The Trammel Court's Hasty Rejection of Jerry Maguire's View of Marriage
| Publication year | 2010 |
Georgia State University Law Review
Article 5
12-1-2006
The Trammel Court's Hasty Rejection ofJerry Maguire's View of Marriage
Louis W Hensler
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Recommended Citation
Hensler, Louis W. (2006) "The Trammel Court's Hasty Rejection ofJerry Maguire's View of Marriage," Georgia State University Law Review: Vol. 23: Iss. 2, Article 5.
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THE TRAMMEL COURT'S HASTY REJECTION OF JERRY MAGUIRE'S VIEW OF MARRIAGE
Louis W. Hensler III*
Introduction
In filmmaker Cameron Crowe's Oscar-nominated film, Jerry Maguire, the title character, was a successful agent with a powerful sports agency, but he was fired after writing a mission statement challenging the way business was done in his field. As Jerry walked out of the agency for the last time, he asked for volunteers to go with him and start a new, visionary sports agency. He got only one taker— Dorothy Boyd, a young accountant. After walking out, Jerry and Dorothy rode down together on an elevator with a young, amorous couple, both of whom were deaf. As the four rode together in the elevator, the man signed something that elicited delighted gasps from his lover and from Dorothy. When the lovers left the elevator, Jerry wondered out loud what the man had said. Dorothy explained that her aunt was hearing impaired, and so she understood what the man had said—"you complete me." Jerry seemed not to get it.
Not surprisingly, Jerry's and Dorothy's little enterprise went through some very trying times, which included their impulsive (some might say ill-considered) marriage. After times got very tough, they eventually separated. After more trials and tribulations, Jerry's one and only client reached the pinnacle of NFL success. Immediately after his ultimate triumph, Jerry hopped on the first plane back to Dorothy. When he arrived at her house, she was gathered there with a group of divorced (and hostile) women. Thus the stage is set for the most memorable scene in the movie:
* Associate Professor, Regent University School of Law; B.A., Bob Jones University, 1985; J.D. University of Chicago Law School, 1988. I wish to thank Kelli Hooke and Darcy Hall for their very helpful research and editorial assistance and both the American Center for Law and Justice and Regent University for their financial support. No living person has shaped my understanding of the essential nature of marriage more than Rachelen, who has contributed all of the best elements of our marital unity for more than twenty years.
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Jerry: Hello? Hello. I'm lookin' for my wife. [Silence]
Jerry: Wait. Okay . . . okay . . . okay. If this is where it has to happen, then this is where it has to happen.
[Silence]
Jerry: I'm not letting you get rid of me. How about that? [Silence]
Jerry: . . . But tonight, our little project, our company had a very big night—a very, very big night. But it wasn't complete, wasn't nearly close to being in the same vicinity as complete, because I couldn't share it with you. I couldn't hear your voice or laugh about it with you. I miss my—I miss my wife. ... I love you. You—complete me. And I just had ...
Dorothy: Shut up. Just shut up. You had me at "hello."
Cameron Crowe, wittingly or not, betrays a certain understanding of marriage—that the husband and wife are separate parts of a whole, each "incomplete" without the other. This is "Jerry Maguire's View of Marriage" referenced in the title of the essay. There is a reason that Jerry Maguire's "I love my wife" speech has become so famous—it resonates. It expresses a view of marriage that many of us share, or at least one that we wish were true.1
Popular as Jerry Maguire's view of marriage may be, the Supreme Court of the United States has officially rejected it. The most significant contemporary American authority on spousal testimonial privilege is the Supreme Court's 1980 decision in Trammel v. United
