Warren E. Burger: We will hear arguments first this afternoon in United States against Koecher. Mr. Wright, you may proceed whenever you are ready.
Christopher J. Wright: Mr. Chief Justice, and may it please the Court, in November of 1984, respondent was called before a grand jury investigating espionage, and asked three questions: whether she had ever met with agents of the Czechoslovak Intelligence Service; whether she had ever delivered classified documents relating to the national security of the United States to those agents; and whether she had ever been paid for the delivery of those documents. She refused to answer, claiming that her answers would be adverse to the interests of her husband, and citing both the marital testimonial privilege and the marital confidential communications privilege. She has since agreed that no confidential communications would be involved in answering the questions. A hearing was held on whether respondent wanted to be ordered to answer the questions. At that hearing, the government argued, relying on cases from the Seventh and Tenth Circuits, that the marital testimonial privilege does not apply in cases involving joint participation in criminal activities. In support of our claim of joint participation, we offered an affidavit of an FBI agent who had interviewed respondent's husband. That affidavit stated that Mr. Koecher said that he and respondent had met with Czech agents on a number of occasions between 1962 and 1983. In the early 1960's, they were directed to penetrate U.S. intelligence agencies. They subsequently moved to the United States. Mr. Koecher got a job with the CIA, and he passed virtually any secret material he obtained while employed there. Mrs. Koecher served as his courier delivering documents and receiving payments for the delivery. At the hearing, respondent did not contest our evidence regarding joint participation. Instead, relying on Third Circuit cases, she argued the marital testimonial privilege applies even when there is joint participation in criminal activity. The District Court agreed with the government, ordered respondent to answer the questions, and subsequently ordered her held in civil contempt when she refused to answer. She spent about four months in jail but refused to answer the questions. In December of 1964, a one-count indictment was returned charging Mr. Koecher with espionage. That indictment alleged that he removed a certain four-page document from the CIA in 1975 and had it delivered to Czech agents. At the Second Circuit's direction, the District Court considered whether the dominant or sole purpose of the grand jury in continuing to seek to question respondent was to obtain evidence for use at Mr. Koecher's trial. The District Court concluded that that was not the grand jury's purpose. Rather, it concluded that the indictment would appear to barely scratch the surface, and that it would be reasonable and logical for the grand jury to continue to seek answers to many other questions such as who worked with Mr. Koecher at the CIA, who were the Czech agents to whom Mrs. Koecher delivered documents, and what other documents and information other than the four-page document mentioned in the indictment have been delivered to the agents. The Second Circuit subsequently declined to accept our argument that the marital testimony of privilege does not apply in cases involving joint participation, and reversed the District Court's decision ordering respondent to answer. The issue before this Court, therefore, is whether when spouses jointly participate in criminal activity, a privilege against giving adverse testimony should be recognized. The Trammel decision sets out the two factors to be considered in determining whether the privilege should be recognized in this situation. On the one hand, there is the need for probative evidence. On the other hand, there is the interest in marital harmony. The Trammel decision shows that those interests must be weighed against each other to determine whether the privilege ought to be recognized in certain classes of cases. In cases that do not involve joint participation, we contend that the Trammel decision shows that those interests are nearly at equilibrium. Nineteen states have abolished the privilege altogether, concluding that the need for evidence outweighs the interest in marital harmony in all circumstances. Distinguished commentators such as Wigmore and McCormack have also called for abolition of the privilege. And influential model rules such as the model code of evidence and the uniform rules of evidence have also abolished the privilege while leaving the marital communications privilege intact. The need for evidence is a weighty need. This Court has 13 times cited... for Hardwick's 1812 statement that the public has a right to every man's evidence. In Branzburg v. Hayes, the Court concluded that the public's right to evidence outweighed the First Amended interest of newsmen in protecting their confidential sources. The Court stated that the public interest in law enforcement and in ensuring effective grand jury proceedings overrides the consequential but uncertain burden on news gathering that is said to result from insisting that reporters like other citizens answer questions put to them in grand jury proceedings. In United States v. Nixon, similarly, the need for evidence was held to outweigh the President's interest in confidentiality in the communications in his own office. As in Branzburg, the Court noted that the need for production of relevant evidence in a criminal proceeding is specific and central to fair adjudication of a particular case such that without access to specific facts, a criminal prosecution may be totally frustrated, while the need for confidentiality is general and uncertain. The Court added--
John Paul Stevens: Mr. Wright, may I interrupt? I wasn't sure I caught something. You mentioned the marital communications privilege has not been challenged in a number of states which have abolished the basic privilege. What is the government's position on the marital communications privilege?
Christopher J. Wright: --We contend, as I believe five Courts of Appeals have agreed with us, that it does not protect communications made in the furtherance of criminal activity, but other than that, we have not challenged that, but--
John Paul Stevens: But in this particular case, if you prevail, you would think you could ask about communications between the husband and wife in this particular inquiry.
Christopher J. Wright: --We would make that argument. That has not... that issue has not been raised in this case.
John Paul Stevens: Thank you.
Christopher J. Wright: The Court noted in U.S. v. Nixon that privileges are not lightly created nor expansively construed, for they are in the derogation of the search for truth. The need for obtaining probative evidence in this case is great. As we pointed out in our reply brief, it is the policy of the government not to compel family members to testify adversely unless the testimony is needed. In this case, as the District Court noted, respondent may have a great deal of information--
William H. Rehnquist: Well, is it the government's policy to ask non-family members to testify even though their testimony isn't needed?
Christopher J. Wright: --No, but in the case of family members it is the government's policy to see whether the evidence can be obtained from other sources.
William H. Rehnquist: You have got to bend over backwards to avoid calling them if you can avoid it?
