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 Reply Brief for the United States 1. Respondent's argument against recognition of a joint participant exception to the marital testimonial privilege rests to a significant extent upon several basic misconceptions concerning the source of the privilege and the interest it is designed to protect. Ignoring this Court's conclusion in Trammel v. United States, 445 U.S. 40 (1980), that the roots of the privilege are in "medieval jurisprudence" (id. at 44) and that the privilege should be construed in a manner that "furthers the important public interest in marital harmony without unduly burdening legitimate law enforcement needs" (id. at 53 (emphasis added)), respondent attempts to develop an entirely new basis for the privilege that would prevent its modification to reflect the different balance of interests that may exist in various circumstances. Respondent's attempts to reconstruct and modify the bases for the privilege do not withstand scrutiny. a. Respondent first suggests that the privilege against adverse spousal testimony is grounded in the Constitution, and intimates that a joint participant exception to the privilege would be constitutionally impermissible. Thus, respondent states (Br. 14) that "(r)espect for and support of the institution of marriage is not only governmental policy, but a constitutional command" and (Br. 20) that "the marital unit is constitutionally protected against governmental disruption." She argues (Br. 19) that marriage is a "fundamental right that can only be restricted by the state under the most compelling necessity." Respondent's apparent contention that the marital testimonial privilege is compelled by the Constitution is entirely untenable. There is, of course, no mention of the marital testimonial privilege in the Constitution. In fact, the privilege "sprang from two canons of medieval jurisprudence," both of which are now outmoded: the rule that an accused could not testify in his own behalf, and the concept that husband and wife had no separate legal existence from one another. Trammel, 445 U.S. at 44. Rule 501 of the Federal Rules of Evidence provides that the privilege is "governed by the principles of the common law as they may be interpreted * * * in the light of reason and experience," a test that in no way implies that the privilege has a constitutional basis. Finally, contrary to respondent's assertion (Br. 24), this Court's comprehensive discussion of the privilege in Trammel does not even hint that the privilege is grounded in the Constitution. If the privilege had a constitutional basis, we doubt that fact would have escaped the Court's notice. Of course, if the privilege were compelled by the Constitution, the authority of the States to define the scope of the privilege would be limited, a result that is inconsistent with this Court's recognition in Trammel (445 U.S. at 48-49) that the States' construction of the privilege is relevant in defining the federal rule. Indeed, the 19 States that have abolished the marital testimonial privilege would be required to recognize the privilege if respondent's constitutional analysis were adopted by this Court. The decisions of this Court upon which respondent relies to justify her constitutional theory have nothing to do with the marital testimonial privilege. In those cases, the Court struck down statutes interfering with persons' right to marry or with their right to engage in intimate aspects of the marital relationship. Zablocki v. Redhail, 434 U.S. 374 (1978) (statute restricting right to marry); Loving v. Virginia, 388 U.S. 1 (1967) (same); Griswold v. Connecticut, 381 U.S. 479 (1965) (statute forbidding the use of contraceptives by married persons). The absence of a testimonial privilege does not restrict the right to marry or in any way interfere with the right of privacy in intimate marital relations that was the basis of the decision in Griswold, especially in view of the fact that a separate privilege bars the revelation of confidential marital communications. The testimonial privilege is a special benefit conferred by society upon married persons, exempting them in some circumstances from the general rule that "'"the public * * * has a right to every man's evidence"'" (Trammel, 445 U.S. at 50, quoting United States v. Bryan, 339 U.S. 323, 331 (1950)). Since the Constitution surely does not require that the government must insulate married persons from an obligation that applies to all members of society wherever that result would promote or protect the institution of marriage, there is no basis for respondent's attempt to import constitutional law into the construction of the marital privilege. Grand Jury Subpoena of Ford v. United States, 756 F.2d 249, 255 (2d Cir. 1985); United States v. Lefkowitz, 618 F.2d 1313, 1319 (9th Cir.), cert. denied, 449 U.S. 824 (1980); United States v. Doe, 