UNITED STATES OF AMERICA, PETITIONER V. HANA KOECHER No. 84-1922 In the Supreme Court of the United States October Term, 1985 On Writ of Certiorari to the United States Court of Appeals for the Second Circuit Brief for the United States TABLE OF CONTENTS Opinions below Jurisdiction Rule involved Statement Summary of Argument Argument: A witness may not refuse to testify on the ground that such testimony would be adverse to the interests of his or her spouse when the testimony concerns criminal activity in which the spouses jointly participated A. The policies underlying the privilege against adverse spousal testimony are not furthered when the privilege is invoked to withhold testimony about spouses' joint criminal activity B. The court of appeals erred because it misinterpreted the principle underlying the privilege against adverse spousal testimony C. The government's interest in obtaining spousal testimony is greater when the testimony relates to the spouses' joint criminal activity Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-15a) is reported at 755 F.2d 1022. The prior order of the court of appeals (Pet. App. 16a-18a) is unreported. The opinion (Pet. App. 24a-39a), oral order (Pet. App. 19a-20a), and written order (Pet. App. 21a-23a) of the district court on remand are unreported. The prior written opinion of the district court (Pet. App. 40a-55a) is reported at 601 F. Supp. 385. The prior oral opinion of the district court (Pet. App. 56a-60a) is unreported. JURISDICTION The judgment of the court of appeals (Pet. App. 61a-62a) was entered on February 28, 1985. A petition for rehearing was denied on April 11, 1985 (Pet. App. 63a-64a). The petition for a writ of certiorari was filed on June 10, 1985, and was granted on October 7, 1985. The jurisdiction of this Court rests U.S.C. 1254(1). RULE INVOLVED Rule 501 of the Federal Rules of Evidence provides in pertinent part: Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. QUESTION PRESENTED Whether a witness has a privilege to refuse to testify concerning criminal activity in which she and her husband jointly participated on the ground that the testimony would be adverse to the interests of her husband. STATEMENT 1. In the fall of 1984, a grand jury in the United States District Court for the Southern District of New York commenced an investigation into espionage activity believed to have been engaged in by respondent and her husband, Karel F. Koecher. The inquiry focused upon the transmittal to the Czechoslovak Socialist Republic of information and classified documents obtained by Karel Koecher while he was employed by the Central Intelligence Agency. On November 27, 1984, several hours before he and respondent were to leave the United States, Karel Koecher was arrested on a complaint charging him with conspiring to communicate classified national defense information to the Czechoslovak Intelligence Service between 1973 and 1975. C.A. App. 97-99; Pet. App. 2a, 36a. At the same time, respondent was arrested as a material witness on the basis of an affidavit stating that she and her husband "were directed by agents of the Czechoslovak Intelligence Service to attempt to penetrate United States intelligence agencies" and that she acted as a paid courier for the Czechoslovak Intelligence Service. C.A. App. 95-96; Pet. App. 35a-36a. Both the complaint and the affidavit were based upon Karel Koecher's written confession, in which he admitted that between 1963 and 1965 he had been trained to serve in the United States as an officer of the Czechoslovak Intelligence Service. Koecher was instructed to "penetrate" the Central Intelligence Agency, and in February 1973 he gained employment with the CIA. The complaint states that Koecher admitted that "(b)etween February 1973 and August 1975, (he) passed to the Czechoslovak Intelligence Service virtually any classified or other material, information, assessments, and CIA personnel identifications which he obtained or learned during his CIA employment." C.A. App. 98; Pet. App. 35a-36a. Respondent appeared before the grand jury pursuant to a subpoena on November 29, 1984, but declined to answer questions concerning her espionage activities. /1/ Respondent claimed a privilege not to give testimony adverse to the interests of her husband. /2/ The Government sought an order from the district court directing respondent to answer the questions, contending that the privilege against adverse spousal testimony did not apply because respondent participated jointly with her husband in the criminal activity under investigation by the grand jury. Respondent did not contest the government's claim that she was involved in the espionage scheme; rather, she argued that there is no joint participant exception to the marital testimonial privilege. Pet. App. 2a-3a, 40a-41a. On December 4, 1984, the district court directed respondent to answer the questions (Pet. App. 41a-42a). /3/ The court rejected respondent's claim of privilege, concluding that "the testimonial disqualification sought by (respondent) should not be permitted to stand as a bar to testimony concerning a joint criminal enterprise in which a husband and wife are allegedly both engaged" (ibid.; footnote omitted). The district court stated that "the appropriate analysis in a case involving the testimonial privilege is to 'decide whether the privilege against adverse spousal testimony promotes sufficiently important interests to outweigh the need for probative evidence in the administration of criminal justice.'" Pet. App. 51a, quoting Trammel v. United States, 445 U.S. 40, 51 (1980). It found that there were "two interests underlying the privilege against adverse spousal testimony: (1) prevention of dissension between spouses which might result from testimony of one against the other; and (2) society's 'natural repugnance' at condemning a person on the compelled testimony of his or her spouse" (Pet. App. 51a). The court concluded that "the recognition of a joint participants exception to the privilege against adverse spousal testimony will not seriously infringe upon the goals underlying that privilege" (id. at 54a). It observed that a spouse's testimony was unlikely to cause marital dissension where a husband and wife were partners in crime (id. at 53a). In addition, the court was "reluctant to interfere with the sweeping powers of the grand jury in its investigative functions" (id. at 54a). Respondent again refused to answer the questions that had been put to her before the grand jury, and the district court held her in civil contempt of court pursuant to 28 U.S.C. 1826(a). /4/ She was committed to jail for 18 months or the term of the grand jury, whichever was shorter, or until she decided to answer the questions. Pet. App. 42a. 2. While respondent's appeal of the district court's order was pending, Karel Koecher was indicted on one count of conspiracy to commit espionage, in violation of 18 U.S.C. 794(c). The overt acts in furtherance of the conspiracy described in the indictment include respondent's delivery to agents of the Czechoslovak Intelligence Service of a classified document obtained by her husband from the Central Intelligence Agency. Indictment at 2, United States v. Koecher, No. 84 Cr. 1001 (SWK) (S.D.N.Y. Dec. 20, 1984). The court of appeals subsequently issued an order vacating the order of civil