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decided: November 24, 1958.



Warren, Black, Frankfurter, Douglas, Clark, Harlan, Brennan, Whittaker, Stewart

Author: Black

[ 358 U.S. Page 74]

 MR. JUSTICE BLACK delivered the opinion of the Court.

Petitioner was convicted and sentenced to five years imprisonment by a United States District Court in Oklahoma on a charge that he violated the Mann Act, 18 U. S. C. ยง 2421, by transporting a girl from Arkansas to Oklahoma for immoral purposes. Over petitioner's objection the District Court permitted the Government

[ 358 U.S. Page 75]

     to use his wife as a witness against him.*fn1 Relying on Yoder v. United States, 80 F.2d 665, the Court of Appeals for the Tenth Circuit held that this was not error. 249 F.2d 735. As other Courts of Appeals have followed a long-standing rule of evidence which bars a husband or wife from testifying against his or her spouse,*fn2 we granted certiorari. 355 U.S. 925.

The common-law rule, accepted at an early date as controlling in this country, was that husband and wife were incompetent as witnesses for or against each other. The rule rested mainly on a desire to foster peace in the family and on a general unwillingness to use testimony of witnesses tempted by strong self-interest to testify falsely. Since a defendant was barred as a witness in his own behalf because of interest, it was quite natural to bar his spouse in view of the prevailing legal fiction that husband and wife were one person. See 1 Coke, Commentary upon Littleton (19th ed. 1832), 6. b. The rule yielded to exceptions in certain types of cases, however. Thus, this Court in Stein v. Bowman, 13 Pet. 209, while recognizing the "general rule that neither a husband nor wife can be a witness for or against the other," noted that the rule does not apply "where the husband commits an offence against the person of his wife." 13 Pet., at 221. But the Court emphasized that no exception left spouses free to testify for or against each other merely because they so desired. 13 Pet., at 223.*fn3

[ 358 U.S. Page 76]

     Aside from slight variations in application, and despite many critical comments, the rule stated in Stein v. Bowman was followed by this and other federal courts until 1933 when this Court decided Funk v. United States, 290 U.S. 371.*fn4 That case rejected the phase of the common-law rule which excluded testimony by spouses for each other. The Court recognized that the basic reason underlying this exclusion of evidence had been the practice of disqualifying witnesses with a personal interest in the outcome of a case. Widespread disqualifications because of interest, however, had long since been abolished both in this country and in England in accordance with the modern trend which permitted interested witnesses to testify and left it for the jury to assess their credibility. Certainly, since defendants were uniformly allowed to testify in their own behalf, there was no longer a good reason to prevent them from using their spouses as witnesses. With the original reason for barring favorable testimony of spouses gone the Court concluded that this aspect of the old rule should go too.

The Funk case, however, did not criticize the phase of the common-law rule which allowed either spouse to exclude adverse testimony by the other, but left this question open to further scrutiny. 290 U.S., at 373; Griffin v. United States, 336 U.S. 704, 714-715. More recently, Congress has confirmed the authority asserted by this Court in Funk to determine admissibility of evidence under the "principles of the common law as they

[ 358 U.S. Page 77]

     may be interpreted . . . in the light of reason and experience." Fed. Rules Crim. Proc., 26. The Government does not here suggest that authority, reason or experience requires us wholly to reject the old rule forbidding one spouse to testify against the other. It does ask that we modify the rule so that while a husband or wife will not be compelled to testify against the other, either will be free to do so voluntarily. Nothing in this Court's cases supports such a distinction between compelled and voluntary testimony, and it was emphatically rejected in Stein v. Bowman, supra, a leading American statement of the basic principles on which the rule rests. 13 Pet., at 223. Consequently, if we are to modify the rule as the Government urges, we must look to experience and reason, not to authority.

While the rule forbidding testimony of one spouse for the other was supported by reasons which time and changing legal practices had undermined, we are not prepared to say the same about the rule barring testimony of one spouse against the other. The basic reason the law has refused to pit wife against husband or husband against wife in a trial where life or liberty is at stake was a belief that such a policy was necessary to foster family peace, not only for the benefit of husband, wife and children, but for the benefit of the public as well. Such a belief has never been unreasonable and is not now. Moreover, it is difficult to see how family harmony is less disturbed by a wife's voluntary testimony against her husband than by her compelled testimony. In truth, it seems probable that much more bitterness would be engendered by voluntary testimony than by that which is compelled. But the Government argues that the fact a husband ...

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