*1 summаry grant the trial court to for inappropriate it was we reverse the order Accordingly, appellee. judgment proceedings. further remand for the circuit court and ANNE THE COURT FOR CIRCUIT OF JUDGMENT REVERSED; REMANDED CASE COUNTY ARUNDEL PROCEEDINGS FOR FURTHER THAT COURT TO OPINION; BE TO COSTS WITH THIS CONSISTENT APPELLEE. PAID BY A.2d 84
Keith Alexander BROWN Maryland. STATE Term, 83, Sept. 1999. No. Maryland. Appeals of
Court of 9, 2000. June *2 (Linda Mason, L. L. L. Byron Warnken and Linda Mason Warnken, Baltimore, brief), Law Offices Bonnie L. on for petitioner. *3 (J. Graeff, Curran,
Kathryn Atty. Joseph Grill Asst. Gen. Jr., MD, brief), Baltimore, Atty. respondent. Gen. on for BELL, C.J., ELDRIDGE,
Argued before RODOWSKY, RAKER, WILNER, CATHELL and HARRELL, JJ.
WILNER, Judge. jury
After a trial in the Circuit Court for Baltimore City, murder, degree along was of first petitioner convicted with offenses, handgun for which various he was sentenced life possibility without the The victim imprisonment parole. girlfriend, Makea of the petitioner’s was Stewart. One wit- wife, against petitioner nesses who testified was his Jennifer Brown, and, in course of her testimony, Sellers the she stated murder, that, night petitioner on the confessed her that he had killed Ms. Stewart. complains
Petitioner that that was testimony inadmissible Code, Maryland § 9-105 of under the Courts and Judicial Article, (CJP), Proceedings provides spouse that “[o]ne is not to disclose confidential communication occurring during marriage.” their Cor- between the inculpatory his statement to Ms. Brown as a rectly regarding during marriage, peti- the confidential communication made was, indeed, “incompetent” to tioner contends that his wife statute, the testify regarding Despite language it.1 rendering spouse “incompetent,” § 9-105 a State views not a testi- providing petitioner privilege preclude but as with communications, marital mony regarding privi- confidential a case, lege argues, that can be waived. this it contention, by petitioner’s expressed waived different trial, was, fact, throughout times that his wife jealousy. killer—that she killed Ms. Stewart out of The State that, it” urges “my spouse when defendant asserts did defense, any privilege he or she waives under the statute to prevent spouse relating otherwise confidential mari- tal response communications that accusation. convictions,
In affirming petitioner’s Special the Court of in an Appeals, unreported opinion, accepted argu- the State’s dissent, flatly provides ment. Over a it 9-105 held not an privilege, incompеtence, actual and that the privilege who, “is criminal by waived defendants either personally counsel, through present ‘my it’ theory did granted defense.” We certiorari to review that conclusion. (1) § We shall hold that does render a “incompetent” testify regarding confidential marital com- munications but part rather establishes a on the the person making preclude testimony the communication to (2) person’s spouse communication, that discloses the (3) privilege may person, be waived but it was not Accordingly, waived this case. we shall judg- reverse the ment of the Court of Special Appeals.