contempt (Pet. App. 16a-18a). It observed that "(i)t is settled law that * * * 'it is not a legitimate function of the grand jury to serve as a substitute for pretrial discovery.'" Id. at 17a, quoting 8 J. Moore, Moore's Federal Practice Paragraph 6.04(5), at 6-86 (1985). The court of appeals remanded the case to the district court for consideration of (1) whether the dominant purpose of questioning respondent was to obtain discovery in connection with her husband's trial on the pending charge, and (2) "whether the particular questions asked by the Government which (respondent) refused to answer fall within the scope of the (marital) privilege, assuming that one exists" (Pet. App. 18a). On remand, the district court concluded that "the continued grand jury investigation after the return of the indictment * * * is not solely or predominantly for the purpose of obtaining evidence for use at the pending trial of that indictment" (Pet. App. 35a). The court found that it was reasonable for the grand jury to seek to develop evidence concerning other members of the conspiracy and any substantive offenses that may have been committed pursuant to the conspiracy (id. at 37a). With respect to the second issue, both parties agreed, and the district court found, that the questions posed to respondent before the grand jury fell within the scope of the marital testimonial privilege because the answers "could be potentially adverse to her husband" (id. at 32a). /5/ Respondent again refused to answer the questions, and the district court held her in contempt and entered the same confinement order as before (id. at 20a, 21a-23a). 3. The court of appeals reversed (Pet. App. 1a-15a), holding "in agreement with the Third Circuit and in conflict with the Seventh and Tenth Circuits, that the marital privilege is not subject to a joint participant exception" (id. at 8a; footnote omitted). The court first stated that the absence of an express reservation of the issue in this Court's decision in Trammel v. United States, supra, "has some negative implications as regards the joint participant exception" (Pet. App. 10a). The court of appeals found insufficient policy justification for a joint participant exception to the testimonial privilege. It stated that "while it may well be that the marital privilege should be abolished, we do not see sufficient reason for creating a joint participant exception" (id. at 11a). The court observed, however, that its decision did "not mean that there is not something to be said on the other side" (Pet. App. 11a). It noted that the courts of appeals were in agreement that the confidential marital communications for criminal ends, but indicated that the reasoning of these decisions did not apply to the testimonial privilege because the former seeks to protect the intimacy of private marital communications" while the latter "is more broadly aimed at protecting marital harmony" (id. at 13a). The court concluded that "(i)n light of its existence since the early days of the common law and of the importance of the interests which the marital privilege serves, we would leave the creation of exceptions to the Supreme Court or to Congress" (id. at 14a). /6/ SUMMARY OF ARGUMENT This case concerns the scope of the privilege against adverse spousal testimony, which enables a witness to withhold testimony relevant to a criminal proceeding on the ground that the testimony would be adverse to the interests of his or her spouse. The court below held that respondent could rely upon the privilege in refusing to answer questions concerning her husband's alleged espionage activities even if she participated in the commission of the offense. This decision misapplies applicable policies governing the construction of testimonial privileges in general and the privilege against adverse spousal testimony in particular. When spouses join forces as partners in crime, the spousal testimonial privilege should not shield them from testifying about their joint illegal activities. Testimonial privileges "are not lightly created nor expansively construed, for they are in derogation of the search for truth." United States v. Nixon, 418 U.S. 683, 710 (1974) (footnote omitted). A privilege accordingly is recognized only when needed to promote societal interests that outweigh the basic principle underlying our criminal justice system -- that the public has a right to every person's evidence. In Trammel v. United States, 445 U.S. 40 (1980), this Court reaffirmed that in at least some circumstances the privilege against adverse spousal testimony is justified by society's interest in protecting the harmony of the marital relationship. Of course, the privilege does not seek to protect marriage simply as an end in itself. Marriage is an institution of fundamental importance in maintaining society's moral and ethical values, and the societal interest in protecting the marriage relationship is grounded in this fact. Since a testimonial privilege should be recognized only when necessary to further the public interest underlying the privilege, the spousal testimonial privilege should be available only in circumstances in which it substantially furthers the values that society acknowledges in the marital relationship. When a marriage shelters a criminal partnership, the marriage accords with no value society is concerned to affirm; the spouses' criminal activity is harmful both to society and to one another. Since the spouses' action is completely antithetical to the values society acknowledges in the institution of marriage, a witness-spouse should not be permitted to withhold testimony concerning such joint criminal endeavors. Moreover, permitting a witness to assert the privilege in this context gives criminals an incentive to recruit their spouses to serve as accomplices in criminal activities. So long as the spouse's good will is not alienated, the criminal is assured that the government will not be able to obtain incriminating testimony from the accomplice-spouse. The court of appeals' contrary decision rests on its view that the privilege should apply in all circumstances in which it might protect the harmony of a marriage, without considering the extent to which the relevant societal interests that give rise to the privilege are in fact implicated. That determination is incorrect. We submit that any such general interest in the harmony of marriage is insufficient to require recognition of the privilege in this context in view of the harmful effect upon society of spouses' joint criminal activity. Finally, the societal interest in obtaining the testimony of a co-conspirator witness-spouse also weighs against recognition of the privilege. First, the need for such testimony generally is enhanced because of the secretive nature of conspiratorial wrongdoing. Second, because a spouse who is complicit in the criminal activity is more likely to be knowledgeable about the participation of third-party conspirators, recognition of a privilege for co-conspirator spouses is especially likely to have the effect of shielding not just the marital relation, but other participants in the criminal venture as well. ARGUMENT A WITNESS MAY NOT REFUSE TO TESTIFY ON THE GROUND THAT SUCH TESTIMONY WOULD BE ADVERSE TO THE INTERESTS OF HIS OR HER SPOUSE WHEN THE TESTIMONY CONCERNS CRIMINAL ACTIVITY IN WHICH THE