the danger of permitting a wife to testify against her husband results in burdens upon the marital relationship.

And it --

Justice Charles E. Whittaker: (Inaudible) quite obvious if a woman (Inaudible) under circumstances as broad that we (Inaudible), it is an offense against her --

Mr. Robert R. Rissman: Yes sir.

Justice Charles E. Whittaker: But suppose that she -- suppose (Inaudible) is an offense against her in that sense?

Mr. Robert R. Rissman: No sir, it's not an injury to her and the crime exists merely because the statute says it is a crime and it's similar to the cases of statutory rape and -- and the -- but the question of her consent is immaterial.

Unknown Speaker: Now, if you say it comes but not against the wife?

Mr. Robert R. Rissman: That's right.

Justice Charles E. Whittaker: (Inaudible)

Mr. Robert R. Rissman: In -- in the personal sense, it does not because there is no evidence here that this transportation was against her will.

In fact the -- the evidence is quite to the contrary she always said it was quite a voluntary transportation and consented to her by -- on her part.

So there was no offense against her in a sense that there was any injury to her.

Justice Charles E. Whittaker: What was he had been trying for?

Mr. Robert R. Rissman: He was trying for transporting this woman in interstate commerce for immoral purposes.

Justice Charles E. Whittaker: Well, that's an offense against her (Inaudible).

Mr. Robert R. Rissman: He was trying for an -- he was being tried for an offense against the --

Justice Charles E. Whittaker: (Inaudible)

Mr. Robert R. Rissman: -- the United States against the Act itself.

Now, we submit that the question of whether the testimony of the wife is necessary, namely the basis for the rule of the exception or for the invocation of the exception, presupposes a particular necessity for the wife, namely a necessity to vindicate her rights or to protect her from personal harm, as the cases say, or otherwise the wife would be exposed without remedy to personal injury.

And it is the wife's necessity for a protection, and lastly, prosecutor's necessity to get a conviction that permits the abrogation of the general rule and permits the invocation of the exception.

The Court, of course, is authorized under Rule 26 of the federal rule to modify this rule and to revoke the exception or to broaden it as the case may be in the length of reason and experience, and this was the holding in the Hawkins case as recently as just one year ago.

And there's been no demonstration in this record that reason and experience require that the public interest inherent in the promulgation of the general rule should be further modified or as to be equated against the necessity of the testimony as against the enforcement of the Mann Act.

This is a situation here, where the wife, the woman having married the man after the offense, having refused to testify at the time of the trial.

We have the situation of a marital status that can be preserved and that can be further enhanced, and to permit the testimony at this time is directly in face of the rule of preserving marital harmony.

Now, in the Hawkins case this Court, applying the rule of reason and experience, refused to permit even voluntary testimony of a wife, where the wife was willing to testify and in a situation where apparently there was no marital status to preserve.

The testimony there was that the husband and wife did not live together for many years and the -- there was no risk of disturbing a nonexistent marital harmony situation.

Now, how much more compelling are the facts here where the wife refuses to testify, where the wife became the wife after the offense which is charged against the defendant and which supports the basis of the original privilege.

The -- if we may borrow from something we learned in the argument of the previous case, I would like to refer to the argument raised by the Government here that in a Mann Act violation, where there is an offense against the very situation of matrimony, where there is apparently an obstruction to the marital status, the exception should prevail and the rule should not and taking our clue from the arguments we heard, it would appear that there are many pollutants and much debris discharged into the stream of marital status, but most of these pollutants and most of these obstructions, our (Inaudible) counsel in the other case said are in suspension and many of them are dissipated or washed away and disappear.

But it's only those pollutants which are settleable which create obstruction.

And we submit that to compel a wife to testify against her husband or even to permit her to testify if she is willing is to permit settleable obstructions in this matrimonial stream which can leave to obstruction.

Unknown Speaker: Was there anything (Inaudible)

[Laughter]

Mr. Robert R. Rissman: I think it -- it -- it goes back even further than that if Your Honor please.

And although in the other case we heard about the 99.98% purity of the water that is returned to the stream, in this type of situation we need a 100% purity.

Unknown Speaker: (Inaudible) [Laughter]

Mr. Robert R. Rissman: I think there is, there is where the wife says, “I refuse to testify” and it isn't in particular situation, because although there may be burdens imposed upon the prosecutor, although he may not be able to give a conviction without the testimony of the wife, we submit that it's better to impose the burden on the prosecutor and perhaps not yet as many Mann Act convictions than to perhaps allow obstructions which will lead to marital discord and marital disharmony.

I want to anti --

Justice Potter Stewart: (Voice overlap) it's --

Mr. Robert R. Rissman: Yes.

Justice Potter Stewart: -- it would be terribly contrary to public policy to have marital discord develop from a situation where a man was transporting his own wife in interstate commerce for the purpose of prostitution?

Mr. Robert R. Rissman: You say is it possible?

Justice Potter Stewart: What is the social policy which should induce this Court to preserve that kind of a marriage?

Mr. Robert R. Rissman: I think the social policy is to preserve any marriage and particularly in the case where the wife herself claims the privilege, because apparently she is willing to preserve that marriage and is not willing to testify.

I submit that the distinction that the Government tried to make in the Hawkins case was just that.

They said that where she is wiling to testify as she should be permitted to do so and it's different than compulsion.

What this Court said and I submit rightfully that there should be no distinction between the compelled testimony and the volunteered testimony.

Now, the Government says, we agree with Hawkins but we think we ought to go further and require even compelled even a -- a testimony that is not volunteered.

We should be able to do so.

Justice Felix Frankfurter: Are you suggesting -- are you suggesting that this case involves the formulation or the restatement at the effect of a general rule rather than make a special rule through Mann Act cases, because if this -- the Mann Act situation is the only one in which this problem arises.

Mr. Robert R. Rissman: That's correct sir.

I -- I think that the -- the Mann Act -- if Congress had intended that to Mann Act have a special rule, it would have so provided, because there have been special rules provided in the Act which forbids the importation of aliens for immoral purposes.

In 1917 8 U.S.C. 1328 the statute there specifically permits the testimony of one spouse against another, and in the polygamy statutes, at 24 Stat. 635, the statute specifically, in that case, permitted testimony of one spouse against another but did not compel it.

Justice Felix Frankfurter: And either -- the report on either of those two enactments -- does that report disclose that Congress consciously was making it an exception or an immunity which it recognized?

Mr. Robert R. Rissman: I'm not --

Justice Felix Frankfurter: the statute makes -- the statute makes, if that's what you said, namely to affirm it legally, allows that kind of testimony.

What I want to know is whether in the report on the legislation, there were reports that dealt with, or most probably would, whether Congress said we think in -- for these purposes the rule, the accepted rule that the wife can testify against her husband should be --

Mr. Robert R. Rissman: I -- I am not -- I am not certain as to what the report said, but all I like to do is assume that the Congress had in mind the exception or otherwise there would have been no need to insert a -- had in mind the rule, otherwise there would be no need to insert the exception.

Justice Felix Frankfurter: You might have wanted to make sure --

Mr. Robert R. Rissman: Yes.

Now the --

Justice Felix Frankfurter: I think the mind of Congress is not the easiest thing in the world, is it?

Mr. Robert R. Rissman: I would prefer not to express any opinion about the mind of Congress if the Court please.

Justice Felix Frankfurter: I did neither, I said that's a difficult thing to think of.

Mr. Robert R. Rissman: Now, the -- I want to anticipate that counsel for the Government were referred to the Lutwak case, that's 344 U.S. 604, in which case the -- the rule was not followed and the wife was permitted to testify against the husband.

That was a case involving a conspiracy to violate the Immigration Act where the Court found, in effect, that the marriage in that case was, as the Court said, “a sham and a fraud” and said further, in a sham, phony, empty ceremony such as the parties went through in this case.

The reason for the rule, disqualifying a spouse from giving testimony disappears and with it the rule.

The reason for the rule at common law was to protect the sanctity and tranquility of the marital relationship, and where there was no marital relationship, where the parties never intended to be married, there is no reason to enforce the rules.

