TRAMMEL v. UNITED STATES

Transcript: 

IN THE SUPREME COURT OF THE UNITED STATES

OTIS TRAMMEL, JR., Petitioner, v. UNITED STATES, Respondent

No. 78-5705

October 29, 1979

The above-entitled matter came on for oral argument at 2:30 o'clock p.m.

BEFORE:

WARREN E. BURGER, Chief Justice of the United States

WILLIAM J. BRENNAN, JR., Associate Justice

POTTER STEWART, Associate Justice

BYRON R. WHITE, Associate Justice

THURGOOD MARSHALL, Associate Justice

HARRY A. BLACKMUN, Associate Justice

LEWIS F. POWELL, JR., Associate Justice

WILLIAM H. REHNQUIST, Associate Justice

JOHN PAUL STEVENS, Associate Justice

APPEARANCES:

J. TERRY WIGGINS, ESQ., 200 Steele Park, 50 South Steele Street, Denver, Colorado 80209; on behalf of the Petitioner

WADE H. McCREE, JR., ESQ., Solicitor General of the United States, Department of Justice, Washington, D. C., on behalf of the Respondent

PROCEEDINGS

MR. CHIEF JUSTICE BURGER: We will hear arguments next in 78-5705, Trammel v. United States.

Mr. Wiggins, you may proceed whenever you are ready.

ORAL ARGUMENT OF J. TERRY WIGGINS, ESQ., ON BEHALF OF THE PETITIONER

MR. WIGGINS: Mr. Chief Justice, and may it please the Court:

This matter comes on for review of this Court as the result of the conviction of Otis Trammel, Jr., the petitioner herein, for aiding and abetting the importation of heroin from the Philippines into Hawaii and the United States and for conspiring with others, approximately nine persons named in the original indictment, for the importation of heroin into the United States.

It resulted from the arrest of Elizabeth Trammel on November 6, 1975 in Hawaii as she entered the country carrying a substantial quantity of heroin on a trip in from Clark Air Force Base in the Philippines. At the time of Mrs. Trammel's arrest, she was alone. She was told that she was charged with a serious felony and she was offered the voluntary opportunity of cooperating with the government in exchange for being charged with a misdemeanor and a recommendation of probation or, in the alternative, being jailed for the felony for which she had been arrested.

She elected the latter alternative and indicated that she would cooperate with the government, notifying the Customs agents at that time that she intended to take the heroin to Colorado, to deliver it to an individual by the name of Roberts who was then stationed in Colorado Springs, Colorado.

That was done under a controlled circumstances and at the first statement given by Mrs. Trammel to the Customs authorities in the Drug Enforcement Administration at that time, she did not in any way implicate the petitioner here, Otis Trammel.

After the controlled delivery took place in Denver, Colorado, and Mr. Roberts was arrested together with a Mr. Richardson, Mrs. Trammel was sent on at that time and still told that her cooperation would be necessary and in exchange for her cooperation she was being offered a misdemeanor and a recommendation of probation.

She was again interviewed at Denver and at that time once again she did not implicate her husband, the petitioner here. Finally, approximately a month to six weeks after Mrs. Trammel's arrest, she was interviewed in Birmingham, Alabama, which was her family home, at that time she implicated her husband as the part of an importation conspiracy and as an aider and abettor to the initial importation for which she had been caught and she was notified once again that she would have -- that her cooperation with the government would be recognized and that she would receive leniency for that.

QUESTION: If she had implicated her husband at the very first time she was approached by the government, would your case be any different?

MR. WIGGINS: Mr. Justice Rehnquist, I don't know that it would be any different, but I --

QUESTION: You spent considerable time pointing out the fact that she took a while to consent. I didn't see how that was directly involved with the legal principle.

MR. WIGGINS: Well, I think it is involved with the legal principle is the principle that the government tries in their brief and I assume by argument here today to convince this Court that there should be an exception to the husband-wife privilege, that being the voluntary consent of the witness spouse or one of the parties to the marriage. If that were to be an exception, it seems to me that voluntariness becomes a serious question and her voluntariness is certainly subject to consideration when she is in two prior interviews does not notify the authorities of his participation and only ultimately, with all of the offers on the table, she finally agrees to or she talks about him and agrees to testify against him. It is hard to call that in my estimation voluntary.

QUESTION: Well, in the two earlier interviews, had she said he did not participate or had she simply not said anything about it?

MR. WIGGINS: I think she had neglected to mention him in the earlier interviews. She mentioned more people as time went by apparently to get a better deal. The ultimate deal she got is she was not charged with any crime nor convicted of anything; in fact, she was given witness immunity in exchange for her testimony.

QUESTION: Well, in ordinary plea negotiation situation, Mr. Wiggins, where there is no husband and wife problem or the testimonial aspect you have here, do you regard the testimony of the witness who cooperates with the government as involuntary?

MR. WIGGINS: In certain circumstances, Mr. Chief Justice I think it must be viewed as involuntary but whether it is voluntary or not I think certainly representing a defendant charged as a result of such plea negotiation, it would be the right of counsel in most circumstances to bring that out, bring out the negotiations, to point out what that person has traded for his testimony, and juries are instructed, it has been my experience, to weigh that testimony very carefully where an accomplice is involved, because those people have a self interest.

QUESTION: To come back to my question, do you regard that as involuntary?

MR. WIGGINS: In certain circumstances, yes, Your Honor.

QUESTION: In what circumstances would you characterize it as involuntary and in what would you characterize it as voluntary?

MR. WIGGINS: Certainly, Mr. Chief Justice where witness immunity is granted to a granted to a witness who does not want it that is involuntary. Certainly --

QUESTION: Well, did she not want it here?

