E XCEPT In cases of necessity\u27 the wife was incompetent totestify for or against her husband at common law Cokesuggests that the reason for the rule lay in the fact that husbandand wife were one, and naturally could not be divided for thepurposes of testimony Although the courts soon got beyond thisdoctrine, they insisted on the value of the rule. They argued thatspouses, though perhaps not physically identical, were identicalin interest. When disqualification by interest was removed, thejudges bad to take other ground, and did so in Stapleton vCrofts.\u27 There they decided that the true basis for the rule wasthe necessity of martial harmony and confidence

Hutchins, Robert M.

Slesingert, Donald

English

Except  In cases of necessity the wife was incompetent to
testify for or against her husband at common law Coke
suggests   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.\u27  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

Slesinger, Donald

NELLCO Consortium Legal Scholarship Repository

Some Observations on the Law of Evidence: Family Relations

Spontaneous utterances, exclamations or declarations are, undercertain conditions, admissible in evidence though the party who madethem does not take the stand. According to most courts the occasionmust be startling enough to cause shock, which in turn creates an emotionalstate. The utterance must be made under stress of that emotion;it must be  spontaneous and natural; impulsive and instinctive  ;it should be immediate, or  so clearly connected (with the occasion)that the declaration may be said to be the spontaneous explanation ofthe real cause.  Although in some jurisdictions there is insistence thatthe declaration be  contemporaneous  with the act, or  while the actis going on,  the progressive view seems to be that the time interval,beyond which a declaration would no longer be spontaneous, is in thesound discretion of the trial court

Yale Law School Legal Scholarship Repository

Some Observations on the Law of Evidence

bepress Legal Repository

Some Observations on the Law of Evidence Family Relations

Except in cases of necessity\u27 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.\u27 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.\u27 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

University of Minnesota Law School

Spontaneous  utterances, exclamations or declarations are, under
certain conditions, admissible in evidence though the party who made
them does not take the stand. According to most courts the occasion
must be startling enough to cause shock, which in turn creates an emotional
state. The utterance must be made under stress of that emotion;
it must be  spontaneous and natural; impulsive and instinctive 
it should be immediate, or  so clearly connected (with the occasion)
that the declaration may be said to be the spontaneous explanation of
the real cause.\u27    Although in some jurisdictions there is insistence that
the declaration be  contemporaneous  with the act, or  while the act
is going on,    the progressive view seems to be that the time interval,
beyond which a declaration would no longer be spontaneous, is in the
sound discretion of the trial court.  Thus, in one case, after a wreck the
conductor came up to the engine, went back to the caboose, and then
walked a mile to a telephone, where he consumed twenty-five minutes
in calling headquarters. On his return to the train, while moving the
injured to the caboose, he remarked that a defective rail had caused
the disaster, and his statement was admitted in evidence as a spontaneous
declaration. In other cases declarations made from a few seconds
to fifteen minutes after the occurrence have been termed  mere narration
of past events,  and therefore excluded

https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=3192&context=mlr

Some Observations on the Law of Evidence Family Relations

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University of Minnesota Law School

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