Christopher J. Wright: Roughly, yes, that is right. As a general matter, the interest in obtaining probative evidence is greater in cases involving joint participation.
John Paul Stevens: Of course, it is true, isn't it, Mr. Wright, that the only time you really reach this issue is if you granted immunity, because I suppose the spouse could always plead the Fifth Amendment by hypothesis in the category of cases we are dealing with.
Christopher J. Wright: That is true. In the joint participation cases, while respondent has not yet raised the Fifth Amendment, we--
John Paul Stevens: Well, but you granted immunity, didn't you?
Christopher J. Wright: --We would have to if she is a joint participant.
John Paul Stevens: So we are really not... we are mostly talking about the testimony for purposes of investigation before a grand jury, I would suppose is the most important area that you... well, no, you... off then with trial testimony, too.
Christopher J. Wright: That's right.
Thurgood Marshall: How much of a showing do you have to make at the grand jury level that the wife is a part and parcel of the work of the husband?
Christopher J. Wright: It is our position that we have to come in with some independent evidence--
Thurgood Marshall: Like what?
Christopher J. Wright: --In this case, for instance, we have Mr. Koecher's own statements to FBI agents that Mrs. Koecher was a part of the conspiracy, that she served as his courier, that she met with Czech agents in Czechoslovakia, in New York, and in Vienna on a number of occasions over a 20-year period. In this case, we don't believe that there is any serious doubt about our showing of joint participation.
Thurgood Marshall: Well, there is serious doubt in my mind because she is innocent until proved guilty.
Christopher J. Wright: We have not--
Thurgood Marshall: Right?
Christopher J. Wright: --We have not shown joint participation--
Thurgood Marshall: Right?
Christopher J. Wright: --beyond a reasonable doubt. We would certainly concede that.
Thurgood Marshall: I mean, I am just wondering why, under normal circumstances you can't do it, so all you do is charge her as a co-conspirator, and then automatically they lose the privilege.
Christopher J. Wright: Well, we think we have to do more than charge as a co-conspirator. The District Court would have to agree with us that we had come forward with independent evidence showing that there was a probable cause to believe that she was a joint participant. In analogous circumstances involving the marital communications privilege or the lawyer-client privilege, which also do not protect communications made in furtherance of joint criminal activities, courts have faced similar problems, and they have not been insurmountable by any means. It is worth pointing out that the need for probative evidence is greater in cases involving joint participation, and that in connection with that the privilege, if recognized, will as a practical matter often shield third parties as well as spouses. The marital privileges have frequently been asserted, as the cases we site show, in drug cases, for example, which have often involved large teams of conspirators. Thus, as a practical matter, if the government cannot compel testimony in any circumstances, a number of third parties are likely to benefit as well, as this case shows. We don't know who those third parties are, but specifically, that is, although presumably there are Czech agents who are shielded, we cannot get this testimony. On the other side of the balance from the need for probative evidence is the interest in preserving marital harmony. As an initial matter, it is worth noting that this interest, like the interest asserted in Branzburg and in U.S. v. Nixon, are uncertain. It may have no effect at all, abolition of the testimonial privilege, at least in some cases. Contrary to respondent's repeated suggestions, there is simply nothing about compelled testimony that automatically leads to dissolution of marriage. Indeed, respondent's argument is somewhat contradictory. On one hand, she has repeatedly stated that she is so devoted to her husband and he to him that she will never testify against him. At the same time, however, she implies that their marriage will disintegrate automatically if she answers our questions. He suspect that she exaggerates on both counts. Moreover, as this Court suggested in Hawkins, we think that there is less danger of an adverse effect on marital harmony when testimony is compelled than there is when the testimony is voluntarily given by a spouse in return, for example, for a promise of leniency. The Court of Appeals here did not appear to understand that there is a utilitarian aspect as well as a non-utilitarian aspect to the interest in marital harmony. It concluded that a marriage between criminals can be devoted and essentially ended its inquiry at that. It thus overlooked the public interest in marital harmony even though this Court stressed that public interest in Trammel, and even though commentators have always assumed that privileges exist to serve utilitarian purposes.
John Paul Stevens: Mr. Wright, perhaps this is a similar thought to the one Justice Marshall expressed, but at the time the trial is taking place, when you seek to get the testimony, do you assume that they are criminals or that they are innocent?
Christopher J. Wright: Our position is that we have to come forward and make a prima facie showing of joint participation.
John Paul Stevens: Are they still entitled to the presumption of innocence?
Christopher J. Wright: I presume until we make that showing they certainly are.
John Paul Stevens: But it is a probable cause showing under your standard as I understand it?
Christopher J. Wright: As I have read the cases, the probable cause prima facie showing required in the lawyer-client privilege cases, for example, have--
John Paul Stevens: So you make a probable cause showing before the grand jury, but the presumption of innocence survives that showing normally.
Christopher J. Wright: --Certainly.
John Paul Stevens: But here you are suggesting it doesn't, I guess.
Christopher J. Wright: Wouldn't you be satisfied with just showing enough to be accused, not convicted?
Speaker: Yes, that is our position. We don't think we have to show it beyond a reasonable doubt. We believe we have to come forward with some independent evidence. Certainly the presumption of innocence would be retained. All the reports that have addressed this issue, including the Third Circuit, which wont the other way, have recognized the utilitarian interest served by this privilege and other privileges. The Third Circuit in its Malfitano decision suggested that marriage is a social bond that not only ties individuals together but also can tie them into certain social norms and behavioral patterns. Thus, it said, marriage may serve as a restraining influence on couples against future antisocial acts, and may help their integration back into society. This interest, the public interest in marital harmony is seriously diminished. Was the Third Circuit case one in which the spouse asserted the... the witness spouse asserted the privilege, or the non-testifying spouse? The Third Circuit.