Justice Potter Stewart: But wouldn't that also be true where there -- where there was no sanctity or tranquility?

Mr. Robert R. Rissman: It -- it might be, but that of course is not the situation here and as was -- the Court said in the Hawkins case I believe Your Honor said in your separate concurring opinion in the reason of -- in the light of reason and experience, there should be some demonstration that the exception should be broadened, so that if perhaps there were -- there was no sanctity and was no tranquility that the testimony should be permitted.

But there is nothing in this record to indicate that this is anything but a proper and -- and valid marriage in spirit as well as in form.

Justice Potter Stewart: Well, by hypothesis in this kind of a case, that's -- that's -- it's hardly true, is it?

You're saying, as I understand it, two things, that if -- if these -- if the petitioner here and this witness were married at the time of the transportation or the alleged federal offense, you concede, as I understand if and at least argue and though for purposes of this case, that this would come within the exception recognized in the Hawkins opinion that when the wife is the victim, she is a competent witness.

But you say, if they were unmarried at the time of the transportation and subsequently married, married before the trial, then she is an incompetent witness.

Is that -- and you say that this is that case?

Mr. Robert R. Rissman: Yes.

Justice Potter Stewart: Now, doesn't this just if -- if this Court were to adopt any such rule that -- wouldn't that serve notice on every violator of the Mann Act in the United States that the way to escape prosecution is simply to marry the woman before the trial?

Mr. Robert R. Rissman: I think it might be possible for the Court to limit the exception, but then the Court imposes the burden upon itself and treating this on a ad hoc basis in each case, and this is not what the Government is asking.

The Government is asking for a blanket of permission or abrogation of the rule in Mann Act cases.

Justice Potter Stewart: Well, isn't the Government simply telling us that the -- there's always been an exception to this rule when the wife is the victim of the offense, and telling us further that so far in the federal courts the courts have considered that a Mann Act violation comes within this exception.

It's you, isn't it, who's asking us to change the rule.

A rule to be sure never established and under considered in this Court, but a rule generally in the federal courts?

Mr. Robert R. Rissman: Generally, that is true.

And this -- the -- but this is analogous of course to the many cases in -- in similar situations but not involving the Mann Act, the statutory rape cases, for example, in which the subsequent marriage of the parties is always acted as a barred testimony of one spouse against the other.

And we submit that the general good is better served by not permitting spousal testimony one against the other, then to let down the barriers at all with reference to Mann Act cases.

Unknown Speaker: Now, (Inaudible) in your statement you regarded it's essential to your position to show that this woman was not married at the time of the offense.

Mr. Robert R. Rissman: No sir.

I don't think that --

Unknown Speaker: I thought, I understood it to that way.

Mr. Robert R. Rissman: -- is essential for our position.

I say it perhaps strengthens our position, but I think it's immaterial whether they were or were not married before the offense.

Unknown Speaker: Well, I misunderstood, what you said to Justice Stewart.

Chief Justice Earl Warren: Mr. Rissman in the case you just referred us to what are -- what facts are there to show that that was a sham and a fraud to distinguish it from this case?

Mr. Robert R. Rissman: In the Lutwak case Your Honor?

Chief Justice Earl Warren: Yes.

Mr. Robert R. Rissman: Yes.

The -- the War Brides case.

I believe there was a testimony in those records that at the time of the marriage the fact in those cases were these.

Ex GIs, went over to Paris and married foreign women and some cases some ex-GI women went to Paris and married foreign men for the express purpose of bringing them under the War Brides Act, which permitted them to enter the United States without waiting for any particular quote or regulation.

But the understanding, and the record indicates this, the understanding at the time of the ceremony was we will get married in formally and as soon as this -- we -- we can, we will dissolve the marriage, and that is exactly what happened.

They came to the United States, having evaded the Immigration Law, they then dissolved the marriage.

And in some cases before the dissolution of the marriage and in some cases after the indictments were drawn.

Justice Felix Frankfurter: Mr. Rissman, at the --

Mr. Robert R. Rissman: Yes Your Honor.

Justice Felix Frankfurter: -- beginning of your argument you laid stress on what you seem to be the fact, and I don't know anything about that -- that's the record, that this was a voluntary transaction so far as the woman would consider.

Mr. Robert R. Rissman: Yes.

Justice Felix Frankfurter: If that is so and that assumption, suggest that this be brought within the rubric of victims, widen it up that she's a victim, opens up a very serious sociological problem so far as I think the literature of prostitution goes that whatever one -- we may think here, it isn't true to say that the prostitute is always a victim, and the relationship between man and prostitute wife is very different than one would assume from at least kind of experience that I had, and I suppose most of us had, isn't that true?

Mr. Robert R. Rissman: That's correct.

Justice Felix Frankfurter: The great body of literature indicating quite the content.

Justice Hugo L. Black: I guess the presumption is she's a voluntary victim.

Justice Felix Frankfurter: That's a good contradictory term.

Justice Hugo L. Black: That's why I asked you so, if you were making any point to that?

Mr. Robert R. Rissman: No sir I don't, because I -- I don't think that it makes any difference it -- it -- as I say it straightens our position if we say that she was as Justice Frankfurter, a voluntary victim as against a -- a woman at a --

Justice Charles E. Whittaker: I think would it have made this difference, if she is not the victim, then doesn't Hawkins simply say she's not a competent witness?

Mr. Robert R. Rissman: That's correct.

Justice Charles E. Whittaker: (Inaudible)

Mr. Robert R. Rissman: Yes.

Justice Charles E. Whittaker: Well, then you said it makes no difference?

Mr. Robert R. Rissman: Well, in our general theory, it -- it makes no difference but in this case particularly, we say for two reasons she was not the victim.

Number one --

Justice Charles E. Whittaker: Why won't you say, she won't make it in its point that she was not the victim?

Mr. Robert R. Rissman: I say our case isn't dependent upon that question of law.

I think the record would indicate that she was not the victim for two reasons.

Number one, they were not married at the time, she was not a wife of the victim.

And secondly, she was a volunteer.

Justice Charles E. Whittaker: Then, do you urge that -- the point that she was not the victim?

Mr. Robert R. Rissman: I -- I think it's one that we have urged in our brief, but I don't think its essential to our -- to our case.

Justice Hugo L. Black: What do you understand and what do you think it means (Inaudible)?

Mr. Robert R. Rissman: I would understand that to mean one who finds himself in a set of circumstances is not of his own desire or -- or responsibility or doing.

I would reserve whatever time remains if the Court pleases to Mr. Okrand.

Thank you.

Chief Justice Earl Warren: Mr. Connor you may proceed.

Argument of Roger G. Connor

Mr. Roger G. Connor: Mr. Chief Justice and may it please the Courts, the issue in this case stated very simply is whether in a Mann Act prosecution, where the wife is the person transported contrary to law, the Government may compel that wife to testify at the trial over the objection of the wife when she is called as a witness.

The petitioner claims that in this case two special factors operate to prohibit the educing of this kind of testimony by the Government.

First of all, the fact that they were married after the commission of the offense.

Apparently, this indicates some notion that these two people are happy together, they have a marriage relationship, which should not be invaded by the -- the law in its efforts to seek out the truth at trials.

The second point, it seems quite clear from the petitioners' argument and brief --

Justice Felix Frankfurter: The claimant's second point does force me to assume that that in (Inaudible) marriage relation (Inaudible).

We assume that the law happened to introduce elements that's furthered to this Court, if this Court has any --

Mr. Roger G. Connor: Yes we would agree over that.

Justice Felix Frankfurter: (Inaudible) may eventually become a court.

Mr. Roger G. Connor: Yes we would agree with that statement Your Honor.

It's simply that I believe that the petitioner is trying to demonstrate that this relationship in issue, in case of bar, is one of those which comes within the policy of the privileged.

And that they were married after the offense and there is a marital relationship which is entitled to protection like any other.

Justice Felix Frankfurter: Isn't the -- the law or the difficulty of the problem arise with the fact that judges are trying to make -- are assuming a lot of social policy on the basis of evidence and experience which, with all due respect to all of us, they haven't got.