SPOUSES JOINTLY PARTICIPATED "Testimonial * * * privileges contravene the fundamental principle that '"the public . . . has a right to every man's evidence."'" Trammel v. United States, 445 U.S. 40, 50 (1980), quoting United States v. Bryan, 339 U.S. 323, 331 (1950). Our criminal justice system depends upon full disclosure of all relevant facts. When a witness successfully asserts a privilege to withhold evidence from the truth-seeking process, he necessarily impedes society's efforts to bring wrongdoers to justice. United States v. Nixon, 418 U.S. 683, 709-710 (1974); Branzburg v. Hayes, 408 U.S. 665, 686-688 (1972). The recognition of a testimonial privilege therefore is appropriate only in the narrow circumstances in which the privilege "promotes sufficiently important interests to outweigh the need for probative evidence in the administration of criminal justice." Trammel, 445 U.S. at 51; see also Branzburg v. Hayes, 408 U.S. at 690-691 (declining to establish newsmen's testimonial privilege because "the public interest in law enforcement and in ensuring effective grand jury proceedings" is stronger than the "burden on news gathering" of requiring reporters to testify); United States v. Bryan, 339 U.S. at 331-332. This Court has defined two distinct testimonial privileges grounded in the marriage relationship. /7/ The marital communications privilege bars the admission into evidence of "information privately disclosed between husband and wife in the confidence of the marital relationship." /8/ That privilege, which gives focused attention to a particularly important aspect of the marital relationship (Trammel, 445 U.S. at 51), is not implicated in this case. At issue here is the privilege against adverse spousal testimony, which permits a witness to refuse to testify if the testimony would be adverse to the interests of the witness's spouse. /9/ Since the privilege is not needed to protect confidential communications, it has the effect of "exclud(ing) evidence of criminal acts and of communications made in the presence of third persons" (ibid.), or, as in the present case, excluding even evidence of actions done by the witness-spouse. In Trammel, this Court undertook a comprehensive review of the interests underlying the privilege against adverse spousal testimony. The privilege has its roots in the medieval rule that "'a wife cannot be produced either against or for her husband'" (445 U.S. at 44, quoting 1 E. Coke, A Commentarie Upon Littleton 6b (1628)). This principle, in turn, rested two legal doctrines: "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" (Trammel, 445 U.S. at 44). This Court concluded in Trammel that the privilege could not be justified by reference to these "long-abandoned" legal doctrines (445 U.S. at 44, 52). Nevertheless, although it acknowledged that the privilege had been "sharply criticized" (id. at 44; footnote omitted), the Court did not completely eliminate the privilege. It held that "(t)he modern justification for th(e) privilege * * * is its perceived role in fostering the harmony and sanctity of the marriage relationship." Ibid.; see also id. at 52. /10/ Applying this rationale, the Court rejected the traditional rule allowing a defendant to invoke the privilege to prevent voluntary adverse testimony by his or her spouse. It found 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" (id. at 52). The Court concluded that "(t)his modification (of the privilege) * * * furthers the important public interest in marital harmony without unduly burdening legitimate law enforcement needs" (445 U.S. at 53). This case presents another situation in which the scope of the privilege against adverse spousal testimony must be limited to conform to the privilege's modern rationale. When spouses choose to convert their marriage into a criminal partnership, they forfeit any right to societal protection from inquiries into their joint criminal activities. /11/ A. The Policies Underlying the Privilege Against Adverse Spousal Testimony Are Not Furthered When the Privilege Is Invoked To Withhold Testimony About Spouses' Joint Criminal Activity The threshold inquiry in determining whether the privilege against adverse spousal testimony should be recognized in this context is how far, if at all, the application of the privilege furthers the societal interests that the privilege is designed to protect. We submit that the interests underlying the privilege plainly are not served by permitting respondent to withhold testimony about criminal conduct in which she and her husband jointly participated, and that therefore the privilege should not apply. The privilege seeks to protect marital harmony because of the benefits that society acknowledges in the marriage relationship. These benefits are obliterated when spouses join forces as partners in crime; indeed, the spouses' criminal activity is nothing less than a direct attack upon society. Although the personal interests of spouses engaged in joint criminal activity undoubtedly would be furthered by upholding an assertion of the privilege with respect to testimony about their crimes, society itself would be ill-served by that result. Moreover, the availability of the privilege in these circumstances would give criminals an incentive to recruit their spouses to serve as accomplices in criminal activities, thereby undermining the very relationship that the privilege seeks to protect. 1. Courts recognize testimonial privileges because "'permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.'" Trammel, 445 U.S. at 50 (emphasis added), quoting Elkins v. United States, 364 U.S. 206, 234 (1960) (Frankfurter, J., dissenting); see also page 10, supra. For example, the attorney-client privilege protects confidential communications between client and attorney in order to promote the attorney-client relationship. The privilege rests upon the principle that "sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client." Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); see also Fisher v. United States, 425 U.S. 391, 403 (1976). Since the privilege is designed to maintain the confidentiality of attorney-client communications, it at first might seem appropriate to construe the privilege to bar the disclosure of all of these communications. Such a rule undoubtedly would provide the greatest possible impetus to the free exchange of information because clients could be certain that their confidences would be respected. It is settled, however, that the privilege does not apply to all confidential communications. If the privileged relationship has been abused so that, in a particular type of circumstance, the assertion of the privilege will not promote the "public good" the privilege is intended to advance, the privilege does not apply. Cf. Fisher v. United States, 425 U.S. at 403 (attorney-client privilege "applies only where necessary to achieve its purpose"); 8 J. Wigmore, Evidence Section 2192, at 73 (McNaughton rev. 1961) (privileges should be "recognized only within the narrowest limits required by principle"). Thus, the attorney-client privilege cannot be asserted by a client "who consults an attorney for advice that will serve him in the commission of a fraud." Clark v. United States, 289 U.S. 1, 15 (1933); see also United States v. Horvath, 731 F.2d 557, 562 (8th Cir. 1984); United States