Christopher J. Wright: It was a post-Trammel decision, so the witness must have asserted the privilege.
John Paul Stevens: I see. Mr. Wright, it sounds like most of your arguments really go to a suggestion that the privilege be altogether eliminated, not just an exception created.
Christopher J. Wright: Well, no, we are asking for an exception. We believe that it is important to understand that the interests are nearer to equilibrium without the addition of joint participation in crimes. And we think we have shown that. From that point, it seems to us that it is quite clear that the added weight on the side of the need for probative evidence added because a joint participant spouse is likely to have more evidence as well as the lesser interest on the other side of the balance.
Sandra Day O'Connor: Well, it occurs to me it might make more sense just to abandon it altogether than to try to save something out of it.
Christopher J. Wright: Well, certainly 19 states have concluded that that is logical, and most of the commentators, the distinguished commentators who thought about this and authors of the model rules have all reached those conclusions--
Sandra Day O'Connor: But the distinguished commentators on which you rely are not speaking out in favor of the creation of just an exception from the rule, are they?
Christopher J. Wright: --No, they have primarily said that the marital testimonial privilege ought to be abolished altogether and only confidential communications privilege retained.
William H. Rehnquist: Have the undistinguished commentators taken any position? 0 [Generallaughter.]
Christopher J. Wright: Well, I am sure that my colleague will tell you about the undistinguished commentators-- 0 [Generallaughter.] --many of whom have suggested radically broadening the privilege to include friends and lovers and various other people.
Harry A. Blackmun: Mr. Wright, you wouldn't object to the abolition of the privilege altogether, would you?
Christopher J. Wright: We have not asked for it. I do not understand that we would object to it, no. Returning to the--
Warren E. Burger: Your position in this case is that the privilege falls if they are accomplices in the criminal activity. Isn't that it?
Christopher J. Wright: --Exactly. Exactly. We believe that that addition clearly shows that the privilege ought not be recognized in these circumstances because, in part, we see little social utilitarian interest in a case involving joint participation in a crime. There is another reason why the interest in preserving marital harmony is diminished in cases involving drug participation that I haven't mentioned. It is that recognition of the privilege in this case actually encourages the recruitment of spouses as co-conspirators. It is true that after this Court's Trammel decision, a spouse cannot be sure that his co-conspirator spouse won't decide to testify against him. But there is still a significant advantage in recruiting a spouse as a co-conspirator if the privilege is recognized, as this case illustrates. Thus, viewed prospectively, it is the privilege that is likely to harm the institution of marriage by encouraging criminals to recruit their spouses as co-conspirators if the exceptions we propose is not recognized.
Byron R. White: Or to recruit spouses.
Christopher J. Wright: I am sorry? I meant to say recruit spouses as co-conspirators, if that is not what I said.
William H. Rehnquist: Or convert co-conspirators into spouses.
Christopher J. Wright: Again, summarization our argument, the position we have made is that the interests to be weighed are very close without our exception, and we thin that there is added weight on the side of the need for probative evidence because co-conspirator spouses are likely to have more evidence. We think there is less weight on the site of protecting marital harmony because it is not clear that compelled testimony will have an effect, because there is little or no societal interest in preserving marriages between criminals, and because recognizing privilege in these circumstances encourages a recruitment of spouses as co-conspirators. I would like to briefly discuss two arguments respondent makes that do not add to our argument. One argument that respondent repeatedly makes is an argument that decent people have a natural repugnance to watching one spouse testify against another. As an initial matter, it is worth noting that Wigmore, who coined the phrase "natural repugnance", dismissed this argument summarily, and that this Court in comprehensively reviewing the privilege in Trammel did not mention it. Nevertheless, we do not think that there is nothing to this argument. Instead, we think it is merely a restatement of the personal interest, the non-utilitarian interest in marital harmony that weighs on the other side of the balance, the side favoring that condition. But we think it is nothing more than that, and we do not think it is a particularly weighty factor. Some people, at least, have a natural repugnance to evidentiary rules that allow guilty defendants to go free because of the introduction of evidence against them that proves their guilt has been prohibited. And in cases of joint participation in criminal activity, any sympathy we might otherwise feel for the spouse, the witness spouse who faces a difficult decision between testifying, between perjuring herself, and between being held in contempt, is lessened considerably by the fact that she has brought this upon herself by agreeing to participate in the crime. The other argument is respondent's repeated suggestion that the marital privilege somehow has a constitutional basis. There is simply nothing in the Constitution nor in this Court's decisions that suggests that the privilege is constitutionally based and, of course, constitutionalizing the privilege would interferes with the common law process that many states have used to abolish the privilege altogether. Furthermore, to the extent that respondent appears to believe that the constitutional basis for this privilege is the right to privacy, we think she has her marital privileges confused. If either of the privileges involves the right to privacy, it is the confidential communications privilege, not the testimonial privilege. That no privacy interest is implicated in these cases... in these case, rather, can be determined clearly by reading the three questions that respondent has refused to answer. It is also worth noting that an exception like the joint participant exception that we favor has been recognized for all other privileges, as I mentioned previously. The reason for that, we submit, is that the social utility in recognizing a privilege is severely lessened when the privilege is used to shield joint criminal activity. In summary, in this case, we are asking the Court to hold that the marital testimonial privilege, like other privileges, does not shield joint criminal activity. We think that the Court's decision in Trammel shows that the factors to be weighed are nearly at equilibrium in the absence of joint criminal activity. When we, when the the government comes forward with independent evidence showing that there was joint participation in crime, it seems to us that the need for probative evidence is greater, the societal interest in preserving marital harmony is lessened, so that the balance clearly tips against recognition of the privilege in these circumstances.
Thurgood Marshall: May I ask, on your Trammel case, you have not mentioned what Judge Friendly said about it. Judge Friendly went into the Trammel case and found it didn't apply didn't he?
