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Brown v. State6/9/2000
spousal disqualification remained intact in most common-law jurisdictions well into the 19th century." Id. at 44, 100 S. Ct. at 909. The Supreme Court then stated:
Indeed, it was not until 1933, in Funk v. United States, 290 U.S. 371, 54 S. Ct. 212, 78 L. Ed. 369 [(1933)], that this Court abolished the testimonial disqualification in the federal courts, so as to permit the spouse of a defendant to testify in the defendant's behalf. Funk, however, left undisturbed the rule that either spouse could prevent the other from giving adverse testimony. The rule thus evolved into one of privilege rather than one of absolute disqualification. [Emphasis added].
The Court later commented:
It is essential to remember that the Hawkins[ ] privilege is not needed to protect information privately disclosed between husband and wife in the confidence of the marital relationship . . . . Those confidences are privileged under the independent rule protecting confidential marital communication. Id. at 50-51, 100 S. Ct. at 912-13 (citations omitted).
Trammel, although speaking of the abolishment of the "spousal disqualification," and defining it as a "privilege," really, in the end only modified, which spouse had the power to waive it. See id. at 53, 100 S. Ct. at 914.
Trammel led the way for some of the federal circuits to define "spousal incompetency" issues as "privileges." In a case involving allegations of drug smuggling, the United States Court of Appeals for the Fifth Circuit noted in United States v. Ramirez, 145 F.3d 345, 355 (5th Cir.), cert. denied, ___ U.S. ___, 119 S. Ct. 602, 142 L. Ed. 2d 543 (1998), that: "The marital privilege is divided into two distinct privileges by the federal courts. The first privilege bars a spouse from testifying adversely to the other. The second privilege bars a spouse from testifying as to the confidential marital communications of the other." See also United States v. Rakes, 136 F.3d 1, 3 n.2 (1st Cir. 1998); United States v. Bahe, 128 F.3d 1440, 1441-42 (10th Cir. 1997), cert. denied, 523 U.S. 1033, 118 S. Ct. 1327, 140 L. Ed. 2d 489 (1998).
Several state jurisdictions appear to utilize the same reasoning, terminology and definitions used in Trammel. See Holyfield v. State, 365 So. 2d 108, 110 (Ala. Crim. App. 1978) ( "At common law the spouse of a party . . . was incompetent to testify for or against his or her mate. The majority of jurisdictions . . . however, have altered this rule and have made a spouse a competent witness . . . . Nonetheless, he or she still has the privilege not to testify if he or she so elects."); State v. Peters, 213 Ga. App. 352, 354-55, 444 S.E.2d 609, 611 (1994) ("Under Acts 1866, . . . which essentially incorporated the common-law rule, spouses were neither competent nor compellable to testify. . . . Finally subsection (b) was added in 1987, providing that the privilege shall not apply where the husband or wife is charged with a crime against . . . a minor child." (emphasis added)); see also Pirkle v. State, 234 Ga. App. 23, 23-24, 506 S.E.2d 186, 187-88 (1998). Although Texas considers both "spousal incompetency" and confidential marital communications to be questions of privilege, it still maintains the distinction between the two. Cf. Poole v. State, 910 S.W.2d 93, 95 n.6 (Tex. App. 1995) ( "TEX. R. CRIM. EVID. 504(2) merely protects an accused's spouse from being called as a witness for the State."); Tejeda v. State, 905 S.W.2d 313, 316 (Tex. App. 1995, pet. ref'd) ( "The spouse of an accused has a privilege not to be called as a witness for the State . . . .").
Although clearly speaking of what under the common law was referred to as "spousal incompetency," Arizona has
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