Mr. Roger G. Connor: Well, of course that goes into the question of whether the privilege is desirable, but we feel that that was settled in Hawkins against United States last term, in which this Court examined the bases of that rule and determined that the rule should still be enforced in the federal courts.

Chief Justice Earl Warren: Does it make any difference to you Mr. Connor whether -- whether this marriage occurred before or after the crime?

Mr. Roger G. Connor: Frankly, in the Government's view it makes no difference, it does not.

That is Wigmore and the other authorities on evidence indicate that ordinarily the marital privilege, if it obtains, is conferred in a situation like this as much as in the situation where they were married at the time of the offense.

Wigmore says that even if he marries the woman after she has been subpoenaed to appear as a witness at trial, it would be valid to raise the -- the privilege.

The theory being that the privilege is to protect the husband and wife relationship.

This operates conversely from the marital communication privilege in which the -- the communication was before marriage that the marriage is not privileged and after divorce the privilege still holds good for those communications that were made during marriage.

Wigmore says that this operates the other way.

We are willing to concede that too that that would be the ordinary operation of the rule.

But we claim that in this case the privilege doesn't attach whatever and into it does not attach, there is nothing privileged here to protect, she is compellable as any other witness would be.

Petitioner makes a great deal out of the privilege as being some kind of a fundamental basic legal right which is entitled to protection and which is entitled to extension to almost remote analogies, but we feel that the more fundamental principle is that a testimonial duty which rests on every citizen to give testimony in Court.

This is something which is at least as old and honorable as any marital privilege because it goes back to the early English subpoena powers of chancery and to the Statute of Elizabeth compelling testimony in courts of law in England.

The -- the analysis of the Government is basically that the privilege itself is an intrusion on what would be the ordinary rule of law.

It makes no difference from the standpoint of analysis, whether we say that the exception as to offenses against the wife is an exception to a privileged rule or whether we say that the rule simply doesn't cover it.

In our way of thinking, it makes no difference to the outcome of this case.

In the Hawkins case last term, the Government did propose a rule whereby voluntary testimony by spouses would always be allowed and compelled testimony would never be allowed.

This Court rejected that rule.

We are here today asking the Court to apply the rule it stated in Hawkins.

In Hawkins, the Court noted that there is this exception.

It also noted that there was no known distinction in the previous cases on which the Court relied which justified a distinction between voluntary and compelled testimony.

Now again, that brings us back to this point that if the privilege is not attached, then we feel that there is a duty which is operative here and under which the wife must testify.

This goes even deeper to the policies which underlie the privileges.

We have a basic public interest in getting at the truth in Court.

The ordinary evidentiary rules are designed to get at the truth and to aid that process.

They hearsay rule, the opinion rule, and these other rules ordinarily ensure against the introduction of untrustworthy or unreliable data to the submission of the fact finder.

A rule of privilege on the other hand, operates as a bar against getting at the truth, as a shield against it.

So that the only reason for which a privilege is warranted is that we have some other public interest such as here the marital relationship which requires protection even at the expense of getting at the truth.

We claim that here in this limited situation of a Mann Act prosecution, we do not have a pattern which requires the operation of the marital privilege.

Justice Hugo L. Black: Well, suppose that husband wife has decided for stealing together.

Mr. Roger G. Connor: For stealing together, in that event that would not be an offense directly violative of the marital relationship nor degrading of the wife itself.

As other Courts have noted that would -- that would be --

Justice Hugo L. Black: Why not?

Suppose he persuaded her to do it.

(Inaudible) persuaded to bribe, become a burglar or thief?

Mr. Roger G. Connor: No Your Honor that would be a question which one could only determine on the basis of facts submitted in such a case, but as a general proposition, if they both voluntarily committed the crime of larceny together, in an indirect sense, he might be contributing to the worsening of her morals.

But here in the Mann Act case, we have a direct --

Justice Hugo L. Black: I -- I assume that's the reason here that he's contributing to the -- theoretically worsening of her morals.

Mr. Roger G. Connor: Yes.

But the fact that they commit larceny together is not a thing which is so directly violative of notions of marriage --

Justice Hugo L. Black: Suppose he --

Mr. Roger G. Connor: -- in a civilized society --

Justice Hugo L. Black: Suppose he persuaded her to do it, to grab and have her in the occupation of a thief.

Mr. Roger G. Connor: Well, then, in that event, he would be contributing to some kind of moral delinquency on her part.

But we claim that --

Justice Hugo L. Black: Could she testify -- may be testified against him then?

Mr. Roger G. Connor: No we don't believe she could -- he could.

In fact, there's a good question of whether the privilege would obtain where he committed larceny against her, stole something from her or defrauded her.

That is a question which is not involved in this case.

Chief Justice Earl Warren: What if she was the aggressor in -- in a Mann Act case?

Mr. Roger G. Connor: The instigator?

Chief Justice Earl Warren: Instigator of the interstate commerce movement.

Mr. Roger G. Connor: Well, that leads us to the second phase of what the Government's argument, which is that in it the Mann Act makes consent, not an operative fact in the commission of the offense, there is no reason why we should import a distinction into the law of evidence.

Justice Felix Frankfurter: Your answer to the Chief Justice's question imply that the prostitute is always a victim of the -- of the transport, isn't that right?

Mr. Roger G. Connor: No Your Honor.

There may be situations where she is the primary instigator of the offense.

Justice Felix Frankfurter: Or -- or --

Mr. Roger G. Connor: But we believe that Congress has laid down a policy whereby whether she is a victim or to what extent she is, is rather immaterial of Congress --

Justice Felix Frankfurter: Immaterial to what?

Not to the moral oversight, but to the -- you don't want interstate commerce use for that purpose, having nothing to do with the morality of the situation.

Mr. Roger G. Connor: Well your --

Justice Felix Frankfurter: For the specific situation.

Mr. Roger G. Connor: Your -- Your Honor we feel that anytime that a man transports his wife in interstate commerce for the purpose that she should engage in prostitution, that is the sale of her body, that this is an offense which is violative of her as a person --

Justice Felix Frankfurter: But that isn't what Congress has anything to do with.

That is the peg on which it hangs the facts that we don't want interstate commerce is to mentality used for that purpose.

Mr. Roger G. Connor: Well Your Honor, I think the previous decisions of this Court had made it clear that while the constitutional basis for the legislation as the interstate commerce power, the purpose was to get at commercialized vice and to prohibit men from transporting girls in commerce for these degrading purposes.

Justice Charles E. Whittaker: That's why it's a public offense and the consent (Inaudible)?

Mr. Roger G. Connor: That is correct Your Honor and we don't think that it's possible to say that this is strictly an offense against the public or strictly in offense against the wife.

It's both, it partakes of both like many offenses do.

Justice Felix Frankfurter: You're making an assumption that in the -- that it -- that it's perfectly negligible that the -- the transportation of women under the Mann Act where the -- the woman is a consenting party, maybe even the aggressive party, that that's negligible, and the totality is always a case of victimization which would come close to be a Lindbergh Act offense.

If what you say is so, and you're almost within the Lindbergh territory, namely it occurs -- occurs the transportation from state to state.

Mr. Roger G. Connor: Well, I'm afraid I don't follow the question Your Honor.

Justice Felix Frankfurter: Well, if- if -- if -- you rest on a victim exception and I'm suggesting that that's making an assumption that these Mann Act transportations are all victimizations.

Mr. Roger G. Connor: No Your Honor --

Justice Felix Frankfurter: Or that predominantly they are.

Mr. Roger G. Connor: I think the use of the term vic -- “victim” is unfortunate.

Justice Felix Frankfurter: Well --

Mr. Roger G. Connor: I think it's more the idea that society will not continence certain kinds of crimes committed against wives.

Justice Felix Frankfurter: Well, you -- but the crime is the transportation and we've -- in several cases, in certainly one crucial case, the infliction of the quantity of punishment.

One had to examine what it is really that the Mann Act derives from, is addressed to, and has its justifications, namely the misuse of transportation facility.