v. Dyer, 722 F.2d 174, 177 (5th Cir. 1983); In re Special September 1978 Grand Jury (II), 640 F.2d 49, 59 (7th Cir. 1980); United States v. Mardian, 546 F.2d 973, 982 (D.C. Cir. 1976) (en banc). The purpose of the privilege is to encourage clients to consult with attorneys when legal counsel would serve a legitimate purpose; society has no interest in allowing criminals to obtain advice to aid them in the commission of future crimes. Since society derives no benefit from such consultations, and would be harmed if legal assistance were available to help shield those planning crimes from detection, communications regarding future illegal acts are not protected from disclosure. See In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032, 1038 (2d Cir. 1984); United States v. Dyer, 722 F.2d at 177; 8 Wigmore, supra, Section 2298, at 573. /12/ The general principles that govern the scope of the attorney-client privilege also apply in construing the privilege against adverse spousal testimony. This privilege resembles other testimonial privileges in that its purpose is related to a "public good"; Trammel itself refers to the "public interest in marital harmony" (445 U.S. at 53 (emphasis added(). Society seeks to protect marital harmony -- and thereby protect marriages -- because marriage is an institution the value of which is acknowledged by society. Marriage is the foundation of the family, and "(i)t is through the family that we inculcate and pass down many of our most cherished values, moral and cultural." Moore v. City of East Cleveland, 431 U.S. 494, 503-504 (1977) (plurality opinion; footnote omitted). A marriage places husband and wife in a stable, supportive relationship that encourages productive behavior and discourages antisocial conduct. As the Seventh Circuit has observed, "marriage * * * may conceivably be an important institution contributing to the rehabilitation of the defendant spouse." United States v. Van Drunen, 501 F.2d 1393, 1397 (7th Cir.), cert. denied, 419 U.S. 1091 (1974). The privilege thus seeks to "foster family peace, not only for the benefit of husband, wife, and children, but for the benefit of the public as well." Hawkins v. United States, 358 U.S. 74, 77 (1958) (emphasis added). As is the case with other testimonial privileges, the construction of the privilege against adverse spousal testimony should be guided by the public policy underlying the privilege. This Court accordingly has declined to recognize the privilege to protect conduct that is inconsistent with the values society acknowledges in the marriage relationship. In Wyatt v. United States, 362 U.S. 525 (1960), the husband was prosecuted for violating the Mann Act by transporting his wife for purposes of prostitution. The Court held that the wife could be compelled to testify against her husband because the privilege against adverse spousal testimony does not bar testimony about offenses committed by one spouse against the other. 362 U.S. at 526; see also Trammel, 445 U.S. at 46 n.7 (noting that this exception also has been applied to crimes against a spouse's property and crimes against the spouses' children). When spouses join together to commit unlawful acts against third parties or against society, they act in a manner that is totally inconsistent with the values society acknowledges in the institution of marriage, and the testimonial privilege accordingly should not apply. These spouses use their marriage as a base for attacking society through criminal activity, rather than as a refuge in which to nurture the values treasured by society. See United States v. Trammel, 583 F.2d 1166, 1170 (10th Cir. 1978), aff'd, 445 U.S. 40 (1980) ("(t)here (is) no domestic harmony in the commonly accepted nature of a marital relationship to be preserved following commencement of * * * criminal activities"). The relationship is no more beneficial to society than any other criminal conspiracy. In addition, the possibility that the marriage will have a rehabilitative effect is diminished if both spouses participated in the crime. United States v. Clark, 712 F.2d at 301; cf. Callanan v. United States, 364 U.S. 587, 593 (1961 (partnership in crime "decreases the probability that the individuals involved will depart from their path of criminality"). Finally, the spouses' conduct is harmful to one another in that each aids and encourages the other in commission of an illegal act. /13/ Since joint criminal activity by spouses is directly contrary to the societal values the privilege acknowledges, and harms both society and the spouses themselves, "reason and experience" (Fed. R. Evid. 501) tell us that the privilege should not be applied as the court of appeals has applied it here. The loss of probative evidence from the truth-seeking process would not be sufficiently offset by any corresponding benefit to society in this context; society plainly does not benefit by aiding a relationship that, in the present case, was the basis of an attempt to subvert society itself. Spouses who engage in joint criminal activity accordingly should be held to give up any right to assert the privilege to shield testimony about their conduct. It should be noted that the exception for which we contend is limited in scope. We do not assert that spouses lose all of the protection of the privilege when they jointly commit crimes; adverse spousal testimony may be compelled only with respect to the joint criminal acitivity. We submit that this interpretation of the privilege properly accommodates the societal interests that are the basis for the privilege with the interest in detection of wrongdoing and accurate trial outcomes. /14/ 2. A joint participant exception to the privilege against adverse spousal testimony is warranted for the additional reason that allowing a witness-spouse to withhold testimony about joint crimes actually gives criminals an incentive to recruit their spouses as accomplices in unlawful ventures. The Seventh Circuit has observed that the "goal (of preserving the family) does not justify assuring a criminal that he can enlist the aid of his spouse in a criminal enterprise without fear that by recruiting an accomplice or coconspirator he is creating another potential witness." United States v. Van Drunen, 501 F.2d at 1396; see also United States v. Clark, 712 F.2d at 301-302. This Court expressed a similar view in Trammel, noting that the privilege against adverse spousal testimony had been criticized on the ground that it "'secures, to every man, one safe and unquestionable and ever ready accomplice for every imaginable crime'" (445 U.S. at 52, quoting 5 J. Bentham, Rationale of Judicial Evidence 338 (1827)). One looking for assistance in carrying out a criminal scheme naturally will choose as an accomplice an individual who is considered to be unlikely to cooperate with law enforcement authorities. United States v. White, 401 U.S. 745, 752 (1971) (plurality opinion). If the privilege against adverse spousal testimony is absolute, an accomplice-spouse has the option of deciding whether or not to testify; the government could require any other accomplice to testify pursuant to a grant of immunity. A spouse thus has a clear advantage as a potential partner in crime, which this case in fact demonstrates. If respondent's husband had selected any accomplice other than his wife, the