dissenting:
Mr. and Mrs. Trammel have not only wasted their young lives and exploited the weaknesses of drug addicts for profit, but by their sordid activities they have led us in today’s decision to establish a rule for future cases which is unsound and contrary to established precedent. In so doing they have caused us to ignore some time honored presumptions, to forego an opportunity to continue a modest contribution to the withering but vital institution of the family, and to further expand the already excessive role of the doctrine of conspiracy in undermining fundamental rules of law.
If today’s opinion affected only Otis Trammel and his wife, I would view it with some concern but not with the degree of apprehension expressed in this dissent. The significance of today’s decision is that it establishes a policy for every future case in which a prosecutor exercising his essentially unreviewable discretion decides to accuse a married couple as coconspirators. While the testimony in this case does not portray the defendant as a person deserving of great sympathy, tomorrow’s case may involve a financially troubled couple who appear to be model spouses but are accused of conspiracy to file a false tax return. When, under the rule of this case, the wife is offered a chance to avoid a possible conviction by testifying against her accused husband, the harm the testimonial privilege seeks to prevent will have been done.
An analysis of the issues presented by this case requires a recognition that there are two distinct privileges based on the marital relationship. The spousal testimony privilege prevents one spouse from giving testimony adverse to the other, either voluntarily or under compulsion, without the other’s consent. Hawkins v. United States, 358 U.S. 74, 77, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958). The confidential marital communication privilege bars introduction of any confidential communications between spouses. United States v. Apodaca, 522 F.2d 568, 570 (10th Cir. 1975). Only the first privilege is at issue in this case.
In overturning a decision of this circuit, the Supreme Court affirmed in Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958), that the testimonial privilege is the law in the federal courts. The decision sets forth the parameters of the rule. In Hawkins a man was accused of transporting a girl from Arkansas to Oklahoma to work with his wife as a prostitute. As in the case before us, the wife was an alleged participant in criminal activity. Unlike the record in this case, however, the evidence showed that the marriage was already in trouble and the parties were living apart. The court treated the wife’s testimony as voluntary, but it reaffirmed the testimonial privilege. Reasoning that the rule is grounded on the sound policy of fostering “family peace, not only for the benefit of husband, wife and children, but for the benefit of the public as well,” the Court declared that even if the marriage *1172was not an ideal one “the law should not force or encourage testimony which might alienate husband and wife, or further inflame existing domestic differences.” Id. at 77, 79, 79 S.Ct. at 138 (emphasis supplied).
This rule has been acknowledged by federal courts in cases where the spouses were alleged coparticipants in crimes. See, e. g., United States v. Williams, 447 F.2d 894, 897-98 (5th Cir. 1971); Ivey v. United States, 344 F.2d 770, 772-73 (5th Cir. 1965); Peek v. United States, 321 F.2d 934, 943 (9th Cir. 1963), cert. denied, 376 U.S. 954, 84 S.Ct. 973, 11 L.Ed.2d 973 (1964).1 The Tenth Circuit decision relied on by the majority, Baker v. United States, 329 F.2d 786 (10th Cir.), cert. denied, 379 U.S. 853, 85 S.Ct. 101, 13 L.Ed.2d 56 (1964), was a case in which the testimonial privilege was not even asserted by the defendant. Indeed, the majority acknowledges the general rule but urges an exception. I respond to the reasons given for this departure from established policy and precedent in the order presented by the majority.
It is urged that Hawkins grants a license for this court to “alter, modify or amend [the testimonial privilege] when reason and experience so demand.” I am not certain that Hawkins provides such an expansive grant. Although I recognize that other circuits have acted to modify the privilege, e. g., United States v. Van Drunen, 501 F.2d 1393 (7th Cir.), cert. denied, 419 U.S. 1091, 95 S.Ct. 684, 42 L.Ed.2d 684 (1974), I also recognize that the Supreme Court has suggested that changes in the privilege are best left to Congress or to the Court itself.2 Hawkins v. United States, 358 U.S. at 78, 79 S.Ct. 136. At the very least, we should be cautious about eroding the privilege on the impetus of a solitary case. In this regard, we should be guided by the counsel of Mr. Justice Stewart, the lone doubter in Hawkins, who observed in concurrence that “[i]t is obvious, however, that all the data necessary for an intelligent formulation ‘in the light of reason and experience’ could never be provided in a single litigated case.” Id. at 82 n. 4, 79 S.Ct. at 141. As an alternative to such a precipitate resolution of the issue, he proposed that a judicial committee be established to gather appropriate information and incorporate it into adequately considered rules. Whatever course proves ultimately wise, I do not think this case presents an adequate factual setting in which to make today’s sweeping choice.
