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December 11, 1984


The opinion of the court was delivered by: PALMIERI


Hana Koecher is being detained as a material witness in a prosecution of her husband Karl F. Koecher for acts of foreign espionage in violation of Sections 794(a) and (c) of 18 United States Code entitled "Gathering or Delivering Defense Information to Aid Foreign Governemt."

 A criminal complaint filed against him on November 27, 1984 resulted in his arrest and incarceration without bail. No charges have been filed against Hana Koecher. She appeared before a grand jury sitting in this district as a subpoenaed witness on November 29, 1984. After being advised of her constitutional rights, Mrs. Koecher was asked a number of questions concerning her activities which were plainly material to the investigation of which her husband was the target. She steadfastly refused to answer any of the questions asserting, after consulting with counsel, her marital privileges against disclosure of confidential communications with her husband and the giving of testimony potentially adverse to the interests of her husband. *fn1"

 On November 30, 1984, the United States Attorney for this district moved this Court for an an order directing Mrs. Koecher to testify notwithstanding her claims of privilege. It was conceded by both sides at the hearing before this Court that the questions before the grand jury involved no confidential communications between husband and wife so that the sole issue here is whether Mrs. Koecher can validly assert her marital disqualification to testify with respect to her actions at a period of time when her husband was allegedly involved in espionage activity on behalf of the Czechoslovakian intelligence apparatus.

 The issue squarely presented is whether Hana Koecher can be compelled to give testimony potentially adverse to her husband despite her claimed disqualification. *fn2" At a hearing before this Court on December 4, 1984, this Court explained its grounds for holding that her claim of privilege was invalid. The basis for this decision was, essentially, that the testimonial disqualification sought by Mrs. Koecher 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. *fn3" In the face of reiterated refusal to answer the questions put to her before the grand jury, Mrs. Koecher was thereupon held to be in civil contempt of the Court in violation of 28 U.S.C. § 1826 and committed to jail for a period of 18 months or for the life of the grand jury or until such time as she decided to answer the questions, whichever period was shorter. She has remained committed since December 4, 1984.

 The discussion which follows is intended to explicate and amplify the oral ruling already referred to. The law regarding the privilege against adverse spousal testimony is unclear. Two Supreme Court decisions since 1958 have dealt with the privilege, but neither decision provides an unequivocal answer to the question facing this Court. The decisions in the Second Circuit similarly yield no clear guidance. The circuits that have addressed the privilege against adverse spousal testimony have reached differing conclusions. For this reason, a brief review of the relevant jurisprudence is necessary.

 I The Supreme Court Decisions

 The common law rule regarding the marital testimonial privilege has an ancient and fascinating lineage. The development of the privilege has been extensively discussed by the Supreme Court in Hawkins v. United States, 358 U.S. 74, 3 L. Ed. 2d 125, 79 S. Ct. 136 (1958), and Trammel v. United States, 445 U.S. 40, 63 L. Ed. 2d 186, 100 S. Ct. 906 (1980), and need not be treated in deail in this opinion.

 The Hawkins case involved the conviction of a husband for a Mann Act violation. His wife had testified voluntarily against him over his objection. The Supreme court reversed the conviction holding that the privilege against adverse spousal had been violated. In effect, the Hawkins decision permitted the accused to exclude all adverse spousal testimony. Over twenty years later, the Supreme Court again addressed the claim of spousal privilege in the Trammel case and modified the Hawkins rule. The Trammel case concerned a husband and wife who had been jointly engaged in the illegal importation of heroin. At the husband's trial, the wife -- an unindicted co-conspirator -- voluntarily testified against her spouse. The 10th Circuit Court of Appeals affirmed the defendant-spouse's conviction holding that where a husband and wife were joint participants in criminal activities and where the wife gave incriminating testimony at trial under a grant of immunity, the privilege against adverse spousal testimony does not bar the witness-wife's testimony. *fn4" 583 F.2d 1166 (10th Cir. 1978). The Supreme Court affirmed the conviction -- but on a different theory. The Court ignored the "joint participants" theory articulated by the circuit court, and instead limited its holding to vesting the right to assert the privilege solely in the witness-spouse. In reaching this conclusion, the Supreme Court stated that testimonial exclusionary rules and privileges "must be strictly construed and accepted "only to the very limited extent that 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 (quoting Elkins v. United States, 364 U.S. 206, 234, 4 L. Ed. 2d 1669, 80 S. Ct. 1437 (1960)(Frankfurter, J. dissenting). A careful reading of the Court's opinion reveals the "discomfort" with which the Court viewed the privilege. In re Grand Jury Matter, 673 F.2d 688, 697 (3rd Cir.), cert. denied, sub nom., United States v. Doe, 459 U.S. 1015, 74 L. Ed. 2d 509, 103 S. Ct. 375 (1982)(Adams, J. dissenting). The Court reviewed the sharp criticism directed towards the privilege against adverse spousal testimony (Trammel, 445 U.S. at 44-45) *fn5" and the steady erosion of the privilege both in state jurisdictions (Id. at 48-49, nn. 9-10) and in the federal courts (Id. at 46 n.7). It noted that Fed.R.Evid. 501,

 "acknowledges the authority of the federal courts to continue the evolutionary development of testimonial privileges in federal criminal trials governed by the principles of the common law as they may be interpreted in the light of reason and experience.. . . In rejecting the proposed [Rule 505] and enacting Rule 501, Congress manifested an affirmative intention not to freeze the law of privilege. "

 Id. at 47 (emphasis added). Acting on this intention, the 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."

 Id. at 51. While finding it unnecessary to abandon the rule completely, (See Respondent's Brief at 6 n.3), the Court concluded that the ...

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