MR. WIGGINS: No. You asked me for a circumstance where I would find it to be involuntary. I think she wanted it here.

QUESTION: Yes.

MR. WIGGINS: Certainly it would seem to me in a situation where a person is offered to either be charged with a serious felony and serve time in prison as a result of that charge or in the alternative to become a witness and not be charged with anything and serve no time, I think there is coercion.

QUESTION: Can you suggest any situation in which the defendant, the possible defendant so testifying is coerced into accepting immunity? Can anyone be forced to accept immunity?

MR. WIGGINS: A person can be granted immunity without their permission.

QUESTION: Can they be forced to accept it?

MR. WIGGINS: No, they can elect contempt of court as opposed to the accepting of the immunity and actually testifying.

QUESTION: Well, if they don't want to accept it, they simply take their chances as a defendant and stand trial, isn't that the usual pattern?

MR. WIGGINS: Not entirely, Mr. Chief Justice. I have seen people granted immunity who didn't want it and would just as soon have stood trial and who opted for contempt as opposed to willingness to testify. That has happened and that is a circumstance where a person didn't want it but nonetheless the result is the same.

Some two months after Mrs. Trammel or three months after Mrs. Trammel was caught entering the United States with heroin, the defendants were indicted, three defendants were indicted and six persons were named as unindicted co-conspirators in this case in count two which was conspiracy to import heroin.

Prior to the trial of the lawsuit, the matter was here before the court and husband-wife privilege was raised by a motion to suppress, requesting the District Court judge - a motion to sever, excuse me, requesting the District Court judge to sever Mr. Trammel from the other two defendants who were then charged so that Mr. Trammel could claim his privilege in an independent trial. The whole point of the hearing, however, was strictly the privilege question and at that time the District Court judge refused to recognize that such a privilege existed and the government argued that no such privilege existed and the District Court judge indicated that Mrs. Trammel would in fact be required to testify. Subsequently, within approximately three days, the trial began.

Mrs. Trammel was called to testify, a motion and order granting immunity were given her, and again the petitioner, Mr. Trammel, raised the question of the husband-wife privilege and once again the court said that the ruling of the court would be the same and basically not recognizing the privilege, only recognizing a communications privilege and noting that the communications privilege would be fully enforced and that she would not be able to testify to privileged communications.

In addition, at the time that this matter was argued before the United Sates Court of Appeals for the Tenth Circuit, the government once again, according to the Circuit Court's opinion, took the position that the privilege that I am here to argue today just didn't exist in effect. The Circuit Court of Appeals found that the privilege did in fact exist but took the position that because of the fact that she was a co-participant or a co-conspirator in the case, and also because of the fact that she was granted witness immunity, that she should have been permitted to testify and that it did not violate the precedent set forth in Hawkins v. United States, which is the last case in which this Court came face-to-face with the privilege that is before the Court today.

In the Hawkins case, the Court held, this Court has held that the privilege was an absolute one, of one spouse to keep the other spouse off the witness stand and that that privilege took precedence over, in the case of Hawkins at least, the conviction of Mr. Hawkins, his wife was called to testify against him and who was, I think it is clearly arguable from the case and clearly notable within the case, that his wife was herself a co-participant at least to the degree that she was running the house of prostitution to which the young lady being transported across state lines was to go at the conclusion of the trip and may well have been an aider and abettor, may well have been a co-conspirator in that case.

QUESTION: Mr. Wiggins, maybe it is shown by the record, but I didn't see that.

MR. WIGGINS: Mr. Justice Stevens, I think the opinion shows that she was running a house of prostitution in state in which the young lady was going, and I think it also shows that that is where the young lady ended up. Whether or not she was a participant is subject to some speculation.

QUESTION: I thought it only showed that she was a former prostitute. I didn't realize that --

MR. WIGGINS: I think the record also indicates that -- I think the report of the case also indicates that she testified that the young lady was coming to her establishment.

QUESTION: I see.

MR. WIGGINS: At any rate, Hawkins made the privilege -- it is my position an absolute privilege, the government argued at that time the same thing that the government argues before this Court in its brief now, that the privilege should reside in the witness spouse rather than the defendant spouse, and that the witness should be the one to make a voluntary determination as to whether or not he or she should testify when his or her spouse is accused and on trial. This Court rejected that argument in Hawkins, and I urge that it be rejected again.

I would also note that it is clear from the legislative history of the rules of evidence that this Court took the position in approximately 1974 when the rules of evidence were being considered by the Congress, this Court sent up rules of evidence and the husband and wife privilege sent up by the Advisory Committee was identical to the privilege that is presently set out in Hawkins.

QUESTION: You don't regard that kind of a decision as equivalent to a holding of the Court, do you?

MR. WIGGINS: No, Mr. Chief Justice, I don't, but it does seem that it would have been, if the Court were inclined to change the Hawkins situation, that the rules of evidence -- it would have been an ideal time to formulate a rule that was more consistent with the Court's thinking.

QUESTION: Well, what did Congress do about that suggested rule?

MR. WIGGINS: Excuse me, Mr. Justice --

QUESTION: What did Congress do about that suggested rule?

MR. WIGGINS: What Congress did was it took the 13 rules that were sent up on privilege and got rid of all except one. Congress rejected both the Advisory Committee's suggestion of rules as well as the Justice Department's suggestion of the --

QUESTION: And then came up with one rule, 501?

MR. WIGGINS: That's correct.

QUESTION: And said that privilege shall be left to the common law process?

MR. WIGGINS: They say it should be left to common law as determined by reason and experience, the same thing they --

QUESTION: Do you think then what Congress has done to date, that we would be forbidden to overrule Hawkins?

