Hawkins v. United States

PETITIONER:Hawkins
RESPONDENT:United States
LOCATION:Union Station

DOCKET NO.: 20
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 358 US 74 (1958)
ARGUED: Oct 14, 1958
DECIDED: Nov 24, 1958

Facts of the case

Question

Audio Transcription for Oral Argument – October 14, 1958 in Hawkins v. United States

Earl Warren:

Number 20, James Clifton Hawkins, Petitioner, versus United States of America.

Mr. King.

Kenneth R. King:

May it please the Court.

This case has arisen out of the conviction of the petitioner James Clifton Hawkins in the northern district of Oklahoma for the offense of knowingly transporting one Lola Fay Moudy in interstate commerce for immoral purpose.

Petition for a writ of certiorari were filed and granted in this Court.

The facts of this case are that one Lola Fay Moudy and the petitioner had a conservation in the State of Oklahoma and the witness, later became the witness Lola Fay Moudy, told the petitioner that she would like to make more money while she was working there in the tavern.

And the petitioner asked her if she would like to go over to Tulsa and work with Jane.

The witness Lola Moudy understood that working with Jane meant working as prostitute.

Thereafter the petitioner and Lola Fay Moudy journeyed from a point in — from a town in Oklahoma to a point in a town in Arkansas and then back across the line to Tulsa, Oklahoma.

They arrived in Tulsa, Oklahoma at approximately 3:30 or 4 o’ clock in the morning, when the petitioner got out his automobile which was identified as the car that the two people were traveling in by other witnesses, he got out of the car and made a telephone call and shortly thereafter a person named Jane and another person named Tommy came out to the car and Jane, Tommy and Lola Fay who was then being called Tommy McGuire went to a hotel where Tommy McGuire did not register but stayed in the room with Jane and Tommy and there they instructed her on various items of that business.

And then later that day the petitioner by the way did not go to the hotel, but left, but later that day the — Johnny McGuire or Lola Fay Moudy her real name, the main witness went to another hotel and there engaged in prostitution where she was arrested and then Tommy went down and paid a fine and got her out.

Later she decided to quit and Jane, Tommy and Johnny, the three girls went back across to the State of Arkansas where the petitioner met them and then the prosecuting witness Lola Fay Moudy known as Johnny went back to the State of Oklahoma and thereafter did not engage in any prostitution.

Now, this case was brought up on the main point that in this — in the trial of this case, the petitioner’s wife was allowed to testify as a government witness.

She testified to only one or two facts which were not otherwise in evidence and those two facts were that she was the wife of petitioner and the person known as Jane Wilson.

Was this a jury trial?

Kenneth R. King:

This was a jury trial Your Honor.

Felix Frankfurter:

When you say the main point, is there any other point except the competence of this particular witness?

Kenneth R. King:

There the —

Felix Frankfurter:

Before us, is there any other point except that?

Kenneth R. King:

Yes, Your Honor there is the point of where the evidence offered by the wife was prejudicial to the petitioner.

There are two points; one the harmless error.

Now as far as the harmless is concerned or the prejudicial testimony of the wife —

William J. Brennan, Jr.:

Where would we find that testimony in record?

Kenneth R. King:

The testimony of the petitioner —

William J. Brennan, Jr.:

Of the wife —

Kenneth R. King:

Wife in the record, she is known as (Inaudible) Hawkins, it is at page 48, I beg your pardon.

William O. Douglas:

Page 40?

54.

Kenneth R. King:

Page 54.

When she was called to the stand, the petitioner’s counsel objected to her testimony because they were still married at that time and the court overruled the objection and she testified to — about her.

Kenneth R. King:

She testified that she was a prostitute and had been during November of 1955 that she was known as Jane Wilson and had been a prostitute before she married the petitioner.

Earl Warren:

Well doesn’t the testimony begin on the page 40?

Kenneth R. King:

54 Your Honor, I’m sorry.

Earl Warren:

Would you take a look at 40?

Kenneth R. King:

Yes, 40 and 41 and 42.

Felix Frankfurter:

Mr. King I asked my question because on your petition for certiorari you presented only one question.

Kenneth R. King:

Yes Your Honor —

Felix Frankfurter:

This Court is not accustomed to considering questions not raised in application for certiorari.

Kenneth R. King:

I understand that Your Honor, however the respondent raised the question of harmless error in his reply.

Felix Frankfurter:

I don’t care what the respondent does.

The petitioner determines the scope of our review.

Kenneth R. King:

I will limit my argument then only —

Felix Frankfurter:

But I’m just suggesting my view.

Kenneth R. King:

All right.

Felix Frankfurter:

After all the questions presented have some purpose, so that’s the basis on which we grant or do not grant or grant in a limited fashion.

Kenneth R. King:

The petitioner says that the trial court committed error in allowing the — permitting the wife of the petitioner to testify as a government witness.

The rule that a wife could not testify for or against her spouse is of course a long standing was by the early treatise writer recognized and in the Maine case, the case often cited, the Stein versus Bowman case, cited in the 18th Century was repeated and in the case of US versus Graves, by this Court, was reiterated or repeated wherein the counsel for the prosecution commented on the failure of the wife to testify in his argument to a jury, and in that case the court says that the comment that the wife was an incompetent witness and that the comment by the prosecution on her failure to testify was therefore improper.

Later in 1933, this Court decided the (Inaudible) case which removed the restriction of the rule and permitted, a part of the rule, permitted the wife to testify for a husband, but left open the question as to whether the wife could testify against her husband, and that was in 1933.

In 1935 the Tenth Circuit court in the case of United States versus Yoder, Yoder versus United States, had the same question presented to it as this Court now has with the exception that in that case at the time the wife was testifying against her husband she was divorced at the time of the trial, and by way of dicta they indicated that the rule that the wife could not testify against her husband had no further use.

Then the — within a few years the two other circuit courts, three other circuit courts held that it was error for the wife to be permitted to testify against her husband.

Now, this is the present case is the first case where the point is raised directly, that is the first case where the wife was permitted to testify against her husband.

Now —

Felix Frankfurter:

Was she subpoenaed or did she volunteer as witness?

Kenneth R. King:

The record is silent on that part Your Honor.

I have personal knowledge of it that she was subpoenaed, and held for bond as a government witness.

And it’s not in the record?

Kenneth R. King:

But it’s not in the record Your Honor.

Now the early reasons given for the rule that the wife could not testify against her husband were mainly three reasons.

One was, that it was to preserve marital peace, in other words the peace of the marriage was felt to be more important than this privilege.

And there that reason was given by Blackstone and Whitmore repeated in Stein versus Bowman and again in Yoder versus United States.

Kenneth R. King:

Now that marital peace reason still exists.

The doctrine that the wife cannot testify as to competential communications between husband and wife has the same reason and the government — no one else has ever urged that the rule which will not allow the wife to testify as to privilege communication should be abolished.

I should know this that Mr. Blackstone is married?

[Laughter]

Kenneth R. King:

I am sorry that I do not either, Your Honor.

That the second reason for the rule is that it would be naturally repugnant for the wife to be permitted to testify against her husband.

Now the respondent has raised in his brief that it is repugnant to be convicted of a crime.

He has the repugnancy running to the accused.

However, a closer reading will show that the natural repugnancy reason is — runs to the public that it is a matter of public policy, that it is naturally repugnant to the public to allow wives to testify against their husbands.

Now the third reason for the rule often given is that to forbid the wife to testify against her husband would hold invalid the marriage relationship.

It can be said now that the marriage relationship is any less sacred than it was when these reasons were given back as early as the 17th Century and repeated throughout the time until this date.

Felix Frankfurter:

We may know as Justice Harlan suggests more about psychology.

Kenneth R. King:

Sorry Mr. Justice I am not versed on psychology either.

Hugo L. Black:

(Inaudible)

Kenneth R. King:

They were separated at the time of the offense.

Hugo L. Black:

You think that had to do anything?

Kenneth R. King:

The cases here therefore have not considered the separation.

In the case of United States versus Walker the parties were separated and at that time I think a divorce petition was filed though they were still made at the time of the testimony and the noted passage of Justice Learned Hand was that the situation would probably not arise unless they were separated, that the wife would give testimony against her husband.

But he said that the possibility of reconciliation would be removed and for that reason that they was not pertinent whether they were separated or not separated.

Now the question that we have here, just as the question in the Funk case was, should the rule survive the reasons for the rule.

Now we say that the reasons for the rule existed then when these cases, prior cases were decided and when these commentaries were written and we say that those rules and the reasons for them exist to date.

The rule that competential communications are privileged is founded upon the same reasons.

The government contents that the wife, that the privilege should lie with the wife and not the accused to exclude the testimony that — that is distinction is that the witness is competent but not compellable to testify.

