The Status of Spouses as Witnesses Before Courts- Martial

• Author: Captain Bueford G. Herbert
• Pages: 05

1. INTRODUCTION

   The marital relationship has been the basis for certain restrictive doctrines as to witnesses and testimonial evidence since the early common law. One doctrine has prevented either spouse from testifying in behalf of the other. This doctrine is now abolished practically everywhere. Another doctrine has prevented either spouse from testifying against the other. This doctrine, although long criticized,' is still very much alive,P and is the primary concern of this article.

   There are two other restrictive doctrines dependent upon the marital relationship : the privilege of inter-spousal communications of a confidential nature, and the doctrine preventing either spouse from testifying to nonaccess to bastardize a child born of the wife during the marriage. These latter doctrines are not within the scope of the discussion.

   The military rules respecting inter-spousal testimony have roota in both the common law and the practice of the federal courts. Additionally, the present practice in the federal courts exerts considerable influence upon the interpretation of the military rules. Consequently, so much of the development of the rules in the federal courts will be traced as is necessaly to show the origin, development, and interpretation of the present military rules. No attempt will be made to appraise the utility or desirability of the rule prohibiting adverse spousal testimony, not only because

   'This article was adapted from a thesis presented to The Judge Advocate Genersi's Sehooi, U.S. Army, Chariottewilie, Virpinia, while the author was P member of the Eighth Advanced Ciaas. The opinions end conciusions pre. sented herein are those of the author and do not neeeissrily represent the view8 of The Judge Advocate General's Sehooi nor my other governmental agency.

   ** JAGC, U.S. Army; LL.B, University of Louisville, 1948; LL.M, Duke university, 1949.

   >"It debares and des'rsdes the matrimonial union: cowertine into B sink of corrvption what ought to be B source of purity. It defiiea fhe mawiage contract itself, by tacking to it in secret a iieenae ta commit erimea." 5 Bentham. Rationale of Jvdieial Evidence ZdS (1827).

   . .

   1"The'hasic reaeon the law has refused to Pit wife wainst husband or husband against wife in a trial where life or liberty is at ;take was B belief that such a policy i a neeessa~yto foster family peace, not only for the benefit of husband. wife and children. but for the benefit of the nublic as weii. Such

   .~

   B belief has never been unreasonable and is not now." Aawkins Y. United States, 358 U.S. 74, 77 (1858).

   quite enough has been said in that regard? but a180 because the presentation of the rule itself is a sufficiently challenging task. Little reference will be made to the rules of the various atates, since they are largely statutory.

   Although inter-spousal testimony is but a small segment of the overall field of military rules of evidence, an understanding of the approach of the United States Court of Military Appeals to this area may well give a valuable insight into the court's overall concept of the rules of evidence to be applied in courts-martial. For this reason, the decisions of the court are closely examined and evaluated.

   II HIS'YCKY A S D DEI'EI.OP>IEST OF THE RULES :S THE FEDERAI. COL'RTSAs previously stated, a consideration of the history and development of the federal rules will help us to understand the development and content of present military rules, and also will show the limitations of using the federal rules in discovering and interpreting the military rules and limitations. That there is a general relationship between the federal and military rules of evidence is apparent from Article 36, Uniform Code of Military Justice,' which provides :

   The procedure, including modes of proof, in cases before EourtS-martid,

   conrts of inquiry, military commissions, and other military tribunals may be prescribed by the President by regulations which shall, 60 far 89 he deems practicable. apply the principles of law and the rule8 of evidence generally recognized in the trial of criminal cases in the United States didriet courts, but which shall not be contrary to or ineonaistmt with this eode.

   All rules snd reglilstioni made in pursuance af this article shall be

   uniform insofar as pmotieabie and shall be reported to the Conpress.

   This Article gives discretion to the Preaident to prescribe rules of evidence by regulation, but indicates the intent of Congress that he use as a guide the rules of evidence generally recognized in the trial of criminal cases in the United States District Courts. The President has exercised this authority by promulgating the blanusl for Courts-Martial, United States, 1951. The drafters of the Manual were of course influenced by what they considered to be the federal rules, and indicated that if the Xanual, as the primary source far rules of evidence for courtc-martial should

   9 See Appelton, The Rules of Evidence Stated and Discussed, ch. IX (1560)

   i

   5 Bentham, op. at. m w a note 1, at 321.49; 8 Wigmore, Evidence S 2227-18 (3d ed. 1940) (hereinafter cited 8s Wigmore); Hutchins & Siemnger, Some ObssruaLians on iha Low of Euidanos: Family Relatiana, 13 Minn. L. Rev. ST6 (1925).