Christopher J. Wright: The Trammel case does not expressly apply. That case involved voluntary testimony.
Thurgood Marshall: But he had no trouble with saying that it didn't apply in this case?
Christopher J. Wright: No. I might mention in that regard that--
Thurgood Marshall: Well, I was waiting to hear you.
Christopher J. Wright: --that in the Trammel case, the Tenth Circuit based its decision on the joint participant exception. We argued in our brief in Trammel that the Court should affirm on the basis that the Court did affirm on the voluntary testimony exception, which is a broader argument, one that applies in more cases. The Court did not mention the joint participant exception. We don't think that any inference, certainly no negative inference can be drawn from the fact that the Court actually went farther than it probably needed to in some areas and to some extent in that case. I would like to reserve the remainder of my time.
Warren E. Burger: Very well. Mr. Lynch.
Gerard E. Lynch: Thank you, Mr. Chief Justice, and may it please the Court, the government today is asking this Court to do something that it has never done before, to put a woman in prison for refusing to testify in a criminal matter against her husband of 22 years, and despite Mr. Wright's emphasis on the particular questions that were asked in this case, there is no question but that any testimony given by Mrs. Koecher in this investigation could well have led to potential incrimination of her husband. There is no question but that the grand jury was continuing to investigate Mr. Koecher as well... that is the finding of fact below... with a view to possibly bringing further charges against him. The government's demand today is truly extraordinary. For more than 400 years the courts of both Great Britain and the United States have held that out of respect for the sacred unity of marriage the common law does not permit a person to be compelled to testify against his or her spouse.
Warren E. Burger: But there have been a lot of changes in recent years, have there not?
Gerard E. Lynch: There have been changes in the marital privilege in recent years. I would submit that one of the... there are two that are particularly significant. One is the change this Court made in the Trammel decision a few years ago. In Trammel, this Court essentially removed the principal basis on which the marital privilege had been criticized before. That is, before the Trammel decision the rule had been that the defendant spouse had the right to block his or her spouse from testifying, so that the privilege resided in the defendant, usually the husband, who would then prevent a willing wife from testifying against him. That was the essential basis on which the marital privilege had been criticized, and that has gone--
Byron R. White: How long had that part of the privilege been extant?
Gerard E. Lynch: --That part of the privilege goes all the way back as well, Justice White. That is correct.
Byron R. White: And yet we changed it.
Gerard E. Lynch: You changed it. It took 400 to--
Byron R. White: The tradition of the common law process.
Gerard E. Lynch: --And I don't think we need to make another--
Byron R. White: When did the present code of evidence, when was it passed by Congress?
Gerard E. Lynch: --In, I guess the rules of evidence were promulgated in about 1972 by this Court, and then by Congress a few years later.
Byron R. White: Two. And Congress didn't take a lot of the privilege provisions in the code, did they?
Gerard E. Lynch: That's right. This Court--
Byron R. White: It left it to the Court.
Gerard E. Lynch: --Oh, there is no question about it, Your Honor. We agree with that absolutely. This Court had recommended to Congress--
Byron R. White: So in terms of the kind of decision, you are not objecting to our considering this matter?
Gerard E. Lynch: --Oh, no not at all. Not at all, Justice White.
Byron R. White: You just think we ought to consider it your way.
Gerard E. Lynch: Absolutely, although I do think that as the Chief Justice said in his opinion for the Court in Trammel, that this Court should be very cautious before changing rules of privilege that go back as far as this one does, and particularly where those rules of privilege trench on matters respecting the family.
Byron R. White: Well, we took one step at it in Trammel.
Gerard E. Lynch: Absolutely, Justice White, and I think that--
Byron R. White: That is caution.
Gerard E. Lynch: --Excuse me?
Byron R. White: That is caution in itself.
Gerard E. Lynch: That certainly is caution, but what the Court did in Trammel, as I said a moment ago, was to really undermine the basis for the principal criticism of the marital privilege. The argument that Mr. Wright made, for example, about recruiting spouses as co-conspirators had particular force at a time when if the spouse became a co-conspirator the spouse could never testify whether or not she was ultimately willing to because the defendant could block it. But that is gone in Trammel. That was the big--
Sandra Day O'Connor: Mr. Lynch, how many states have abolished the privilege altogether?
Gerard E. Lynch: --Nineteen. Thirty-one states retained it. Interestingly enough, not one of those 31 states by legislation, common law, or any other process has ever adopted the exception for which the government contends in this case.
Sandra Day O'Connor: Well, that is why it might take more sense to abolish it altogether than to create an exception.
Gerard E. Lynch: Well, insofar as the government's position in this case makes no sense whatever, it seems to me that abolishing the privilege might be more sensible than that, but abolishing the privilege is a step that this Court has refused to take, not 400 years ago, but in Hawkins in 1958, in Trammel, and in its recommendations to Congress with respect to the Federal Rules of Evidence.
Warren E. Burger: Was there any occasion to abolish it completely in Trammel?
Gerard E. Lynch: Well, in Trammel, Mr. Chief Justice, as--
Warren E. Burger: The question wasn't presented to us on the broad basis.
Gerard E. Lynch: --Well, the government didn't argue for the abolition of the privilege there, just as the government does not argue for the abolition of the privilege here. It is exactly the same posture in that respect. The government did urge a broader ground than this one in that case.
Warren E. Burger: But in these cases, did the Court not... the Court's opinion not point out that the root of this whole idea went back to the time when the woman was nothing, the woman was merged into the man when they were married?
Gerard E. Lynch: Yes, I think that is an important point, Mr. Chief Justice. At one time, the woman's position in marriage was, as you say, as a nullity, and the privilege does indeed have its roots in that time, but the essential insight that the privilege represents, indeed, the essential insight that lies behind the erroneous conception that the wife was a nullity is one that was valid then and is valid now, as this Court said in Hawkins.