MR. WIGGINS: Yes, Mr. Justice White, I think you would be --

QUESTION: Not by 501?

MR. WIGGINS: Not by 501, but I think by Title 28, section 2076, that you are in fact forbidden, at least arguably so from overruling it, and I have to confess that --

QUESTION: We wouldn't be overruling it by proposed rule.

MR. WIGGINS: It seems to me that if --

QUESTION: This 2076 deals with the rulemaking process --

MR. WIGGINS: That's right.

QUESTION: -- and all the evidence rules except privilege would just have to -- would go into effect within 180 days unless one House or the other acted. But any changes by rule about privilege, Congress would have to affirmatively approve.

MR. WIGGINS: That's right.

QUESTION: And I take it that would be whether you created a new one or overruled an old one.

MR. WIGGINS: Or abolished or modified an old one. But because privilege is set out specifically in 2076 as having to have the approval of Congress, and because the only thing relative to privilege in the rules of evidence, Rule 501, the only thing relative at all to privilege is in that rule. It seems to me that --

QUESTION: Well, Rule 501 is utterly meaningless because it isn't left to the common law process. 2076 leaves it to the legislative process exclusively.

MR. WIGGINS: It seems to me that it does. It seems to me that --

QUESTION: Well, 501 is utterly meaningless.

MR. WIGGINS: If you read the two together, I think you have to come to the conclusion that the Congress is encouraging the Court to reconsider privilege but is holding the string that they want to --

QUESTION: We should decide a case and then send it over to Congress to see if our decision should be --

MR. WIGGINS: No, Mr. Justice White, I don't think that is what they are saying.

QUESTION: Well, should we dismiss this case then and say that we have no jurisdiction to entertain your petition?

MR. WIGGINS: No, I --

QUESTION: Or should we summarily reverse on the grounds that the Court of Appeals had no business tinkering with Hawkins in light of 2076?

MR. WIGGINS: That is strongly arguable, that it should be summarily reversed for that very reason and that the Advisory Committee on the Courts should be the ones to recommend changes in the rules or the Justice Department to recommend changes in the rules to Congress and that Congress should act on them.

QUESTION: Well, are you suggesting then that privilege questions are just non-justiciable?

MR. WIGGINS: I'm not suggesting that they are non-justiciable. What I am suggesting is that unless the last sentence in 2076 means nothing, it has to be read with 501, and the only way they can be read together is that rule changes must go through Congress.

QUESTION: Well, every application of a privilege rule that would -- say there is a conflict that develops between two Courts of Appeals.

MR. WIGGINS: All right.

QUESTION: Now, can we resolve it or not?

MR. WIGGINS: I think that that is your duty.

QUESTION: Or do we have to wait until Congress resolves it?

MR. WIGGINS: I think that is part of your duty to resolve it.

QUESTION: Well, how can we? We would be changing the law in one way or the other.

MR. WIGGINS: Where privilege is concerned, you might be required to reverse it were the Court of Appeals to --

QUESTION: Say it was 4-to-5 between the Court of Appeals, they just split 4-to-5. Now, if we decided one way or the other that the law would be changed in one group of circuits or the other --

MR. WIGGINS: That's correct.

QUESTION: -- and it couldn't be changed until Congress said or not?

MR. WIGGINS: 2076 seems to indicate that is a fact, and I don't pretend to know that that is what it means.

QUESTION: Are you saying that Congress said they were going to leave it to the courts, then leave it to the courts to do what?

MR. WIGGINS: Mr. Chief Justice, they said they were going to leave it to the courts, at the same time they enacted something that said the courts must come to us for permission where privilege is concerned. I can only --

QUESTION: The courts or the rulemaking process?

MR. WIGGINS: I think they are talking about the rulemaking process.

QUESTION: We aren't sitting in a rulemaking process now, are we?

WIGGINS: Absolutely, you're not, but we are discussing a rule before this Court that was left in a certain way by Congress as a rule they didn't want changed. I'm not arguing for the fact that a decision of this Court in any way would have to be sent to Congress for the Congress to say yes or no to it. I am only saying that that is the only suggestion that can be made from 2076 as I read it.

QUESTION: So I can only read you as saying we should ignore it.

MR. WIGGINS: Unfortunately I had considered that seriously when I came up here and suggesting that, because it does seem to me to be inconsistent and no consistent way for this Court to deal with it in this case.

QUESTION: Do you suggest that they were advocating anything other than how the rulemaking process would function?

MR. WIGGINS: No. They are advocating how the rulemaking process should function.

QUESTION: Not how we were to decide a future case, as Justice White suggested, resolving a conflict in the circuits?

MR. WIGGINS: I agree with you there, not how you should decide cases.

QUESTION: So we should go ahead and decide the case.

MR. WIGGINS: Yes, Mr. Chief Justice, you should in my favor. But I also think that when they say that, that it is perhaps somewhat presumptuous of the circuits to then decide a case contrary to Hawkins and contrary to the prior law and say on a case by case basis we have decided to change it when the Congress wanted to retain the rulemaking power as a result of that statute. And I point that out because it is there. I am not suggesting in any way that it is necessarily controlling in this case.

QUESTION: How much weight do you put on the suggestion that appears in the Hawkins case and elsewhere that this has a deleterious effect on the marriage relationship when the husband or wife goes into court and testifies against the other and perhaps sends the other spouse to prison? You recall, Justice Black seemed to rest to a significant extent on that aspect.