BACKGROUND Makea Stewart was found dead around 3:30 a.m. on Septem- ber 1995 in an alleyway Gwynns behind 3326 Falls Park- structure, occasionally 1. ease of we For sentence shall use the term ''incompetent'' place statutory competent.’’ of the term “not We regard synonymous. the terms as a eight had shot times with way, City. in Baltimore She been by petitioner and was handgun .380 caliber that was owned fingerprints car. Petitioner’s were later recovered from his witness, Jerry A weapon. magazine found on the at Manns, from his kitchen window hearing gunshots reported reported time of Ms. Stewart’s death. approximately window, male in his he saw an African-American From his off in a small two-door car alley twenties leave the and drive man return malfunctioning muffler. He saw the same with a in his hand. Manns heard gun a short time later with man back into his car and get and then saw the single gunshot African- petitioner, It that an leave. was later established male, faulty with a muffler. American drove a two-door Mazda her body Near Ms. Stewart’s Detective Barlow discovered that several calls had been made to the pager, which showed posses- later found in phone petitioner’s from a cellular pager sion. mother, Sullivan, Bar- Jill informed Detective
Ms. Stewart’s affair having low that Ms. had been an with married Stewart Keith, days that her her two before daughter man named told Stewart) (Ms. pregnant that she was with Keith’s murder Keith about the baby going and that she was confront Stewart, Green, A friend of Ms. Cassandra testi- pregnancy. telling petitioner fied at trial that she overheard Ms. Stewаrt petitioner that and that told the victim might pregnant she had a pregnant that he knew she was she decision that, death, make. Genetic tests confirmed the time her pregnant petitioner’s Ms. was with child. Stewart theory petitioner, very incep- The State’s was that from the Brown, involved marriage romantically tion of his to Ms. was Stewart, pregnant with Ms. that Ms. Stewart became affair, petitioner insisted that she abort the result refused, that he her because he pregnancy, that she killed wreck Peti- pregnancy marriage. feared that the would his clear, trial, throughout tioner made both at the outset and wife, proposition that his defense was based on the that his who aware of his affair with the victim and had threat- past, him victim the killed the victim out ened both and the *5 in arguing that to the court jealousy. position He asserted motion, in jury opening he asserted it to the his pre-trial statement, in implied testimony he it his own the cross- witnesses, again of some of the and he examination State’s directly closing argument. asserted it more case-in-chief, Brown, In its the State called Ms. who re- August on petitioner counted that she and were married September day they signed and that on 1994—the apartment—she picture lease on their new discovered a Ms. car that petitioner’s Stewart and thus learned he had fact girlfriend. problem was exacerbated that Ms. call petitioner, arguments Stewart continued to which led him between and Ms. Brown. Ms. Brown had a number of Stewart, complaining conversations with Ms. about her calls to discussions,” petitioner. They were all “heated she At said. one when that he had a point, petitioner appoint- said doctor’s late, ment him and would be Ms. Brown discovered and Ms. together bowling alley, Stewart at a to another which led argument throwing and Ms. Brown a bottle at the victim. All of this testimony objection. was admitted without
Ms. Brown then testified that on September 1995—the night of the murder—petitioner returned home at around 4:00 a.m., that she asked him where he had been and that he got refused tell her. Ms. Brown then into an argument petitioner with about his talking response with the victim. question, then,” said, to the happened “What Ms. Brown apparently everyone’s surprise, “He told me he killed her I and didn’t believe him.” immediately surprise
Counsel that complained claimed the State had failed to this inculpatory disclose statement. court implicit objection reserved on counsel’s but noted it persuaded that was “not that it’s point,” excludable this admission, apparently because the was included the written statement Ms. given police, Brown had to the not one made to a agent. solely State The focus was on the non-disclosure, alleged stating the court that it had “heard nothing something to indicate that it’s that the State was advance, basically.” to warn about Petition- you
mandated continuing objection “a to the entire line of requested er specifying any objec- without other basis for the questioning,” repeated petitioner tion. Ms. Brown then told her the victim. She added: he had killed why “I him so I asked him and where and he didn’t believe *6 it I him about always said that ... he did because harassed around, always her and he told her that she would she going anywhere leave him alone and she wasn’t so wouldn’t him, well, where, I he killed her and then asked he wouldn’t well, I He wouldn’t tell your gun? tell me. said where’s I him me. And then asked how and he wouldn’t tell me. I it was for him I He said the less knew the better and told jail know, him I that going that he was and he said it.” was