478 F.2d 194, 195 (1st Cir. 1973). /1/ If the Court concludes that reason and experience favor recognition of a joint participant exception, we think it may confidently be said that nothing in the Constitution requires a different result. b. Respondent also bases her interpretation of the privilege on her view (Br. 16) that the privilege's "fundamental justification * * * is what Wigmore referred to as the 'natural repugnance' in 'every fairminded person' at the spectacle of requiring a person to cooperate in the prosecution" of that person's spouse. We demonstrated in our opening brief (at 20-21 n.15) that to the extent this theory is relevant in analyzing the scope of the privilege, it is nothing more than a restatement of the societal interest in marital harmony that this Court in Trammel held to provide the basis for the privilege. (The opinion in Trammel does not even mention the "natural repugnance" repeatedly invoked by respondent.) Society at large presumably would feel such a natural repugnance at the compelled testimony of one spouse against another because of its concern about the impact of the testimony on the harmony of the spouses' marriage. Indeed, this is the only way to square the "natural repugnance" rationale with the recognized contours of the privilege. For example, the privilege does not apply to testimony about crimes committed by one spouse against another or against their children (U.S. Br. 17); presumably there is no insurmountable "natural repugnance" in compelling the witness-spouse to testify in such circumstances because the particular marriage relationship does not conform to society's conception of what a marriage should be, and society therefore is less concerned about the effect upon the marriage of the spouse's testimony. /2/ c. Respondent also seeks to bolster the privilege by contending (Br. 21-22) that recent scholarly treatment of the privilege has been favorable, in contrast to the trend of unfavorable scholarly opinion cited by the Court in Trammel (445 U.S. at 44-45). However, the recent articles on which respondent relies clearly reveal the tremendous gap between the privilege constructed by respondent and the privilege recognized by this Court. For example, respondent cites a student article that describes the marital privilege as a legal rule that "maintain(s) male power by promoting the institution of marriage," thus "perpetuat(ing) male dominance over women." Note, Developments in the Law -- Privileged Communications, 98 Harv. L. Rev. 1450, 1586-1587 (1985) (footnote omitted). Rather than recommending abolition of the privilege, the students recommend extending it "beyond legally recognized marriages to a broader category of 'intimate relationships' that includes relationships between unmarried cohabitants, homosexual lovers, and 'intimate' friends" (id. at 1590). Similarly, in an audacious assault upon the concept of compulsory process, Professor Levinson suggests that the privilege should not be limited to married persons and that instead persons should be allowed to decide for themselves which of their associates are so close that the state should not be allowed to compel them to testify. Levinson, Testimonial Privileges and the Preferences of Friendship, 1984 Duke L.J. 631, 655. These articles obviously rest upon a conception of testimonial privileges radically different from the principles that guide this Court's decisions. Suffice it to say that this Court has long recognized society's "need for probative evidence in the administration of criminal justice" (Trammel, 445 U.S. at 51), and the suggestions contained in these recent articles give no weight at all to that fundamental value. Furthermore, respondent describes Professor Black's comments, on which she places great weight (see Br. 16, 34), in a misleading manner. Professor Black was discussing a proposal to eliminate the marital privilege altogether in civil proceedings, to which he objected on the ground that it could lead to the forced disclosure of any intimate fact "if it is thought barely relevant to the issues in anybody's lawsuit for breach of a contract to sell a carload of apples." The Marital and Physician Privileges -- A Reprint of a Letter to a Congressman, 1975 Duke L.J. 45, 48. Immediately following that statement, Professor Black wrote that "any decent person" would want to evade or disobey such a rule (ibid.). There is, of course, a world of difference between a contract dispute over apples and the theft and delivery of vital state secretes to an unfriendly foreign power, and Professor Black did not say, as respondent implies, that any decent person would refuse to testify against a spouse who had committed criminal acts. /3/ d. In sum, respondent has presented no legitimate new justification for the privilege, no evidence that the trend toward abolition of the privilege (see U.S. Br. 25-26) has abated, and, accordingly, no reason for this Court to define the privilege any differently than it did in Trammel. The appropriate inquiry therefore remains whether, in the particular proposed application at issue here, the privilege furthers society's interest in marital harmony without unduly burdening law enforcement needs. 