MR. WIGGINS: Yes, Mr. Chief Justice, and I agree with that. I think I agree very strongly with the statement that it was Mr. Justice Black's opinion at that time that it would destroy almost any marriage for one of the marriage partners to be called as a witness against the other, and I think that is true regardless of the outcome of the trial of the case, because it seems to me if a spouse stands up and testifies in open court against his or her mate, that the marriage is probably at that point irretrievably shattered and would not return to any semblance of trust between the two as a result of the testimony. So I think that the situation that Mr. Justice Black suggests early on, I think that is still the same situation today.

QUESTION: The concurring opinion suggested that this whole concept was a relic of the past and has no place in the modern world of women's lib -- not quite in those terms. What do you have to say about that?

MR. WIGGINS: It is part of what Mr. Justice Stewart suggested in the concurring opinion. However, he also suggested in the concurring opinion, which I agree very strongly with, that no one case is the case that should change this if it is a relic of the past, and we submit that it is not, but that the Advisory Committee for the courts should consider this matter seriously and if a change should be made it should be an intelligent change on that basis.

QUESTION: We have changed some other doctrines and rules of ancient lineage, haven't we?

MR. WIGGINS: Yes, Mr. Chief Justice, we have. There is certainly no question about that. But this rule strikes at the very heart of the family, of marital harmony which is I suggest an institution of authority, a non-governmental institution of authority in this country which undergoes a significant amount of fire in today's times as a result of the way society operates, and I think that this Court should strongly support the institution of the home, the institution of marriage against attacks in this kind of situation against that institution to testify and in effect break the home.

QUESTION: This case was tried in the District Court of Colorado?

MR. WIGGINS: Yes, Mr. Justice Stewart, it was.

QUESTION: What is the law of Colorado? Perhaps you have already been asked this, but if so I didn't get the answer.

MR. WIGGINS: The law of Colorado is --

QUESTION: With respect to this question.

MR. WIGGINS: -- it would be identical to the law in the federal court with respect to this question. It is the privilege of the accused to keep the witness off the witness stand if the accused chooses to use that, utilize the privilege.

QUESTION: Not identical to the law in the federal courts as construed in this case by the Tenth Circuit.

MR. WIGGINS: Correct, not identical, but identical to what the Hawkins --

QUESTION: The general Hawkins rule.

MR. WIGGINS: The general Hawkins approach to this particular privilege would be identical in Colorado.

MR. CHIEF JUSTICE BURGER: We will resume at this point at 10:00 o'clock in the morning, Mr. Solicitor General.

(Whereupon, at 3:00 o'clock p.m., the case in the above-entitled matter was recessed, to reconvene on Tuesday, October 30, 1979, at 10: 00 o'clock a.m.)

Washington, D. C.,

Tuesday, October 30, 1979.

The above-entitled matter came on for further oral argument at 10:02 o'clock a.m.

BEFORE:

WARREN E. BURGER, Chief Justice of the United States

WILLIAM J. BRENNAN, JR., Associate Justice

POTTER STEWART, Associate Justice

BYRON R. WHITE, Associate Justice

THURGOOD MARSHALL, Associate Justice

HARRY A. BLACKMUN, Associate Justice

LEWIS F. POWELL, JR., Associate Justice

WILLIAM H. REHNQUIST, Associate Justice

JOHN PAUL STEVENS, Associate Justice

APPEARANCES:

J. TERRY WIGGINS, ESQ., 200 Steele Park, 50 South Steele Street, Denver, Colorado 80209; on behalf of the Petitioner

WADE H. McCREE, JR., ESQ., Solicitor General of the United States, Department of Justice, Washington, D. C.; on behalf of the Respondent

PROCEEDINGS

MR. CHIEF JUSTICE BURGER: We will resume arguments in Trammel v. United States. At this stage, Mr. Wiggins, are you reserving the rest of your time for rebuttal?

MR. WIGGINS: Yes, Mr. Chief Justice, I am.

MR. CHIEF JUSTICE BURGER: Mr. Solicitor General.

ORAL ARGUMENT OF WADE H. McCREE, JR., ESQ., ON BEHALF OF THE RESPONDENT

MR. McCREE: Mr. Chief Justice, and may it please the Court:

There is no dispute about the facts in this case and we concede essentially that if this Court adheres to its ruling in Hawkins, the judgment below must be reversed because without the spouse's testimony there is nothing in the record to link the petitioner to the conspiracy charge.

I qualified my concession with the word "essentially" because the Court could decline to hold that the privilege against adverse spouse testimony does not apply where the witness spouse is willing to testify and it could still admit her testimony here for the reasons that she and the petitioner were joint participants in the conspiracy to import heroin as charged in the indictment.

This argument about their being joint conspirators was not presented to the court in Hawkins, nor was it considered by the Court in its opinion.

We also observe at the outset that the opinion in Hawkins does not foreclose our request that the Court reconsider it, because although the Court said "under these circumstances we are unable to subscribe to the idea that an exclusionary rule based on the persistent instincts of several centuries should now be abandoned, nevertheless," it stated, "as we have already indicated, however, this decision does not foreclose whatever changes in the rule may eventually be dictated by reason and experience."

QUESTION: How much does the voluntariness aspect figure in your exception to the Hawkins rule that just suggested?

MR. McCREE: Well, that is our principal argument and I --

QUESTION: How voluntary is it when once she is offered or tendered immunity?

MR. McCREE: If the Court please, no one's choice is ever absolutely voluntary. Everyone makes a choice, whenever he does, within the context of a series of circumstances and we have to begin with the premise that she was already involved in the offense and therefore her selection of choices was necessarily limited.

QUESTION: Let's take it just step by step. Suppose they had not consulted her in advance. She had refused to talk with the prosecution or investigators, she is called to the stand when the case is in trial, she could assert the Fifth Amendment, could she not at that stage in this case?