Charles E. Whittaker:

Do we have a question here sir of competential communication?

Kenneth R. King:

No, Your Honor I liken the reasons for the rule of competential communications with the reasons for the rule that the wife is incompetent to testify against her husband.

They have the same reasons.

Charles E. Whittaker:

Your argument is that she is just not a competent witness even if she volunteers?

Kenneth R. King:

That’s right Your Honor.

She is not competent or compellable to testify against her husband and I cite the reason for the rule of competential communications to liken it to this — the reasons for this rule.

Now in the light of reason which the Rule 26 says that this Court can interpret the common law rules of evidence in the light of reason, there is no reason for this rule to be changed.

Kenneth R. King:

By experience there is no reason for this rule to be changed in that the states, the 49 states, 48 states and the District of Columbia examined the petitioner show, that in those states that there were 13 states in which the wife was held competent to testify against her husband out of the 40, 49 jurisdictions and in 17 states held that she was competent but not compellable to testify against the other.

That is the reasoning used in the Funk case for the ablation of the rule that would permit the wife to testify for her husband.

They use that as a guide in showing that in the light of reason and experience, the rule should be changed.

Now in the Funk case the reason and experience had changed.

The reason that the wife did not testify for her husband was on the grounds of interest, that if she had an interest in the case and that her testimony would therefore be incompetent.

And after the different courts and legislators removed the interest disqualification and allowed the defendant himself to testify, then there the Funk case rightly removed the prohibition of the wife to testifying for her husband.

Now the first rule, the rule that we are concerned with which is the wife cannot testify against her husband, the states nor the jurisdictions have not overruled or have not stated in their opinions that these reasons for the rule do not exist, that is the preservation of the marital peace and the repugnancy of reason are to hold invalid the marriage relationship, those still exist.

And therefore the petitioner submits that the rule should not be changed but the reasons for the rule which would make the wife incompetent and the reasons for the rule which would make her non-compellable, and the reasons for the rule which would permit — which would prevent confidential communications from being received into testimony are all the same and that they all still exist and that there is no reason now in the light of reason and experience why this common law prohibition for the wife to testifying against her husband should be abolished.

Earl Warren:

Mr. Patterson.

Kirby W. Patterson:

Mr. Chief Justice, may it please the Court.

I’d like to point out at outset of this argument, that the government is not contending that a wife should be a compelled witness.

We are contending, however, that a wife or a spouse, it can be reversed of course, in ordinary cases it is a wife, a wife should not be summoned by the will of the accused for her husband.

In other words we are asking the Court to establish a rule which will permit voluntary testimony, but which will not make it compellable.

Now actually we are going somewhat farther in during that, than we would be required to do so.

Earl Warren:

May I ask you —

Kirby W. Patterson:

Yes you may.

Earl Warren:

Was she under subpoena here and was she under bond to testify?

Kirby W. Patterson:

The record does not say.

Earl Warren:

What is the fact?

Kirby W. Patterson:

The fact I assume is as stated by Mr. King, that just as he states.

However, I would like to point out —

Earl Warren:

But she was under bond to —

Kirby W. Patterson:

That’s what he states, and I’m sure that what he states is correct.

I would like to point out, however, and the question of compelability is not determined particularly by whether or not the witness is brought into court under subpoena or whether he or she is sworn.

This record is entirely silent —

Felix Frankfurter:

Why do you say that?

Kirby W. Patterson:

I say that Mr. Justice Frankfurter, because I say it on the basis two cases I would like to cite to Your Honors, and also on the basis of Mr. Wigmore’s treatise, one of them is not cited in our brief because as I start to say, we rather assume that since the record showed nothing indicated the opposite of voluntariness, in other words compulsion, therefore she was a voluntary witness and should be assumed by the Court to be a voluntary witness.

In the case of United States against —

Earl Warren:

How can you — how can you quite say that when she is not only under subpoena, but she is under bond to testify?

That she is compelled — she is prevented from leaving the jurisdiction of the Court or going away to prevent testifying.

Earl Warren:

How can you say that, that doesn’t bear on the question of compulsion?

Kirby W. Patterson:

Because Mr. Chief Justice, in order to assert a privilege, the witness has to be called into court and she may consent to testify and she may refuse to testify, and it is only when she refuses to testify that any element of compulsion may come into the case, and it is my basis for that statement.

Now I cite this case of United States against Kimbell in 117 Fd at 156 and particularly at 163, where the defendants were subpoenaed to appear before a Grand Jury.

They made no claim of constitutional privilege or that they were being compelled to testify against themselves.

Later on they attempted to quash the indictment because of that.

The Court reasons in upholding the convention —

Hugo L. Black:

May I ask you what the citation is to that case, I don’t —

Kirby W. Patterson:

That is 117 Fd at 156 and 163.

Hugo L. Black:

Not in your brief here?

Kirby W. Patterson:

No sir it’s not —

Hugo L. Black:

117 Fd or Fd 2nd —

Kirby W. Patterson:

117 Fd, yes sir.

Hugo L. Black:

Page what?

Kirby W. Patterson:

156 and particularly at 163.

Hugo L. Black:

(Inaudible)

Kirby W. Patterson:

United States against Kimbell.

Felix Frankfurter:

I’m surprised you don’t refer to Chief Justice Marshall’s ruling.

Kirby W. Patterson:

I’m not acquainted to that.

Felix Frankfurter:

(Inaudible) If subpoena could be issued to the President of the United States it doesn’t follow, that he can be compelled to come.

Kirby W. Patterson:

That’s quite correct, that’s quite correct.

As I was saying in this case, it was held that the person cannot claim his privilege until he is sworn.

Compulsion does not arise from summoning and swearing the witness.

It was said further that let the witness exhibit his unwillingness in some manner, he cannot — his unwillingess cannot be presumed to exist.

Exemptions are allowed only to those who ask.

Did she have a lawyer?

Kirby W. Patterson:

She did not.

Did the Court advise her she might (Inaudible)

Kirby W. Patterson:

The Court did not nor apparently did the attorney for the petitioner here make the request to the Court to advice her.

In my opinion, if you wish to raise the point and didn’t wish to communicate with her in advance, and tell her what her rights were, he should have asked the Court.

Felix Frankfurter:

Did he object to the testimony?

Kirby W. Patterson:

He objected to it in this language and I was coming to that Mr. Justice Frankfurter.

He said I object first.

Then he said I object, because she was his wife.

In other words, he made his objection as attorney for the petitioner.

He did not attempt to serve —

Felix Frankfurter:

No that an attorney objects to testimony, objected in any particular way, he said that inquiry is not proper.

It should be ruled out.

Kirby W. Patterson:

Well his entire tenure I would say was objection was to — the old common law privilege which was asserted on behalf of —

Felix Frankfurter:

He asserted an objected to protect his client against damaging evidence that he didn’t want to be introduced, didn’t want to have introduced.

Is it any more or less than that?

Kirby W. Patterson:

Well as I see it, he is asserting it only as a privilege of the accused.

Now —

Hugo L. Black:

(Inaudible) He did represent the accused, but he didn’t represent her.

Kirby W. Patterson:

That’s correct, he made the —

Hugo L. Black:

That’s the only the way he could object.

Kirby W. Patterson:

That’s the one way he could object.

But he could have requested the Court to inform her of her rights to remain silent —

Hugo L. Black:

Why did have to do that to protect her right, if it’s her right?

Kirby W. Patterson:

I think —

Hugo L. Black:

Why did some other outside person have to tell the judge to advise her about her rights?

Kirby W. Patterson:

Well I think in order to raise the point for appeal, something must be said in the lower court to specifically raise that point and that —

Felix Frankfurter:

(Inaudible) that testimony was incompetent.

Kirby W. Patterson:

And I’m coming to that.

The question of incompetency I think has been pretty well ruled on by the courts, and it is now held to be a question of privilege.

Originally now, the rule was —

Felix Frankfurter:

You mean that’s the reason they gave.

Kirby W. Patterson:

Yes sir, that’s correct.

Felix Frankfurter:

Justice Harlan and I used to practice before a judge who wanted to you to be as brief as possible.

The ground he gave was that —

Kirby W. Patterson:

Well he —

Felix Frankfurter:

Assuming he knew all there was to know (Inaudible)

Kirby W. Patterson:

The objection here was as I am speaking.

Now I’d like to point also that Mr. Wigmore, volume eight (Inaudible) 2268 approved the reason, which I have just mentioned in the case of United States against Kimbell.

Now he speaking there of the privilege yet self incrimination and I will endeavor to show —

Hugo L. Black:

As I recall it he wasn’t that favorable to that privilege, was he?

