9. Should the wife be required to testify?

B is correct. This is a correct statement of federal common law, established by the Supreme Court in Trammel v. United States. If the witness and the defendant are married at the time of trial, the witness cannot be placed in contempt for refusing to testify against the defendant. The rationale for the rule is to preserve marital harmony, which would otherwise be damaged by one spouse testifying against the other.

A is incorrect. Under federal common law, the spousal testimonial privilege is held by the witness, not by the defendant. If a spouse wants to testify, the defendant cannot prevent the spouse from doing so. The rationale is that the privilege is designed to preserve marital harmony, and if a witness wants to testify against his or her spouse, then there is no marital harmony left to preserve.

C is incorrect. The rule is in fact the opposite. Under federal common law, the interspousal testimonial privilege applies only in criminal cases and not in civil cases.

D is incorrect. This statement confuses two different privileges under federal common law. The interspousal communications privilege protects confidential communications made between the spouses during the marriage. That privilege is not at issue in this fact situation because testimony about the defendant's appearance at the time of the crime would not disclose a confidential communication. But there is also a testimonial privilege allowing a spouse to refuse to testify against his or her spouse, regardless of whether the testimony would involve confidential communications. It is this testimonial privilege that is applicable in the present fact situation.