Warren E. Burger: How much do you rest on the proposition that for the one spouse to testify against the other would undermine the marriage relationship?
Gerard E. Lynch: Well, that is what this Court said in Hawkins. I think that that is an accurate perception.
Warren E. Burger: If the Court orders the spouse to testify, doesn't that eliminate that fact?
Gerard E. Lynch: I don't think it does at all, Mr. Chief Justice.
Warren E. Burger: Then the spouse is given the choice of pleasing her husband or going to prison.
Gerard E. Lynch: The spouse certainly has an excuse, as it were, in the moral court in which she would have to argue with her husband. But I would suggest that that excuse wouldn't carry much weight in that kind of court. That is to say, the way I would prefer to state the insight that this Court expressed in Hawkins is not so much that compelled testimony would destroy the marriage as that compelled testimony is inconsistent with the very basis of marriage, the very nature of marriage. What the Court would be compelling a spouse to do if the marital privilege were abolished is to betray a husband.
Warren E. Burger: But on the other hand, doesn't this give the man or the woman an advantage over all other criminals, that if you take your husband or your wife in and commit the crime, then you have got a preferred witness status?
Gerard E. Lynch: No, I don't think so, Mr. Chief Justice.
Warren E. Burger: You don't think that encourages joint crimes by husband and wife?
Gerard E. Lynch: I don't think that is, with all respect, a particularly realistic way to look at marriage. The assumption that spouses tend to recruit each other to be in each other's crimes because that would be a good person to have in the crime because they have a privilege, that is not, it seems to me, the way it works. If there is any tendency for spouses to recruit each other to be in crimes, it stems from two basic facts. The spouse is the person closest to the person contemplating the crime. And secondly, if there is any assumption that the spouse isn't going to testify, it doesn't come from the law. It comes from the same assumption that I suppose co-conspirators often indulge, that people that they trust will not betray them. I think that is particularly... a particularly strong force where those people are married, and I don't think it is one that the law can really do much to change. I think if we look realistically at the government's suggestion that important evidence is being lost because of the marital privilege in joint participant or any other circumstances, it will not bear scrutiny. The government has pointed to not a single case from the Seventh or Tenth Circuit in which any evidence was ever obtained by compelling a spouse to testify before a grand jury or anywhere else.
William H. Rehnquist: Mr. Lynch, I wonder if your use of the word "betray" a couple of minutes ago isn't a rather inappropriate term. If the law does say that the spouse can be compelled to testify, I can see how a husband could be, you know, deeply disturbed or a wife deeply disturbed, the spouse is testifying against them, perhaps disagrees with the spouse's account, which could be a source of... but to say that the spouse is betrayed, I just don't think that is a very apt use of that word.
Gerard E. Lynch: Well, I am sorry, Justice Rehnquist, if you think that I overstressed that point, but I do think that the essence of marriage, as this Court said in Griswald against Connecticut, is bilateral loyalty. What I would suggest to the Court is that if there is any analogous privilege, and the government places great stress on various other privileges, it is not the attorney-client, it is not even the marital confidential communications privilege, it is the Fifth Amendment privilege. There is no other privilege that exists in our law, which is like the marital testimonial privilege in giving a witness the blanket right to refuse to testify against some other person. An attorney doesn't have a privilege not to testify against his client. The attorney has the privilege not to testify... in fact, more accurately, the client has the privilege to prevent. But the privilege is not to testify about the particular narrow kind of communication. That is what the marital confidential communications privilege is like, too. That is very different from this situation. In those situations, it makes sense to say that if a particular kind of communication, one, for example, in furtherance of crime, is not within the nature of the kinds of communications we are encouraging by the privilege, then the privilege shouldn't apply. The privilege we have got here is a blanket sort of privilege, and as I say, the only analogy to it is the Fifth Amendment privilege. It is the only situation where a person can say within the law that my loyalty to another person is sufficient to justify my never testifying against them.
William H. Rehnquist: Well, the Fifth Amendment analogy is my loyalty to another person, I myself?
Gerard E. Lynch: That's right. In the marital situation, and this goes back to the Chief Justice's comment a moment ago about the roots of the marital privilege, the roots of the marital privilege lay in the metaphor, perhaps, that husband and wife are one. Now, as the Chief Justice pointed out, that metaphor has certainly been maliciously applied in some circumstances to undermine the separate position of a woman, for example, separate right to property, and things of that sort. But the basic insight underlying that metaphor, that husband and wife, for one, is not something that is oppressive to women. It is not something that died in the 14th century. It is something that I think is with us today. The nature of the marital relationship is that it is the relationship society recognizes in which people are closely bound to each other. What the government is asking for--
Thurgood Marshall: Why shouldn't you have one on parent and child? We can make a mother testify against her son.
Gerard E. Lynch: --Yes, the short--
Thurgood Marshall: That is kind of close, isn't it?
Gerard E. Lynch: --The short answer to that--
Thurgood Marshall: Isn't it?
Gerard E. Lynch: --Justice Marshall--
Thurgood Marshall: The relationship is longer than the marital relationship.
Gerard E. Lynch: --It is longer and different in a number of other respects. But I am afraid the short answer to that is simply that our tradition has never recognized that particular privilege. Our tradition has always recognized--
Thurgood Marshall: That is what Trammel said.
Gerard E. Lynch: --That is right. I am certainly not here to argue one way or the other as to whether the privilege should be extended to other situations. That is not implicated in this case at all. Put in the situation where the common law has always recognized the privilege, even the government is not here asking that this Court abolish the privilege. That issue hasn't been briefed and isn't raised by the government. What they are asking for is something that is the law nowhere. They are not asking for this Court to follow those 19 states that have put the marital privilege aside. They are asking this Court to do something that no legislature has ever done.