1. See discussion infra Part II.B.2.
2006) SPOUSAL TESTIMONIAL PRIVILEGE 327
States.2 The facts of Trammel brought the interest of petitioner Otis Trammel into potential conflict with that of his wife, Elizabeth Trammel. She was in a position of penal vulnerability because she had been caught in possession of heroin while leaving a plane in Hawaii. The government exploited Elizabeth Trammel's vulnerability to secure her cooperation in the prosecution of Otis Trammel for importing heroin into the United States, a prosecution in which Elizabeth Trammel was named as an unindicted co-conspirator.3 Otis Trammel objected to his wife's testimony against him on the ground of spousal testimonial privilege, but the trial court ruled that Elizabeth Trammel could testify in support of the government's case. This ruling was crucial to the government because the testimony of Elizabeth Trammel "constituted virtually [the] entire case" against Otis Trammel, who was convicted on the strength of his wife's testimony. 4
The Supreme Court upheld the trial court's admission of Elizabeth Trammel's testimony against her husband. Acknowledging that the spousal testimonial privilege had "ancient roots,"5 the Trammel Court, in the crucial passage of Chief Justice Burger's majority opinion, asserted:
[The] spousal disqualification sprang from two canons of medieval jurisprudence: first, the rule that an accused was not permitted to testify in his own behalf because of his interest in the proceeding; second, the concept that husband and wife were one, and that since the woman had no recognized separate legal existence, the husband was that one.6
Like any good advocacy piece, the Court's opinion in Trammel employed a catchy theme—the defendant's spousal testimonial privilege is a relic of the medieval oppression of women. "The
2. 445 U.S. 40 (1980).
3. Id. at 42.
4. Id. at 43.
5. Id.
6. Id. at 44.
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ancient foundations for so sweeping a privilege have long since disappeared. Nowhere in the common-law world—indeed in any modern society—is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being."7 While the Court here, mostly for effect, characterized (or mischaracterized) the original rationale for the spousal disqualification, the precise rationale of the spousal disqualification was unimportant to the Court's holding, since by this time the disqualification had evolved from a disqualification into a privilege. The rationale for the privilege was somewhat different from the rationale for the earlier disqualification.
The Trammel Court did address the evolved rationale for the privilege, as opposed to the disqualification,9 acknowledging that "[t]he modern justification for this privilege against adverse spousal testimony [was] its perceived role in fostering the harmony and sanctity of the marriage relationship."10 The Court nevertheless, without apparent hesitation (or evidence), stated that "[w]hen one spouse is willing to testify against the other in a criminal proceeding—whatever the motivation—their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve."11 The Court thus officially swept aside American courts' long-standing reluctance to question the worth of individual marriages.
8. See infra notes 110-112 and accompanying text.
9. The distinction between disqualification and privilege is discussed infra notes 20-21 and in the accompanying text.
10. Trammel, 445 U.S. at 44.
11. Id. at 52.
12. See discussion infra notes 97-105 and accompanying text. The Court's idea that the Trammel marriage must have been in trouble since Mrs. Trammel was willing to testify against Mr. Trammel appears to have been pure speculation. At a hearing on Trammers motion to exclude his wife's testimony against him on the ground of privilege, Elizabeth Trammel testified to her reason for condemning her husband in court, and her stated reason had nothing to do with her marriage being "irretrievably broken;" rather, she testified that she was cooperating with the government because the government assured her "that she would be given lenient treatment." The Government was true to its word—Elizabeth Trammel was not prosecuted for her admitted role in the heroin conspiracy. Trammel, 445 U.S. at 42-43.
7. /
2006| SPOUSAL TESTIMONIAL PRIVILEGE 329
In this essay, I contend that the Court's rejection of Jerry Maguire's view of marriage on the ground that it had long since disappeared was hasty and unsupported. The essay reviews the history of spousal testimonial privilege in Anglo-American law, beginning with the earliest extant authorities in the seventeenth century. The essay contends that the version of spousal unity that originally supplied the foundation for the spousal testimonial privilege, unlike the version of spousal unity rejected by the Court, is far from having "long-since disappeared."13 It is actually alive and well in America today.
I. History of Spousal Testimonial Privilege in Anglo-American Law
The Supreme Court's opinion rejecting Otis Trammel's claim of privilege begins with a brief account of the origin of the privilege and cites two authorities for the privilege's "ancient roots:" a seventeenth-century authority, Lord Coke, and a twentieth-century authority, John H. Wigmore.14 The Court agrees with both authorities that the roots of the spousal testimonial privilege run deep.
A. The "Tantalizing Obscurity" of the Privilege in the Sixteenth Century
It is...
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