Mr. Roger G. Connor: Yes sir, in our brief we note that the purpose of the Act, however, was to put a clamp down on -- on --

Justice Felix Frankfurter: I'm not --

Mr. Roger G. Connor: -- commerce and vice --

Justice Felix Frankfurter: I'm not denying that, I looked through the period of its passage, and no doubt Congress may utilize the Commerce Clause where it's consequential denied and benevolent and desirable purposes.

All I'm saying is that when you come to invoke the rule of victim, you're making an assumption which doesn't apply -- which you reject in the case put by Mr. Justice Black.

Mr. Roger G. Connor: No Your Honor.

I --

Justice Felix Frankfurter: You did -- you did say in his case, the wife couldn't -- could testify, didn't you?

Mr. Roger G. Connor: That -- that is correct.

But we are not positing this case on the notion that the wife is a victim in each instance, rather we are positing it on the public policy which underlies this exception.

The Courts --

Justice Hugo L. Black: You mean the necessity to convict people of the crime?

Mr. Roger G. Connor: No.

Necessity to either convict people of a crime or to vindicate the wife's interests is the rationale offered by petitioner.

We disagree thoroughly with this.

We believe that the true purpose of the exception is this that when a man commits an offense which is directly violative of the marital relationship, such as assaulting her, or in this case, prostituting her or --

Justice Hugo L. Black: But --

Mr. Roger G. Connor: -- or contributing to -- to her prostitution that in such an event the law will not allow him to use this privilege as a shield, because this is not within the purpose of the privilege, it's -- it was originally conceived.

And we have cases which support this position Your Honor.

Justice Hugo L. Black: But you -- you undoubted that cases that support that position where the husband strikes the wife and beats her up and something like that.

Do you have anything that support it where the husband does something she wants him to do?

Mr. Roger G. Connor: We have no cases in the federal or state courts which seemed to clearly bear on the situation here.

It is a case -- a case of first impression.

But the rationale is the same.

The English case cited in our brief Rex against Lapworth in 1931 was one where there was an assault against the wife, she did not wish to testify against her husband in Court, and the King's bench in England held that that didn't matter because --

Justice Hugo L. Black: Did she consent to the assault --

Mr. Roger G. Connor: They held that --

Justice Hugo L. Black: -- in that case?

Mr. Roger G. Connor: I don't believe so Your Honor.

I believe it was an aggravated assault.

Chief Justice Earl Warren: But Mr. Connor when Congress was dealing with a similar matter that to save women into this country for immoral purposes, didn't they put into the statute the fact that the wife could testify?

Mr. Roger G. Connor: That is correct Your Honor.

Chief Justice Earl Warren: Now, if Congress want that to be done, why wasn't it done here?

And if there is to be a change in rule, why shouldn't Congress make it as it did in that other classic case, which is almost identical with this, except one is over the international border and the other is between states?

Mr. Roger G. Connor: On that question, the legislative record appears to be blank.

However, the fact that they inserted it in the cases involving aliens to our way of thinking does not preclude also applying the exception in this kind of case.

I don't believe that Congress consciously thought about the exception when it passed the Mann Act.

Chief Justice Earl Warren: Well why -- why wouldn't it, it's -- it's the same thing with the suppression of vice thru the instrumentality of the -- of interstate commerce?

Now, why -- why would they thought about it when they're bringing them into the country, wouldn't they think about them moving them about this country interstate for that -- for the same purpose?

Mr. Roger G. Connor: As I say Your Honor --

Chief Justice Earl Warren: There could be more of them -- more of them moving around through the country than there would be brought in from -- from outside.

Mr. Roger G. Connor: I do not know the reason for the omission of that in the Act.

That is of course the problem --

Chief Justice Earl Warren: Yes.

Mr. Roger G. Connor: -- that Courts have had to consider.

Chief Justice Earl Warren: Yes.

My only -- my -- the only reason I asked you the question Mr. Conner was this.

If the rule is to be changed concerning the marital relation and the -- the privileges that -- that go with it, and Congress has assumed to do it in the kindred case, may we bring woman in from out of the country, why wouldn't the appropriate thing be for the Department of Justice to get Congress to change that -- that rule.

And maybe you wouldn't have many people against you on it?

Mr. Roger G. Connor: One reason for that Your Honor is the fact that all of the lower federal courts, with the exception of one, the opinion of which is now been disapproved, have uniformly held that the wife may testify against the husband in a Mann Act prosecution and all of those cases of course involved voluntary testimony.

Now, for that reason the Government has never considered it necessary to submit a proposed amendment to Congress.

All the courts below is pretty well come to conclusion that this is the kind of an offense which brings it within the exception both on general collective policy grounds and also because of the degradation which is in fact practiced on the wife.

Justice Hugo L. Black: It would be undoubtedly be a change of policy wouldn't it?

I mean --

Mr. Roger G. Connor: If this Court were to reverse the court below.

Justice Hugo L. Black: Well, assume that this Court lets the wife do it testify or force her to testify to that extent it reaches the rule that she can't be made to testify against her husband even the rule if you accept it as that she can't be made to testify against her husband except when she is the victim of something he does to her.

Mr. Roger G. Connor: We don't see it --

Justice Hugo L. Black: You don't claim it, you don't claim it come under -- it come in under that category, do you?

Mr. Roger G. Connor: No Your -- Your Honor.

We -- we feel that this would be irrational application of the existing exception of the rule.

Justice Hugo L. Black: Irrational intention?

It might be.

Mr. Roger G. Connor: No Your -- Your Honor.

It would be better for us to say that we do not feel that the privilege itself covers this situation.

We do not think it's important --

Justice Hugo L. Black: And --

Mr. Roger G. Connor: -- whether we talk in terms of an exception or not.

Justice Hugo L. Black: Hasn't it been held and the (Inaudible) drawn so far as the language is concerned that the rule applies except when she is the victim of her husband or he does something directed to her.

Mr. Roger G. Connor: The expression usually is except where he has committed an offense against the wife.

That's correct Your Honor.

Justice Hugo L. Black: That's right.

And you would -- do you think this is -- it can be said to be an offense against the wife when she wanted to go?

Mr. Roger G. Connor: Yes we do Your Honor because --

Justice Hugo L. Black: Do you think, because it's so bad, it's such a bad thing for the wife to do that, that it could be considered as an offense, even though that's precisely what she wants to do and that's the practice of her life?

Mr. Roger G. Connor: We feel that it's such a bad thing for the husband to do to the wife that --

Justice Hugo L. Black: It's a privilege that could be taken away from.

Mr. Roger G. Connor: From -- from the wife --

Justice Hugo L. Black: Now, wouldn't it be just as bad if he had helped her in committing a crime or -- or going across the border and stealing an automobile and bringing it back?

Wouldn't that be the same nature of an offense against her and it does degrade him?

Mr. Roger G. Connor: No.

We -- we feel that that's in a different category.

Justice Hugo L. Black: Difference in degree?

Mr. Roger G. Connor: Well, and different in kind too.

A man who transports his wife for the purposes of prostitution is degrading the marital relationship, making a mockery of it, and he's making it necessary or at least possible for her to be continuously assaulted by various men in the sense of adding --

Justice Hugo L. Black: Assaulted?

Mr. Roger G. Connor: In the sense of having intercourse which is prohibited under ordinary notions of a civilized marriage relationship.

We feel the whole thing is -- is highly inconsistent with marriage as we know it.

It's therefore, the kind of an offense against the wife.

Justice Hugo L. Black: Well, I agree with you to my feeling about it, but she didn't seem to think it.

Mr. Roger G. Connor: Well, as the courts below had so often said, it is the kind of an offense which is so at warrant to a marital relationship that it -- it comes within the exception just as much as assaults against the wife.

In fact, in many cases, wife beating is something which could be more likely condoned than -- than an offense which leads toward her prostitution, the use of her body for game.

Justice Hugo L. Black: The point I was getting at was that maybe that your arguments Mr. Connor was that the conduct is so bad, so reprehensible, and so unpleasing to you and me that we ought to make this rule extend to it even though she was not a victim and she did decide what she wanted to do.

