dissenting.
The majority today holds that the marital privilege may be invoked to foreclose testimony by a grand jury witness against a third-party who might implicate the witness’s spouse before another grand jury which has not as yet been authorized. Because I believe that such a holding unduly extends the marital privilege and contravenes the dictates of the Supreme Court’s recent decision in Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980), I respectfully dissent.
I.
As Professor Wigmore noted, the origin of the privilege against adverse spousal testimony is shrouded in “tantalizing obscurity.” 8 J. Wigmore, Evidence § 2227, at 211 (McNaughton rev. 1961).1 Emerging late in the sixteenth century, the privilege is linked historically — if not logically — to the now universally rejected rule of spousal incompetency, which disqualified one spouse from testifying on behalf of the other. Both rules have been attributed, at least in part, to the “semimedieval metaphysical]” notion that the partners to a marriage are not distinct individuals but a unified whole— “duae animae in carne una” (“two souls in one flesh”). 2 J. Wigmore, Evidence § 601, at 857 (Chadbourn rev. 1979) (quoting E. *697Coke, Commentarie Upon Littleton, 6b (1628)). Thus, because the defendant was incompetent as a witness, his spouse was similarly precluded from testifying for or against him.
Moreover, maintenance of the fundamental unity of the married couple demanded legal solicitude for domestic harmony, “the peace of families”:
[W]hen the common law says that a man and his wife are one, or, in Lord Coke’s language: “As two souls in one person”— it is said no man shall put asunder those who are thus joined together, and, least of all, in the name of law, shall the administration of justice pull and tear asunder this conjugal relation by the step of the sheriff or the precept of the judge that compels one to come and betray the other.
8 J. Wigmore, supra § 2228, at 215 (quoting Abbott, 2 The Trial of Henry Ward Beecher [Tilton v. Beecher, City Ct. of Brooklyn, N.Y.] 49-50 (1875)).
Early American jurisprudence embraced without question the “general rule that neither a husband nor wife can be a witness for or against the other.” Stein v. Bowman, 38 U.S. 184, 195, 13 Pet. 209, 221, 10 L.Ed. 129 (1839). Subsequent rulings, however, have modified considerably the scope of the marital privilege. By the middle of the nineteenth century, the spousal incompetency rule was abolished or restricted by most states and replaced with a statutory privilege protecting confidential communications between the spouses. 8 J. Wigmore, supra § 2333, at 645. Years later, the United States Supreme Court followed suit, holding that the wife of a criminal defendant was a competent witness in his behalf, Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369 (1933), but that confidential communications between husband and wife were privileged, Wolfle v. United States, 291 U.S. 7, 54 S.Ct. 279, 78 L.Ed. 617 (1934).
In 1958, the Supreme Court, pointing to the “persistent instincts of several centuries,” upheld the rule that permitted a defendant to exclude the adverse testimony of his spouse. Hawkins v. United States, 358 U.S. 74, 79, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958). But in 1980, “reason and experience” convinced the Supreme Court to overrule Hawkins. Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980). The Court acknowledged the criticism to which the marital privilege had been subjected,2 and was particularly impressed by the fact that, in the years since Hawkins, seven states had abolished the privilege of an accused to exclude adverse spousal testimony. Trammel, 445 U.S. at 48-49, 100 S.Ct. at 911-12. Nonetheless, it declined to abandon completely the privilege against adverse spousal testimony. Instead, the Court limited the rule to protect only the right of the witness spouse to refuse to testify adversely against the husband or wife. The Court reasoned that if one spouse were willing voluntarily to testify against the other, little of value remained of the marital relationship. Thus, the modern justification for the rule — “fostering the harmony and sanctity of the marriage relationship” — would not be served if the defendant could prevent his otherwise willing spouse to testify against him. Id. 445 U.S. at 44, 100 S.Ct. at 909.
A careful reading of the Supreme Court’s opinion in Trammel reveals the discomfort with which the privilege against adverse spousal testimony has been viewed. The Court explicitly stated that the privilege “must be strictly construed and accepted ‘only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.’ ” Trammel, 445 U.S. at 50, 100 S.Ct. at 912 (quoting Elkins v. United States, 364 *698U.S. 206, 234, 80 S.Ct. 1437, 1454, 4 L.Ed.2d 1669 (1960) (Frankfurter, J., dissenting)). And while the Court found it unnecessary to discard the privilege altogether, the factual context of the Trammel case provided the Court with an opportunity to reiterate its “historical antipathy” toward the privilege and, once again, to constrict its applicability in the federal courts. See Haney, supra note 1, at 157-58. In the face of this precedent, it would appear difficult to justify any expansion in the scope of the rule. Yet, the majority has done precisely that in the present situation.
II.