   4 10 U.S.C.

   5 536 (1965).

   STATUS OF SPOUSESASNITNESSES prove inadequate, recourse should be had to the rules of evidence used in the United States District Courte, and, if no answer was found there, to the rules of evidence at common law.'

   The United States Supreme Court was first faced with the task of deciding what rules of evidence should be applied in criminal cases in the federal courts in 1851. In United States V. Reid.' the question arose whether in a trial in Virginia, a eo-indictee, separately tried, was a competent witness on the defendant's behalf. An 1849 Virginia statute made such a person competent. The Court refused to follow this statute on the ground that section 34 of the Judiciary Act of 1189,' requiring conformity to state laws in "trials at common law'' did not apply to criminal cases, so consequently a state statute enacted subsequent to 1189 was not applicable. The Court found the applicable law by "necessary implication" from the fact that the method of summoning jurorsunder the Judiciary Act of 1189 was that in effect in the several states at the time of its passage.8 So the Court found the law respecting admissibility of evidence in criminal cases to be ". . , the law of the state, as it was when the courts of the United States were established by the Judiciary Act of 1789. . , ?Q and held the witness incompetent. The practical effect of this decision was to make the English common lair. rules of evidence the rulea of evidence in federal criminal cases.~o

   In 1891, the Supreme Court held the law of Texas at the time af its admission to the Union was binding upon the federal court.11 In 1892, in Brnson v. Cnited States,12 the court applied the common law authorities to reach a different result than Reid as to the same class of witness, and in so doing used the phrase "in the light of general authority and sound reason,"13 in pointing out that the trend of legislation and judicial opinion had been to abolish the common lalv disqualification of witnesses. Subsequently in 1918, the Benson case vas relied upon in Rosen v. United States" to justify disregard of the Xew York Law of 1789 concerning the competency of a mitness previously convicted of perjury. The

   5 Par. 137, YCM, 1961; Legal and Legislative Basis, YCM,

   210 (1961).

   467 (1818)

   LOO 18188 143

   d 53 U.S. (12 How.)

   361 (1861).

   11 Stat. 73 (1789).8 Seetion 29. Judiciars Act of 1789 had, in fact, been repealed 89 of the date of Unztd State8 V. Raid. 6 Stat. 384 (1840).

   8 United States V. Reid, aupra note 6, at 361.10 Knoeil V. Vnited States, 239 Fed. 16, 22 (3d Cir. 1917).il Logan V. United States, 144 US

   2S3 (1892). In that case, there amse the question of the rdes a i evidence appliaable in a. federal eaurt in Texas. That state had been admitted to the Union eubsequent to the enactment a i the Judiciary Act of 1789.

   I3 146 U.S. 326 (1892). 18 Id. et ass.

   14 246 us

   Court quoted the phrase "in the light of generd authority and sound reason" of Bensan and stated:le

   We emelude that the dead hand of the common law rule of 1789 should no longer be applied to EBS~Ssuch 88 we have here., , ,

   It appeared in 1918, therefore, that the United States Supreme Court was moving away from the rules of the common law, or more technically, the rules in force in the States in 1789, or at time of admission.16

   Now let us attempt to relate the foregoing background to our immediate problem-the status of spouses as witnesses in criminal cases in the federal courts. Consistent with Reid and Logan, it was held that the rules in force in 1789 were to decide the competency of one spouse for or against the other. The Supreme Court and the lower federal courts prior to 1918 consistently held that one spouse was not B competent witness for or against the other."

   It was to be expected, in view of the United States Supreme Court's relaxed attitude toward the rules respecting competency of witnesses evidenced by the Rosen case, that subsequent to 1918 the Court would relax its rule with respect to the competency of spouses as witnesses. However, in Jim Fuey Moy v. United States,'a decided in 1920, the Court refused to find error in the trial court's ruling that the defendant's wife was not a competent witness in his behalf. The Court, in reaching this result, cited Logan v. United StaleslQ and Hendriz V. United Statesno and re-affirmed the principle that the rules of evidence in force in 1789 were controlling. Rosen was not mentioned. Most of the lower federal courts in decisions subsequent to Jim Fuey Mog considered that ease to have settled the question of competency of one spouse as a witness for the other and made no mention of the rules in farce in the state in 1789 or at the time of its admission.P' Thus the matter...