William H. Rehnquist: But there are analogies in the way the attorney-client privilege is treated to what the government is asking for here.
Gerard E. Lynch: There are analogies there, but as I was suggesting before, Justice Rehnquist, those are not true analogies, because the nature of those privileges is different. The reason for the exception is different, and the way in which the exception works is different. After all, in all of those cases, in addition to the fact that they are much narrower privileges to start with and they have a different set of rationales, all of those privileges are ones that can be asserted as the marital privilege used to be able to be asserted by the defendant. That is, if the client is on trial and the attorney is going to testify about a confidential communication, the client can prevent that from happening. That does create a situation, it seems to me, in which it could be said that the client could exploit the lawyer, could use the lawyer for a criminal purpose, wittingly or unwittingly, by the way. The lifting of the privilege doesn't depend on the attorney's involvement or mental state. It turns on what the client was trying to do. If the exception to the privilege were not available there, the client could use the attorney to commit a crime, could make communications in furtherance of a crime, and then prevent that from ever coming out. That is not the case here. Here, if the wife is willing to testify, the defendant spouse cannot prevent her ever from testifying. That is the benefit that this Court obtained for law enforcement in Trammel, and that seems to me distinguishes, among other things, the differences between--
Byron R. White: A lot of your argument sounds as though you are objecting to the government's argument because it doesn't go far enough.
Gerard E. Lynch: --I hope I am not sounding that way, Justice White.
Byron R. White: It sounds that way. You object that nobody else has ever taken this step by step approach to closing in on the privilege.
Gerard E. Lynch: Well, I think no one else has ever taken this approach because this approach just doesn't make sense. It isn't the case that you can adequately distinguish the joint participant case from any other case of marital privilege. Perhaps it is a good idea to turn directly to that situation.
Warren E. Burger: Before you go on to a new point, let me see if I can get your picture clear in mind. The husband and wife engaged in a joint criminal activity, and it doesn't make any difference whether it is importing cocaine or robbing a bank or whatever, I assume.
Gerard E. Lynch: Or income tax evasion.
Warren E. Burger: Now the wife is called before the grand jury. And the husband doesn't want her to testify, of course. She is instructed by the court presiding over the grand jury that she must answer or go to prison. Now, you suggest it impairs the marriage relationship if the husband is willing to let her go to prison rather than answer the questions?
Gerard E. Lynch: I am suggesting that it is... it presents a conflict, first of all, within the conscience of the spouse that puts the marital relationship under tremendous strain, and secondly, that if the wife does testify, essentially what the court has done in that situation and and what the law has done in that situation is to turn the spouses directly against each other. The spouse becomes a witness for the prosecution against the spouse, and that seems to be--
Warren E. Burger: Well, I hear what you are saying. You say they put the spouses against each other. When did that begin? When they called her to the grand jury or when the criminal acts began?
Gerard E. Lynch: --Well, Mr. Chief Justice, I don't see that the spouses were pitted against each other at any earlier point than the point at which one of them--
Warren E. Burger: Well, ordinarily, if two people go into a criminal... two or three people go into a criminal enterprise, there is the risk that they may be pitted against one another, and it often happens that one will testify against the other in exchange for some lesser sentence.
Gerard E. Lynch: --And as this Court recognized in Trammel, the very reason why Mrs. Trammel in that case could be permitted to testify despite the prior history of there being a privilege that would prevent her testifying, the very reason was that her decision to take that option, her decision to become a witness for the prosecution had undermined the marriage. There was no longer, this Court said in Trammel, obviously, this Court said, there was no longer--
Warren E. Burger: Wait a minute. You have the sequence wrong. The sequence was that if she was willing before she was under any compulsion of any kind from that opinion, if she was willing, then probably there wasn't much left of that marriage. Now, let's take that same proposition. The husband is saying to the wife, don't testify, but then she answers, they are going to make me testify or go to prison, and he says, all right, go to prison. How much is left of that marriage? No, Mr. Chief Justice. I think in some sense that is exactly my point, but in another way I think it misconceives the situation. Let me try to explain. Well, just answer the specific question. Do you think he has got a right to let her go to prison?
Gerard E. Lynch: --I don't think it is his right. I think that is the point. I think it is her decision what to do. I don't think we have a situation here. Certainly there is nothing in the record here, and there is nothing in my understanding of modern relationships between husband and wife that says that the husband calls the shot as to whether or not the wife testifies. It is the wife's decision.
Warren E. Burger: He is calling... in a sense, you are letting his willingness to have her go to prison--
Gerard E. Lynch: Well, he doesn't have much say in the matter. She will go to prison based on her decision and the court's decision, not based on anything that he has to do about it.
Warren E. Burger: --Mr. Lynch-- --We are speaking now of what kind of a marriage relationship is left between these two people if he says, in effect, not openly, as under Trammel, where the breach was there, all right, you go to jail.
Gerard E. Lynch: We may have some misunderstanding, but I guess I think that is my point. My point is, there is nothing left of the marriage after the court puts the wife in the position where she has to choose between whether to go to jail and uphold her loyalty to her husband or whether to testify against him.
Warren E. Burger: The husband is not... has a right to say that even if you are being compelled to do this, I am through with you?
Gerard E. Lynch: I don't... well, I suppose, yes, he clearly does have that right, because--
Warren E. Burger: Well, that is what he is doing.
Gerard E. Lynch: --But I don't think--
John Paul Stevens: Mr. Lynch, isn't it your point that if you prevail he won't have this power?