MR. McCREE: She indeed could assert the Fifth Amendment.

QUESTION: And then if that were countered at that stage, rather than in advance as it was here, with a tender of complete immunity, then what would be her posture?

MR. McCREE: Well, she could still as we suggest claim the privilege as the witness spouse not to testify. She could claim it on the basis of preserving marital harmony. And we do not ask the Court to overturn that, we just say that the privilege should continue but the privilege should be exercised by the witness spouse instead of the defendant spouse, because she is the one more likely by her decision to indicate whether there is anything worth saving. We suggest that by placing the privilege in the defendant spouse, he will invariably prevent the witness spouse from testifying, not because of a desire to save the marital harmony but to save his own hide in the prosecution. So we are suggesting that her decision is a reliable indicator of the existence of a marriage whose harmony and felicity should be protected, but to place it with him doesn't serve the underlying purpose of the privilege. That essentially is our argument about the rule enunciated in Hawkins. We say don't destroy the privilege but give it to the witness spouse instead of the defendant spouse.

As we suggested in our brief -- and I won't dwell on this at any great length -- actually there are two related rules and we are only talking about one of them, and I would like to make that clear.

As the concurring opinion in Hawkins states, there was originally only one rule and it stemmed from two concepts both long since rejected. One was the rule that a party, an interested party could not testify in a lawsuit, and the other was the fiction that at law husband and wife were one and, as some persons have said, he was it. And since he could not testify in his own behalf, he could prevent his subordinate alter-ego or his subordinate alter-ego also was incompetent to testify in his behalf. But after the law evolved to permit interested parties to testify, two rules evolved from this earlier one. One is the rule that prevents either spouse from testifying against the other, and that is the rule that Hawkins -- with which Hawkins was concerned, and the other rule, of course, is a rule relating to confidential communications, and neither spouse can be required to reveal a confidential communication and each spouse has a right to prevent the other from doing it, and that rule even survives the demise of a marriage, and we are not talking about that at all here. We are talking --

QUESTION: You are not challenging that?

MR. McCREE: We are not challenging that at all. And we point out, Mr. Justice Rehnquist, that in Trammel, in the court below, the court very carefully made this distinction between these two rules, and we are talking about what is sometimes called the anti-marital rule, although the reason for that nomenclature rather escapes me, it is the rule that permits either or both spouses from preventing the other from testifying against him as to matters not confidential communications. And it is our submission that this rule should not permit the defendant spouse to exercise it but should permit the witness spouse to exercise it.

We begin in our argument by pointing out that the public has a right to every person's evidence. This Court has frequently enunciated that rule and, as has been observed, whenever the public will be deprived of relevant evidence, there should be an overriding consideration to compel such an exception to this general rule. And we suggest that there may be, with reference to confidential communications between spouses, we don't touch that at all. But we suggest that if the price would be that an offense would not be proved without violating any effort to be confidential between the spouses, that that is too great a price to pay.

QUESTION: Mr. Solicitor General, putting aside the confidential communication, would not the logic of your argument equally apply to a claim of privilege by the witness as well as by the defendant? I'm just wondering if you are writing on a clean slate, wouldn't you ask the Court to abolish the privilege entirely except for the confidential aspects?

MR. McCREE: Well, I think I would and many states have. As a matter of fact, the mandate of Rule 501 of the Federal Rules of Criminal Procedures is that the privileges should be based upon principles of the common law as interpreted by the United States courts in the light of experience and reason.

I would address first the question of experience. The experience of this country indicates the following: In 1958, when Hawkins was decided, as the concurring opinion states, there were 19 states that permitted inter-spousal testimony. Now that number has increased to 27 states, including the District of Columbia, which incidentally did not change but had the rule then. Now, a clear majority of the states have no rule that would prevent the Hawkins result, and we think that this tells us something about the experience of the country because these 27 states and the District include some very populous states like New York, Illinois, California, Ohio, and in their totality they include 60 percent of all the population. And if this is their experience, we think this Court could consider it, particularly in the light of the fact that this Court has regarded matters pertaining to the family and to domestic matters as peculiarly within the concern of the states under an appropriate approach to federalism.

So we think on experience there is a reason to reexamine Hawkins, and we think on the basis of reason there is, as I have suggested, if we want to see whether there is a marriage worth saving, find out whether the witness spouse is willing to testify. If it is a good marriage, she is not going to want to testify. If it is just a sham, if it is a shell, if it is just a nominal marriage, she is likely to do it. But the defendant spouse always will.

QUESTION: In these 27 states, Mr. Solicitor General, has the rule been altered with respect to both civil and criminal cases or are they --

MR. McCREE: I have not examined all of them that carefully and I can't answer the Chief Justice's question. We set them forth in the appendix to our brief and some of them relate to civil and others to criminal, but almost invariably they relate to criminal and that is what we are talking about in Hawkins and for that reason I did not pursue it to determine it to that extent.

It is interesting to observe that the District of Columbia has had a rule that allowed a witness spouse to testify against a defendant spouse in a criminal case for more than half a century, and I think that is significant because the Congress has approved the District of Columbia rule.

QUESTION: Well, it would be kind of tough to conduct a contested divorce proceeding if you had this sort of a privilege in civil litigation.

MR. McCREE: That's exactly right, Mr. Justice Rehqnsuit, and there are exceptions to the inter-spousal rule that have developed out of common sense reasons, just like the divorce one. Others are if the defendant spouse is accused of an offense, a criminal offense against the witness spouse --

QUESTION: Right.