Mr. Roger G. Connor: Well --

Justice Hugo L. Black: But here is a question of policy.

Mr. Roger G. Connor: Well, on that question, we feel that the expression by Congress in the Mann Act whereby the consent of the woman is not an element of the case indicates a congressional policy which should be given effect by this Court.

Justice Hugo L. Black: It doesn't -- it doesn't indicate the congressional policy that she should be allowed to convict him, does it?

I've looked at this record; did you need her evidence in this case?

Mr. Roger G. Connor: Her evidence was necessary perhaps conviction could have been obtained without it, but it would be dubious at this, though her evidence, we are willing to concede for the purposes of this case, was necessary.

Justice Hugo L. Black: Well, you will concede, but as when I looked at it, I didn't see what it was.

I -- I just don't see it the --

Mr. Roger G. Connor: Well, I should think that otherwise --

Justice Hugo L. Black: It -- I -- I'm wondering how much -- how many times it is necessary in connection with establishing the policy that you wanted to establish, that this is so bad that we ought to say that a wife who wants her husband to take her across the border, so he can go to jail.

Mr. Roger G. Connor: Well, I have no information on the --

Justice Hugo L. Black: On her evidence?

Mr. Roger G. Connor: I have no information on the number of cases in which she is either necessary or support -- support as witness.

I -- I do not know Your Honor.

We feel that the -- the Mann Act policy does come in play here in that the privilege itself and the exception both rests on public policy.

And that if this Court does say that this kind of testimony comes within the exception, it will be carrying out the congressional purpose, whereas on the other hand, if we say that whoever person marries after the commission of the offense, a privilege against the wife's testimony is raised, that congressional purpose will be frustrated.

And as it was settled a little while ago, it would amount in many cases to an invitation to evade the law and to evade it in a situation where a man has committed offense which is degrading against the wife.

Chief Justice Earl Warren: Well, if -- if we go -- if we -- we take your view here what we next be confronted with sampling like this and then makes a narcotic addict out of his wife and then transports her from one state to -- to another for the purpose of -- of engaging in the narcotic traffic.

And -- and have you here saying well that so the basis, the marital relationship that -- that we ought to ignore the exemption and we ought to let her testify in the case like that, because she has become an addict under his influence perhaps?

Wouldn't those -- those things follow and if -- and if we are going to -- if the request -- if -- if a rule has to be changed, shouldn't it be changed by Congress as the -- as it was in the case of importation of woman for immoral purposes?

Mr. Roger G. Connor: Well, Your Honor in the case that you proposed involving narcotics, I do not know what position we would take, but I'm sure that this is an entirely different situation from the one at bar.

Here, we have the -- the Congressional act prohibiting this kind of transportation.

It's well acknowledged that this is degrading to wives whether it's with their consent or without.

The narcotics law is a different thing entirely.

This case doesn't ask the Court to construe generally the scope of the exception.

There are all sorts of questions as to what kinds of an -- of an offense would be included within this exception.

We do not feel that's an issue here and we feel that the policy of the Mann Act comes into play in this case in a way which would not be present in other situations, such as where a husband might defraud a wife or where he might do other things which are injurious to the marriage but nevertheless are not so directly harmful to the wife's morals as this kind of case.

In Lord Audley's case, the old English basis for this in which the wife was allowed to testify to a rape, where the husband had instigated his servants to commit rape upon his wife, the Court admitted it.

In this kind of case, the husband is instigating an immorality committed against the wife in the same spirit and as one Court below --

Chief Justice Earl Warren: That wasn't because --

Mr. Roger G. Connor: -- pointed out.

Chief Justice Earl Warren: That wasn't because it was an immorality against her, it was because it was an offense committed against her, wasn't it?

Mr. Roger G. Connor: That is correct Your Honor.

Chief Justice Earl Warren: Yes.

Mr. Roger G. Connor: But it was instigated by the husband and the Court there held that where the husband does that kind of thing, the privilege shall not attach.

Chief Justice Earl Warren: Yes.

Well now here you -- but here, you ask -- you ask us to -- to change the rule and say that even if the wife was the aggressor, even if the wife was the one who was responsible for him playing fair or doing something else to bring her over, that she is the -- she is a victim in the sense, but that woman was in England when her husband had one of the another man rape her.

Mr. Roger G. Connor: I think the --

Chief Justice Earl Warren: Do those things follow here?

Mr. Roger G. Connor: Well, I think that the theory of the Mann Act is that some of these women may well be consenting parties but that they may be so degraded that they don't necessarily appreciate what's good for them.

We want to put it in plain terms and that the law will protect them without --

Chief Justice Earl Warren: Yes.

Mr. Roger G. Connor: -- their -- their desire to be protected.

I think that's implicit in the Mann Act also in the --

Chief Justice Earl Warren: Could it be implicit in the one for the importation of the woman for immoral purposes?

Mr. Roger G. Connor: Yes Your Honor.

Chief Justice Earl Warren: And they did provide in that one.

Mr. Roger G. Connor: Yes they did.

Chief Justice Earl Warren: They didn't it in this one.

Now, why should they provide in this one?

Mr. Roger G. Connor: That we do not know.

At least the Government does not know.

The Government doesn't feel that it's controlling in any way, because what Congress might have thought on the subject is something which shouldn't necessarily control the interpretation of the Mann Act.

Chief Justice Earl Warren: Well, but you tried to put it in a -- in a different posture.

You tried to tell us that that was the policy of Congress, that they wanted us to do this thing because they were trying to stomp off this nefarious traffic.

Mr. Roger G. Connor: No Your Honor.

We're saying that Congress, in outlining the substance of offense, may consent immaterial.

Chief Justice Earl Warren: Yes.

Mr. Roger G. Connor: And that if the procedural law is to be in harmony with the substance, then in the procedural area where this privilege is in question, we should give effect to that congressional purpose in determining what the limits of the exception are.

That is the core of our argument.

Chief Justice Earl Warren: Yes.

I see.

Justice Felix Frankfurter: Mr. Connor have you had an occasion to look at the -- any reports of the legislative materials therein under two statutes to which the petitioner refer, where Congress was explicit in allowing the testimony.

Mr. Roger G. Connor: No Your Honor I have not.

Justice Felix Frankfurter: There are those statutes, aren't they?

Mr. Roger G. Connor: Yes Your Honor.

Justice Hugo L. Black: Mr. Connor in order to (Inaudible)

Mr. Roger G. Connor: In this case yes.

If this course -- in this Court reverses the determination of the trial court and the Court of Appeals in this case, it will be, in our view, overruling all of the federal cases decided on the point of whether the privilege attaches.

However --

Justice Felix Frankfurter: In this -- in -- under the Mann Act?

Justice Hugo L. Black: The Mann Act?

Mr. Roger G. Connor: Yes under the Mann Act.

There's a line of federal decisions cited in our brief in which they've held that where a wife wants to testify --

Justice Felix Frankfurter: She may.

Mr. Roger G. Connor: -- she may.

We claim that it doesn't make any difference whether it's voluntary or compelled because it's a question of the privilege in itself.

Justice Potter Stewart: And that's Hawkins Case held, isn't it?

Mr. Roger G. Connor: That is correct Your Honor.

And we hold -- we feel that these privileges are controlled by policies which underlie them and that's why the courts below have determined that it's not privileged.

Justice Felix Frankfurter: If those cases here in particular excel she may testify if she wants to, then those Courts commit themselves to the negative fragment of that proposition if it doesn't consent she isn't allowed to?

Mr. Roger G. Connor: Only one Your Honor, Shores against the United States.

Petitioner claims that it is dictum, we will not dispute that, the wife I believe there said that she didn't care to testify but she didn't clearly invoke a privilege.

Now, the Government is not urging with that case -- that -- that statement is ratio decidendi of the case by any means.

Justice Potter Stewart: So it's your position that you're not asking us to change a rule but rather -- rather to follow the rule of the federal court.

Is that right?

Mr. Roger G. Connor: That is correct and -- and to --

Justice Hugo L. Black: That's what you mean --

Mr. Roger G. Connor: -- apply the previously existing rule.