2. Stripped of its meritless efforts to shift the basis for the privilege away from the rationale previously recognized by this Court, respondent's argument is that the situation at issue here -- in which the privilege is invoked to withhold testimony concerning spouses' activities as partners in crime -- is no different from that in which the privilege is asserted by an innocent witness-spouse. Respondent fails to support this position persuasively. a. In contending that co-conspirator spouses should enjoy the same privilege as innocent spouses, respondent essentially ignores two important facts that distinguish the two situations. First, the application of the privilege is fundamentally different here because the spouses have brought upon themselves the obligation to testify. Society's interest in promoting marital harmony is reduced by the spouses' own joint decision to overstep the rules of conduct established by society (see U.S. Br. 21). Second, when the matter is assessed from a perspective prior to the commission of the contemplated crime, it is the privilege, not our proposed joint participant exception, that is inimical to the institution of marriage. A criminal will have an incentive to recruit his or her spouse as a co-conspirator if the spouse will be able to assert the privilege. Although the criminal no longer has an absolute veto over the spouse's ability to testify after this Court's decision in Trammel, he or she still can gain a substantial benefit from a spouse's willingness to refrain from volunteering evidence, as this case demonstrates (see U.S. Br. 19-20). Without a joint participant exception, therefore, the privilege would encourage the recruitment of spouses as partners in crime. B. Moreover, the application of the privilege in this context confers an unjustified benefit upon spouses who have used their marriage as a base from which to injure society. As we discussed in our opening brief (at 16,22), marriage is an important institution from a societal as well as a personal perspective. Respondent recognizes (Br. 14) that marriage is important to society because it promotes the values that are necessary to society's existence. ("The family (is) * * * the basic building block of civilized society, and marriage (is) * * * the basis for the traditonal family.") In our view, it is this "public interest in marital harmony" that is relevant in determining whether a testimonial privilege should be recognized in a particular class of cases. Trammel, 445 U.S. at 53 (emphasis added). /4/ This interest obviously is reduced substantially when the marriage is used for criminal ends; even respondent acknowledges that "when a husband and wife commit a crime, their criminal behavior violates society's norms" (Br. 30). Since the spouses' joint activity thwarts rather than furthers society's goals, the privilege should not apply. Respondent contends (Br. 30) that the joint commission of a criminal act is not a sufficient justification for concluding that the privilege should not apply because other aspects of the spouses' marriage could sufficiently accord with society's values to support retention of the privilege. Whether that is so is the issue before the Court. But, contrary to respondent's repeated assertions (see, e.g., Br. 30, 31), it is not our contention that marriages in which the spouses are partners in crime are wholly "valueless" or are relationships that should be destroyed, nor need the Court come to any such conclusion in sustaining our contention. Our position is simply that such behavior is so incompatible with society's values and the interests underlying the testimonial privilege that the balance of competing interests tips against the availability of the privilege. In such circumstances, there is insufficient reason to "contravene the fundamental principle that "'"the public * * * has a right to every man's evidence"'" (Trammel, 445 U.S. at 50, quoting United States v. Bryan, 339 U.S. 323, 331 (1950)). /5/ Respondent also argues (Br. 30-32) that the privilege should apply because the witness's compelled testimony would be an "invasion( ) of marital privacy and intimacy" (Br. 31). /6/ We do not dispute that marriage is an extremely important personal relationship, but the question here is whether a privilege to withhold evidence from the truth seeking process should be available to spouses who jointly commit criminal acts. /7/ Respondent's arguments do not justify the application of the privilege in this context. First, a spouse's testimony would rarely if ever result in the invasion of marital privacy; the testimony