MR. McCREE: -- obviously the witness spouse can testify there or else the defendant spouse could inflict criminal injury on her in private and enjoy complete immunity. It has been extended to allow the witness spouse to testify when the defendant spouse is charged with an offense against children of the marriage. In fact, some rules go as far as children of the other spouse even if they are not children of the marriage. Other exceptions extend to offenses by the defendant spouse against property of -- separate property of the witness spouse, and we suggest that if these exceptions are valid, and we think they are -- we think they serve a societal purpose -- it also serves a societal purpose to permit the witness spouse to decide whether she will testify against the defendant spouse when the public is in dire need of her testimony. Because here a major drug trafficker is going to go free if we adhere to the rule of Hawkins, without it serving any purpose of promoting marital harmony here.

QUESTION: Mr. Solicitor General, what bothers me about your argument is that it is almost precisely the same argument that was made in the Hawkins case, which was argued in my very first week on this Court. While, as you know, I wrote separately, I didn't agree with the Court in the Hawkins case, eight members of the Court applying their reason did reach the result that they reached. And all that you have pointed out to us that has happened since in the 21 years since then is that some eight more states have amended their evidentiary laws.

MR. McCREE: Well, we think that is --

QUESTION: There was certain reason, there was reason of eight members of the Court in 1958 that the Hawkins rule was the right rule.

MR. McCREE: Well, we think that is significant because -- and as Rule 501 mandates and as the Court observed in Hawkins before Rule 501, that these privileges evolved in the light of experience and reason, and we think that the fact that eight more states have moved is significant experience.

QUESTION: That is some experience, from 19 to 27.

MR. McCREE: Well, we think that --

QUESTION: But what has changed in the way of reason?

MR. McCREE: Well, we think --

QUESTION: Now, as you know, I didn't agree with the Court, but eight members were of the same view and that was the exercise of their reasoning. What has changed it since?

MR. McCREE: Well, this case is different in another respect, too, and maybe we don't have to overrule Hawkins if this Court would decide that where both spouses were engaged in a joint criminal activity that the interest of society in having the testimony of the witness spouse should override any consideration of marital harmony.

QUESTION: That was the ground on which the Court of Appeals based its decision, isn't it?

MR. McCREE: It is, sir.

QUESTION: I take it that there wouldn't be any privilege by either spouse.

MR. McCREE: No, we don't even ask the Court to go that far.

QUESTION: I know, but that reasoning you just gave would mean that the public would be able to overrule the objection of the witness spouse.

MR. McCREE: We welcome the Court, if it wished to take that step, but we say the Court doesn't have to take that much of a step. If it leaves the privilege in the witness spouse, that is sufficient to uphold this and it is still --

QUESTION: It denies the public her testimony if she objects.

MR. McCREE: But what the public would gain would be the preservation of marital harmony if she believed that it would be jeopardized by her testimony. We suggest that her willingness or not to testify would be an indicator of whether there was anything there worth saving.

QUESTION: Mr. Solicitor General, insofar as your position involves any change in the Hawkins rule, is there any limitation on our changing it under 2076?

MR. McCREE: We see no limitation on your changing it. My brother yesterday was addressing Title 28, section -- well, we refer to it in a footnote on page 10 of our brief.

QUESTION: 2076.

MR. McCREE: 2077. But that relates only to this Court and specifically relates to this Court in its rulemaking function and not its adjudicatory function, and we are here in the latter capacity and not the former.

QUESTION: Then you are saying that conferred no new power or jurisdiction on us that we didn't have before.

MR. McCREE: That's my understanding, and it doesn't inhibit, it doesn't prevent the Court at this time from --

QUESTION: Well, what you are really saying is that 2076 is no limitation whatever on our changing the Hawkins rule, inclusive of overruling it.

MR. McCREE: That's exactly right, unless the Court presumed to do it in its rulemaking capacity.

QUESTION: And you find that in that last sentence in the word "such," any such amendment?

MR. McCREE: No, I find that in the language that speaks of the Court in its rulemaking power.

QUESTION: Yes?

MR. McCREE: (no response)

QUESTION: The subject of 2076 is amendments to the Federal Rules of --

MR. McCREE: That is my understanding, Mr. Justice Brennan.

QUESTION: So when you get down to any such amendment creating, and so forth, that means any such amendment to the Federal Rules of Evidence.

MR. McCREE: And that would be in the exercise of its rulemaking power.

QUESTION: Does this case require us to decide any more than that there is no privilege when the wife admittedly is engaged in the same criminal enterprise?

MR. McCREE: We are saying that when -- we are not saying that there is no privilege. We are saying that the Court can allow the privilege to remain but just permit her to exercise the privilege. That is one thing we are saying.

The other is we are saying you can abolish the privilege when she is jointly charged with the offense. And under either formulation, the conviction of Trammel below would stand.

QUESTION: Well, in this case she I take it admitted her participation but was protected by the immunity.

MR. McCREE: That's correct, and she was charged or she was named in the indictment as an unindicted co-conspirator. And we are suggesting that logically to do otherwise would permit a person send on a criminal enterprise to enlist the services of his wife in that enterprise with the full knowledge that she could never be used as a witness against him, and we are suggesting that that is not socially desirable and that certainly if that is a consequence, it isn't a reason for overruling the general principle that the public is entitled to every person's testimony or evidence. But that could indeed be the consequence of overturning this conviction of Trammel. He could enlist her as indeed he did and she did all of the actual obtaining of the heroin in the Southeast Pacific, bringing it into the country, while he would remain immune just because this rule in Hawkins would prevent it if we listen to petitioner's contention, and we submit that we should not.

QUESTION: Don't you think that there is a possibility that if the Court should overrule the Hawkins rule to the broad extent that you urge this morning, that there might be a claim in every case and therefore the necessity of a judicial inquiry into just how voluntary the wife's testimony was? I remember the Hawkins case, the wife had been jailed and released on $3,000 bond, as I remember it, conditioned upon her testifying in court against her husband, and that didn't seem very voluntary.