Ms. Brown recounted two additional conversations. Later they that learned from television news that two evening, found, I if bodies had been “and asked one of them was her one, I yes. and he said said which he wouldn’t tell me.” At point during days, put petition- some the next five Ms. Brown arrested, apartment. petitioner er out of the After was Ms. petitioner Brown said that she and talked about the murder on several occasions: I him if one visit asked she cried and he told me he
“[0]n me what that happened didn’t know and he told he was away scared and when she turned to walk he started shooting stop, and he couldn’t and that was it. And then I him if phone thought asked over the he ever about her and only ways done, he said different that it could have been referring to how she died.” testimony, petitioner,
At the conclusion of Ms. Brown’s for time, 9-105, arguing the first called the court’s attention to that, out,” until the statement was “blurted there was no confidentiality initially occasion to raise the issue. Although admonishing having objection counsel for not raised that earlier, eventually the court was convinced that is a “[t]his that, competency privilege—and issue”—not a because admission, it could be unaware previously defense was It the issue earlier. therefore having not raised excused for stricken. Follow testimony jury that instructed trial, however, in the point at a later further discussion ing State, Relying on Harris ruling. court reconsidered in which the Court 180, 376 A.2d Md.App. § 9- exclusionary provision that the Appeals held Special “con communication when the confidential apply 105 did id. spouse,” the other a threat or crime stitutes that, ultimately the court concluded 376 A.2d at murder, he put committed the accusing having Ms. Brown her from preclude not invoke her at risk and could jury The court then informed the to that accusation. replying and that Ms. Brown’s ruling it reconsidered its had confession, of the murder” was testimony virtually as to “his in his case.” Petitioner testified “unstricken” and “back that he had killed confessing He to his wife defense. denied having indicated to as well ever Makea Stewart and denied about Ms. Stewart’s death. anything her that he knew
DISCUSSION Privilege? Competence or Section 9-105: a is based on argument straightforward Petitioner’s is as used “competent,” strict and literal construction of the word spouse § that a in the statute. He reminds us declares “Not to disclose certain communications. competent” “not says—not posits, competent, he means what it competent,” person to the matter. When a legally unqualified to to urges, exceptions he there are no competent,” declared “not is no doctrine of waiver. No action disqualification; there spouse, by person, by person’s or inaction legal anyone disqualification. else can overcome the description disagree petitioner’s The State does not with that that is not what incompetence argues true but § 9-105. Look- Assembly intended when it enacted General 9-105, way §of to the we have ing legislative history to the way and to the other past, characterized the statute on evidence law have viewed leading courts and commentators that, statutes, despite similar the State insists its use of the competent,” spouse “not 9-105 does not render a words incompetent, merely provides preclude but a to testimony by that would disclose a confidential marital communication—a be waived. statutory construc- dealing question We are here with when it first Legislature, tion—did the enacted and subse- the statute that is quently amended now codified “not really person competent” mean render communications, that, understanding marital confidential so, circumstance, no doing it would admit of either a civil or case, criminal under which such a communication could be Legislature disqualify revealed? Did the intend to a person from testifying per- to such a communication even when the already son’s has disclosed the communication to oth- disqualify person testifying ers? Did it intend to from person’s spouse such a communication even when the solicits testimony, object or at least does not to it? If the by petitioner communication made to his wife had been excul- confidential, patory inculpatory, rather than but nonetheless intend, Legislature Maryland did the as a matter of evidence law, preclude testifying Ms. Brown from to that communica- objection petitioner? tion without Did the Legislature stranger intend that a marriage—perhaps even the State in a criminal to preclude testimony case—be able both spouses ground desire be admitted on the it would disclose a communication that was confidential when made? statutory
