concurring.
I join in Chief Judge Seitz’s opinion to the extent that it recognizes the continued viability of the marital testimonial privilege *281and the applicability of that privilege to spouses who are allegedly co-conspirators. Moreover, I join in the Chief Judge’s rejection of the Government’s contention that the privilege was waived by this witness. I reject, however, his conclusion that the contempt citation must be reversed. For reasons to be explained herein, I recognize that a coercive contempt sanction may be imposed in this case and that therefore the order holding Mrs. Malfitano in contempt should be vacated and remanded to the district court.
If I were free to do so I would hold that the rule of Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958), recognizing a privilege of one spouse not to testify against the interest of the other, should be overruled, because it is based upon a supposititious impact of such testimony upon that interspousal relationship in the future, which impact has no support in any behavioral science evidence. See Rosenberg, The New Looks in Law, 52 Marq. L.Rev. 539, 541 (1969). The Supreme Court, presented with the opportunity to reconsider the Hawkins rule when Rule 501 of the Federal Rules of Evidence was adopted, chose, instead, to continue to rely on this belief that compelled testimony by one spouse against the other would have an adverse impact on their marriage. Thus in Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980), it held that so long as the spouse whose testimony was sought asserted the privilege it should be recognized. Id., 100 S.Ct. at 913-14. Although I believe that the rationale of Trammel v. United States is empirically unfounded, I agree with Chief Judge Seitz that it is fully applicable to spouses who, while married, join in the commission of a crime and that an exception for marriage relationships used to advance criminal activities cannot be reconciled with that rationale. Such an exception would always apply, for withholding inculpating testimony will always advance criminal activities in the sense that it will tend to make prosecution more difficult. That is the only sense in which the privilege is relevant, and its operation in that sense is no different whether the spouse was an active participant or a mere witness. Moreover, the marriage relationship itself does not advance the accomplishment of the criminal objects; a close friend or secretary could do as much to advance those objects.
In this case the district court, in ordering Mrs. Malfitano to testify, recognized the marital testimonial privilege. The court held that she could not assert the privilege, however, in order to withhold testimony that would be adverse to corporations and third parties. That holding is undoubtedly sound. In re Snoonian, 502 F.2d 110, 112 (1st Cir. 1974). The transcript of the proceedings in the district court makes it clear that the court proceeded upon the assumption that her testimony, and the fruits thereof, could not be used in any subsequent prosecution of her husband. In this court the Government endorses that position, and the authorities on which the district court relied in announcing it. Brief for Appellee at 10-14; see Government of the Virgin Islands v. Smith, 615 F.2d 964, 970-74 (3d Cir. 1980); United States v. Herman, 589 F.2d 1191, 1204 (3d Cir. 1978), cert. denied, 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979). Those cases recognize that the court has inherent power to grant use-fruits immunity for the purpose of obtaining testimony favorable to the defense which is otherwise unavailable. The Government contends, and I agree, that the court has no less inherent power to confer use-fruits immunity in order to obtain testimony which by virtue of the assertion of the marital testimonial privilege would be otherwise unavailable. The Government urges that because the court assumed Mrs. Malfitano’s testimony could not be used against her husband, the order directing her to testify before the grand jury was valid and the contempt judgment should be affirmed.
While I accept the Government’s argument that the grant of use-fruits immunity so as to insulate Mrs. Malfitano from testifying against her husband is a complete answer to the claim of marital privilege. I do not agree that the contempt judgment can be affirmed. It is undisputed that Mr. *282Malfitano is a target of the grand jury investigation in which Mrs. Malfitano’s testimony is sought. The marital testimonial privilege is available not only at trial but in a grand jury proceeding as well. Blau v. United States, 340 U.S. 332, 333-34, 71 S.Ct. 301, 302, 95 L.Ed. 306 (1951). If the testimony of the spouse adverse to the other’s interest, is used at the trial of a co-defendant, a severance is required in order effectively to insulate the factfinder from the privileged information. United States v. Fields, 458 F.2d 1194, 1198-99 (3d Cir. 1972), cert. denied, 412 U.S. 927, 93 S.Ct. 2755, 37 L.Ed.2d 154 (1973). There is no effective means of insulating the grand jury from the privileged information other than a requirement that the Government seek any indictment of the husband, growing out of the incidents as to which the wife testifies, before a different grand jury.
The order holding Mrs. Malfitano in contempt should be vacated. If an order is entered directing that the Government seek her husband’s indictment before another grand jury, and that trial on any such indictment will be severed from that of co-defendants indicted by the grand jury before which Mrs. Malfitano’s testimony is sought, she may be ordered to testify and held in contempt if she refuses.