In this case, she was granted immunity and that arguably doesn't seem very voluntary. Don't you think that this would lead to an inquiry, the claim being made and therefore a necessary inquiry in every case as to just was it or was it not voluntary testimony?

MR. McCREE: If the contention were made, it would, I must concede, Mr. Justice Stewart, that it would.

QUESTION: Well, don't you think every convicted defendant would make that contention?

MR. McCREE: Well, he probably would, but similar contentions are made in similar instances. For example, this Court has said many times that the testimony of a co-conspirator made during the course of the conspiracy and in furtherance of its objects may be used against any other conspirator, but this requires the preliminary showing of some quantum of proof before that comes in.

In the exception to the attorney-client privilege, one of the exceptions is if the person consults an attorney and enlists him in the commission of an offense, no privilege exists there and there, too, some quantum of showing that they were both involved in the criminal activity would be necessary before you could penetrate the attorney-client privilege. So it isn't anything new to the law, but it is something that courts can handle and do handle competently.

There was a so-called in limine act hearing here to determine voluntariness and this happens in a number of instances, and if it happened here it wouldn't differentiate this at all.

QUESTION: Your exception, your narrow exception would not cover a case where the wife -- if this wife had been aware of the criminal conduct of the husband and had constantly protested against his activity and had not participated in it, then your exception would not permit her to testify, would it?

MR. McCREE: The second branch of my exception would not, and that is why we urge the first, that she should be the holder of the privilege, and if she felt that there wasn't anything worth saving we could expect her to be willing to testify. If she felt there was something worth saving, she wouldn't, and --

QUESTION: The second one would also prohibit her testimony if she saw her husband murder another person, if there were only the three of them including the victim present.

MR. McCREE: It would, and that is why we suggest --

QUESTION: The broader one?

MR. McCREE: -- the broader one, and we think society doesn't benefit by preserving a marriage at this extreme cost.

QUESTION: [ILLEGIBLE WORDS] element does, as Mr. Justice Stewart suggested, put the court into a subsidiary or a collateral inquiry?

MR. McCREE: Well, we concede it but the courts are in these collateral inquiries all the time where predicates for the operation of a rule have to be shown and different quant of evidence are required frequently to trigger it.

I would also like to observe that the rule in Hawkins would penalize Mrs. Trammel because she is married and that is an unfortunate result. There is another woman involved in this case who was the girlfriend -- in fact, at one point she was referred to as the roommate of another defendant, and she was able to bargain for her liberty with the prosecution and she was not -- she was named as unindicted co-sponsorator and she was not prosecuted at all. Mrs. Trammel would be penalized because she had gone through the bonds of matrimony with Trammel and this other woman who was just living with the other fellow would not be.

QUESTION: She would be penalized because she could offer no quid pro quo in the negotiations?

MR. McCREE: To the prosecutor. She couldn't bargain for her personal freedom.

QUESTION: I see.

MR. McCREE: So for these several reasons, as we set forth in our brief, we respectfully request that the Court reconsider Hawkins and hold that the admission of Mrs. Trammel's testimony was not erroneous and affirm the conviction.

Thank you.

MR. CHIEF JUSTICE BURGER: Mr. Wiggins.

ORAL ARGUMENT OF J. TERRY WIGGINS, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

MR. WIGGINS: Mr. Chief Justice, and may it please the Court --

QUESTION: How do you -- I suppose there are several ways, but how would you characterize the reason basis for the exception of permitting a wife to testify against her husband in a divorce action, whether she is the plaintiff or whether he is the plaintiff and she is resisting the divorce? Would that be on the theory that at that stage in the court room the marriage is shattered already?

MR. WIGGINS: I certainly think it would and it would be -- it is a practical reaction to the fact that a divorce could not otherwise in most situations be accomplished because you are talking about a matter that is solely within the interest of the two parties who are being divorced and --

QUESTIONS: Assume divorces are granted, and a many of them are granted without the testimony of the spouse, if there is objective evidence from other people.

MR. WIGGINS: If that is true, Mr. Chief Justice, I am unfamiliar with it. In Colorado, it could not happen.

QUESTION: Well, there is a general exception to the rule, isn't there, that a spouse may always testify as to wrongdoing by the other spouse against him or her?

MR. WIGGINS: That, Mr. Justice Stewart, is the general exception.

QUESTION: But you put that on the basis and the rule rests on the basis that that kind of a marriage is pretty well shattered. When this wife took the stand in the criminal case to testify against her husband, is that marriage any less shattered?

MR. WIGGINS: By the time that she elected to take the stand in this case to protect herself, I think it is no less shattered. I think in this case it might easily be said that the marriage were shattered by her choice. It could have had problems prior to that time, but certainly once she took the witness stand, the marriage I would think would have been ruined. But the question is whether the government should have the opportunity, it seems to me, to try to convince her to destroy the marriage by taking the witness stand so that merely for her own protection the government argues in their brief about the fact that they feel a defendant in almost every case for his own self interest would claim the privilege, and I wouldn't deny that argument. But by the same token, Mrs. Trammel in her own self interest, to keep herself out of jail, elected to speak about activities between her husband and anyone else, including everyone involved in this.