Gerard E. Lynch: --That is exactly right, Justice Stevens. That is to say, what puts everyone in that position, the very position that I think the Chief Justice finds distressing here in this relationship between the parties is that the wife is compelled to testify. If she is not compelled to testify, we never reach the point of having exactly that kind of marital conflict.
William H. Rehnquist: But how serious a conflict is that? As long as we are speculating, how many wives are going to go to jail rather than testify against their husbands, go to jail for an indefinite period of time, or at least the life of the grand jury?
Gerard E. Lynch: Well, every spouse who has ever been compelled under this exception, which, granted, is a small number, has taken that option. That is what Mrs. Koecher did. She went to jail. This is not a case where there has been a stay, and this is a theoretical issue. Mrs. Koecher went to jail and spent four months there before being released on bail after the Court of Appeals decision.
William H. Rehnquist: Well, is there any reason to believe that she is a typical example?
Gerard E. Lynch: Well, the government tells us there are no typical examples, because despite the enormous benefits they expect to accrue to law enforcement, they tell us that in the 12 years since this idea was first thought up in Van Drunin by the Seventh Circuit, we haven't had an adequate basis to decide what the empirical effect of it is because it is too short a time and it doesn't come up very often. The two times that it has come up are in the case of United States against Clark in the Seventh Circuit and in this case, and in both of those cases the spouse went to jail rather than to testify.
William H. Rehnquist: How long did the spouse spend in jail in the Clark case?
Gerard E. Lynch: I don't know for certain. However, it probably was the full 18 months that is permitted, because of the situation there. Clark was a petty embezzler of some kind, and he had engaged in a scheme with his wife. Clark, unlike Mrs. Koecher, was convicted by a jury beyond a reasonable doubt of having participated in the crime. His wife was also under indictment. The government then sought to compel him to testify, saying he is a joint participant and he has been proven to be so. He was already under sentence, and as you know, a contempt citation interrupts the running of the sentence, so presumably his contempt sentence ran for as long as it was, and then he continued with the sentence he was serving.
Sandra Day O'Connor: Well, Mr. Lynch, presumably we have a substantial body of experience in the 19 states which have eliminated the privilege altogether. What does that experience show?
Gerard E. Lynch: I am not sure what that experience shows. I don't know how many cases there are in which it is used. One of the other things the government says is that the United States, and I presume this is true for state prosecutors as well, is charpy about using his power. I don't know how many cases there are, and I don't know what has happened--
Byron R. White: How many of the 19 did it by legislation, and how many by a court decision?
Gerard E. Lynch: --I don't know the answer to that, Justice White. I believe that most of them have done it by legislation. Let me--
Byron R. White: There must have been some investigation, some hearings and some decisions about the impact on law enforcement.
Gerard E. Lynch: --Curiously, Justice White, I think probably not, although I can't answer that definitely not.
Byron R. White: They just decided this is a... we don't have anything else to do, let's just look around and pass these laws?
Gerard E. Lynch: Not at all. There are trends and eddies in these matters. The government says the distinguished commentators go their way. I think by that they mean the old commentators. The government doesn't cite any authority--
Byron R. White: Law professors. Law professors go around drumming up--
Gerard E. Lynch: --Indeed, that is something like what happened here. Wigmore in his treatise said the marital privilege doesn't make much sense, and that was taken as the scholarly view.
Warren E. Burger: --How long ago did he first say that?
Gerard E. Lynch: About 1903, I think, was when he made that. What the government doesn't point out is that in our brief we present the Court with a comprehensive survey of academic writing on this subject since about 1960. Not a simple academic commentary since the Trammel decision and since this Court's decisions on family privacy has either adopted the government's position. I would have thought you could find an academic who says anything, but nobody supports the government's position in this case. Or who supports Wigmore and continues to argue that the marital privilege should be adopted. Now, the government's response to that is to pluck two stray statements from two of those articles, of which there are about a dozen, and say, well, those are, you know, those academic say weird things. But the point is--
Warren E. Burger: They may be true.
Gerard E. Lynch: --I have no doubt about it, although, as I say, none of them says anything as weird as what the government says in this case. What the government says in this case has never been adopted by the highest court of any jurisdiction, as a matter of common law interpretation. It has never been adopted by any legislature.
John Paul Stevens: His position couldn't have been adopted without a statute, because you have to have an immunity statute or you have the Fifth Amendment privilege.
Gerard E. Lynch: Well, that is true, although as I understand it I don't--
John Paul Stevens: That is why I don't suppose you have any experience in the 19 states, because they all have the Fifth Amendment privilege.
Gerard E. Lynch: --Yes. I don't know, though, Justice Stevens, of many states that don't have at least some kind of immunity available in some situations, so I don't think that that is what is preventing it.
Warren E. Burger: The position you advocate... I will put it in the form of a question. Does not your position say to a man who is criminally inclined and he is going to start importing heroin and cocaine from Colombia that... he has got to have some help, and so isn't it safer on your theory, then, to have your wife be your helper instead of some other criminal type?
Gerard E. Lynch: If it is, Mr. Chief Justice, it is only because... by reason of nature, not by reason of anything the law does. I would think that it is--
Warren E. Burger: By reason of the law you are advocating, it is certainly a great inducement to take your wife, because she can never turn state's evidence.
Gerard E. Lynch: --No, that is not true after Trammel. She can turn state's evidence.
Warren E. Burger: On that kind of a relationship at the starting point. I am not talking about the relationship that has broken down, as in Trammel. You are suggesting that the relationship will break down because she testifies.
Gerard E. Lynch: Well, or alternatively, as in Trammel, that--
Warren E. Burger: Even it she is compelled to testify.