The majority would permit the invocation of the marital privilege in this case because “[t]he potential disruption to marital harmony is in no sense diminished because the impact of the spouse’s testimony is delayed,” At 692, and “[i]t would be anomalous to permit the Government to do indirectly what it is forbidden to do directly.” At 693, n. 11. I disagree with both the factual and the legal premises of this conclusion. While indirect use of the witness spouse’s testimony conceivably may cause stress in the marital relationship, there is, in my view, a qualitative difference in impact between testimony that itself causes a grand jury to indict the non-witness spouse, and testimony against a third party, who eventually may testify against the spouse before another grand jury. Only in the former situation does one spouse actually speak the words that condemn the other. Surely, it is this direct use of adverse testimony — not the speculative and attenuated connection between testimony and indictment that is at issue in this case — to which Wigmore referred when he spoke of the “natural repugnance in every fair-minded person to compelling a wife or husband to be the means of the other’s condemnation, and to compelling the culprit to the humiliation of being condemned by the words of his intimate life partner.” 8 J. Wigmore, supra § 2228, at 217 (emphasis in original).
Put simply, the privilege against adverse spousal testimony was never meant to bar absolutely all testimony that, in some way, affected the relationship between the marital partners. Rather, the privilege — as defined and limited throughout the centuries — reflects the irreconcilable tension between the “right to every man’s evidence” and society’s interest in excluding adverse testimony by one spouse against the other. Trammel, 445 U.S. at 50-51, 100 S.Ct. at 911-12. When the risk is high that the testimony will “tear asunder” the marital union, the societal interest in domestic harmony prevails and the courts may exclude such otherwise relevant evidence. When, in contrast, the danger to the family is merely speculative, the balance favors the admission of the testimony. Only in this way can the lower courts heed the admonition of the Supreme Court in Trammel that the privilege “be strictly construed and accepted.” 445 U.S. at 50, 100 S.Ct. at 912.
Sensitive to this balance, the courts historically have drawn fine, but necessary, distinctions in their analyses of the marital privilege. Specifically, as the majority concedes, at 691, the courts have carefully limited the applicability of the marital privilege only to adverse spousal testimony used in the very proceeding at which the non-witness spouse is indicted or tried. The privilege cannot be invoked when the testimony is elicited in another, separate proceeding and is not used in the proceeding in which the non-witness spouse is a party.3 *699See, e.g., United States v. Burks, 470 F.2d 432, 435-36 & n.6 (D.C.Cir.1972) (privilege not applicable because husband’s legal interests were “in no way at stake in this case”); United States v. Fields, 458 F.2d 1194, 1199 (3d Cir. 1972) (testimony of spouse of one defendant sought by co-defendant; proper procedure is to grant severance and then permit the witness to testify for the co-defendant), cert. denied, 412 U.S. 927, 93 S.Ct. 2755, 37 L.Ed.2d 154 (1973); 8 J. Wigmore, supra § 2234, at 231.4
In Appeal of Malfitano, 633 F.2d 276 (3d Cir. 1980), for instance, the appellant was subpoenaed to appear before a grand jury investigating the alleged illegal acts of her husband. She refused to answer, citing her marital privilege, and was held in contempt. This Court reversed. Stating that “[t]he main rationale for the privilege today is that it protects the marriage from the discord that occurs when one spouse testifies against the other,” 633 F.2d at 277, we rejected the Government’s contention that the rationale of the privilege would not be served when, as here, the two spouses were “partners in crime.” The fact that the grand jury before which the appellant was called could indict the non-witness spouse was of paramount importance to the Court:
[T]he district court seemed to think that because the government has promised not to use appellant’s testimony in future proceedings against her husband, the appellant has no reason to invoke the privilege. Even if the appellant’s testimony is not used in later proceedings, it seems there is nothing to prevent this grand jury from considering the appellant’s testimony in deciding whether to indict. There is no indication that the government intends to somehow sever the husband’s indictment from that of the other defendants to ensure that the grand jury does not use appellant’s testimony against her husband.
The fact that the grand jury will consider appellant’s testimony and possibly indict her husband on the basis of it will put a strain on their marriage. The husband will be subjected to a trial due to an indictment based in part on appellant’s testimony. This is no less of a strain on the marriage than if the appellant testified at his trial.
633 F.2d at 279-80 (footnote and citations omitted).5
The Malfitano court distinguished In re Snoonian, 502 F.2d 110 (1st Cir. 1974), in which “it was clear that the grand jury before which the husband would testify would not use his testimony to indict his spouse.” Malfitano, 633 F.2d at 280 (emphasis added). In Snoonian, Gary Snoonian refused to testify before the grand jury on the basis of the marital privilege. The Government subsequently filed an affidavit stating that “no testimony of Gary Snoonian before the Grand Jury, or its fruits, will be used in any way in any proceeding against his wife.” 502 F.2d at 112. The grand jury was investigating extortionate extensions of credit; the purported danger to the wife came solely because she had executed a joint tax return and because her husband’s testimony might lead to a charge of fraud. The First Circuit held that the *700marital privilege did not apply: “the speculative nature of the threat to the wife, coupled with the Government’s unequivocal and convincing promises not to use any of the testimony against her, nullifies any claim of privilege. ... ” 502 F.2d at 113.