Kirby W. Patterson:

No you’re quite right, Mr. Wigmore, like most of the writers, isn’t favor of complete abolition of the privilege, and of course the government has no objection to that position being taken by the Court.

It would decide the case favorably, as we think it should be decided and yet we think its farther the Court has to go, to decide this case.

We think that it is farther actually than right and justice and reason and experience required.

Now I would like to make this point before going more into detail as to the question of reason and experience, which is the test in these cases, as the Court has a very broad latitude in this matters, historically it maybe of some interest as to how that pans out.

The Judiciary Act of 1789, by Section 34 thereof, seemed to make a provision there that would dispose of all questions of that character, because it says that questions as to law, whether substantive or procedural should be decided by the federal courts according to the state law, or the state in which that court was sitting.

However, they expressive language of that statute was never given much effect.

The Court from the first, found some excuses for going around that statute.

In a celebrated case of United States against Reid about 100 years ago, the question was presented whether a Virginia statute affecting the admissibility of evidence, now on the Federal Court sitting in that street Chief Justice Taney reasoned that it did not.

He said that would (Inaudible) the sovereignty of the United State subject to the sovereignty of the state making its own separate ruling on those matters.

And therefore it was the reasoning of the court that the provision of Section 34 did not apply to criminal matters and it worked out according to its own circuitous manner a rule whereby each state or the Federal Court in each state should apply the criminal procedural law of that state as it existed when the Judiciary Act of 1789 was passed and in the succeeding case of Logan which involved a state coming into the union after 1789, it was held that it should be the procedural law of that state or territory, at the time of its submission to the union.

As you will see this bound the courts in something of a straightjacket as to the original 13 states they were bound by the law of 1789, by those coming in later by the law of the date of their admission to the union.

So, sometime there had to be a break, something had to give, and in a succession of cases the Court pointed toward a more reasonable rule and in the case of Funk versus United States mentioned by Mr. King, 290 US, that rule was broken away from.

The particular question there presented was as to whether a husband or wife could give testimony in favor of the other party.

In disposing of that and deciding contrary to common law, that the spouse could give testimony of that charactery, the Court said that reason and experience should be the criteria of such determinations by the Court and that the Court was not bound by the common law as of any particular date.

That was restored in the Wolfle case and soon after was annunciated as rule, what is it 26 of this Court, in substantially the language of the Wolfle case.

So it is now the law under Rule 26 that the Court shall return matters competency admissibility of evidence, the privilege all according to the principles of the common law as the federal court shall interpret them in the light of reason and experience.

And we are going to attempt to show that reason and experience show that we should not have any such blanket exclusion, as is contented for in this case.

Before doing so I would like to make some reference to the case here and that other point which I believe perhaps is still in the case.

I do not need to repeat the facts because they were quite accurately stated by Mr. King, one or two very minor exceptions, but you will recall of course that this is a case where the petitioner was charged with transporting a young woman, 17 years old for immoral purposes across state lines, and it began with her asking him if he could give her a better job or she knew — if he knew where she could get a better job, and he suggested that she go work for Jane, and Jane happened was his wife who had been in Tulsa.

He himself took her up to Tulsa and although the original place was, they started out from somewhere in Oklahoma, they crossed over in to Arkansas and came into — back into Oklahoma, and she thereafter engaged in prostitution in the (Inaudible).

Now the government called Jane, the wife of the petitioner, and she testified to the only two things as I see it, that is of any great importance in the determination of this case.

First she said that she was a prostitute at the time of these occurrences, (Inaudible) she was at that particular time and she also said that the petitioner did not know her.

Now the fact that she was a prostitute was amply shown by other evidence in the case.

Earl Warren:

Didn’t she also testify that what her assumed name was?

Kirby W. Patterson:

Yes.

Earl Warren:

And was that in the evidence otherwise?

Kirby W. Patterson:

I was going to go on to that Mr. Chief Justice.

She testified as to that.

As I see it that particular point is not necessary to determining the admissibility or pardon me the competency and relevancy of her testimony, it is always based on the —

Earl Warren:

That is what I ask you, I ask you if there was any other testimony in the record that is to show that she was Jane Wilson?

Kirby W. Patterson:

There was not, that fact was assumed by her own attorney in his cross examining of the 17-year-old girl.

It was assumed and made the bases of their objection to Jane’s testimony that she was the wife of the petitioner.

So as we see it, this is a fact which was established by the record that she was his wife, entirely aside from her own testimony in the case.

Earl Warren:

What did they put her on for there?

Kirby W. Patterson:

That is a serious question in my mind because all that was necessary to be proved was that this young lady was being sent over there or being taken over for the purposes of engaging in prostitution.

Jane, all other witnesses testified, was engaged in prostitution.

It was not necessary to prove the relationship at all between Jane and the petitioner.

That is simply relevant as a basis of the petitioner’s objection in this case.

And Mr. Chief Justice I want to call you attention to another thing in that particular connection, and that is this, that the petitioner himself took the stand and he said that the reason why he took this 17-year old girl up there was to see whether his wife, as he referred to her and I think that is perhaps another place that brings it into this case —

(Inaudible) referred to as his ex-wife–

Kirby W. Patterson:

His ex-wife, yeah that’s right, he inadvertently referred to her as his ex-wife, but then later he corrected himself, after being prompted by his attorney.

He said his purpose in taking this young lady up there was to find out whether is ex-wife was engaged in prostitution.

They were thinking about getting, making (Inaudible) to use his expression, and he wanted to know whether she was still engaged.

Obviously, insofar as that gives any explanation for his conduct, he was taking this young lady across state lines up there to engage in prostitution and immoral purpose in order to find out something for his own particular information.

That we contend establishes the immoral purpose of this charge, entirely aside from the question whether or not Jane was or was not a prostitute.

Earl Warren:

Well does the question of his guilt or innocence enter into this question that we have here?

Kirby W. Patterson:

No —

Earl Warren:

Are we testing the sufficiency of the evidence in this case (Inaudible) he is convicted —

Kirby W. Patterson:

(Inaudible) The only thing that that strode up was whether it mentioned this a little bit of testimony on the part of his wife or as he refers to his ex-wife, was sufficient to bring about a reversal of a judgment, which on the entire record is amply justified and amply supported.

Hugo L. Black:

So which was she, his wife or ex-wife?

Kirby W. Patterson:

She was in fact his wife, but they had been living apart.

Hugo L. Black:

So the ex-wife had nothing to do with the rule, does it?

Kirby W. Patterson:

As I see it (Inaudible) had been ex-wife, of course that would create a different situation.

Hugo L. Black:

Yes she had been divorced.

Kirby W. Patterson:

They had not been —

Hugo L. Black:

I’m trying to find out if you think there is any relevance to the fact that somebody said she was his ex-wife or if we have to test — to try —

Kirby W. Patterson:

The government does not place any particular weight on that particular —

Felix Frankfurter:

(Inaudible) particular?

Kirby W. Patterson:

It could have been perhaps urged as a ground for distinction, but we’re trying to get the thing on its broader ground.

Felix Frankfurter:

Well then all the distinction in the world whether a woman bears a relation (Inaudible), man or not.

Kirby W. Patterson:

My point, perhaps I didn’t make it clear Mr. Justice Frankfurter, you are entirely correct about that.

We are not attempting to make —

Felix Frankfurter:

Very well, then why talk about it at all?

Kirby W. Patterson:

No, I haven’t finished my sentence.

We’re not attempting to base any contention on the fact they were leaving apart.

Mr. Justice Whittaker I thought perhaps made the suggestion in the course of this questioning of the previous attorney that might (Inaudible) that could enter into the case in some respect.

Hugo L. Black:

May I ask you a question about your position (Inaudible).

Do you read the prior cases of this Court as making that evidence inadmissible of this Court?

Kirby W. Patterson:

Actually on their holding I don’t say — I don’t think that the prior decisions of this Court established that proposition.

Hugo L. Black:

Well have you any – has the Court ever held (Inaudible)

Kirby W. Patterson:

But we have no United States decisions at all, as we contend Mr. Justice Black.

Hugo L. Black:

What about the early case that was cited by —

Kirby W. Patterson:

I was going to refer that, now that Stein against Bowman case —

Hugo L. Black:

But what I want to get at was is this your argument, that although that has been the rule, the common law rule, that’s never been abandoned by this Court —

Kirby W. Patterson:

That’s quite —

Hugo L. Black:

We should now abandon the rule as —

Kirby W. Patterson:

We, exactly are asking that the Court abandon, we believe that the Court has been working in that direction over the course of the years as I will come to that matter later on in my discussion.

It never had been so termed, yes sir.