would concern the spouses' criminal activities, not the intimate aspects of their marriage relationship. /8/ Second, the fact that marriages might be strengthened or protected if such testimony could be withheld is not the only relevant consideration in determining whether the privilege should apply where the spouses have used their marriage to attack society. The question instead is whether the spouses -- despite their patently antisocial behavior -- should retain a benefit conferred by society. In our view, the rejection of the privilege by a substantial number of States and commentators indicates that the balance of the relevant interests weighs only slightly in favor of permitting even an innocent witness-spouse to withhold probative evidence form the truth seeking process. The spouses' joint criminal activity tilts this already-close balance against recognizing the privilege. /9/ c. Respondent also contends that we exaggerate the benefits to be derived from the adoption of a joint participant exception to the privilege. She first asserts (Br. 36) that in the only reported case in which the government has attempted to apply the joint participant exception to compel the testimony of an unwilling witness, the spouse refused to testify and was held in contempt. This is a completely unreliable basis upon which to assess the usefulness of a joint participant exception. It may be that joint participant spouses in the Seventh and Tenth Circuits simply decide to obey orders to testify. Or it may be that any decisions are not reported, the relevant legal principles being already settled in those circuits. Moreover, the joint participant exception has not been established in those circuits for a subsstantial period of time. /10/ Respondent thus has presented no legitimate basis for challenging the general assumption that the penalties of contempt often encourage recalcitrant witnesses to testify (see U.S. Br. 29 n.24). Respondent also contends (Br. 37) that the joint participant exception is unlikely to result in probative evidence because the exception will be applied only in cases involving "marginal" participation by the spouse who is forced to testify. According to respondent, the government will not seek use immunity for witness-spouses who are more deeply involved in the offense. Again, the conclusion respondent draws simply does not follow. It is correct that the government will choose to immunize the less culpable spouse and prosecute the more culpable spouse in a particular situation, just as the government attempts to select the less culpable party whenever it decides to immunize a witness in any case involving multiple defendants. Experience shows that such less culpable parties often are able to provide a great deal of useful evidence. And, as we stated in our opening brief (at 26-27), a spouse who jointly participated in criminal activity is likely to have a great deal of useful information about third-party participants (much more so than a spouse who has not participated in the criminal activity). In this case, for example, respondent, although apparently involved in the espionage to a lesser extent than her husband, may still be able to provide useful information regarding the identities and roles of other foreign agents in this country. d. For these reasons, we submit that the privilege should not be available when a spouse's testimony is sought regarding joint criminal activity. We see little basis to fear that the recognition of a joint participant exception will lead to its application in a substantial number of cases or in cases in which the need for the spouse's evidence is insubstantial. Indeed, the government's policy against routinely compelling the testimony of family members would serve to preclude this result. If, however, the Court remains troubled by the possibility -- however unlikely -- that the exception could be applied indiscriminately and without regard to the existence of a real need for the spouse's evidence, that concern can be dealt with by requiring the government to establish that it has substantial need of the spouse's testimony and cannot obtain the same or equivalent probative evidence by other reasonably available means. Compare United States v. Nixon, 418 U.S. 683, 707-713 (1974); Hickman v. Taylor, 329 U.S. 495, 509, 511 (1947); Fed. R. Civ. P. 26(b)(3). Although we do not espouse this additional requirement or believe it to be necessary, it would assure that use of the exception is limited to cases in which the government's need for the evidence is substantial -- i.e., cases in which there is a demonstrably strong societal interest weighing against the recognition of the privilege. 