Justice Hugo L. Black: Why do you say that if we have to overrule that in question, to reverse?

Mr. Roger G. Connor: No I -- I did not --

Justice Hugo L. Black: You demand us to reverse.

Mr. Roger G. Connor: No I did not mean to imply that Your Honor.

Justice Hugo L. Black: (Inaudible) to hold with you, would we have to overrule (Inaudible)

Mr. Roger G. Connor: No.

I -- I believe I said that if this case was reversed by this Court that in that event, we would be overruling a line of federal cases.

Justice Felix Frankfurter: (Inaudible)

Mr. Roger G. Connor: Yes quite a few.

In our brief we cite -- we cite nine or ten of them at page 12 of our brief.

Justice Potter Stewart: How many Circuits?

Mr. Roger G. Connor: We have the Second, Fifth, Eighth, Ninth Circuits and the Tenth.

Chief Justice Earl Warren: Did you say there was one exception in 32, in 1932?

Did I --

Mr. Roger G. Connor: Yes.

Chief Justice Earl Warren: -- I understand you say that?

Mr. Roger G. Connor: Yes.

Chief Justice Earl Warren: Where -- where -- what Circuit was that then?

Mr. Roger G. Connor: That was Eastern District of Pennsylvania, United States against Gwen.

Chief Justice Earl Warren: That is not a -- not a Court of Appeals case?

Mr. Roger G. Connor: No.

And --

Chief Justice Earl Warren: Are all the others Court of Appeals cases?

Mr. Roger G. Connor: Yes.

And at a later time, the Court of Appeals, as we recall, disapproved that case.

Justice Felix Frankfurter: I notice --

Mr. Roger G. Connor: No, no, no I'm sorry, I'm sorry Your Honor.

It did not.

There -- there was another case in the Eighth Circuit which was disapproved by the Circuit Court of Appeals later.

But the case of U.S. against Gwen which is cited in our brief is contrary to our position and that's that.

Chief Justice Earl Warren: That's a District Court case?

Mr. Roger G. Connor: Yes Your Honor.

Justice Felix Frankfurter: I notice a Second Circuit --

Mr. Roger G. Connor: I --

Justice Felix Frankfurter: -- case U.S. against Mitchell at was suspiciously late page number 1006, is that a per curiam opinion?

Mr. Roger G. Connor: No Your Honor.

It was a rather ample opinion and I believe Judge Clark wrote the opinion in that case.

Justice Hugo L. Black: I see.

Who?

Mr. Roger G. Connor: Judge Clark of the Second Circuit.

Justice Hugo L. Black: (Inaudible)

Mr. Roger G. Connor: Yes Your Honor.

In reply to the matter raised by the petitioner, we have Lutwak against United States cited in our brief, but not for any bearing that it might have on the -- the question of privilege.

There, the only question was whether you could destroy a sham marriage in Court by showing that it was a sham whether the privilege there would prohibit the Government in doing so.

We cited Lutwak in here, because Lutwak discusses the -- the framing of evidentiary rules by this Court in the light of the common law and reason and experienced under Rule 26 of the Federal Rules of Criminal Procedure.

It was put in there for that reason.

Justice Tom C. Clark: Mr. Connor, do you regard it as proper to refer to this right as privileged?

Doesn't Hawkins say that the wife is just not a competent witness, even though it had any privilege or option about it, isn't it?

Mr. Roger G. Connor: I -- I think perhaps Your Honor it -- it is permissible to talk about a privilege, that is, originally the rule was founded at incompetency in that the wife and husband were considered to be one and until Funk against United States in this Court in 1933, they were considered to be incompetent.

But on an analytical basis, we think that this is a privilege.

It's a privilege which can be invoked by either husband or wife if it applies.

We just say it doesn't apply in this case.

Justice Tom C. Clark: I called Hawkins along with the -- I'd didn't have to waste just one competent witness.

Mr. Roger G. Connor: Well, if -- if that were true Your Honor, then the privilege could not be waived and yet previous decisions of this Court hold that if both the husband and wife were willing to have her testify that she may.

If that's true, we don't believe that analytically speaking this can be called a -- a competency question.

It's rather a question of privilege, just like the self-incrimination privilege which may be waived like the attorney --

Chief Justice Earl Warren: We'll recess --

Mr. Roger G. Connor: -- client privilege.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of Roger G. Connor

Chief Justice Earl Warren: (Inaudible)

Mr. Roger G. Connor: Your Honor --

Chief Justice Earl Warren: What basis do they do it on -- do they agree? If they agree why -- that's first of all I -- take your time.

Mr. Roger G. Connor: Your Honor, as far as I can discover from reading those cases, they speak very little of a victim.

They speak more in terms of this being the kind of an offense which does not come within the exception because the offense is violated with the marital relationship.

And they speak more in those terms as I read those cases.

Chief Justice Earl Warren: Well, what -- what authorities of this Court that they go back to in -- in deciding it on that theory?

Mr. Roger G. Connor: I don't believe there are any authorities of -- of this Court on that question except the general ones, construing the Mann Act and saying that the purpose of this is to strike was commercialized vice even though the constitutional basis for its enactment is the commerce power.

Chief Justice Earl Warren: Well --

Mr. Roger G. Connor: They go on that rationale.

They also, in those lower courts -- lower federal court cases, utilized decisions of state courts and the English courts which deal with this privilege and the exception to it.

We are urging this Court to do the same thing.

Chief Justice Earl Warren: In the state courts they -- they do it very wisely by statute, do they not?

Mr. Roger G. Connor: That is correct Your Honor.

But most of the statutes are declaratory to the common law in this respect, and stated in those terms, the courts there presented with virtually the same question that this Court is.

Petitioner cited a line of statutory rape cases and also in a case which involves a husband procuring an abortion for his wife.

The state courts and many of those instances have said that where the wife does not want to testify then against the husband, that it comes within the privilege and not the exception.

On the other hand, we have cited the line of cases in our brief where -- where the husband has committed assaults against the wife and the courts have there held that it does come within the exception.

And the English court noted that if she's not within the exception, then she's compellable like any other witness.

Justice William J. Brennan: We gather -- through any of the federal courts ruling, the Mann Act cases make any effort to distinguish the statutory rape cases?

Mr. Roger G. Connor: No, not to my knowledge.

I -- I believe in one of them, they are mentioned but rejected.

Most of them don't -- don't seem to dwell on to any extent.

The holdings of these courts below were all tied to the Mann Act and the purposes of it, and we believe that the adoption of this by the Court in this case will result in effectuating the purposes of the Mann Act, that that will be the pragmatic effect and that the overturning of this line of doctrine in the courts below will result in a frustration of the purposes of Congress as expressed in the Mann Act.

We're not asking for the extension of something which is deleterious to the marital privilege.

We are asking that the privilege be enforced in its proper spirit, that that is exception to the privilege not be allowed in this kind of case, because the -- allowing the exception here would not be consonant with the purposes of Congress in the Mann Act nor even with the public policies that underlie the privilege.

Justice Charles E. Whittaker: (Inaudible)

Mr. Roger G. Connor: In what respect Your Honor?

Justice Charles E. Whittaker: (Inaudible) under the exception, that could be here the victim or, as I would say it, the offense must be one against her?

Mr. Roger G. Connor: Yes, that is the rationale of the exception.

Justice Charles E. Whittaker: But does that apply to (Inaudible) Mann Act not to accept (Inaudible)

Mr. Roger G. Connor: That is correct, Your Honor.

Justice Charles E. Whittaker: Now, would that be -- that's against her, wouldn't that be?

Mr. Roger G. Connor: I believe that some courts have held it to be.

Justice Charles E. Whittaker: Yes.

Mr. Roger G. Connor: But in this case, we are not asking this Court to construe the precise scope of the exception in all of its possible applications.

We are only concerned with the application of it to a Mann Act case.

Justice Charles E. Whittaker: But if we apply to Mann Act case, it might be -- would it apply then rationally to all cases?

Mr. Roger G. Connor: Not necessarily.

