Hawkins v. United States (358 U.S. 74)/Concurrence Stewart
Mr. Justice STEWART concurring.
The rule of evidence we are here asked to re-examine has been called a 'sentimental relic.'  it was born of two concepts long since rejected: that a criminal defendant was incompetent to testify in his own case, and that in law husband and wife were one. What thus began as a disqualification of either spouse from testifying at all yielded gradually to the policy of admitting all relevant evidence, until it has now become simply a privilege of the criminal defendant to prevent his spouse from testifying against him. Compare Stein v. Bowman, 13 Pet. 209, 10 L.Ed. 129; Wolfle v. United States, 291 U.S. 7, 14, 54 S.Ct. 279, 280, 78 L.Ed. 617; Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369. 
Any rule that impedes the discovery of truth in a court of law impedes as well the doing of justice. When such a rule is the product of a conceptualism long ago discarded, is universally criticized by scholars, and has been qualified or abandoned in many jurisdictions, it should receive the most careful scrutiny.  Surely 'reason and experience' require that we do more than indulge in mere assumptions, perhaps naive assumptions, as to the importance of this ancient rule to the interests of domestic tranquillity. 
In the present case, however, the Government does not argue that this testimonial privilege should be wholly withdrawn. We are asked only to hold that the privilege is that of the witness and not the accused. Under such a rule the defendant in a criminal case could not prevent his wife from testifying against him, but she could not be compelled to do so.
A primary difficulty with the Government's contention is that this is hardly the case in which to advance it. A supplemental record filed subsequent to the oral argument shows that before 'Jane Wilson' testified, she had been imprisoned as a material witness and released under $3,000 bond conditioned upon her appearance in court as a witness for the United States. These circumstances are hardly consistent with the theory that her testimony was voluntary. Moreover, they serve to emphasize that the rule advanced by the Government would not, as it argues, create 'a standard which has the great advantage of simplicity.' On the contrary, such a rule would be difficult to administer and easy to abuse. Seldom would it be a simple matter to determine whether the spouse's testimony were really voluntary, since there would often be ways to compel such testimony more subtle than the simple issuance of a subpoena, but just as cogent. Upon the present record, and as the issues have been presented to us, I therefore concur in the Court's decision.
^1 See Comment, Rule 23(2) of the Uniform Rules of Evidence.
^2 We are not dealing here with the quite different aspect of the marital privilege covering confidential communications between husband and wife. See Wolfle v. United States, 291 U.S. 7, 54 S.Ct. 279, 78 L.Ed. 617.
^3 Apparently some nineteen States have either abolished or substantially modified this privilege. See Note, 38 Va.L.Rev. 359, 365. In England the process has been a selective one, accomplished by legislation. See Evidence of Spouses in Criminal Cases, 99 Sol.J. 551. In 1938, the American Bar Association's Committee on Improvements in the Law of Evidence favored the abolition of the privilege on the part of the accused, 63 A.B.A.Rep. 595.
^4 The facts in the present case illustrate how unrealistic the Court's basic assumption may be. At the time of the acts complained of the petitioner's wife was living apart from him under an assumed name. At the time she testified they were also living apart. In his testimony the petitioner referred to her as his 'exwife,' explaining when his counsel corrected him that he and his wife had never lived together very much.
Before assuming that a change in the present rule would work such a wholesale disruption of domestic felicity as the Court's opinion implies, it would be helpful to know the experience in those jurisdictions where the rule has been abandoned or modified. It would be helpful also to have the benefit of the views of those in the federal system most qualified by actual experience with the operation of the present rule-the district judges and members of the practicing bar. The Judicial Conferences of the several Circuits would provide appropriate forums for imparting that kind of experience. 28 U.S.C. § 333, 28 U.S.C.A. § 333.
It is obvious, however, that all the data necessary for an intelligent formulation 'in the light of reason and experience' could never be provided in a single litigated case. This points to the wisdom of establishing a continuing body to study and recommend uniform rules of evidence for the federal courts, as proposed by at least two of the Circuit Judicial Conferences. See Annual Report of the Proceedings of the Judicial Conference of the United States, September 18-20, 1957, p. 43. See Joiner, Uniform Rules of Evidence for the Federal Courts. 20 F.R.D. 429.