The rules of construction are well-known objective paramount and well-settled. Our is to ascertain and (and effectuate intent of the it Legislature when enacted amended) periodically the statute. If the is clear language *8 unambiguous and “and is consistent with the purposes the in legislation general and the particular provision being inter preted,” inquiry ordinarily our ends at that point. McNeil v. (1999). State, 396, 404, 80, 356 Md. 739 A.2d 84 As we pointed Baltimore, out in v. Mayor City Kaczorowski & Council 309
189 (1987), many in 628, however—and 505, 515, 525 A.2d 632 Md. as to whether question is some there cases since—when reаlly in the statute language the used interpretation literal we legislation, of the purpose the consistent with would be a circum- meaning. such literal beyond look may intent, court, legislative in stance, seeking ascertain “the meaning from one resulting consequences consider may avoids another, adopt that construction than and rather result, is inconsistent or one which or unreasonable illogical an 513, (quoting at 632 Id. at 525 A.2d sense.” with common 75, Co., 69, 517 A.2d Ins. 308 Md. Fireman’s Fund Tucker v. State, (1986)). in v. 332 730, As out Condon pointed 732 we 753, (1993), necessary often is 481, 492, “[i]t 632 A.2d Md. legislative of a statute to discern development to look initial examination upon not be as clear may intent County also C.S. P.G. language of the statute.” See current (1996). 14, 470, Services, 343 Md. 680 A.2d Social isolation; it was not be considered 9-105 cannot Section It Legislature. part in isolation considered Compellability, dealing “Competence, with the subtitle CJP 9-101 forth the Section sets Privilege” and of witnesses. (1) subtitle, that, otherwise general provided rule unless proceeding in a testifying excluded from person may matter in from crime or interest incapacity because of (2) their are “[ljitigants and and question, exceptions are two compellable give evidence.” There 9-105, as dealing with Section general spouses. to that rule confidential noted, disclosing precludes marriage, and spouses during communication between that, spousal in cases of or child except § 9-106 declares crime not be abuse, of a on trial for a person as an adverse witness. compelled State, 281 Md. pointed out Coleman v. As we a short time (1977), Court observed Supreme A.2d 49 States, 100 S.Ct. in Trammel v. United U.S. later relate, McCormick Wigmore and as 63 L.Ed.2d including those embodied spousal testimony, on the limitations roots—an ancient §§ stem from different *9 190
common one’s privilege preclude testifying law law adversely, nearly-as-ancient disqualification common behalf, and, adversely either or on each other’s more recently, statutory preclusion testimony predominantly confidential communications the mar- regarding during made riage. privilege
The earliest root seems be the that husband preclude testimоny by Wigmore had to adverse his wife. cites Allot, (Ch. Bent v. decision, chancery a 1580 50 Eng. Rep. 1580), that, time, proposition early for the at “the wife’s receivable, is testimony on her husband’s behalf treated as his her from him keep testifying against while is Henry Wigmore apparently sanctioned.” 8 John Wigmore, on Rev.1961).2 at 211 (McNaughton Wigmore Evidence posits privilege may have derived from principles applied by the ecclesiastical courts from “a natural and strong was felt repugnance (especially days [that] those family unity rigid paternal authority) closer and more a man condemning admitting against to the witness stand roof, him those his who lived under shared the secrets of his life, him depended domestic on for sustenance and were his chattels.” Id. at 212. almost among numbered Writing very Edward Coke described a different rule, with exclusionary a different theoretical basis. Coke not treated the rule as a husband’s but as an disqualification—that absolute a wife “cannot produced quia husband, sunt duae animae in either or for her came una they are two souls in the same [for flesh].” supra, (quoting A Coke, Wigmore, Edward (1628)). Commentary upon The Trammel Court Littleton explained: report English Reports supports
2. The of Bent v. Allot in the is brief but Colston, Wigmore's statement. It states: "It is informed that one of the defendants, ordered, examined his own wife as a witness: it is therefore behalf; plaintant may subpoena against take a her on his if plaintant’s party, Colston will not suffer her to be examined on then party suppressed.” her examination on the said Colston's from two canons disqualification sprang spousal “This first, rule that an accused jurisprudence: medieval because of his his own behalf permitted second, that hus- concept proceeding; interest one, the woman had no and that since band and wife were existence, was that the husband recognized separate legal doctrines, it long-abandoned now From those two one. lips from the that what was inadmissible followed *10 his wife.” was also inadmissible defendant-husband 909, Trammel, 44, 63 L.Ed.2d at 100 S.Ct. at supra, 445 U.S. Coleman, 380 281 Md. supra, at 190-91. See also 52.3 A.2d at obviously much broader disqualification was