That would remain for determination in particular cases as they arose.

And it's important to point out to the Court that so far there has been no great extension of this principle to other than the Mann Act cases and the courts below.

None that is apparent from the research which we've done.

Some courts, I believe, have held that defrauding of the wife comes within the exception.

Others perhaps have held not.

There are many other close cases such as where the husband commits a sexual offense against the child of the parties or against the stepchild or something like that.

Again, we have something rather violative of the marital relationship but many courts would say that it is not directly enough involved and would still say that the privilege applied.

We're saying that here in the Mann Act case, we have a different situation, because in addition to the rationale of the rules, we have the policy of Congress coming into play, that the consent of the woman is immaterial in the commission of the offense, and that making the evidentiary rule accord with that will best effectuate that congressional purpose.

Justice John M. Harlan: Being an exception does not overrule (Inaudible)

Mr. Roger G. Connor: Beyond what Your Honor?

Justice John M. Harlan: Sex crime.

Mr. Roger G. Connor: Yes, they have.

They have Your Honor.

That, in brief, is our argument unless the Court has other questions, I will conclude now.

Thank you.

Justice John M. Harlan: Thank you, Mr. Connor.

Mr. Okrand.

Argument of Fred Okrand

Mr. Fred Okrand: Mr. Chief Justice, may it please the Court.

I would like to direct my remarks at first to some things that Mr. Connor said.

He opened the -- opened his argument by suggesting to this Court, I think, that the marital privilege which is before this Court is a very small matter.

It isn't very important.

And so if you whittle away at this privilege, the Court will not have done very much, because it's important to get convictions.

This is as I viewed Mr. Connor's opening remarks.

Well, I suggest to the Court that every privilege has the effect that the Government Counsel has suggested to this one and that the marital privilege is a very important privilege.

It isn't one that someone has thought up yesterday or the day before.

It's at least 300 years old.

And as Rule 26 says, it should take a lot of reason and a lot of experience before it's overturned.

And Mr. Connor made some rather important remarks, I think, when he told the Court that the Government has never felt it necessary to go to Congress to get a change in the rule.

This, it seems to me, is significant.

The Mann Act was passed in 1910, that's 50 years ago.

And the Government has never yet felt itself hampered in Mann Act prosecutions certainly involving the facts of this case.

Justice Potter Stewart: Now isn't it true that there was no reason for the Government to feel itself hampered because with one District Court exception, every one of the federal courts has permitted the wife to testify.

Mr. Fred Okrand: All right.

That's only partly true, Mr. Justice Stewart.

Every single case which has permitted the wife to testify has been a true case of a wife being transported which is not the fact at this case.

And every -- every cases involved the permission of the wife to testify.

That is if the wife wants to testify.

That is not the fact of this case.

This case --

Justice Tom C. Clark: You say every one of them --

Mr. Fred Okrand: Every one of them.

Justice Tom C. Clark: -- the -- the wife will willingly testify.

Mr. Fred Okrand: That's correct.

That's correct.

Now, so we don't have -- so those cases which Your Honor or -- or Mr. Justice Brennan asked or Mr. Justice Clark whether they would be overruled by a reversal of this case do not apply.

Justice Potter Stewart: Now, we would have to overrule the Hawkins case in order to make a distinction between permission and compulsion for the testimony --

Mr. Fred Okrand: If you made that distinction --

Justice Potter Stewart: (Inaudible)

Mr. Fred Okrand: Yes.

But may I suggest to Your Honor that that is again not the facts of this case because as we -- as we urge, this is not a wife and, so it doesn't fall within the -- the Hawkins case at all.

That is -- doesn't fall within the exception which the Government is -- is arguing for and if she is not a wife, that disposes off this case.

Justice Potter Stewart: It certainly does.

The whole certiorari was granted on the basis that this had something to do with her being a wife.

Mr. Fred Okrand: No.

No, I -- perhaps I didn't make myself understood.

If she was not a wife at the time of the event which is the fact of this case not that she was not a wife at the time of the testimony.

And we say if she's not a wife at the time of the event, then the exception cannot come into play because of the very rationale of allowing the wife to testify, is that if there was an offense against her.

Which brings me to another point and that is and I may touch a little bit about what Mr. Justice Stewart said.

This will not violate the policy which was sought to be affected by the Mann Act.

In alleged -- in the House report which was -- which is referred to in the Government's brief at page 10, the Congress said, the -- the majority said, that the minority didn't want to pass the bill all together.

The majority said that the legislation does not attempt to regulate the practice of voluntary prostitution but aimed solely to prevent panderers and procurers from compelling thousands of women and girls against their will and desire to enter and continue in the life of prostitution.

Now, this case doesn't have anything to do with the policy that Congress is trying to effectuate by the passage of the manner.

This is not a case of a wife being compelled.

It's certainly a case of voluntariness that the record means what -- what it says.

And one further point, Your Honor --

Justice Potter Stewart: Surely not you're -- you're not telling us that this was not a violation of the Mann Act if -- if this transportation did take place, are you?

Mr. Fred Okrand: Oh no.

No, we're not saying it's not a violation of the Mann Act, but we're saying that allowing the marital privilege will not violate any policy that the Mann Act sought to prevent, because it isn't -- it isn't -- if you see the Mann Act Your Honor, if we read -- if I read the congressional history correctly, it was designed to reach this widespread traffic, these -- these syndicates which have been growing out, this commercialized vice to use the term of Mr. Connor, businesses.

And the report showed that one man made $102,000 a year or something in 1908.

That isn't this case here.

Now, one further statement in the -- in history is important, I think, to answer Mr. Justice Stewart's question as to what marital relation we have to preserve here.

In a report, the majority said, its victims, meaning the wife slave victims, are those women and girls who have given a fair chance within all human probability have been good wives and mothers and useful citizens.

Now, I -- we suggest to the Court that under the facts of this case where there was an offense before the marriage, but where there has been a marriage and the wife seeks to preserve that marriage, that this Court ought not without some substantial showing of some kind which is not brought before this Court overturned the -- the long historical marital privilege.

Justice John M. Harlan: (Inaudible) underlying that theory -- theory is primarily (Inaudible)

Mr. Fred Okrand: No.

Justice John M. Harlan: You don't.

Mr. Fred Okrand: We don't -- we don't suggest that there's a condonation.

First of all condonation means that he hasn't -- he couldn't be prosecuted, I suppose, for the crime.

It isn't -- the word “condonation” or “condone” isn't a good word, if I may suggest, Mr. Justice Harlan.

What we're saying is by marrying him she's trying to lead a good life which the Congress wanted her to do.

And that if this Court says that she must testify against him over her protest that the marriage which he has finally sought will be broken up and -- and the very policy that Congress wanted to effectuate will be defeated.

If I may --

Chief Justice Earl Warren: Mr. Okrand, is there anything in the congressional record to -- to indicate why in the case of the importing women into this country Congress provided that or gave -- gave the wife the right to testify and then under the Mann Act they did not.

Mr. Fred Okrand: Did not.

I have not read the congressional record -- the congressional history concerning the polygamy statute or the alien statute, so I don't know why they put it in that statute.

I haven't read most of what I've been able to find at the congressional record on this statute.

And this statute says nothing about Congress trying to do away with any marital privilege.

I did find in the -- one of the appendices or exhibits to the report of the Act, of the Mann Act bill, that there was a comment by the Secretary of Commerce and Labor where there was a the report by the Secretary of Commerce and Labor referring to aliens in which he said that the traffic of aliens into the country for prostitution that some prosecutions will be hampered in those offenses because some of the women were marrying some of the men and becoming United States citizens under the law at that time, the wife by marrying became a citizen.

And therefore, the sanction of deportation could not be used against them.

And the Secretary of Commerce had suggested that some change should be made in the naturalization law so that a woman of bad moral character who married a man could not become a citizen.

And that indeed is what was done later on.

And -- and of course also as we know in 1917, they passed a law in permitting wives to testify against husbands in cases involving alien importation.

But why they did it in the alien cases and why they did not do it in the Mann Act case, I just -- just don't know the answer to.