Felix Frankfurter:

On that question, I think if I may say so, it would be pertinent for you to argue the suggestion along the lines of Mr. Justice Whitaker, namely that the spouses are not living together, but it simply makes for confusion to talk about ex-wife as against wife, if ex-wife means she is no longer his wife, then there is no problem.

(Inaudible) what might have taken place, while they were husband and wife?

Kirby W. Patterson:

Ex-wife is misnomer.

Felix Frankfurter:

All right.

Kirby W. Patterson:

It was bought in by —

Felix Frankfurter:

And that’s if they are not separated is a relevant argument on the fundamental question, the public policy which will go one way or the other.

Kirby W. Patterson:

Yes.

Kirby W. Patterson:

Now I answer this question, which is the question which I believe the Court is particularly interested as to the perpetuation or abolition of this discrepancy in these cases.

The original rule was as I have indicated one of the (Inaudible) exclusion of all testimony of the spouse whether it was for or whether it was against, a spouse was on the trail and Blackstone whose name has been mentioned, states the reasons for the rule to be this, that a husband and wife were admitted to testify for each other, that would be against the maxim that nobody should be a witness in his own (Inaudible).

On the other hand if they should be admitted to testify against each other that would be against the maxim that nobody is required to be a witness against himself.

Now Blackstone is sometimes thought of as being (Inaudible) which you know no doubt is but this particular quotation that I have reference to, I think is a considerable value in showing the reason for the old rule and also showing to what extent the rule should be perpetuated.

As to the first part of his statement, that no person should — that no spouse should be admitted to testify for the — I think because the rule is that no one can testify in his own cause that is going by the book.

Now persons are not disqualified by reason of interest to testify as defendant, they testify and therefore and the defendant’s wife may testify for him, and that is still held in the Funk case and it is s4econd maxim that nobody should be required to accuse himself.

That of course is very much the rule of the day, and should be the rule.

As we see it, the wife has an interest when her spouse is on trial.

Of course she has a property right in consortium.

She has a right of support.

She has other personal right which makes her interest coincide with that of the accused, her husband.

It is analogous to the rule that one should not be required to accuse himself that a wife should not be required to testify against her husband.

Looking to the matter of reason and experience, we will take first the question of experience, and that is best shown by a few decided cases as to how this rule actually works out in practice.

It works out with rather harsh results, which have resulted in the vehement criticism of the rule over a period of 100 years or so.

Here is one case which the rule also in the State of Oklahoma, the same state as we are here concerned with, where a man, a farmer, took his little seven-year old stepdaughter out to work (Inaudible).

Actually nothing else entirely different occurred and he was tried for federal assault and convicted, largely on the testimony of his wife, the mother of this child.

On appeal, that conviction was reversed because there is the old common law rule that a wife is incompetent to testify for or against her husband.

It is stating good law there they he said it was not fair play to make the law.

Fortunately with this Court it is the place of the Court to make the law in this particular case, because Rule 26 gives the right to decide the law as reason and experience shall dicta.

And I might add in that connection, that, that rule was passed under express legislative authorization, so there is no question of the Court invading the legislative sphere when it lays down, if it sees fit to do so on this case.

A new rule regulating the matter of spousal privilege.

Let me give you another case that shows how experience works out, a case arising down in Georgia, her husband went to the bedroom with his wife storming and threatening her with a gun, she stood up and clasped her child to her breast, and at that moment he shot killed the child clutched in her arms.

She was allowed to testify by the lower court, and that conviction was reversed because he had a privilege to get the testimony of his wife under the common law and the same stated facts occurred in West Virginia, this time with the bullet piercing the child’s head and wounding the mother, but it was still held on appeal that the testimony was incompetent under the old law.

I might say right now is this question of incompetency, that’s particularly falling with my offline, but whereas the original holding of the courts was that all testimony was incompetent, it was seen first that there was this position which I had mentioned, where the testimony was for the spouse and therefore they let that in because of spouse himself can testify, then it was seen with this other testimony, which was against the spouse was something in which nobody had any interest except for the two partners, that is husband and the wife, as it has sometimes been said, that, that privilege exists on the part of both her husband who is the accused and the wife who is the witness, and it is our position here while there is good reason for saying with the privilege on the part of the wife, there is no good reason for sticking with the privilege on the part of a husband.

Hugo L. Black:

Well what is that, I don’t quite —

Kirby W. Patterson:

Whereas the privilege accrues, has been said to accrue to both the witness spouse and the party spouse.

We believe that there is no reason and experience to justify retention of the privilege on the part of the party spouse.

Hugo L. Black:

Party, I thought you said there should be one rule so far as the wife is concerned and one for (Inaudible)

Kirby W. Patterson:

No sir, no sir, that’s not, obviously that’s what I intended to do.

Hugo L. Black:

I misunderstood you.

Kirby W. Patterson:

And for the sake of convenience I’m trying to use the wife always as the witness and defendant as her husband.

Now let us look a little bit more as to experience —

Felix Frankfurter:

So I gather from what you’ve said Mr. Patterson that you think the considerations now nullify as I understand it, right, I suppose every state certainly this Court (Inaudible) that a party, any party cannot testify in his favor because of the danger of virtually to self interest, you say since that ground for incompetence is gone the same should apply to the husband and wife —

Kirby W. Patterson:

No sir I’m trying to divide the old rule into two halves, the part of the old rule which ruled out all spousal testimony was divided into those — that testimony which was for the spouse and that which was against the spouse.

That which was for the spouse was an incompetency, but has been abolished by Funk and —

Felix Frankfurter:

You say the other one —

Kirby W. Patterson:

The other is the privilege –

Felix Frankfurter:

Thank you.

Kirby W. Patterson:

— and that is what we were talking about today and we are talking specifically about whether that privilege should belong to the witness spouse, the party spouse —

Felix Frankfurter:

You are saying Funk represents a general and not a — dichotomous principle, is that correct?

Kirby W. Patterson:

That’s correct –

Felix Frankfurter:

Alright.

Kirby W. Patterson:

— yes, yes.

Now going on to how experience has shown the rule of the work, where a party spouse is allowed to rule, allowed to exclude the testimony of his wife.

No need to modify those, it’s risen largely in incest cases where a father is alleged had made an attack upon the child in the (Inaudible) case where they again were reversing a conviction but the sitting judge was a former circuit judge who has served in some 17 counties there and he — in the course of his dissent said that he had found as a matter of his own personal experience that those cases, it was almost always the testimony of the mother who was the only one who could establish the guilt of the accused.

Felix Frankfurter:

The equation which you offered a minute ago was self evident proposition would be all right?

Kirby W. Patterson:

No, I don’t think it’s self evident.

I think we have to consider the matter largely from the results which have been accomplished under the old rule and then a consideration which I intend to give her —

Felix Frankfurter:

The results of how do you, how do we —

Kirby W. Patterson:

The results are shown by the cited cases, these are cases where a husband who has been guilty of most atrocious crimes has gone free because of our federal common law rule which —

Felix Frankfurter:

And that’s (Inaudible)

Kirby W. Patterson:

Yes.

Felix Frankfurter:

What do you say to Livingston’s distinction though he rejected the incompetent — what do say the distinction he had made, there is a great deal of difference between an innocent man owing to his debt because his wife can’t exculpate it, and that which (Inaudible) but on the whole he thought the public good was more important namely to testify against the man who is guilty.

Kirby W. Patterson:

He is exactly right.

Felix Frankfurter:

But he maybe exactly right or wrong but he recognized that it’s not in the equation.

Kirby W. Patterson:

Yes —

Felix Frankfurter:

That in innocence scope that in — innocence incapable of being established is one thing and having a wife or a mother and a husband or a father (Inaudible) is another thing.

Kirby W. Patterson:

We agree with Livingston and he certainly quotes —

Felix Frankfurter:

Does that make an equation out there, that’s what I’m —

Kirby W. Patterson:

No we don’t want to make equation out of that Mr. Justice Frankfurter.

Hugo L. Black:

But you want to do away with the rule entirely?

Kirby W. Patterson:

We — we still think that those, that pointed out is absolutely necessary for our disposition of this case, we still think that the spouse that were the wives who had ordinarily should be entitled to refuse to testify if she wishes.

Hugo L. Black:

But that’s all.

Kirby W. Patterson:

That’s all I felt.

We don’t think that the defendant accused should have any right to her (Inaudible)

Hugo L. Black:

In looking up the results you found several cases where it looked like maybe where men could have been convicted if the wives could have testified or she would know about that obviously which in the first place —

Kirby W. Patterson:

We know pretty well by the results.

Hugo L. Black:

But, you know, that he is turned lose.

Kirby W. Patterson:

We know yes, that’s (Inaudible)

Hugo L. Black:

I think probably you might find a better number of articles and discussion along the basis that there is no vindictive witness in the world than a wife or a husband against their spouse and they don’t like them.

