The Eternal Triangle

H and W have been married for seven years, but lately the grapes have begun to wither on the vine. In fact, W believes (correctly) that H is having an affair with V. W decides she must erase Vfrom the picture. On the night of May 1, with the secret intention of confronting V about the affair, W tells H she is stepping out for a few hours to go to a friend's house. The next day, V's body is found in a muddy field near her apartment. The body is riddled with stab wounds. An autopsy indicates V was killed the previous night.

At W's trial for first-degree murder of V, W asserts that she was home during the night of the crime. The prosecution then calls H to testify that W had gone out alone that night and returned two hours later with a torn blouse and muddy shoes.

(1) Suppose H is more than happy to testify because he believes that W killed the woman he loves. The trial takes place in a jurisdiction that has adopted Proposed Rule 505. W objects to H's testifying against her. What ruling and why? What rule of privilege would you favor in this situation? What social policies are involved in formulating a privilege rule for husband-wife testimony?

(2) Suppose the jurisdiction has adopted a spousal privilege that places the privilege in the hands of the witness spouse. Again, H is happy to testify. Does this change the result? What social policies militate for and against placing the privilege in the hands of the witness spouse rather than the accused? In this connection, see Trammel v. United States, which follows.