There's one factual statement in the -- the beginning of Mr. Rissman's argument that I think there's some confusion about.

I -- I believe one of the justices asked Mr. Rissman if the record shows that Mrs. Wyatt married after the indictment in this case.

I don't think the record shows that.

I -- I don't think it shows when they were married except that they were married after the offense.

That I think the record is very clear on and we must accept what the lower court -- we think we must accept what the lower court did set on.

But whether it was they married after the indictment or before the indictment, I don't think the record is -- is clear on this.

Justice Tom C. Clark: Does that make any difference?

Mr. Fred Okrand: No we don't think so.

We don't think it makes any difference at all.

I think --

Justice Potter Stewart: You do think it makes a difference or it might make a difference that was before or after the offense, don't you?

Mr. Fred Okrand: It might make a difference.

I -- I was going to sum up by -- by touching on that.

We think that the petitioner is entitled a reversal because of the facts of this case on anyone of three factual items or -- or because there is a combination of all three.

Number one, we think that because the marriage was before or was after the offense, that the marital relationship applies that there -- and that there is no exception to be applied at all because there is no offense against the wife.

Number one.

Number two, we think it is possible although we recognized that the Court rejected such a theory in the Hawkins case, although I shall -- also should like to point out to the Court that Congress didn't reject such a theory on the polygamy statute when they said that the wife might testify but cannot be compelled.

We think that it is also possible that in the case where the wife claims the privilege and is thereby seeking to maintain the marital relationship that the Court could make a distinction on those lines.

And three, we think that this is not a wife that a Mann Act prosecution, under the facts of this case, cannot properly and reasonably be brought within the term wife victim, because we don't think that the word “victim” is a correct description of what the exception was meant to cover.

Justice Charles E. Whittaker: Suppose we reject the work victim and we use language of exception in an offense against her, is this right?

Mr. Fred Okrand: I would say no, that it is not.

Certainly, under the facts of this case where there was a voluntary participation.

Now, if there were a factual situation where there were true coercion and beating or whatever it maybe, which apparently was with the Mann Act was -- was designed to get at, I try might answer that question differently, but not under the facts of this case.

Justice Felix Frankfurter: So that -- so that your answer means that admissibility would vary according to the -- to the (Inaudible) or -- the foundation made for its admissibility.

Mr. Fred Okrand: It might in that limited case, in that limited sense.

Now --

Chief Justice Earl Warren: Whether she was charged -- whether he was charged with the Mann Act or -- or whether he was also charged with the assault.

Mr. Fred Okrand: Well no.

We -- we don't -- we aren't talking about an assault situation.

I don't see how it can be a voluntary consent to an assault.

I -- I --

Chief Justice Earl Warren: But the beating is an assault, isn't it?

Mr. Fred Okrand: Beating is an assault, but I don't --

Chief Justice Earl Warren: That's what we're talking about.

Mr. Fred Okrand: Yes.

But what the Government is trying to get is an exception curved out under the Mann Act situation.

Chief Justice Earl Warren: Yes.

I understand that.

Mr. Fred Okrand: And I say or we say that under a Mann Act situation, in response to Mr. Justice Frankfurter's question, there might be a difference depending upon whether the wife was truly a victim in the sense of voluntarily engaging in this transportation.

Justice Hugo L. Black: If it comes -- if it wasn't merely transportation but compulsion entering into the --

Mr. Fred Okrand: That's right.

That's right.

Chief Justice Earl Warren: Do you think we should approach -- approach that from an individual case basis?

Mr. Fred Okrand: No.

I -- I don't think the Court has to with the limited facts of this case.

Chief Justice Earl Warren: Well, but if we're going to open the door at all, how wide do we open it?

Mr. Fred Okrand: We're not asking the Court to open the door.

That's our point.

Chief Justice Earl Warren: Well, but I thought you conceded that -- that we could sustain you in this case and still leave the door open for other cases where perhaps there was some coercion or something else involved in -- in the transportation.

Mr. Fred Okrand: Yes sir.

If our argument that she was not a wife victim because it occurred before the marriage is not accepted, and if our -- our suggestion that there is a difference between voluntary and compelled testimony is not accepted, and then -- and the Court has only the third basis, namely that she was not a -- that she was a -- a voluntary participant in this and therefore was not an offense against her.

Only in that case, would future cases be opened for -- for a factual determination.

But if the Court agrees with us that because there was a marriage before the -- because there was the offense before the marriage, therefore, the whole business doesn't apply and the -- the marital privilege applies, because she is the wife now, then of course, the Court doesn't have to reach that.

I wonder -- I think I made it clear that our view is that if the Court sustains us, it will not be overruling any lower court cases.

Not be overruling because there are no cases which has the -- the three facts which are present in the case at bar.

Chief Justice Earl Warren: Would it be following any of this Court's cases that it does create an exception of the basis that the offense is the one committed against the wife.

Mr. Fred Okrand: I think I suppose the landmark case of this Court which talks about the offense against the wife is the Stein case which was a civil case in probate matter.

I don't know of any case --

Justice Tom C. Clark: Did it --

Mr. Fred Okrand: -- of this Court.

Justice Tom C. Clark: -- did it uphold such an exception?

Mr. Fred Okrand: It said -- it said where there was an offense against the wife?

Justice Tom C. Clark: Was -- was the evidence permitted there on that instance?

Mr. Fred Okrand: Yes.

But I don't think that the Court would be following any other precedent of this Court if they held that this kind of an offense was an offense against wife.

Justice Tom C. Clark: What was the offense against the wife?

Mr. Fred Okrand: I don't know.

In the -- in the -- it was a physical offense in the Stein.

What is that?

Over this top --

Rebuttal of Roger G. Connor

Mr. Roger G. Connor: Dictum.

Rebuttal of Fred Okrand

Mr. Fred Okrand: All right.

Rebuttal of Roger G. Connor

Mr. Roger G. Connor: What is that?

Rebuttal of Fred Okrand

Mr. Fred Okrand: Mr. Connor tells me that I might be reading the Stein case is incorrect that there was no offense actually but there was just dictum.

I -- I thought --

Rebuttal of Roger G. Connor

Mr. Roger G. Connor: Just what?

Rebuttal of Fred Okrand

Mr. Fred Okrand: That it was dictum --

Rebuttal of Roger G. Connor

Mr. Roger G. Connor: That's right.

Rebuttal of Fred Okrand

Mr. Fred Okrand: -- in the case.

Rebuttal of Roger G. Connor

Mr. Roger G. Connor: Has there been any case in which the Court has over him if you know one?

Rebuttal of Fred Okrand

Mr. Fred Okrand: I don't know of any.

I don't know of any.

So, to conclude, we -- we suggest that if the Court sustains us, it will be following long established precedence.

It will not be overruling nor touching on any case that was decided by this Court and will not be overruling any of the lower federal courts.

Chief Justice Earl Warren: Would you mind restating again just why you believe that it will not be necessary for us to overrule any of the cases in the courts --

Mr. Fred Okrand: Lower courts.

Chief Justice Earl Warren: -- without going into each one.

Mr. Fred Okrand: Yes.

Chief Justice Earl Warren: Just a bit of that.

Mr. Fred Okrand: All the cases in the lower courts that -- that I -- I know of involved cases of offenses either against the wife while she was a wife or involved cases where the wife wanted to testify, voluntarily came before the court to testify.

Justice Hugo L. Black: Aren't those pretty thin lines if we're going to break into the rules?

Mr. Fred Okrand: Yes, they are.

I don't think you ought to break into the rule.

Justice Charles E. Whittaker: (Inaudible)

Mr. Fred Okrand: Into -- into the privilege rule I thought Mr. Justice Black was saying.

Justice Hugo L. Black: I'm talking about the privilege rule that is heretofore bit enforced by this Court.

Mr. Fred Okrand: That's right.

As I read the Hawkins case and the cases before, this Court has upheld the marital privilege.

I thought it was an important one to uphold and has refused to allowing those in it.

And so we think this is not the case to -- to start.

Thank you very much.