Kirby W. Patterson:

And that — that’s right, that has been mentioned but our state has a great way of the writing as against that position.

There are some ways to it.

Hugo L. Black:

Writing — can you get an experience of this?

Kirby W. Patterson:

Well —

Felix Frankfurter:

But then of course you think Shakespeare weighs heavily against the equation, his judgment about a scorned woman.

Kirby W. Patterson:

Well that’s an appropriate quotation; there is a no question about it, but the question of perjury, the question of interest those things which originally our forefathers thought should exclude testimony that the tendency has been very strongly against that.

At the present time, the tendency has to let anybody who is willing to testify, come here and testify to matters which are relevant to the issue before the court and left the questions of weight to be determined by the jury.

If the jury says this woman is just testifying against her husband, because she wants to get rid of him perhaps they are the best ones to decide that, whether to say that all women shall be foreclosed from testimony.

That is our position, yes.

William J. Brennan, Jr.:

Your position is, I understand that the witness has the privilege to be that of the spouse witness rather than out of the dependent?

Kirby W. Patterson:

That is correct.

William J. Brennan, Jr.:

Now when would you have the spouse witness assert that (Inaudible)

Kirby W. Patterson:

Yes, yes I would.

William J. Brennan, Jr.:

(Inaudible)

Kirby W. Patterson:

It’s true (Inaudible) but it seems to me, I might say that this is not a point which as I see it, it was absolutely necessary for the disposition of this case, but it seems to me that in order to find out whether she is or is not willing witness you have to bring her into court just as these cases I call Your Honor’s attention to it, beginning in the article, you have to find out whether or not she is willing to testify.

Now I think it could be, if she says — possibly that an attorney could take the matter up in chamber before the case ever came up and if her assertion was made at that time, you know, reason why it would not be respected, but nothing like that —

Potter Stewart:

(Inaudible)

Kirby W. Patterson:

She could I think — I think she could, and that way she could avoid any adverse inferences then drawn from the failure to testify in the case.

Felix Frankfurter:

Is your, is your ground, what is — let me put it this way, could you please state your reason in policy why that spouse witness should be allowed to a certain privilege.

Since we spoke to general dependency right (Inaudible) my thought of allowing everything that’s relevant in, why do you walk at getting her, why do you restrict that so that she can decide wilfully or whimsically or for any reason whether she will (Inaudible) that’s the policy.

Kirby W. Patterson:

Let me answer that question rather extensively if you please Mr. Justice Frankfurter by discussing the reasons which have been taken to justify the existing rule and then I will show where my reasoning fits in with that reasoning.

The rule first given was the reason of marital unity which had great validity in the time of (Inaudible)

Felix Frankfurter:

In the time of what?

Kirby W. Patterson:

Blackstone, even Blackstone mentions that in this connection.

Do you think it’s a valid consideration?

Kirby W. Patterson:

I think it was in his time, it was in time of (Inaudible) it was a valid consideration at the time of Blackstone, marital unity.

Now I have mentioned that except for marital peace, but I am speaking here of marital unity, that husband and wife are one and the common law of that one with her husband.

Status of the woman (Inaudible) somewhat since then?

Kirby W. Patterson:

Yeah that’s quite true, at the present time she has complete civil and political equality and she can sue for divorce, she can bring actions in her own name, everything of that character. That rule I think is no longer a present day validity.

Felix Frankfurter:

Why do you say that, even today with all the, what are called advances husband and wife relation isn’t just an ordinary partnership, is it?

Kirby W. Patterson:

No that comes as I would analyze it in the separate reason which is sometimes given a preserving marital peace and I am going to discuss that, marital peace is the reason that is ordinarily given to justify the continuation of the rule.

Now that has a reason is frequently rather fictitious because —

Felix Frankfurter:

(Inaudible) is fictitious.

Kirby W. Patterson:

No it is frequently very fictitious, perhaps that’s not the exact word but it’s the general word which I use to make my point simply this that the wife wouldn’t be there testifying if she hadn’t already split up with her husband —

Hugo L. Black:

Then your rule is — your rule seems to me to be that should the wife – she’d never be allowed to testify against her husband and that she is already (Inaudible)

Kirby W. Patterson:

No, no that’s not it, but I am pointing out —

Hugo L. Black:

If you leave it up to her — if you leave up to her on a voluntary basis I understood you to say that when she did come on a voluntary basis (Inaudible) assigned, they already split up.

Kirby W. Patterson:

Well, it is frequently assignments they have I mean I would give her the privilege in every case.

Felix Frankfurter:

If you have a strong civic sense —

Kirby W. Patterson:

She may have a strong civic sense that’s quite true, if she says another woman who has been (Inaudible) of her money as one of these cases which they rely on, she may feel this is her duty to testify even though she has to definitely split up with her husband.

We don’t say the facts that she is in — should be allowed to testify only when she split up, we say that it is a matter of practical experience and several commentators have noted this, the wife does not testify unless they have already split up that was the case, that was case here, they were leaving far (Inaudible)

Felix Frankfurter:

Statistically demonstrable inclusion of these —

Kirby W. Patterson:

I wouldn’t say that anything that approached statistically exactness has been reached in these cases, now it has been noted by several commentators.

Felix Frankfurter:

How about statistical (Inaudible) they have that?

Kirby W. Patterson:

Others have made the assertion and I reassert here.

Felix Frankfurter:

May I suggest to you this Mr. Patterson of how much this lies in the realm of judgment in which (Inaudible) what the basis of the judgment is –

Kirby W. Patterson:

I think the –

Felix Frankfurter:

If you take Livingston who was for abolishing this, why don’t you make absolutely attorney’s privilege?

Kirby W. Patterson:

Yes.

Well I think if the government privilege is not, as I recall Livingston’s position does not materialize from this position.

Felix Frankfurter:

I am suggesting that he would be more stricter with regard to the attorney’s privilege than the common law.

For myself I have no greater respect to any fellow whoever wrote on evidence for Livingstone and the totality (Inaudible) I think his code is the best thing we’ve done in English language for myself.

Kirby W. Patterson:

It was a possibly —

Felix Frankfurter:

(Inaudible) and yet you’ve got in sticking in the (Inaudible) and that privilege is an absolute one.

Kirby W. Patterson:

Well, my understanding of Livingstone’s privilege — Livingston’s position on this privilege is that Livingstone would have abolished the privilege on the part of the accused.

Felix Frankfurter:

Yes, I know but you – I’m saying you wouldn’t, you wouldn’t met the client release an attorney.

Kirby W. Patterson:

That’s right.

Felix Frankfurter:

And why because he thought that was a public interest which is not to be judged by the particular case and because he got there were pressures on the clients (Inaudible) and so here I don’t think you can get very far, you just consider this case, in this case, the matter of unity was destroyed hopelessly through will.

William J. Brennan, Jr.:

Well, anyway Mr. Patterson if there social interest perhaps social policy that encourages the split up couples to patch up.

Kirby W. Patterson:

Well, that was noted by Mr. — by Judge Learned Hand in his majority opinion in the Walker case where there had been a split up and the wife was suing for divorce and he thought that it was interest and matter of public policy to encourage husband and wife to get back together.

William J. Brennan, Jr.:

But your rule wouldn’t do that, would it?

Kirby W. Patterson:

No, I wouldn’t go along with Justice Hand on that.

William J. Brennan, Jr.:

No, but your rule wouldn’t do that.

Kirby W. Patterson:

No, it would not do that, that’s quite correct.

There is that countervailing consideration and I give to it a certain amount of validity, however I say that —

William J. Brennan, Jr.:

How much validity?

Kirby W. Patterson:

Well, about so much —

William J. Brennan, Jr.:

Where does it get us — where does it get us the amount of validity that you —

Kirby W. Patterson:

Well, it is a consideration and you are weighing considerations, one consideration on one side and one consideration on the other —

William J. Brennan, Jr.:

You give it no consideration.

Kirby W. Patterson:

No, I would give it some weight in the considerations, but I think the weight of the society on the other hand has the — the society has an interest in testimony being brought in by a spouse and that should be given great weight and if a wife is willing to testify and doesn’t feel that she is testifying against herself, then she should be allowed to.

I think that is as much as greater weight than the possibility that Mr. and Mrs. Walker may or may not have patched up their divorce —

Hugo L. Black:

Why do you say possibility?

Have you any statistics that indicate that any husband whose wife has testified against him in court to convict him of a crime has been received at home with open arms after that testimony was given?

Kirby W. Patterson:

No sir Mr. Justice Black there are no statistics.

I would be quite sure that it was something of a test to the marital bond if there was any —

Hugo L. Black:

But it is serious problem isn’t it?