government could have compelled the accomplice to testify before the grand jury; because respondent was aided by his wife, she has been able to hamper the government's investigation. The privilege accordingly encourages the abuse of the very relationship that it is designed to protect. B. The Court Of Appeals Erred Because It Misinterpreted The Principle Underlying The Privilege Against Adverse Spousal Testimony The court of appeals' decision upholding respondent's assertion of the privilege against adverse spousal testimony rests on its different view of the principle underlying the privilege. The court asserted that the privilege reflects an interest in preserving all marriages and that the privilege therefore should apply as long as the spouses' relationship remains viable; the fact that the marriage shelters a criminal relationship was deemed completely irrelevant. Thus, the court of appeals justified its refusal to recognize a joint participant exception to the privilege by stating that it was "unable to accept the proposition that a marriage cannot be a devoted one simply because at some time the partners have decided to engage in a criminal activity" (Pet. App. 11a). /15/ There are two basic flaws in this argument. First, even if the privilege does rest on a general interest in protecting marriages from outside pressure, the force of this consideration is materially different in the ordinary case from what it is in the case of joint criminal ventures. If respondent were an innocent witness-spouse called to testify against her husband, she would be placed in a dilemma not of her making. She would have had nothing to do with the decision to engage in criminal activity, but her marriage could be adversely affected if she were forced to testify against her husband. Because respondent and her husband jointly engaged in criminal activity, however, the permissibility of compelling her testimony is a result of the spouses' joint decision to engage in criminal activity. Since any threat to marital harmony is not the result of unilateral action by one spouse, but is essentially self-imposed, the basis of the privilege is largely undermined. Second, the general societal interest in the preservation of marriage postulated by the court below is not by itself sufficient to require recognition of the privilege regardless of other applicable considerations. When the privilege is invoked by an innocent witness-spouse, application of the privilege is supported by both the more focused interest in marriages which fulfill the socially beneficial role discussed above and the general interest in the preservation of all viable marriages relied upon by the court of appeals. These interests diverge in the present context, and it is our submission that a general interest in the preservation of marriage -- divorced from the values that society seeks to promote through the marital relationship -- is simply insufficient to outweigh the cost in terms of the impediments to the detection of crime and the loss of probative evidence from the truth-seeking process. Cf. United States v. Nixon, 418 U.S. at 709 (Court observed that testimonial privileges are not lightly created but should protect only "weighty and legitimate * * * interests" and refused to recognize absolute executive privilege); Branzburg v. Hayes, 408 U.S. at 688-708 (declining to recognize journalist's privilege ground in the First Amendment. /16/ This conclusion is supported by the unanimous view, among the courts of appeals that have addressed the issue, that the marital communications privilege does not shield confidential communications between a husband and wife in furtherance of the spouses' joint criminal activity. /17/ The communications privilege has the same basic purpose as the testimonial privilege -- the protection of the marital relationship. See Wolfle v. United States, 291 U.S. 7, 14 (1934); 8 Wigmore, supra, Section 2332, at 642. It serves this purpose by encouraging spouses to feel secure in the privacy of revelations to one another regarding their feelings and experiences. Because communications regarding spouses' joint crimes have nothing to do with the interests promoted by the marital communications privilege, they are excluded from its protection. See United States v. Byrd, 750 F.2d 585, 594 (7th Cir. 1984); United States v. Mendoza, 574 F.2d 1373, 1380-1381 (5th Cir.), cert. denied, 439 U.S. 988 (1978); United States v. Kahn, 471 F.2d 191, 194 (7th Cir. 1972), cert. denied, 411 U.S. 986 (1973), rev'd on other grounds, 415 U.S. 143 (1974); see also Note, The Future Crime or Tort Exception to Communications Privileges, 77 Harv. L. Rev. 730, 734 (1964) ("conduct sought by one spouse that is unambiguously illegal would seem outside the area of desired husband-wife intimacy, so that the admission of related communications would be unlikely to hinder favored discussion"). These decisions establish that even when the purpose of a privilege is to protect marital harmony, the privilege must be construed by reference to society's general interests. In view of the courts' conclusion that communications regarding joint crimes are not protected because they are antithetical to society's concept of the marital relationship, the spousal testimonial privilege -- which also seeks to promote the marital relationship -- should similarly be limited by reference to these societal values. /18/ In addition, the court of appeals' reference to a general interest in the harmony of all marriages resembles the arguments advanced in support of a "family" privilege protecting the parent-child relationship and other family relationships. The courts of appeals uniformly have rejected these claims, finding insuffient justification for the creation of such a privilege despite the obvious importance and substantiality of the relationships in question. See, e.g., United States v. Davies, No. 84-1239 (7th Cir. July 25, 1985); In re Grand Jury Subpoena of Santarelli, 740 F.2d 816 (11th Cir. 1984); In re Matthews, 714 F.2d 223 (2d Cir. 1983); United States v. Jones, 683 F.2d 817 (4th Cir. 1982). /19/ We do not dispute the court of appeals' proposition that a marriage can be a "devoted" one even if it is between partners in crime. The question is whether reason and experience suggest that the goal of encouraging that marital devotion is sufficiently worthy in the circumstances of cases like this one to require recognition of the privilege. In answering this question for the federal courts, it is noteworthy that the recognition of any privilege against adverse spousal testimony has been "sharply criticized" (Trammel, 445 U.S. at 44-45, 48-50 (footnote omitted)). Distinguished commentators on the law of evidence has characterized the privilege as an "anachronism" (8 Wigmore, supra, Section 2228, at 221) and an "archaic survival" (E. Cleary, McCormick on Evidence Section 66, at 162-163 (3d ed. 1984)). In addition, the privilege has been abolished in several model codes of evidence. Unif. R. Evid. 23(2); Model Code of Evidence Rule 215 (1942). Finally, as this Court observed in Trammel, recognition of the privilege in state law has eroded (445 U.S. at 48-49 & n.9), and this trend has continued in the years since Trammel was decided. See Iowa Code Ann. Section 622.7 (West Supp. 1985) (repealed); State v. Freeman, 302 N.C. 591, 273 S.E.2d 