Law Quadrangle (formerly Law Quad Notes)


This article was delivered, in a slightly fuller form, as the first annual Mason Ladd Lecture at the University of Iowa Law School and was printed in 66 Iowa Law Review 725-739 (1981). Last year, Professor Lempert spent the fall semester as the first Mason Ladd Distinguished Visiting Professor of Law at Iowa. In the winter semester, he was a visiting fellow at the center for SocioLegal Studies at Wolfson College, Oxford, where he worked on a book on the sociology of law. Now back at the Law School, Professor Lempert has begun a three-year term as editor of the Law & Society Review. This journal, which is put out by the Law and Society Association, regularly publishes empirical and theoretical studies of law and the legal system.

I would like to talk about the recent case of Trammel v. United States. Trammel is a simple case. A man, Otis Trammel, his wife, Elizabeth Ann, and several others were involved in a conspiracy to import heroin into the United States. Elizabeth, a courier for the group, was caught with four ounces of heroin during a routine customs search in Hawaii. Otis, we are told by the Tenth Circuit, was one of three men who "masterminded" the operation.

They say "it takes a thief to catch a thief." One might add, "it takes a conspirator to convict a conspirator." Often the best-and sometimes the only evidence that a person has been active in a conspiracy is testimony from the person he has conspired with. There are two problems with securing such testimony. The first is that each conspirator has a Fifth Amendment right not to give testimony that might tend to incriminate him-and almost anything that tends to incriminate a fellow conspirator will incriminate the speaker as well-and the second is that totally apart from the danger of self-incrimination there may be a degree of honor among thieves; a person may simply not want to testify against a partner in crime. Fortunately, the state can overcome each obstacle, the first by giving use immunity thereby negating the Fifth Amendment claim and the second by offering a reward-such as an agreement not to prosecute-sufficient to overcome any natural hesitancy to tum on one's fellows.

In Trammel, the prosecutor, whether from delicate feelings of chivalry, a sense of relative blameworthiness, or a good idea as to who would break first under pressure, chose not to indict the two women involved provided they would testify against the three men. So far, so good; justice is on its way to being done. However, there was one hitch. Elizabeth Ann Trammel was Otis Trammel' s wife and under a rule of law which I call the spousal immunity, Trammel had an apparent right to prevent his wife from testifying against him.