3. a. Throughout her brief, respondent misstates the factual showing that is required as a predicate for the application of the joint participant exception to the privilege. She repeatedly refers to a "mere accusation" or allegations by the government that the spouses engaged in joint criminal conduct (see, e.g., Br. 29, 31). As respondent should be well aware, our position (U.S. Br. 18-19 n.14) is that the government must make a prima facie showing based upon independent evidence that the spouses jointly participated in criminal activity. Respondent argues (Br. 44) without citation that the government should be required to produce "clear and convincing first-hand evidence" in order to overcome the privilege. But prima facie evidence of criminal activity is all that has been required to overcome the analogous attorney-client privilege (In re Berkley & Co., 629 F.2d 548, 553 (8th Cir. 1980); see also Clark v. United States, 289 U.S. 1, 15 (1933)), and there is no reason why a different rule should be applicable here. As a practical matter, the only stronger showing that could be made -- which respondent apparently would require (Br. 42) -- is an actual conviction of the witness-spouse on a charge relating to the activity for which the defendant-spouse is accused or an admission of joint participation. Such a high standard, amounting to proof of joint participation beyond a reasonable doubt, is simply inappropriate for use in determining whether the predicate for withdrawal of a privilege has been established. b. Respondent also asserts (Br. 42-45) that the government has failed to show that she and her husband jointly participated in acts of espionage. Therefore, respondent argues, the court of appeals' decision should be affirmed even if the Court holds that the marital testimonial privilege does not apply in cases where spouses were partners in crime. There is no merit to this argument. Respondent did not contest the government's offer of proof regarding this issue at the initial district court hearing relating to her assertion of the privilege, /11/ and the government accordingly did not submit its full proof regarding the issue. Thus, respondent at most would be entitled to a remand directing the district court to hold a hearing to allow respondent to contest the government's proof. In any event, the evidence concerning respondent's participation in the offense was ample to support the application of the joint participant exception to the privilege. The government submitted an affidavit to the district court, based on Karel Koecher's statements to FBI agents, showing that respondent was present at several meetings between 1962 and 1983 with agents of the Czechoslovak Intelligence Service (CIS) at which she and her husband received instructions relating to their espionage activities, that she delivered documents to the CIS, and that she received payments from the CIS. The statements in that affidavit, while hearsay, are admissible with regard to whether the marital privilege should apply. See Fed. R. Evid. 104(a). Karel Koecher's statements supply extremely reliable evidence of his wife's participation with him in acts of espionage against the United States. /12/ For these reasons and the reasons stated in our opening brief, the judgment of the court of appeals should be reversed. Respectfully submitted. CHARLES FRIED Solicitor General JANUARY 1986 /1/ The courts of appeals also have rejected arguments like respondent's (see Br. 16, 33-34) that the privilege is analogous to the Fifth Amendment privilege against self-incrimination. See, e.g., In re Grand Jury Proceedings, 664 F.2d 423, 429-430 (5th Cir. 1981), cert. denied, 455 U.S. 1000 (1982). Despite respondent's protests to the contrary (Br. 16-17 n.14), that argument obviously is nothing more than a restatement of the anachronistic medieval concept that a husband and wife have no separate legal identity. /2/ There presumably is at least as much "natural repugnance" at compelling a child to testify against its parent, or vice versa, as there is in the case of married persons. But our legal system recognizes that this is at times an unfortunate necessity prompted by the compelling need for just and accurate trial outcomes -- a need found important enough to justify testimonial compulsion despite our "natural repugnance." /3/ Respondent also notes (Br. 23) that Great Britain recently amended its criminal evidence rules to provide that a spouse may choose to testify adversely to his or her spouse, the step that this Court took in Trammel. Respondent considers it significant that Great Britain did not go farther in limiting the marital privilege. We think that Great Britain's action merely illustrates the cautious approach, common to legislatures as well as courts, of implementing changes one step at a time. Respondent points to nothing suggesting that the British specifically considered and rejected the co-conspirator exception at issue here. /4/ The Court also stated 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 (emphasis added), quoting Elkins v. United States, 364 U.S. 206, 234 (1960) (Frankfurter, J., dissenting)). This emphasis on societal interests has long been recognized as proper in determining whether an evidentiary privilege should be recognized. See 8 J. Wigmore, Evidence Section 2285 (McNaughton rev. 1961). /5/ Respondent's statements characterizing our position apparently are based upon the observation in Hawkins v. United States, 358 U.S. 74, 78 (1958), that "(a)dverse testimony given in criminal proceedings would, we think, be likely to destroy almost any marriage." Of course, the Court in Trammel overruled Hawkins' holding that one spouse may not voluntarily testify against the other, and the analysis in Hawkins concerned the effect upon the marriage of voluntary adverse testimony (see 358 U.S. at 77-78). We submit that compelled adverse testimony -- where the witness-spouse must either testify or go to jail -- is much less likely to result in such drastic consequences to the marriage (see U.S. Br. 12 n.10). In any event, acknowledgment that the privilege serves to insulate a marriage from strain that might result from compelled testimony does not by any means lead to the conclusion that compelled testimony automatically would destroy a marriage. In addition, contrary to the implication of respondent's argument, it is not unusual for the availability of the testimonial privilege to turn on the character of the criminal activity at issue in a particular case. Thus, the application of the exception to the privilege for crimes committed against a spouse or a spouse's children (U.S. Br. 17) depends solely upon the nature of the offense under investigation. The same rule applies with respect to the exception sometimes recognized for events occurring prior to the marriage (U.S. Br. 24-25 n.19). /6/ In its characteristically overstated style, respondent's brief compares the government's actions in this case to those of the "totalitarian torturers of Orwell's 1984" (Br. 20-21). In this case, the government, following all standards of due process, called respondent before a grand jury and asked her whether she had ever met with agents of the Czechoslovakian Intelligence Service, whether she had ever delivered classified national security information to those agents, and whether she had ever received payment for delivering such information to those agents. It cannot seriously be suggested that such actions are in any way comparable to the conduct described in 1984. /7/ It is the government's policy to attempt to minimize compulsion of the testimony of one spouse against the other. The United States Attorneys' Manual Section 1-11.214 (Mar. 23, 1984) instructs federal prosecutors to "avoid compelling the testimony of a witness who is a close family relative of the defendant on trial or of the person upon whose conduct grand jury scrutiny is focusing." It goes on to provide, however, that it may be necessary to compel family members to testify against each other where they jointly participated in crime or where "the testimony to be elicited relates to a crime involving overriding prosecutorial concerns," such as espionage (id. at 9). /8/ Significantly for purposes of this point, the courts have uniformly held that the marital communications privilege, which is more directly targeted at protection of marital intimacy, is unavailable in the co-conspirator context (see U.S. Br. 23). This wholly undermines respondent's marital intimacy argument. /9/ Respondent also argues (Br. 30-31) that compelling a witness to testify in these circumstances would create a feeling of "natural repugnance." As we have discussed (see pages 4-5, supra), this rationale adds nothing to the other interests in considering whether the privilege should apply in this context. Even if this concept had independent analytic content, however, we believe that the fact that the spouses jointly participated in the crime under investigation is likely to preclude any such reaction by the public at large (see U.S. Br. 20-21 n.15). Indeed, fair-minded persons are more likely to be repulsed by the spouses' use of their marriage to further criminal ends. /10/ As noted (see note 7, supra), the government does not often attempt to compel adverse testimony by a spouse, so it is not possible to provide extensive empirical evidence concerning the effect of contempt sanctions upon spouses' willingness to testify. /11/ Respondent's statements (see Br. 2-3 & n.4) are quite misleading on this point. A review of the transcript of the hearing shows that respondent never requested that the government be put to its proof regarding this issue (see Nov. 29, 1984 Tr.). /12/ While respondent describes Karel Koecher's admissions as "statements allegedly wrung from (him) during interrogation" (Br. 44), his challenge to the admissibility of the statements is based on his claim that he was promised immunity in return for making them, rather than any assertion that the statements are inaccurate.