In 1980 the United States Supreme Court decided Trammel v. United States. The opinion changed the Spouses' Testimonial Privilege, overturning centuries of consistent case decisions. The Court based its decision on the history and effect of privilege and a straw poll of state legislative and court decisions on the issue. The Court concluded its decision would permit the admission of more spousal testimony without impairing the benefits the privilege was supposed to confer on spouses. The Court's decision in Trammel was wrong on three counts. The first was bad history overlaid with questionable analysis. The survey of the state's treatment of the privilege was done in recognition of the longstanding federal tradition of abstaining from the regulation of marriage and family matters in favor of the states' regulation. Today, the United States Congress and Executive Branch view marital and family issues as legitimate areas for federal regulation and control. The Court's conclusion that the change mandated by its decision would preserve the underlying goal of the Spouses' Testimonial Privilege simply ignored the reality of the modern criminal justice system. Finally, it appears the Court's decision was based on a view of the family's future that has been overtaken by subsequent events. The purpose of this Article is to re-examine the Trammel decision. We shall examine the implied social assumptions and predictions upon which the Court based its decision. We will also examine the impact of this decision on efforts to extend evidentiary protections to familial relationships beyond those of wives and husbands.
Michael W. Mullane,
Trammel v. United States: Bad History, Bad Policy, and Bad Law,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol47/iss1/5