In the present case, the Government has promised that it “will not present to the Grand Jury empaneled January 28, 1981 an indictment in which [the witness’s] spouse, ... is named as a defendant or as an unindicted co-conspirator.” Appendix at 32a. Thus, while the husband may be a “target” of the Government’s narcotics probe, he is not a target of this particular grand jury’s investigation. He may never be indicted, and he most certainly will not be indicted by the grand jury that heard and considered his wife’s testimony. Whatever link might exist between the witness’s testimony and the eventual indictment of her husband, if such comes about, is attenuated at best. Nor has there been any claim of confidential communications between the spouses. Under these circumstances, the attempt by the Court here to disregard Malfitano and extend the privilege beyond its traditional boundaries is both improvident and unnecessary. As succinctly stated by Wigmore, “no court ought today to lend its sanction to any expansion of the limits of this undesirable rule of privilege, and there is at least ample authority for the most rigid restriction.” 8 J. Wigmore, supra § 2235, at 234.6
I would reverse the order of the district court and hold that the privilege against adverse spousal testimony does not extend to the proceeding at hand.7
. For additional discussion of the history of the privilege, see, e.g., Haney, The Evolutionary Development of Marital Privileges in Federal Criminal Trials, 6 Nat’l J. Crim. Def. 99 (1980); Comment, The Spousal Testimonial Privilege After Trammel v. United States, 58 Den.L.J, 357 (1981); Note, 11 Seton Hall L.Rev. 265 (1980).
. Specifically, the Court pointed to Wigmore’s comment that the privilege was “the merest anachronism in legal theory and an indefensible obstruction to truth in practice.” Trammel, 445 U.S. at 45, 100 S.Ct. at 908 (quoting 8 Wigmore, supra § 2228, at 221). It also noted efforts by the American Bar Association, the American Law Institute, and others to abolish or restrict the rule. Id.
. The marital privilege thus should be distinguished from the fifth amendment privilege against self-incrimination. The latter privilege is constitutional in nature and extends to any testimony that might tend to incriminate the witness. See ¡ Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212 (1972); Hoffman v. United States, 341 U.S. 479, 486-87, 71 S.Ct. 814, 818, 95 L.Ed. 682 (1951). The marital privilege, in contrast, “has not ordinarily been construed to allow one spouse to decline to testify merely because the testimony may incrimate [sic] the other.” In re Snoonian, 502 F.2d 110, 112 (1st Cir. 1974). At least one court of appeals explicitly has held that the scope of protection afforded by the marital privilege is not coextensive with that of the fifth amendment. In re Grand Jury Proceedings (Hermann), Nos. 81-*6995602, 81-5636, slip op. at 13834 (5th Cir., Nov. 10, 1981).
. Wigmore pointed out the seeming illogic of this limitation, noting that “[i]f the fear of causing marital dissension or disturbing the domestic peace were genuinely the ground of the privilege ... then the privilege should apply to testimony which in any way disparages or disfavors the other spouse, irrespective of his being a party to the cause.... ” 8 J. Wig-more, supra § 2234, at 230-31. Wigmore nonetheless expressed no regrets that the privilege had by definition been “restricted to such testimony only as disfavors the other spouse’s legal interests in the very case in which the testimony is offered” and thus “was wholesomely kept within some sort of bounds.” Id. (emphasis in original).
. The majority’s conclusion that the testimony in question here amounts to testimony “against ... her spouse in a criminal proceeding,” At 692 (quoting Malfitano, 633 F.2d at 277), is somewhat perplexing. Malfitano clearly reflected the common law conception of the marital privilege, limiting its applicability to adverse testimony that could be heard, and used, by the grand jury that indicted the non-witness spouse.
. See also McCormick’s Evidence § 79, at 165 (2d ed. 1972). (“[P]rivileges . .. are inept and clumsy devices to promote the policies they profess to serve, but are extremely effective as stumbling blocks to obstruct the attainment of justice. Accordingly the movement should be toward restriction, and not toward expansion, of these mechanisms for concealment of relevant facts.”).
. Because I conclude that the privilege should not apply here, I find it unnecessary to discuss the propriety of Judge Rosenn’s suggestion that the district court confer use-fruits immunity on the non-witness spouse. I am constrained to note, however, that there is considerable doubt whether the judicial branch has authority, especially in a nonconstitutional case, to order that immunity be conferred. Both Government of the Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980) and United States v. Herman, 589 F.2d 1191 (3d Cir. 1978), cert. denied, 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979), involved due process considerations not present in the case before us today. See also United States v. Rocco, 587 F.2d 144, 147 (3d Cir. 1978), cert. denied, 440 U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789 (1979).