Coke’s rule in only It not earlier-recognized privilege. applied than the testimony either precluded criminal cases but both civil and Blackstone, years 140 after spouse. -writing for or against Coke, commented:
“But, are not wife] sort and [husband trials for, partly each other: against, allowed to be evidence testimony should be indiffer- impossible because it is their ent; person: because of the union and principally but therefore, they if were admitted to be witnesses each for law, other, maxim of ‘nemo in they would contradict one in his may testify debet’ man propria [no causa testis esse other, cause]; they if each would contra- against own and acensare, maxim, seipsum ’[no dict another ‘nemo tenetur to incriminate compelled himself].” man can be England Blackstone, the Laws of 1 Commentaries on William ed.1983) also O’Connor (emphasis original). 431 See (Spec, Noting Wigmore that there is no 3. had little use for Coke's view. appeared disqualification Coke's treatise reference to such a until 1628, As to the suggests may that it have been Coke’s own creation. he validity principle, Wigmore a few Latin "[h]e states that mouthed scholasticism, suggested a consideration doubt- words of medieval morality view of human nature.” 8 ful in its and narrow in its 2228, unity § supra, at 214. Coke's invocation Wigmore, Hale, persons, Wigmore identity of echoed later Matthew married regards "merely appealing] to a Id. at 216. as fiction.” 192 Marjoribanks,
v. (C.P.1842); King 179, 182 134 Eng. Rep. (1788). Cliviger, 143 Eng. Rep. enunciated Although disqualification Coke extended beyond both marital communications knowledge acquired a consequence relationship of the marital and was stated in terms, it respects always absolute was limited some and was subject to exceptions. Wigmore some As both Greenleaf and out, it point applied only when the husband or wife was a party to the suit which the other was called as a witness and did not extend to collateral proceedings between third and, time, parties, permitted from the earliest a wife was testify against her husband when she the victim of his supra, criminal conduct. 8 (citing at 213 Wigmore, Case, Audley’s Lord (1631)), Eng. Rep. in which held, the court that a wife be witness her her, instigated by him.” Seе also husband “for rape upon (1st Greenleaf, at 247 Simon on Greenleaf Evidence supra, 1842); Blackstone, ed. at 431.4 That exception was common law. See Hanon v. recognized Maryland also under State, (1885) acknowledging Md. princi- “[t]he ple of necessity, by which under the common law a wife is *11 permitted testify against to on a charge affecting her husband liberty person.” her Wigmore exception simple necessity, observing
4. ascribes this that "[a]nyone could see that an absolute ain husband to close the testimony against mouth of the wife in him would be a vested license to injure complete impunity.” supra, her in secret with 8 Wigmore, 2239, beyond § at 242. How far criminal acts committed exception Wigmore wife the common law extended is not clear. *12 focused, narrower, rationale for a more rule stating the same much more by Judge that was enunciated Chief Best—a rule competence testify. akin to a than to a lack 194
Notwithstanding precursors, general these dis spousal statute, qualification operate by continued to until modified largely through and it was those statutes that the narrower precluding rule disclosure of marital communications came out, Wigmore point into the law. As both and McCormick so operated, as the there no long disqualification practical was separate dealing just need for a rule with confidential marital 2233, 644; supra, communications. Wigmore, at 324. statutory march on McCormick Evidence 2,§ in c. began partially 1851 with & 15 Vict. that, in disqualification parties abolished the and declared actions, competent civil were and parties compellable give evidence on behalf of either next party. step was years taken two later with the enactment of the Evidence §§ Amendment Act of 16 & 17 Vict. c. 83. 1-3. (1) Act, declared, Parliament in part, except relevant otherwise provided, parties husbands and wives were and competent compellable give evidence on behalf of (2) any any case, either or civil in parties nothing any Act rendered or competent compellable husband wife give action, for or any evidence the other criminal (3) shall be compellable any “[n]o Husband to disclose him by Communication made to his Wife during Marriage, compellable any and no Wife shall be to disclose Communica during tion made to her her Husband Marriage.”5 That provision, only last which dealt with compellability, ap pears statutory to be the first articulation of the confidential marital communication rule.