450 (1981). /20/ The Court decided in Trammel not to implement this widely-held view that the privilege is not needed to preserve the marriage relationship, adopting instead an intermediate position that retained the privilege only where it was most likely to serve its goals at an acceptable cost. We ask for nothing more in the present context. /21/ C. The Government's Interest In Obtaining Spousal Testimony Is Greater When The Testimony Relates To The Spouses' Joint Criminal Activity The second element considered in the balancing test established in Trammel -- society's "need for probative evidence in the administration of criminal justice" (445 U.S. at 51) -- also weighs against the application of the privilege in these circumstances. We acknowledge that the decision to recognize the marital testimonial privilege at all entails a willingness to accept some cost of losing valuable evidence in criminal proceedings. But the costs are significantly greater when the witness-spouse is a participant in the crime under investigation because of the increased likelihood that the privilege will operate to benefit not simply the defendant-spouse, but also third parties who join with the spouses to commit unlawful acts. When the witness-spouse participates in the crime, it is quite likely that he or she will meet the other conspirators and have knowledge of the workings of the illicit venture, and therefore be in a position to testify against third parties. /22/ However, if both the nontestifying spouse and the other conspirators are targets of the same grand jury or are tried together, the assertion of the privilege against adverse spousal testimony will have the effect of protecting the third-party conspirators as well as the nontestifying spouse, even though the privilege was never intended to cast its protective net so broadly. Arguably, the government could avoid this result by investigating the nontestifying spouse through a separate grand jury and prosecuting the spouse at a separate trial, but these measures are far from satisfactory. Severence burdens the resources of the criminal justice system and increases the risk of inaccurate verdicts by depriving a single jury of the opportunity to assess blame. Moreover, there is a distinct possibility that such inconvenient measures also would be held inadequate because of the risk that derivative use of the testimony will somehow be made against the protected spouse. /23/ If the scope of protection afforded by the marital privilege resembles that given the constitutional privilege against compelled self-incrimination, the government may be disabled from securing the testimony of a married person against third parties unless it is prepared to grant immunity covering any use of the witness's testimony -- indirect as well as direct -- against the witness's spouse. See Kastigar v. United States, 406 U.S. 441, 459-461 (1972). Because as a practical matter use immunity often renders subsequent prosecution infeasible, recognition of the privilege may preclude or seriously inhibit effective prosecution of a third-party conspirator, the nontestifying spouse, or both. The most sensible solution to these difficulties is to recognize a joint participant exception to the privilege, which will cover many of the cases in which the witness-spouse is most likely to be able to use the privilege to shield third-parties. Moreover, regardless of whether the conspiracy includes third parties or is limited to the spouses themselves, the privilege's adverse effect on the government's ability to apprehend wrongdoers is especially damaging because as this Court has recognized (Callanan v. United States, 364 U.S. at 593-594), conspiratorial activity poses an increased threat to society: Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. The present case illustrates these observations. The criminal partnership between respondent and her husband was directed toward the crime of espionage, a grave offense threatening the very security of our nation. Moreover, espionage by its nature is a difficult offense to investigate. Participants in the crime often are beyond the reach of law enforcement because they are located in foreign countries or entitled to rely upon diplomatic immunity. Permitting respondent to invoke the privilege therefore is likely to impede substantially the government's vital law enforcement efforts in this area. /24/ CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. CHARLES FRIED Solicitor General STEPHEN S. TROTT Assistant Attorney General ANDREW L. FREY Deputy Solicitor General ANDREW J. PINCUS Assistant to the Solicitor General BRUCE A. GREEN Attorney NOVEMBER 1985 /1/ The questions were (Pet. App. 2a n.1): Q. Mrs. Koecher, did you ever deliver classified information relating to the national defense of the United States to the Czechoslovakian Intelligence Service? Q. Mrs. Koecher, have you ever received money from agents of the Czechoslovakian Intelligence Service as payment for information and documents that you delivered to them? Q. Mrs. Koecher, have you ever met with agents of the Czechoslovakian Intelligence Service? /2/ Respondent also cited the privilege against disclosure of confidential marital communications, but she subsequently acknowledged that the question did not require the disclosure of such confidential communications (see Pet. App. 57a-58a). Respondent has not invoked her Fifth Amendment privilege against compelled self-incrimination. Were she to invoke that privilege, the government would, of course, have the option of seeking an immunity order in order to gain respondent's testimony. See 18 U.S.C. 6002, 6003. /3/ The court issued an oral ruling on that date (Pet. App. 56a-60a) and more fully explained the reasons for its decision in a written opinion issued one week later (id. at 40a-55a). /4/ 28 U.S.C. 1826(a) provides that "(w)henever a witness in any proceeding before * * * (a) grand jury of the United States refuses without just cause shown to comply with an order of the court to testify * * *, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony * * *." The period of confinement must end with the expiration of the term of the grand jury and cannot exceed 18 months (ibid.). /5/ On remand, respondent raised for the first time the claim that the government had failed to show that she and her husband were joint participants in the espionage activities. The district court held that this argument was not open on remand (Pet. App. 37a). The court also observed that the indictment "appears to answer the argument" because it "avers that one of the overt acts was committed by (respondent), thus evidencing probable cause to believe that she was a co-conspirator" (ibid.). The court noted that the affidavit in support of the material witness warrant "shows probable cause that (respondent) participated in a joint criminal enterprise" (id. at 38a). /6/ The term of the grand jury that subpoenaed respondent expired on September 15, 1985, but that event did not render the present case moot. If we prevail before this Court, we will seek to question respondent before a new grand jury. Accordingly, a live controversy exists between the parties, the formal elements of which are virtually certain to recur. See Gannett Co. v. Depasquale, 443 U.S. 368, 377-378 (1979). /7/ The testimonial privileges available