The majority insists that the federal immunity statutes, 18 U.S.C. §§ 6001-6005 (1976), provide justification for the proposed exception. These are irrelevant. They address only the Fifth Amendment rights of the declarant. The majority itself acknowledges that Congress intended by the rule a grant no broader than the Fifth Amendment itself. But the testimonial privilege extends beyond the declarant to the accused spouse, and the immunity statutes say nothing about his privilege. The immunity provisions are based on the notion that there is no injustice in compelling a witness to testify in the face of Fifth Amendment proscriptions as long as he will not be subject to prosecution for his testimony. This quid pro quo rationale has no application to the situation under consideration here, for no such bargain is struck with respect to the accused spouse. The immunity statutes simply provide no sound justification for fashioning a new exception to the privilege. The majority nonetheless believes that the perceived injustice of excluding immunity-enshrouded testimony is sufficient to justify an erosion of the testimonial privilege. To me this view is inconsist*1173ent with the mandate of Hawkins and its reluctance to abandon the “persistent instincts of several centuries” that have culminated in the privilege. 358 U.S. at 79, 79 S.Ct. 136.
The majority seems to imply that something inherent in the doctrine of conspiracy itself justifies overturning the privilege. Even assuming the doubtful proposition that conspiracy has such a sweeping scope, applying the doctrine to overcome the testimonial privilege ignores significant procedural ramifications. Under present practice in this circuit, the mere allegation of conspiracy would permit the admission of the wife’s testimony before the truth of the conspiracy allegation is established. In this procedural framework, the destruction of the privilege would not only effectively overturn the presumption of innocence with respect to the conspiracy charge, but it would accomplish the harm forbidden by Hawkins before either judge or jury ,-has determined that there was any conspiracy at all.
I confess inability to comprehend what it is in the record of this case that supports the propositions that the Trammels did not have a “home,” that they had no “family life” or that there was no “domestic harmony in the commonly accepted nature of a marital relationship.” The trial court did not address these questions. Presumably the propositions reflect a view that spouses who commit crimes are incapable of achieving a harmonious marriage. I am not convinced that this view is a sound one, and I discern no support for it in the majority opinion. Even if there were evidence of domestic disharmony virulent enough to destroy family life, this would offer no justification for distinguishing the Hawkins precedent. The Supreme Court reached its decision in that case in the face of actual evidence of severe marital discord. 358 U.S. at 82 n. 4, 79 S.Ct. 136. It should also be remembered that the Supreme Court was not only loath to alienate husband and wife in a model marriage, but was concerned about inflaming existing differences in a stressful one as well.
I should also say a word about the conflict between the government’s interest in obtaining evidentiary support for its accusations and society’s interest in perpetuating a privilege intended to promote family unity. All of the arguments about evi-dentiary needs are equally applicable to the protections of the accused incorporated in the Bill of Rights. While not found in the Bill of Rights, the common law privilege at issue here reflects societal values similar to those expressed in that document. Today’s rule articulates an unsound policy to the extent that it gives the prosecutor discretion to determine which home shall be worth saving and which home shall not have the benefit of the common law privilege. While the majority may be upholding important societal values in reaching the result it does, it seems to me that the principle established in this case strikes at one of the few remaining public supports for the institution of the home. And the home is, after all, a more important contributor to law and order than is prosecution. If the homes fail, no number of prosecutors, judges or jails could stem the tide of ensuing crime. While the Trammel home is perhaps far from an ideal one, the principle established in this case applies to all accused couples and makes us unwitting partisans in the continuing assaults on the stability of the home — the root of true stability in any society.
. One case seems clearly contrary, but it involved testimony of events occurring prior to marriage and reflected the impact of Rule 505(c) of the proposed Federal Rules of Evidence, which excepted such testimony from the scope of the privilege. United States v. Van Drunen, 501 F.2d 1393 (7th Cir.), cert. denied, 419 U.S. 1091, 95 S.Ct. 684, 42 L.Ed.2d 684 (1974). Two additional cases contain language suggesting a narrowing of the privilege, but they did not involve calling the other spouse as a witness. United States v. Mackiewicz, 401 F.2d 219 (2d Cir.), cert. denied, 393 U.S. 923, 89 S.Ct. 253, 21 L.Ed.2d 258 (1968); United States v. Pugliese, 153 F.2d 497 (2d Cir. 1945).
. 18 U.S.C. § 3771 (1976) vests in the Supreme Court the power to prescribe rules of pleading, practice, and procedure for criminal cases in federal courts.