Kirby W. Patterson:

Serious — that’s quite true, but still as Mr. Justice Frankfurter suggests a wife even though is living with her husband may have a strong sense of social responsibility.

Felix Frankfurter:

I put this for you Mr. Patterson — the question isn’t merely how to weigh things that are imponderable but who should weigh?

Are you going to address yourself to the question whether the court is a good determinant of these psychological considerations for the expression the more what shall I say, presumably the more responsible expression, the common feeling of the Congress of the United States.

Felix Frankfurter:

I am usually not a great friend of having legislature (Inaudible) but if this kind of a thing of weighing all these things, are you going to consider whether we as a (Inaudible) unsettle something that’s been settled?

Kirby W. Patterson:

The Congress had very well — have decided this case. They could have enacted a code of evidence —

Felix Frankfurter:

(Inaudible) there is a whole code of evidence –

Kirby W. Patterson:

No, they could have enacted a particular rule relating simply to this matter.

However the Congress of the United States has confided that power in this Court because it has confided the power to make rules governing competency, admissibility and questions of that character or questions of procedure in criminal matters is confided in this Court and Rule 26, it says that those matter should be determined according to the principles of law as a interpreted in the line of reason and experience.

Felix Frankfurter:

And one way of carrying the confidence which has Congress has imposed in this is to say we don’t know enough to change what has been the law until today.

Kirby W. Patterson:

It has been the law but it has been very much on the wane as I am going to show Your Honors as I proceed with —

Felix Frankfurter:

Could you tell right now what statutory changes on this have taken place (Inaudible)?

Kirby W. Patterson:

Well, my figures work out somewhat different from Mr. King’s.

We found approximately eight states and the District of Columbia which have decided in favor of compellability — have decided in favor of competency without compellability.

There are perhaps ten additional states which have felt that the client is not only competent but compellable.

Now I make that statement with some trepidation.

Felix Frankfurter:

That’s 18 —

Kirby W. Patterson:

That’s 18, that leaves the majority adhering to the old rule, so it’s no overwhelming matters such as we had in the Funk case where almost all the states had moved in the direction which the court took.

William J. Brennan, Jr.:

Of the 18, how many by statute, how many by judicial decisions?

Kirby W. Patterson:

It’s gone by statutes.

William J. Brennan, Jr.:

Most of them by statutes.

Kirby W. Patterson:

Yes, there is some questions and I start to say as to my ten states there is some questions when I mentioned though as to what the judicial interpretation of statutes had been and therefore I make that figure with a large question mark behind it, but you are entirely correct in assuming that the majority of cases — states I believe statutorily have adhered to the common law rule.

It’s stated in one of these law review articles 38 Boston Law Review at Page 156 I believe it is, final paragraph that it’s stated the dependency in the New England State of the courts there has been towards competency without compellability.

I haven’t followed up actually the (Inaudible)

Felix Frankfurter:

Are my figures correct from what you say that figures have statutorily adhered to the common law neither competent certainly not compellability?

Kirby W. Patterson:

I think that would be a draw of numbers, correct.

The majority is (Inaudible) figures is in favor of adhering to the old rule.

However bear in mind of course the great discretion which has been conferred upon this Court by the Congress of the United States, bear in mind the rule which had been enacted and the various authorities which have written on this subject before I discuss let me say one or two words further about marital unity.

Earl Warren:

Well Mr. Patterson, before you get to that, if we are to use our rule making power, what you say Congress has confided to us, we are going to change the long standing rule of this kind why shouldn’t we do it in the manner that Congress contemplated, namely by promulgating a rule and submitting it to Congress so that Congress would have the right to approve it or disprove it as it sees fit.

That’s the rule making power not — aren’t we confusing two things when you talk about confiding the rule making power to us and then ask us in a decision to change the whole course of history, so far as marital relationship is concerned.

Kirby W. Patterson:

Mr. Chief Justice, the act of Congress would have permitted such a rule to be made especially taking care of this.

It would have permitted an entire new code of evidence, procedure, it also —

Earl Warren:

Both of which must be submitted to Congress for its approval.

Kirby W. Patterson:

That is correct, true, yes.

Kirby W. Patterson:

However —

Earl Warren:

Would Congress have that right here, we would be going around the rule making power when deciding it this way?

Kirby W. Patterson:

No sir, I think well, considerable weight was given to those suggestions, about making a code of evidence at that time, was finally determined simply to it.

(Inaudible) that the courts would make the rule as the cases arose and was making in the course of tradition at the same time in the light of reason and experience as we have seen in the light of reason experience, the courts have seen fit from time to time to change the laws of evidence and we feel the court has the full power in this case.

Earl Warren:

Well I don’t say we haven’t, but you were relying on this specific power to make rules that Congress had given to the court?

It does contemplate referring those rules to Congress.

Kirby W. Patterson:

Well I think, rule 26, however, of course was approved along with other rules and the Rule 26 is the one which leaves it wide open to the court to make the decision which it deals as wide in all the circumstances of the case.

That’s — that’s our line of reasoning in this case Your Honor.

Now the marital unity, not pardon me not marital unity but marital peace, argument or as a basis for the sustaining of the old common law rule breaks down in various respects.

For instance, if a spouse is dead, surviving spouse may — there is no marital unit, there is no marital peace, to be preserved and yet, there is the same question, should the surviving spouse be required to justify, we don’t think she should because she has the privilege for her own, but the marital peace is no longer the underlying reason for sustaining the common law rule.

Another situation it comes up is where the testimony of the wife witness would incriminate her husband but he has not yet defendant in the case.

Now there marital peace is involved just as much as if he were a defendant and yet the courts have held that she is required to testify marital peace there is not a good ground for sustaining the rule.

And another situation shows the extreme results that may occur, is where there is a charge of bigamy the question to be determined by the court is which – is the wife of the accused.

Usually the first wife is presumably the legal wife is foreclosed from testimony and the second wife is allowed to testify.

Well she has been held in another case that the second wife if her husband is claiming her as being his wife then he claim a privilege against her testimony and she may not testify.

As Wigmore says that leads to many identifying purpose.

Another claim that might be drawn in at this particular point is the effect of this privilege on marriage.

Sometime marriages take place in order to silence the lips of a witness.

We have cited a number of those cases including one where the man married the 11 year old complaining witness in order to silence her testimony and he did succeed in doing so.

Now as I see it, marital unity as it was formally seen, union actually in law of husband and wife is not more than conception that is out.

Marital peace is a reason which this Court can well consider is the reason which is of not controlling importance, we do not believe and we do not believe it should be controlling in the face of the overriding necessity for testimony of all relevant testimony by witnesses who are willing to testify.

Now, another reason which is to justify the rule and that is, it is said that there is a national repugnance in matters of these kinds against spousal testimony.

First let us consider that from the standpoint of husband where he is trying to exclude the testimony.

We think that is a very little weight there because her husband has got himself in this position, by his own wrongful act.

And if he say that it’s humiliating, some of the authorities has suggested, it is humiliating to be condemned by the testimony of one life partner, we say it’s humiliating to be condemned in any case and that is not a weighty consideration certainly as against the interest of society on other hand.

There is, when you consider natural repugnance against this testimony, a question whether you should require a wife to testify when she doesn’t want to do it.

And, as I previously indicated although is not necessary for our position in this case, I mean its not necessary for sustaining the judgment below, that we take this position, we think that actually, all things considered there is great weight to the natural repugnance which is felt against compelling a wife to come in and testify against her husband and that is on reason that came to the — reasons against self incrimination.

The reason against self incrimination is that nobody should be forced to position a perjury or (Inaudible) or testifying in matter which intimately affects their own lives.

It’s just as it was in the trial of Milton many years ago when the right of an accused was (Inaudible) makes is against the law of nature because nature is a preserver of life and this (Inaudible).

The accused then is compelled to testify against – this makes him testify against his own wife and therefore it should not be required and the same reasoning applies we believe to compelling the wife to testify against her husband or if the partition be reversed to her husband testify against the wife.

Felix Frankfurter:

Mr. Patterson, can I ask you whether, in the first place to keep in would you canvas (Inaudible) whether it appears that in no sense to the children or the offspring of the particularly unhappy family, secondly whether the commentators to whom you refer (Inaudible) whether they consider the effect on offspring or children of having their parents in this not (Inaudible) situation —

Kirby W. Patterson:

That particular question does not seem to have been consider too much, I cannot recall (Inaudible)–

Felix Frankfurter:

(Inaudible) consideration.

Kirby W. Patterson:

If that is the consideration that’s one of these things which has to be bought in this (Inaudible) that this Court to the so often told that she has not conveyed the legislative sphere, here it we see it passed virtually a legislative function to exercise because of the very broad grant of power and very broad rule which has been enacted pursuant thereto.

