Marriage changes a lot of things, but one of the interesting, law-related things it changes is the relationship of spouses in the court system. Basically, the law will not, with some exceptions, compel spouses to testify against each other in criminal matters and may sometimes prevent spouses from testifying against each other even if one of them wants to do so.
These rules are set out in two sections of Title 9 of the Courts & Judicial Proceedings Article of the Maryland Code.1 Section 9-105 is what we call the “confidential communications privilege” that lets spouses keep secret things they tell each other in private. Section 9-106 is the “adverse testimony privilege” that prevents courts from forcing people to testify against a spouse charged with a crime, with certain exceptions for child abuse cases or when the spouse is the alleged victim of an assault.
The History of the Rule
The history of the rules and the reasoning behind them were explained in detail by the Court of Appeals not long ago in a case called Brown v. State.2 In that case, Keith Brown, a married man, was charged with the murder of his mistress. His defense was essentially to suggest that his wife had murdered her out of jealousy. When his wife was brought in to testify, she (to everyone’s apparent shock) testified that Mr. Brown had confessed to her that he had killed his mistress. Mr. Brown argued this statement should have been excluded from evidence as a confidential marital communication, and that the rule against hearing such communications should be absolute. The State argued that even if the exclusion rule applied, Mr. Brown had waived his right to complain about it by using a “my wife did it” defense.
The Court resolved the question by delving into the history of the law. When the General Assembly enacted §9-105, it was not actually making a new law, but codifying a rule which had been in use in various forms since at least 1580. In the very earliest versions of this rule, husband and wife were considered to be one person, legally speaking, and in those days people weren’t allowed to testify on their own behalf, because they were obviously biased.
The rule against a wife testifying for or against her husband was a subset of the rule that kept her husband from testifying in his own case. Later on, after courts began recognizing that husbands and wives were not entirely the same person, the justification was changed to make it more about public policy; the benefit of letting people have confidence in the privacy of their communications with their spouses was seen as more important than the power of the court to compel testimony.
This change in justification prompted legislatures, when they first codified the rule, to make it narrower and more specific. In 1864, the Maryland General Assembly abolished the old rule that parties to a case could not testify for themselves, which did away with the old justification for keeping spouses from testifying in each others’ cases. Even so, they kept the rule that spouses couldn’t be compelled to testify against each other for essentially the same reasons that private communications were protected—to avoid destroying marriages by forcing spouses to be the instrument of each others’ downfall. With a few minor tweaks over the years, that brings us to the modern rule.
The Modern Rule
As I mentioned above, the modern marital privilege is divided into two parts: the confidential communications privilege and the adverse testimony privilege.
Confidential Communications Privilege
This is the rule that was actually at issue in the Brown case, and it basically says that either spouse can insist that the other spouse not testify about something the two of them discussed in private. This privilege can be invoked by either the spouse who is a party to the lawsuit or the one asked to testify, and only covers things said in private between them. If they had already shared the information with other people, then it is not protected.
Adverse Testimony Privilege
This rule allows a spouse to refuse to testify against a spouse who is charged with a crime. However, it has been modified by statute to make it less ripe for abuse in domestic violence cases than it has been historically. While the general rule is still in effect, if the defendant is charged with assault against his or her spouse (making it a domestic violence case) it can only be invoked once.
When it is invoked, the witness spouse is called to the stand, sworn in, and asked if he or she is married to the defendant and if he or she wishes to invoke the privilege to refuse to testify. If he or she invokes the privilege, a permanent record is made of that invocation and he or she will not be allowed to use the privilege if the defendant spouse is charged with assault against the witness spouse ever again. This record is only available to the court and the lawyers involved in the case, but it is permanent and cannot be expunged. The adverse testimony privilege also cannot be invoked if the case involves abuse of a child under the age of 18.
After reviewing the history and the current state of the law, the Court of Appeals in Brown decided that the confidential communication privilege applied and had not been waived by Mr. Brown’s “my-wife-did-it” defense, and so his conviction was overturned and he was sent back for a new trial in which his wife would not be allowed to testify about his confession.
Here at DRA e-Law, we’ve had matters of marital privilege come up in a few of our recent criminal cases, and so thought it might be of interest to our readers. Please contact us if you ever find yourself in need of a criminal defense attorney, whether marriage is involved or not.
1Md. Code., Cts. & Jud. Proc. §§ 9-105, 9-106.
2Brown v. State, 359 Md. 180, 753 A.2d 84 (2000).