Some Observations on the Law of Evidence: Family Relations

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.