Did you have a question Mr. —

Earl Warren:

No your time is up.

Kirby W. Patterson:

Oh it is, I am very sorry.

I didn’t get to view these various authorities —

Earl Warren:

But they are in your brief aren’t they?

Kirby W. Patterson:

Yes they are and they go for in the government position actually as the case.

Earl Warren:

Mr. Tunnell.

Byron Tunnell:

Mr. Chief Justice, members of this bar.

First I would like to say in answer to the position that the government had taken in the statement of Mr. Patterson that they assume that since the record in this case, the designated record in this case was silent as to whether or not the wife of the defendant in this case appeared voluntarily that they took the position and so expressly asserted in his brief that she did appear voluntarily.

But let’s put both sides of this doing too much assuming because in doing what the actual facts were we would have contest that we had assumed that no issue would be raised by the government that she did voluntarily appear and so the record you don’t have to remain silent on that point.

I would say this —

(Inaudible)

Byron Tunnell:

If I understand his statement he would willing to agree that Mr. King’s statement that she was not only subpoena, but the incarcerated and required to make bond I believe he did expect Mr. King’s statement as being in fact same, But I would like to state that (Inaudible) Mr. King states the facts correctly (Inaudible)

Hugo L. Black:

You feel what, I didn’t understand —

Byron Tunnell:

We feel that Your Honor record here does not show anything in the case that is not (Inaudible)

Felix Frankfurter:

Mr. Tunnell would the — if this Court wanted to amplify the record in order to confirm what appeared as of record in the Trial Court would it shows what (Inaudible)

Byron Tunnell:

Yes sir, the record was not fully designated —

Felix Frankfurter:

Well, I don’t mean the record before us but if we had the stenographic minutes of the journal entries or whatever they are called, the fact to confirm Mr. King’s statement that she was a subpoenaed and she was bonded to testify as the witness.

Byron Tunnell:

Yes sir and I’m sure we could obtain affidavits to that affect too.

Felix Frankfurter:

And you stated also incarcerated, did you not?

Byron Tunnell:

Yes sir it’s my understanding that she stayed some while in jail before she was able to bond out, as a matter of fact they had Mr. Hawkins in at the time that he had to get out before he could get her out.

Felix Frankfurter:

But he was still on that kind of relationship.

Byron Tunnell:

Sir.

Felix Frankfurter:

He was still on that kind of relationship.

Byron Tunnell:

Yes sir.

However, the position that the government has taken this and I am asking his argument in this regard he takes a position that a wife should be required that the government should be able to subpoena the wife into court and then place that witness on the stand and then if she desired to exercise her privilege not to testify in the presence of the jury which you would then have to do that, we take the position that by the very fact of subpoenaing her before that jury and placing her on the stand and requiring her in the presence of the jury to either testify or to refuse to testify is in effect compelling her to testify or else is penalizing the defendants.

(Inaudible)

Byron Tunnell:

Yes sir, it would be easy, I was just answering his argument that he would take the position that she should have denied on this stand after they called her in that she did not want to testify.

William J. Brennan, Jr.:

Mr. Tunnell is that (Inaudible) question before us?

Byron Tunnell:

Well, the only relevancy I see is that I am attempting to answer his argument and not I had copy that — sir.

William J. Brennan, Jr.:

(Inaudible)

Byron Tunnell:

No sir, I don’t feel so.

Well, I would like to confine my argument to what I figure is really the relevant matters in this case and that is we take no position that this Court is not got the authority to change this rule as the government has asked.

We say this though, that if the rule is to be changed or altered in any manner I think you will in accordance to Rule 26 changes based upon reason and experience which is the very thing that prompted this Court to do in the Funk case.

Now you will note from the record that the opinion of the Circuit Court is very short in that they simply say we follow the Yoder case and we don’t even want to elucidate any further.

So we must then go to the Yoder case determine why this particular Tenth Circuit Court and incidentally as the only circuit court to this very date to advocate this change, we have to go to the Yoder case to find out what their reason was.

Whereas here that I think the whole point was missed because it is agreed by everybody that this rule which prompted the court to change the Funk case was based on an exclusion of the witness because of interest.

It is agreed by all parties I think that the rule which we have under question is not based upon on excluding their testimony because of interest, if because of public policy had an endeavor to maintain and support we can domestic tranquility.

So they are based on two different reasons yet and I quote from the opinion of the Yoder case which appears on page 19 of our approval — our brief, which indicates clearly what the — one of the court arrived at their decision in advocating the change of this rule that we are moving steadily in the direction of allowing the trier of the facts to hear all the witnesses, all of the evidence, the interest or the relationship of the witnesses to the party being given due consideration in weighing its value.

Well now that was the point that was before the court in the Funk case.

Now but this Yoder case then we think you are left to while testify but we are moving in the direction of allowing the trier of the facts to hear all of the evidence and determine their — the testimony on its weight.

Well that’s not the point at all insofar as trying to maintain domestic tranquility it’s not a matter of whether the testimony would have great weight or less weight it’s a matter whether it would be against public policy to permit it and in the same opinion they readily acknowledge the wisdom of this exclusion of the communications between attorneys and clerks, and husbands and wife’s and so forth.

What’s the (Inaudible)

Byron Tunnell:

The present law in England?

(Inaudible)

Byron Tunnell:

Sir I don’t believe I know.

They recognized the wisdom of not allowing a wife to testify the communications between husband and wife.

Well now it seems to me that this is an inconsistent stand to say we should allow a wife to testify what she has seen her husband do, but we should not for fear that we will violate the domestic tranquility, we will not let her testify to something he is told her that he has done.

Now actually I think a check of the history of these two rules will find that the real basic reason for allowing as privileged communication between husband and wife are basically based upon the same reason as not allowing a wife to testify against her husband and that the decision decided in the Funk case was altogether in different form.

Hugo L. Black:

May I ask you, I gathered from your argument the position you are taking is that the public policy would not be furthered our changing the rule or anybody else is changing the rule in the context, is that it?

Byron Tunnell:

I am going to attempt to show —

Hugo L. Black:

What I want to ask you, to discuss if you would, the reason to find in your judgment the interest of the courts in getting evidence is not enough to over balance the interest of the society and having domestic tranquility and peace.

That’s really as I gather it that’s what been argued here this morning, a lot of reference to cases and inconsistent to reference but the argument is that this policy which has been effect a long time on the basis of preserving domestic tranquility and peace should now be changed by us because it no longer is true that that’s the case, that the (Inaudible) society is more or less getting in, what you say about it, what are your reason why that’s not the case?

Byron Tunnell:

I disagree with that 180 degrees because I don’t feel that the marriage ceremony or the vow or the obligation between man and wife has changed to any extent, I suspect and I am not old enough to know, but I suspect that the same marriage ceremony, the same vows were repeated in Blackstone days that are now being repeated today.

I don’t think because we are having perhaps more divorces and so forth today that, that indicates that marriage is not just as sacred to most people, and should not so remain.

Hugo L. Black:

But (Inaudible) points outs that these relative cases where men have been turned loose or when — maybe they wouldn’t have been turned loose if they — a husband or wife could have testified against them.

Byron Tunnell:

Of course I think —

Hugo L. Black:

And if that’s such an evil that we ought to change the rule and see that it comes in, well is that right in your judgment?

Byron Tunnell:

Well I think that’s only an assumption on his part that there would have been a conviction, we can’t say I don’t think at this point what evidence it would have taken to have gotten a conviction or whether if the particular party had been allowed to testify whether or not that testimony would have convicted and otherwise you can turn loose, I think have only have to assume that.

Hugo L. Black:

Assume that quiet a number are turned loose, who would not be convicted, who would be convicted, if the husband or the wife could testify against it.

Do you say that still the rule should be continued?

Byron Tunnell:

Yes sir, I do.

Hugo L. Black:

Why?

Byron Tunnell:

Well I think that public policy in regard to all Americans in the future are far more important than one or two isolated cases that we can think of which would result in harsh results.

I don’t think there is any law that can be passed, that you can’t find on one end or the other some harsh results, but can you say that it’s a bad law because in a few isolated instances you do have a harsh result?

Hugo L. Black:

But if we are to judge it by experience, how are we going to get the experience here in court?

Byron Tunnell:

I’ll tell you how the Court did in the Funk case.

Hugo L. Black:

Did Congress get the experience better than we could?

Byron Tunnell:

Well I’m sure they supposedly are speaking to the mandates of the various people throughout the country, they are the personal representatives —

Hugo L. Black:

We are limited here to the facts in the record and that which we judicially know.

Byron Tunnell:

Yes sir.

Hugo L. Black:

This is a deeply rooted rule, over a long period of time.

