445 U.S. 40 (1980)
On March 10, 1976, Otis Trammel was indicted with Edwin Lee Roberts and Joseph Freeman for importing heroin into the United States from Thailand and the Philippine Islands and for conspiracy to import heroin in violation of 21 U.S.C. §§ 952(a), 962(a), and 963.1 The indictment also named six unindicted co-conspirators, including petitioner’s wife Elizabeth Ann Trammel.2 According to the indictment, petitioner and his wife flew from the Philippines to California in August 1975, carrying with them a quantity of heroin, and Freeman and Roberts assisted them in its distribution.3
Elizabeth Trammel then traveled to Thailand where she purchased another supply of the drug.4 On November 3, 1975, with four ounces of heroin on her person, she boarded a plane for the United States.5 During a routine customs search in Hawaii, she was searched, the heroin was discovered, and she was arrested.6 After discussions with Drug Enforcement Administration agents, she agreed to cooperate with the Government.7
Prior to trial on this indictment, petitioner moved to sever his case from that of Roberts and Freeman.8 He advised the court that the Government intended to call his wife as an adverse witness and asserted his claim to a privilege to prevent her from testifying against him.9 At a hearing on the motion, Mrs. Trammel was called as a Government witness under a grant of use immunity.10 She testified that she and petitioner were married in May 1975 and that they remained married.11 She explained that her cooperation with the Government was based on assurances that she would be given lenient treatment.12 She then described, in considerable detail, her role and that of her husband in the heroin distribution conspiracy.13
The District Court ruled that Mrs. Trammel could testify in support of the Government’s case to any act she observed during the marriage and to any communication made in the presence of a third person.14 However, confidential communications between petitioner and his wife were held to be privileged and inadmissible. The motion to sever was denied.15 At trial, Elizabeth Trammel testified within the limits of the court’s pretrial ruling; her testimony, as the Government concedes, constituted virtually its entire case against petitioner.16 He was found guilty on both the substantive and conspiracy charges and sentenced to an indeterminate term of years pursuant to the Federal Youth Corrections Act, 18 U.S.C. § 5010(b).17
In the Court of Appeals petitioner’s only claim of error was that the admission of the adverse testimony of his wife, over his objection, contravened this Court’s teaching in Hawkins v. United States and therefore constituted reversible error.18 The Court of Appeals rejected this contention.19 It concluded that Hawkins did not prohibit the voluntary testimony of a spouse who appears as an unindicted co-conspirator under grant of immunity from the Government in return for her testimony.20
Whether an accused may invoke the privilege against adverse spousal testimony so as to exclude the voluntary testimony of his wife?21
The witness-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying.22
No. Elizabeth Trammel chose to testify against petitioner Otis Trammel after a grant of use immunity and assurances of lenient treatment.23 The District Court permitted her to testify to acts observed during the marriage and communications made in the presence of third persons while excluding only confidential communications.24 Her testimony constituted virtually the entire case against the petitioner, resulting in his conviction on the substantive importation and conspiracy charges.25 Because the privilege vests solely in the witness-spouse, the accused cannot exclude her voluntary adverse testimony.26
An accused may not invoke the privilege against adverse spousal testimony to exclude the voluntary testimony of his wife.27
Related opinions on this issue
Justice Stewart concurred in the result but disagreed that reason and experience have worked a vast change since Hawkins was decided in 1958.28 He observed that the Court simply accepts the same arguments the Government advanced and the Court rejected in that earlier case.29 Stewart noted that the ancient foundations for the sweeping privilege had disappeared well before 1958 and that any shift in perception did not arise in the intervening years.30
He concluded that the opinion would be of greater interest to students of human psychology than to students of law.31