to witnesses in federal criminal proceedings are not fixed by statute or rule; the federal courts define rules of testimonial privilege on a case-by-case basis in accordance with "the principles of the common law as they may be interpreted * * * in the light of reason and experience." Fed. R. Evid. 501; see also Trammel v. United States, 445 U.S. at 47. /8/ Trammel, 445 U.S. at 51; see also id. at 45 & n.5; Blau v. United States, 340 U.S. 332 (1951); Wolfle v. United States, 291 U.S. 7 (1934). /9/ Trammel, 445 U.S. at 53; see generally id. at 43-53; 8 J. Wigmore, Evidence Sections 2227-2245 (McNaughton rev. 1961). /10/ Compelling a witness to testify against a spouse is considered to place a strain upon the marital relationship. Professor Wigmore rejected this basis for the privilege, observing that "(w)hen one thinks of the multifold circumstances of life that contribute to cause marital dissension, the liability to give unfavorable testimony appears as only a casual and minor one, not to be exaggerated into a foundation for so important a rule." 8 Wigmore, supra, Section 2228, at 216; see also Hawkins v. United States, 358 U.S. 74, 77 (1958) ("it seems probable that much more bitterness would be engendered by voluntary testimony than by that which is compelled"); id. at 81-82 & n.4 (Stewart, J., concurring) (questioning assumptions underlying privilege). /11/ The court of appeals stated that this Court's decision in Trammel "has some negative implications as regards the joint participant exception," apparently because this Court chose to decide that case on a different ground without expressly reserving the question of the existence of a joint participant exception (Pet. App. 10a). We argued in Trammel (78-5705 U.S. Br. at 25-29) that the court of appeals in that case correctly recognized a joint participant exception to the privilege, but the broader principle adopted by the Court was our preferred argument (id. at 16-25). Since the Court did not address the former issue in Trammel, and resolution of that issue was not necessary to the Court's decision, there simply is no basis for the court of appeals' speculation that Trammel sub silentio rejected a joint participant exception. See United States v. Clark, 712 F.2d 299, 301 n.1 (7th Cir. 1983). Respondent claims (Br. in Opp. 16-17) that Trammel settled this issue because the Court in that case balanced the relevant considerations and did not eliminate the privilege. Although the application of the privilege in a particular case does not depend upon an entirely ad hoc balancing of interests, it surely is appropriate for this Court to examine the relevant considerations with respect to identifiable classes of cases. For example, the Trammel Court observed that there is an exception to the privilege "for cases in which one spouse commits a crime against the other" (445 U.S. at 46 n.7). In our view, examination of the relevant factors demonstrates that an exception also is warranted when spouses act as partners in crime. /12/ The same approach is reflected in this Court's analysis of the privilege against disclosure of jurors' deliberations. That privilege seeks to further the "public policy" that "(f)reedom of debate might be stifled and independence of thought checked if jurors were made to fee that their arguments and ballots were to be freely published to the world." Clark v. United States, 289 U.S. 1, 13 (1933). In Clark, a juror was held in criminal contempt for intentionally giving false responses to questions during voir dire. This Court held that the privilege did not bar testimony concerning the juror's conduct and statements during the deliberations, in aid of the inquiry whether the juror had lied. Id. at 13-16. The Court found that the policy in favor of protecting jurors' independent judgment would not be furthered by barring such testimony and that the need to maintain the jury as "pure and undefiled" weighed in favor of creating an exception to the privilege. Id. at 16. /13/ Respondent herself acknowledges (Br. in Opp. 18) that "when spouses act as partners in crime, their behavior is antithetical to society's values." /14/ The court of appeals stated that it was reluctant to establish a joint participant exception because of "the difficulty often encountered in establishing the predicate without invading the privilege." Pet. App. 13a-14a (footnote omitted). But courts have not encountered unmanageable difficulties in connection with the joint participant exception to the attorney-client privilege and the marital communications privilege, and there is no reason to believe that a different result would obtain here. For the exception to apply, the government would be required to make a prima facie showing, based upon independent evidence, that the spouses jointly participated in the criminal activity that is the subject of the testimony. Cf. Clark v. United States, 289 U.S. at 15. The privilege could not be overcome until after the government established this predicate. For example, the government's offer of proof with respect to this issue in the present case, which was not contested by respondent in the initial district court proceedings, rested upon statements made to FBI agents by both respondent and her husband that established the spouses' joint participation in the espionage activities. See Nov. 29, 1984 Tr. 6 (sealed); Dec. 4, 1984 Tr. 19; see also pages 2-3, supra. The out-of-court statements of respondent's husband are admissible to establish the factual basis for the joint participant exception. See Fed. R. Evid. 104(a) (hearsay rules do not apply to "(p)reliminary questions concerning * * * the existence of a privilege"). Moreover, had respondent contested this issue, the government would have produced additional evidence concerning respondent's participation in the offense. /15/ The court of appeals suggested that the privilege is supported by the "'natural repugnance in every fair-minded person to compelling a wife or husband to be the means of the other's condemnation and * * * (subjecting the defendant) to the humiliation of being condemned by the words of his intimate life partner'" (Pet. App. 14a, quoting 8 Wigmore, supra, Section 2228, at 217 (emphasis in original)), and respondent also refers to this concept (Br. in Opp. 13, 15). To the extent this statement has any substantive content at all, it appears to be simply a restatement of the claim that the purpose of the privilege is to promote spouses' happiness in their marriages. First, Professor Wigmore, the source of the court of appeals' description of this "interest," correctly characterizes it as "not more than a sentiment" that "does not posit any direct and practical (evil) consequence." He views "repugnance" as an insufficient justification for a testimonial privilege. 