I would point out that the co-conspirator exception that the government argues for has a glaring problem in this case that can be seen from the record, and that is how simple it is to accuse someone as an unindicted co-conspirator without actually them having any great involvement in the case. I'm not speaking of Elizabeth Trammel. I am speaking of Ben Richardson, Jr. and Josephine Flewellen. If you look at the record in this case, you will find that both of those persons were named as unindicted co-conspirators. Ben Richardson, Jr. did no more than drive Mr. Roberts to the airport, not knowing his reason for going and not knowing what was going to happen when he arrived. Josephine Flewellen did no more than ride in an automobile from the airport at Clark Air Force Base in the Philippines to the airport so that Mrs. Trammel could get on an airplane to come to the United States, and yet both of those people were named as unindicted co-conspirators simply to get in testimony that may have been available and otherwise would have been unavailable perhaps because of the rules of hearsay. Mr. Richardson testified at trial, didn't ask for immunity, denied all personal culpability in the case, but he was named as an indicted co-conspirator.

If the same circumstance had taken place where Mrs. Trammel was concerned and she had been permitted to go on and testify simply because the government chose to indict her or name her in the indictment, then the marriage would equally have been destroyed but to no gain for anyone because it would have been clear that she was not a part of the conspiracy. I'm not arguing that there was not a conspiracy in this case, there certainly was.

QUESTION: But the government has to prove a co-conspiracy, doesn't it? It can't just by naming someone as an unindicted co-conspirator, without any proof get their testimony.

MR. WIGGINS: Mr. Justice Rehnquist, I think if the circumstance of getting a conviction, yes, the government has to prove that the person is a co-conspirator, but I think before a grand jury by placing the name of a person in an indictment as an unindicted co-conspirator is a very simple matter and I can't conceive of a situation where an assistant United States attorney could not draft an indictment in such a way if he chose to do so.

QUESTION: Or threaten to indict her.

MR. WIGGINS: Or threaten to indict her or call her an aider or abettor. In the Lilley case out of the Eighth Circuit, the husband and wife were called aiders and abettors, under Title 18, section 2. In that case, both denied and laid it off on the other, but the Eighth Circuit held that the rule prevented the testimony of one against the other.

The Cameron case, that the government relies on strongly, out of the Fifth Circuit, a 1977 case, would if this Court adopts what the government argues for, of necessity should have been overruled because Mrs. Cameron said "I don't want to testify against my husband, I'm not involved, I have no desire to testify," and the judge said, "I don't think you have much of a marriage anyway, therefore you will testify."

QUESTION: Yes, but I thought one proposal of the government was that the privilege just belonged to the witness --

MR. WIGGINS: That is --

QUESTION: -- whether a co-conspirator or not --

MR. WIGGINS: Yes, that is one of the --

QUESTION: -- in which event in your Fifth Circuit case there would have been no testimony.

MR. WIGGINS: In the Cameron case there could have been no testimony, that's correct, Mr. Justice White.

QUESTION: But the other proposal is that the privilege is entirely absent if they are co-conspirators.

MR. WIGGINS: That is what the government is arguing for in their second --

QUESTION: Do you understand their proposal in that regard to mean that if the wife is a co-conspirator and there is a prima facie showing of it, I suppose, as a predicate to demanding her testimony, she could be made to testify over her objection?

MR. WIGGINS: That is what I understand their position to be, Mr. Justice White. I understand them to talk about the implementation of that rule in terms of the prosecutor making an offer of proof to the court, saying, okay, she will testify to the following things.

QUESTION: Just like you have to lay the predicate for a lot of other testimony.

MR. WIGGINS: Absolutely correct, and once the offer of proof is made then the judge decides whether or not the judges believes she is a co-conspirator. If he does, then her permits her to testify.

QUESTION: I didn't understand the government's position to be in either of its alternative arguments that the spouse could be compelled to testify against her will. Perhaps I misunderstood it.

MR. WIGGINS: My understanding --

QUESTION: The Solicitor General seemed to indicate that maybe the court could stop short of that on the one branch of their -- but as I read their brief, it would be to go all the way.

MR. WIGGINS: As I read their brief, the witness spouse would still have some choice and, as the Solicitor General indicated in his argument in terms of the grant of witness immunity, the privilege could still be claimed --

QUESTION: As the spousal privilege.

MR. WIGGINS: Yes -- then that would imply a choice, but on page 28 of the government's brief they do indicate that what they are suggesting is that if the parties are co-conspirators then the government would make an offer of proof to the court and when it does that, make the offer of proof, if the judge decides that he believes they are co-conspirators, then he would permit the wife to testify.

QUESTION: Not only permit but could require.

MR. WIGGINS: I wouldn't go quite that far, but it is --

QUESTION: If immunity were granted?

MR. WIGGINS: -- it is argued, yes, that that is true.

QUESTION: If immunity were granted, he could require under those facts.

QUESTION: Not if there is spousal privilege.

MR. WIGGINS: Mr. Chief Justice --

QUESTION: We are starting with the proposition that Mr. Justice White put to you, that she has the option. Now, she exercises that option ordinarily at the risk that she might later be indicted if she doesn't cooperate with the government. Isn't that one of your problems?

MR. WIGGINS: Yes, that is one of my problems. But I think, Mr. Chief Justice, the granting of witness immunity -- I think the Tenth Circuit confused the rights of witness immunity and the privilege considerably because witness immunity I had understood after the Kastigar case was a fairly settled matter. And now to take witness immunity and try to superimpose a husband-wife privilege where the privilege has always been held not in the immunized party but in the other person, both not only confuses the privilege, the husband-wife privilege, but I think confuses immunity, because the Solicitor General argues that there are circumstances where a person could be granted witness immunity and still claim the marital privilege, at least the way the law has been to date.

Thank you.

MR. CHIEF JUSTICE BURGER: Thank you, gentlemen. The case is submitted.

(Whereupon, at 10:38 o'clock a.m., the case in the above-entitled matter as submitted.)