Many of the American States followed the lead of Parlia- State, ment. As we supra, observed Coleman v. atMd. 380 A.2d at appeared, “when trend the period disqualification repealed 5. The of criminal defendants to 1898. 61 & 62 Viet. c. 36. The Act made defendants their witnesses, (1) non-compellable but made the defendant a witness, (2) precluded testifying except upon applica- defendant, (3) nothing tion of the declared that in the Act made a compellable husband or wife to disclose communication made during marriage. him or her to the other *13 1870, common law to abolish or restrict these from 1840 to for confidential disqualifications, present privilege marital the Mary- communications between was enacted.” by 1864 Md. Assembly first dealt with the matter land General Laws, 109, in it the first five sections ch. rewrote Code). (then Maryland 37 of he existing Evidence Code Article 1,§ the common law rule Legislature In new the abolished presumed of their testimony by parties on account precluding no offered as a person self interest and declared instead that from crime by incapacity witness shall be excluded reason suit, any in civil or criminal. giving or interest evidence that, action, in “and any parties litigant It such specified competent compellable shall and their wives and husbands be witnesses, to in same manner as other give evidence § excepted.” In a new 3 added to except hereinafter to Legislature exceptions Article set forth a number that new doctrine. It first retained the rule that defendant in compellable a criminal case was neither nor to competent stated, give against evidence for or himself. It then with respect spousal testimony: to
“[N]or, in any proceeding, any criminal shall husband be competent сompellable give against or to evidence for or his wife, any nor shall wife be or competent compellable give husband, for against except evidence or her as now allowed case, criminal, law, nor by any any civil or shall husband competent be compellable any disclose communication to him his by during marriage, any made wife nor shall wife be compellable to disclose communication made to during marriage.” her her husband added). (emphasis Legislature rewrote 3 of Article 37. The
main purpose of the 1876 amendment seems to have been remove the disqualification defendants to their (but own behalf to continue non-compellable their status as witnesses), but, in rewriting Legislature the section the re- pealed provisions regarding spousal enacted testi- mony. It simply competent declared defendants wit- neglect nesses but that or refusal of a stated defendant him. See any presumption not create testify shall Laws, ch. 357. 1876 Md. Turpin the effect of the 1876 amendment
We considered
(1881).
murder,
State,
called
accused of
Turpin,
Perhaps Turpin, provisions regarding as a result of the Laws, by 1888 ch. 545. spousal testimony were restored Md. that, § 3 of provision That Act added back to Article all criminal the husband or wife of the proceedings “[i]n “in testify,” but that no party competent accused shall be case, criminal, any competent civil or shall husband or wife be any to disclose confidential communication made the one to during marriage.” the other amendment, law,
As a of the 1888 as ultimately result (1957) 35, §§ codified in Article Maryland Code (1) spouses generally competent compellable were (2) witnesses; in criminal proceedings, (3) case, defendant was “in “competent testify,” but no civil criminal, any or shall husband or wife be disclose confidential communication made the one to the other during marriage.” The law remained in that state until Legislature § when the added what was then provision person Article 35 the that a compelled could to testify party as an adverse in any witness criminal proceeding CJP, involving person’s spouse. enacting Legislature further provisions divided these into separate sections. The general competence and compellability was stated 9-101. non-compella- bility of a testify as an adverse in a witness criminal placed case was preclusion against and the disclosure confidential marital communications was stated §in 9-105.