8 Wigmore, supra, Section 2228, at 217. Second, this Court in Trammel did not identify any such "natural repugnance" as the basis for the privilege; indeed, the holding that the privilege does not bar voluntary spousal testimony is an implicit rejection of the view that the defendant should not be "humiliat(ed)" by the adverse testimony of a spouse. Third, the widespread criticism that has been directed against the spousal testimonial privilege (see pages 25-26, infra) undercuts any argument that society at large views such testimony as naturally "repugnant". Finally, whatever the correctness of this view when the testifying spouse is an innocent bystander, it surely describes no universal sentiment with respect to the prospect that one spouse may be required to testify against the other concerning a crime in which both spouses jointly participated. At that point, "fair-minded person(s)" are likely to view the spouses as criminal conspirators who abused their marriage, not as an unfortunate husband and wife who should be encouraged to shelter one another. /16/ Respondent intimates (Br. in Opp. 11) that her interpretation of the privilege is justified by "the constitutional status of the marital relationship as a basic human right." However, this Court's decisions recognizing a right to be free of government intrusion when making decisions on intimate matters (see, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965)) have no application in construing a general privilege relating to nonconfidential evidence about criminal activities. Similarly, respondent cannot argue that the failure to recognize the privilege in this context constitutes impermissible interference with the right to marry. Compare Zablocki v. Redhail, 434 U.S. 374 (1978) (statute restricting right to marry held violative of Equal Protection Clause); Loving v. Virginia, 388 U.S. 1 (1967) (same). In Califano v. Jobst, 434 U.S. 47 (1977), the Court upheld a provision of the Social Security Act that tied certain benefits to marital status. The Court found that Congress's rational choice concerning the availability of benefits was "not rendered invalid simply because some persons who might otherwise have married were deterred by the rule or because some who did marry were burdened thereby." Id. at 54 (footnote omitted). For the same reasons, the Constitution cannot be violated by the recognition of an exception to a testimonial privilege in order to further or to discourage subversion of the relevant societal values. /17/ See United States v. Sims, 755 F.2d 1239 (6th Cir. 1985), cert. denied, No. 84-6631 (July 1, 1985); United States v. Broome, 732 F.2d 363, 365 (4th Cir. 1984), cert. denied, No. 84-118 (Oct. 1, 1984); United States v. Ammar, 714 F.2d 238, 258 (3d Cir.), cert. denied, 464 U.S. 936 (1983); United States v. Entrekin, 624 F.2d 597, 598 (5th Cir. 1980), cert. denied, 451 U.S. 971 (1981); United States v. Price, 577 F.2d 1356, 1364-1365 (9th Cir. 1978), cert. denied, 439 U.S. 1068 (1979); United States v. Kahn, 471 F.2d 191, 194-195 (7th Cir. 1972), cert. denied, 411 U.S. 986 (1973), rev'd on other grounds, 415 U.S. 143 (1974). /18/ The court below rejected this analogy on the ground that the two privileges are supported by different rationales (Pet. App. 12a-13a), but the distinctions between the privileges are not relevant to the present issue. The privileges do have different functions -- one protects confidential communications and the other permits spouses to withhold incriminating evidence -- but both are intended to serve the same purpose: the protection of the marital relationship so that society can gain the benefits of that relationship. Since that goal does not require the protection of spouses' confidential communications regarding their joint criminal activities, it should not require the application of the testimonial privilege to permit a witness to refuse to testify about such joint crimes. /19/ As originally proposed by this Court in connection with the attempt, abandoned by Congress, to establish detailed rules governing privileges, Rule 505(c)(2) of the Federal Rules of Evidence would have provided that the privilege against adverse spousal testimony did not apply to "matters occurring prior to the marriage." See 56 F.R.D. 183, 244-245 (1972). The Advisory Committee concluded that this exception was justified because it "eliminate(d) the possibility of suppressing testimony by marrying the witness." Id. at 246; see also United States v. Clark, 712 F.2d at 302; United States v. Van Drunen, 501 F.2d at 1397; but see Wyatt v. United States, supra (defendant married witness after the commission of the offense, Court held privilege inapplicable on another ground without discussing an exception to the privilege for pre-marriage facts); United States v. Apodaca, 522 F.2d 568, 570 (10th Cir. 1975) (implicitly rejecting argument that privilege does not apply to pre-marriage facts). This exception to the privilege would, of course, have been wholly inconsistent with the court of appeals' rationale here that the privilege is, in effect, wholly forward-looking and must be made available whenever it might operate to assist the future harmony of a viable marriage. For the same reasons that the drafters of the Rules of Evidence did not find that interest paramount in the context of post-offense marriages, it is insufficient to justify the rule propounded by the court of appeals here. /20/ We have not located any state court decisions addressing a joint participant exception to the privilege against adverse spousal testimony. /21/ The conclusion that the privilege should not be recognized in these circumstances does not mean that these marriages are in some way improper or that they should not survive. It simply embodies the conclusion that joint criminal behavior by spouses is so antithetical to our concept of marriage that society should not bear the cost of protecting these spouses from the consequences of that joint behavior. /22/ Of course, even a witness-spouse who is not a member of a conspiracy may be able to provide evidence against other conspirators; plainly, however, a member of a conspiracy will far more frequently possess information about the conspiracy than will a stranger to it. /23/ The lengths to which the witness-spouse may go in asserting the privilege are illustrated by the decision in In re Grand Jury Matter, 673 F.2d 688 (3d Cir.), cert. denied, 459 U.S. 1015 (1982). The court held in that case that the witness could invoke the privilege to withhold testimony from a grand jury even though the government had made a commitment that the witness's husband would not be indicted by the grand jury that heard her testimony. The court found that the privilege applied because witness-spouse might implicate a third party who might then implicate the witness's husband. The effect of barring the wife's testimony was to protect all of the members of the conspiracy. /24/ Respondent asserts (Br. in Opp. 18-20) that the interest in obtaining probative evidence does not weigh against the recognition of the privilege in this context because even if the privilege is not available spouses will refuse to testify against one another. That could of course also be said of parent and child, lovers, or even in some circumstances close friends or business associates. However, the civil contempt remedy is founded on the view that a period of imprisonment may change a prospective witness's willingness to testify. See generally Shillitani v. United States, 384 U.S. 364, 368-372 (1966). There is not reason that this principle should not apply here, especially in view of the fact that a substantial number of states do not recognize the privilege at all. Presumably spouses do sometimes bend to society's demand that they testify in proceedings in those jurisdictions, and they would decide to do so in federal proceedings as well.