Gerard E. Lynch: --Yes, but it seems to me that always the safest person to recruit to be your co-conspirator is someone who will be devoted to your interests, who loves you, who won't turn you in. That is true whether there is a privilege or not, and I would think it would be a rather foolish person who would put his trust not in the fact that he thinks his wife will never betray him, but in the fact that he thinks his wife will never betray him and get away with it. After all, because of the immunity situation, what you have to understand is that the contempt sanction is not the principal weapon that the government could bring to bear on a true joint participant. If a spouse is truly a joint participant, and the government has any hope of proving it beyond a reasonable doubt, they can do to that spouse precisely what they do to every other co-conspirator. They can threaten her with prosecution, which they would have every right to bring if she is guilty of a crime, and offer that they will forego that option if she persists in her refusal to cooperate.
Warren E. Burger: So you want the government to break up the marriage, not the parties.
Gerard E. Lynch: There are two important differences between that situation and this one. One is that the spouse remains free to make her own choice in that situation. There is no legal compulsion on her to testify. The second is that what the government is threatening in that circumstances is something it has every right to do, that is, to bring a criminal prosecution that is warranted, to go before a jury and to prove guilt beyond a reasonable doubt. That is the difference between the Trammel circumstances and this one.
Warren E. Burger: Maybe the government will adopt your guidance in this case if you prevail.
Gerard E. Lynch: I imagine they might try, although certainly if one looks to the evidence they have produced so far, it is clear what is going on in this case. It is clear that the government does not have evidence which they could present to a grand jury to get an indictment and then go before a jury and convict Mrs. Koecher beyond a reasonable doubt. The only evidence that they have ever offered in this case with respect to joint participation are hearsay statements presented by an agent, ostensibly made by her husband, culled from about ten days of interrogation. Her husband is obviously not available as a witness against her. They have not offered him immunity to testify against her. There is no independent evidence that they could bring in to convict her. Failing an ability to punish her for what they think she did, the government prefers to offer her immunity, bring her before a grand jury, and then punish her not for the espionage they claim was committed, but for loyalty to her husband for refusing to testify. What I have been urging here is not a radical innovation. It is not, as in Branzburg against Hayes, the creation by this Court of a new constitutionally based privilege. What I am asking is that this Court follow the common law as it has always existed. I am asking the Court to deny the government's effort in this case, to create an exception that is a total innovation, to create that exception not based on reason, and certainly not based on any experience, because they tell us that they have no experience to offer this Court suggesting that the operation of this exception in the two circuits where it has operated has produced any benefits for law enforcement. They speculate in Mr. Wright's argument that the marital privilege shields third parties. Mr. Wright says, well, what about narcotics conspiracies? If we have the privilege operating in this situation, we will never be able to prosecute, but that is nonsense. The government prosecutes these narcotics conspiracies every day. It prosecutes large ones.
Thurgood Marshall: Would you claim the privilege if I asked you, do you oppose getting rid of it altogether?
Gerard E. Lynch: I absolutely oppose getting rid of it altogether. That is not what the government has asked in this case. That issue, I think, is not properly before the Court, but I think it follows from everything I have said here and everything we have said in our brief, that we believe it would be a dreadful mistake for the Court to go beyond what the government asks and take on essentially an outdated view of the marital privilege. Thank you.
Warren E. Burger: Mr. Wright, do you have anything further?
Christopher J. Wright: Yes, I do. I would like to add that we believe that joint participation in crime is corruption of the marriage, and in that respect it is analogous to other relationship where crime and fraud and joint participant exceptions are also recognized. It is a corruption of the attorney-client relationship, the reason society recognized a privilege there for the client to go in seeking advice to help in a criminal matter.
Warren E. Burger: May I ask, Mr. Wright, under your view, if you prevail... say you have a case in which the spouses were joint participants for about a year or two years, say. Would you inquire of the spouse for the period before she joined the conspiracy?
Christopher J. Wright: Of course, we don't believe that that is presented here because we believe that she joined the conspiracy in 1963 or 1962, whenever she first attended meetings with the Czechoslovak agents.
John Paul Stevens: Say you wanted to ask her about what happened in 1960. Could you do that?
Christopher J. Wright: Well, I don't think we do... I think that probably we could. That is not presented here, I don't think.
John Paul Stevens: I am just wondering what the scope of the exception you are asking for is, whether it is just, once the privilege is waived, it is waived as to everything, or only for the period of joint participation? Maybe you haven't thought it through.
Christopher J. Wright: We have thought it through to the extent that we certainly believe it relates to everything of the matter that is under investigation. For example, in espionage in this case, we are not contending that if they were--
John Paul Stevens: What if the husband were engaged in espionage at a time and all she knew was when he was home and when he was traveling or something, and you wanted to ask her about his whereabouts? Could she claim the privilege during the period prior to her actually helping him out?
Christopher J. Wright: --We think not. We think that once we have shown joint participation, that ought to be enough. Respondent had brought up the Fifth Amendment privilege. It was pointed out that, of course, parent-child relationships, there has never been such a privilege. We think that to the extent respondent attempts to rely on Fifth Amendment privilege, it merely shows the medieval roots of this privilege, the fact that it is here in this form results from the outdated view that the husband and wife are one. Respondent also mentioned that the only evidence we offered to show joint participation here were the affidavits from the FBI agents based on Mr. Koecher's evidence. As I have stated, we believe that that is quite compelling evidence. I would like to point out that we were never put to our proof that we had other evidence at the November 29th, 1984, hearing. Respondent simply did not argue that there wasn't proof of joint participation. Finally, respondent began and ended his presentation by noting that this is an old privilege and by quoting the Trammel decision where the Court said that it is reluctant to change things or takes a gradual view of these matters. I would like to point out that the Court in Trammel also pointed out that when all that can be said for a privilege is that it is an old privilege, that precedent alone is not enough. If there are no further questions, thank you.
Warren E. Burger: Very well. Thank you, gentlemen. The case is submitted.