What we see from this development legislative re- placement of an actual disqualification, that had a shaky origin *15 was ultimately and based on the common law fiction that a married woman no separate legal individual, had as an status with a much narrowly more foсused rule that on solely rested the public policy objective preserving confidences shared between based, husband and wife. Section 9-105 is not and based, never was aon notion of the incompetence true of a spouse as a witness. The seeds of this can be traced at least Greenleaf, 1842, who, in having given public policy ratio- confidences, nale for the exclusion of marital treated the exclusion, extent,” “in its spirit analogous exclusion of by confidences made a client to his or her attorney. 338, Greenleaf, supra, at 386. The Trammel regarded Court the exclusion as a for “privilege confidential Trammel, marital 47, communications.” 445 supra, U.S. at 198 in v. Although at 193.6 State 911, 63 L.Ed.2d
100 at S.Ct. (1992), we, 343, 365, 373, 609 A.2d 327 Md. Enriquez, under the statute “incompetent a wife declared passage, one objec over her husband’s marital communication divulge §to 9-105 as confer tion,” consistently referred we otherwise 367, id. at “privilege,” statutory marital communication ring a how we 343-46, is consistent with 369-73, at which 609 A.2d State, 514, v. 236 Md. Gutridge statute characterized the Coleman, at (1964); 281 Md. 517, 557, supra, 204 A.2d Mazzone, 51-54; 336 Md. 541-546, 380 A.2d at State (1994). 384, 978, 648 A.2d 379, has on the law of evidence commentator Every major limiting precluding the disclosure statutes characterized not and as conferring “privilege,” communications as marital notwithstanding actually incompetent, rendering throughout his dis- Wigmore, statute. language used §in refers to it as rule embodied cussion of the from the discarded it different” declaring “plainly privilege, 2334, at supra, disqualification. law common Wigmore, “[pjerhaps that the commonest particular notes in 645. He marital the moribund the confusion with error caused right of the of the communi- ignoring disqualification was Id. in his own behalf.” privilege to waive the cating spouse §In at he confirms original). (emphasis it.” may of course waive privilege spouse possessing “[t]he preclusion that the agrees McCormick (emphasis original). incompetence, observes: privilege, is a rule of .privi- came to write the they ... when “Many legislatures in this rule as a survival phrased simply into law lege spouses, of the incompetency case of the ancient special ability principally the asserted of a defendant dealt with 6. Trammel spouse, the Su- testimony his or her preclude any adverse noting regarded "privilege,” indeed from the preme as a Court also development thus evolved into one of rule "[t]he historical Trammel, supra, 445 U.S. disqualification.” than one of absolute rather L.Ed.2d at 191. Its characterization 100 S.Ct. at part of its as a exclusion of marital communications *16 development 501. of Fed.R.Evid. discussion which the same statutes undertook to abolish or restrict. it is provided ‘incompetent’ So often are Consequently, to marital communications. frequently background courts overlook this ‘common law’ of action privilege, permit any party to the to claim the by objection. benefit the rule counsel often Doubtless fail to point privilege, incompetency, out that not is the classification, proper and that distinctive feature is can only by that it the holder or claimed beneficiary of the not as such. privilege, party latter principle clearly is correct.” § supra, McCormick, 335-36. view, Jones parrots McCormick’s agreeing statutes sometime privileges “couch terms incompetency, a defi Spencer nite misconception.” A. Card, On Jones Evidence (6th ed.1972). 21:7, that, § at 760 He applied adds as wife, husband and “this terminology surprising is not as the privilege against disclosure of confidential communications is regarded often survival as a of the common law rules of incompetency out of arising marriage relation.” Id.7 however, agrees, Jones truly that “it is such as the privilege rule into place came existence in the more drastic rules of complete disqualification.” Id. See also Scon’ Privileges N. Robert K. 5.02, § Taylor, Stone & Testimonial (2d (“The 1993) at 5-3 ed. disqualification absolute on the ground which incompetence, only states, is retained few is based upon archaic notions of the nature of the marital women.”).8 relationship and the role of The two preeminent Maryland commentators on regard evidence law also Lynn Maryland creating only a privilege. See McLain, example loosely 7. An ambiguously of how or “competent” term statute, Pennsylvania used in statutes of is the this kind 42 Pa. Cons.Stat (West 1982), that, provides proceeding, in criminal Ann. permitted "neither husband nor wife shall be other, confidential communications made one unless this added). upon (Emphasis is waived the trial.” Interestingly, Taylor Maryland 8. Stone and do not list as one of the retaining States disqualification. the absolute *17 Joseph (1987 505.2, F. Supp.); &
Evidence Maryland 903(B), at 377-79 Murphy, Evidence Handbook ed.1999). (3d out, are notion that Taylor point spouses
As
and
the
Stone
com
testify to confidential marital
actually “incompetent” to
in a
States. Most States
today only
munications exists
few
adopted
statutes or
have
written
rewritten their
either
but a
preclusion
clear that the
rules of evidence make
required.
on that issue is not
judicial
so
construction
privilege,
literally.
In Com
has construed its statute
Massachusetts
Cronin,
(1904), the
Mass.
