Title

Some Observations on the Law of Evidence: Family Relations

Document Type

Article

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Some Observations on the Law of Evidence: Family Relations (with D. Slesinger), 13 Minnesota Law Review 675 (1929)

Abstract

Except in cases of necessity' the wife was incompetent to

testify for or against her husband at common law2 Coke

suggests3 that the reason for the rule lay in the fact that husband

and wife were one, and naturally could not be divided for the

purposes of testimony Although the courts soon got beyond this

doctrine, they insisted on the value of the rule. They argued that

spouses, though perhaps not physically identical, were identical

in interest. When disqualification by interest was removed, the

judges bad to take other ground, and did so in Stapleton v

Crofts.' There they decided that the true basis for the rule was

the necessity of martial harmony and confidence.

But even this philosophy has been unable to sustain the noton

that one spouse cannot appear for or against the other. The

disqualification has gradually been reduced to a disqualification in

criminal cases alone.' The dissenting opinion of Mr. Justice

Erle in Stapleton v. Crofts states the arguments that have prevailed

against broader disqualification. He points out that the

idea of promoting domestic peace is incapable of consistent application

in these cases. It is not applied to witnesses not parties

to the action. Mr. W may testify for the plaintiff, Mrs. W

against him. Their stories may lead to endless ructions in the

W household. Erle, J., doubts, too, whether husbands suborn

their wives to perjury He is reasonably sure that the exclusion

of the evidence is a definite loss, whereas the gain, if any, is remote

and speculative.

Date of Authorship for this Version

1929

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