Byron Tunnell:

Well the rule —

Hugo L. Black:

Rule one in your judgment, is the best to decide it on the basis of reason and trust experience.

Byron Tunnell:

You mean do I think this Court or Congress is best qualified to determine whether this rule should be changed or not?

Hugo L. Black:

On experience.

Byron Tunnell:

Well I think —

Hugo L. Black:

Of how it’s working.

Byron Tunnell:

I think that Your Honors are nine men of varied experiences, but I think Congress is 450 who constantly come into contact with their people back home and so forth and are probably in a better position to have more varied experiences and to determine whether or not the rule should be changed and is this (Inaudible), but I’d say that without taking the position that this Court can’t change —

Hugo L. Black:

Well I understand that, of course they do.

Byron Tunnell:

But I know what the Funk case did, the Court looked at what had happened in all of the other jurisdictions and we have made a check of those jurisdictions and we find that 51 of the of the 52 jurisdictions which includes the District of Columbia, the Alaska, Hawaii and Philippine Islands, 51 of those 52 are in complete harmony with the decision around that in the Funk case, and that it was in the Funk case that the Court decided, because of this overwhelming weight of authority, what the other states adopted, that they felt that the rule, the reason upon which that rule no longer existed.

Now we’ve also made a check on this particular rule, now incidentally Georgia was the only state excepting, Georgia still didn’t permit a wife to testify for her case, her husband as the old common law rule was back for the Graves — during the Graves case decision.

We have made a check now and we find that — and I’d like to adopt the government’s brief on this, because it’s more in our favor, they find eight states, but we find that 17 of the 52 jurisdictions, 17 of the 49 jurisdictions is what it is are competent and compelling — and are compellable, competent and are compellable.

Well that would show that 32 of our 49 jurisdictions that were checked there, still hold what the common law rule and the rule of long standing that a wife should not be permitted to testify against her husband.

Hugo L. Black:

Do you agree with them that most of those changes had been made by legislation or have they been made by Court?

Byron Tunnell:

Yes sir, I reveal sure that all had been made by legislature with one possible exception, that all of the changes which had been made were by legislation.

Hugo L. Black:

What was exception, do you remember?

Byron Tunnell:

Illinois.

Hugo L. Black:

That was —

Byron Tunnell:

Now actually Illinois has a statute on it, but a case has come along and construed that and made it more clearly and I say with that possible exception Illinois you may have to go to cases already determined, but otherwise the decisions have been made legislatively.

So it’s our position in this case that the thing that confronted the Court in the Funk case was that they found by checking what the other states had done and what the other commentaries were saying about it, that the reason simply no longer existed, that that the public requirement for that change, but they don’t — you don’t find that, that same thing doesn’t confront this Court now because you find only a few of the states who advocate this change.

So what we have is we actually have this 17, plus one circuit court because one (Inaudible) circuit federal court, not (Inaudible), that the Graves case was decided, then they, the Funk case was decided which knocked away one, then came another Circuit Court of Appeal which was the Paul case and it was decided after the Funk case, but it still went with the decision in the Graves case insofar as our rule was concerned.

Then came the Yoder case out of the Tenth Circuit Court of Appeal and though it was — the proposition was not before the Court because the wife was in fact divorced, they still by the way of dicta advocated the abolition of this rule.

Then came the Brunner case, after the Yoder case and they choose to go as exactly as did the Paul case and then came the Walker case as late as 1949 and they sat on them.

The Brunner, the Yoder, the Paul, the Funk, right on back to the Graves and they still go with the common law rule as it now exists.

The Tenth Circuit of Appeals by way of dicta in the Yoder case and for the first time directly in this Hawkins case, is the only federal court yet which has advocated this change directly and the 17 states and that showed.

Now the Walker case in its opinion said, we don’t know whether the rule is going to be changed or not, we are not going to change.

We will await action of Congress or the overwhelming adoption by the states as (Inaudible) to action in the Funk case before we will change our opinion and so they are still waiting for the overwhelming adoption by the states which obviously doesn’t appear here, or the action of Congress or this Court, and I’ll say this that the rule to be laid down in this case, all (Inaudible) the importance of this particular cases before the Court is going to be controlling many, many situations and not these particular isolated cases.

It is in my opinion the only thing really material in this case is the fact that the situation does not confront this Court, it confronted it in the Funk case because of the overwhelming majority of the states advocated the change in the Funk case, they do not in this case and that’s what we call in the light of reason and experience, it shows that the reason and experience has not raised it’s ugly head yet and clamored for a change of the rule, but on contrary have been content to stay with a common law rule of what we consider to be an intelligent ruling and one certainly of long stand.

Felix Frankfurter:

Before you sit down Mr. Tunnell —

Byron Tunnell:

Yes sir.

Felix Frankfurter:

— having indicated to Mr. King that you should have raised the question of harmless error, I now will ask you what you have to say on that subject, not about (Inaudible), but on the merits of whether or not we don’t reach that question here, because this is harmless error.

Byron Tunnell:

Well I was going to answer this argument sir, because he did get on his arguments, but in answer to —

Felix Frankfurter:

What do you say?

Byron Tunnell:

— to another one I moved on.

I say this that for the government to come in here and say well this was just a little bit of testimony.

Felix Frankfurter:

Well but the court said it too.

Byron Tunnell:

Sir?

Felix Frankfurter:

The court said it.

Byron Tunnell:

Oh yes sir, the court said it, but of course —

Felix Frankfurter:

If they are right, if they are right and if it is ultimately before us —

Byron Tunnell:

Well I say that they are not right up.

I say that the testimony was harmful.

I think the testimony was harmful —

Felix Frankfurter:

Give me reasons for that?

Byron Tunnell:

Yes sir I will give you reasons.

Byron Tunnell:

We are not dealing with the ordinary thing that you may be dealing with on harmless error rule. We are dealing with a statute now that will convict a man, not on direct testimony, but on — because you can use circumstances and inferences in determining a man’s purpose, and that’s what this was, was an intent violation, that is he must have transported this girl for immoral purposes.

Now you have to determine those immoral purposes from a set of circumstances.

Now if it takes 50 pounds of circumstances to prove that, then how many pounds of circumstances was this wife’s testimony?

Was this wife’s testimony the last four pounds that put it over the 50 pound and convinced the jury that his purpose was immoral?

Since we’re dealing with circumstances, how can we say that it was not the wife’s testimony, her very presence of being in the courtroom, admitting to be being a prostitute, admitting that she had been a prostitute prior to marrying the defendant and that she was acting as a prostitute during the time that this case was committed.

How can we say that, that was not the testimony that actually with all the other circumstances would ride on over and convince that jury that it was for immoral purposes that he delivered this girl.

So I say it is wrong, I say —

Earl Warren:

Well also Mr. Tunnell, wasn’t this the testimony that the government relied on to prove that the Jane Wilson who was implicated in this manner and who handled the 17-year old girl was the Jane Wilson who was the wife of this defendant?

Byron Tunnell:

Yes sir, the government doesn’t always say will this is — this testimony was not harmful, but let me point out this, since it’s now stipulated that the government went to considerable expense of subpoenaing her, of incarcerating her, of requiring her to make bond, of calling her to the witness stand, of swearing her in and asking her direct questions.

She answered every question that they asked and now they come along and say but it was not material.

Well, if it was not material why did they go to all that trouble to subpoena?

It seems to me that they could have asked other questions if they wanted to.

They asked whatever questions they wanted to ask, they must have considered it material to the prosecution of their case, or they would not go to all that trouble to put her on, but now that they have, and they fear what might be the result, they say well it was harmless, I don’t think that harmless error rule was intended to apply to a thing this deliberate, it was intended to apply to matters of technicality, that may inadvertently or otherwise come into Court, but not one that was premeditated like this in matters of substances —

Earl Warren:

Am I correct in this that (Inaudible) did ask her on direct examination where the three crucial things, did you go under assumed name of Jane Wane?

Were you a prostitute at that time?

Where you the wife of this defendant?

Isn’t that right, isn’t that the substance of her testimony?

Byron Tunnell:

Yes sir, that’s the substance of it, I’m not sure that that’s the (Inaudible) Yes well the substance of it.

Earl Warren:

Yes, that’s right.

Byron Tunnell:

But I don’t think there is any question as to whether it was offered, but I didn’t intend to get into it, it’s just an answer to his question.

Thank you.

Earl Warren:

Mr. Patterson in view of your argument that this appearance of the woman was voluntary, there are some members of the Court who would like to have you supplement the record by showing whether she was incarcerated and if so under what circumstance and for how long, whether she was required to get bond and if she did get bond and also as to whether she was under subpoena.

Kirby W. Patterson:

Yes sir.

Earl Warren:

Thank you.

We will recess now.