In Mass. 524 N.E Gallagher malpractice action a wife who had been medical mentally testify, unable to incompetent rendered and oc to a conversation precluded testifying husband was visit to the defendant doctor curring prior to wife’s symptoms she the list of she intended to discuss related doctor, ground private on the that contents of with defendant absolutely court con communications were excluded. The rendering private commu strued the Massachusetts statute if spouses “even both nications between inadmissible so, it doing Id. at 54. In desire evidence be admitted.” disqualification rule recognized underpinnings that courts commenta among had “fallen in extreme disfavor alike,” “may statutory as a tors that such a rule be viewed con a remnant of an common law preservation outdated testimony as imprudent prohibit seems cept” “[i]t parties the conversa to a marital conversation when both unit tion disclosure and the interests of the marital want by disclosure.” Id. at 55. The court would be furthered prior construing felt bound its decisions nonetheless strictly. statute
Maine, Iowa, Ohio, Missouri,
District
Columbia
Benner,
approach.
have taken a different
State v.
284 A.2d
(Me.1971),
the court
a statute providing
construed
of an
accused “is a
witness except
regard to marital communications.” The court concluded that
for marital communications
the nature of
exception
incompetence,
not an
and that
privilege,
privilege,
“when
*18
claimed,
protect
appropriately
functions
the testi
specific
monial
a
matters
by
disclosure
connected
relationship.”
with the marital
Id. at 107. The court reached
have,
that conclusion
we
examining,
after
as
the derivation and
statute,
purpose
noting particularly
legislative
the
re
the
common
disqualification imposed by
moval of
absolute
the
(Iowa
law.
In State v. Hastings,
Ct.App.
203
In
be found
in the clearest of circumstances.
except
waived
Enriquez,
that
emphasized
Coleman and
we
confidence was
marital relationship,
relationship
essential
that that
was
subject
encouragement
law,
a
of
“the
proper
and that
that
it
injury
probably
would inure to
the disclosure
greater
judicial
than the
that
in
benefit
would result
Coleman,
investigation
541,
at
supra,
truth.”
281 Md.
380
52;
372,
Enriquez,
A.2d at
petitioner’s
authority
on the
confession admissible
180,
case,
37
In
supra, Md.App.
The Court of on Appeals, this did not rely Harris, good and for reason. Even to the extent that Harris that, itself, be correct in its holding that a communication constitutes crime or subject a threat is privilege, not to the itself, the confession by petitioner not, made to his wife did constitute either crime or a threat her necessarily contrary promotion harmony. marital authority Harris serves no admissibility for the of Ms. Brown’s disclosure. appellate The intermediate court relied case, upon a Cummings instead Colorado People, 785 P.2d *20 204 (Colo.1990) “my that the assertion of a proposition
920 for the a privilege. did it” defense constitutes waiver the That, noted, now the State. position as is the asserted case, relied, a part, on California Cummings
Because 359, 113 Cal.Rptr. 38 322 People Worthington, Cal.App.3d begin Worthington. we with The defendant was shall daugh two mother and her murdering people—a convicted for time stayed he his wife had a whom and ter—with developed appeal, an he they antipathy. with whom had On the court allowed his wife to about complained that trial had the victims. That his confession to her that he killed the California testimony, argued, he was inadmissible under (Evidence Code, 980), § a affording §to equivalent prevent to disclose and another refuse spousal during disclosing from communication made confidence the court the marriage. testify, the Before allowed wife him that detective testified that defendant had informed wife killed two victims and had the defendant’s described killings place—an detail how the took account that the some regarded image as a mirror of the wife’s appellate court privi with testimony, ultimate but their roles reversed. subject to another lege expressly afforded made (Evidence 912) declaring statute Code. waived coercion, “if without has disclosed privilege, holder a significant part Worthington, of the communication.” 365, 113 Cal.App.3d Cal.Rptr. 322. appellate court affirmed the decision allow wife’s fail
testimony. It found “incredible” the “defendant could disclosing to realize that in what he claimed wife had told murder, him, inviting response a confession he was conversation,” adding her that “it the wife version of can, guise if irony would be the ultimate one under other, to his ‘squealing’ response on silence other’s added). charges.” Cal.Rptr. (Emphasis Id. at Furthermore, declared, an the court “there was abundance of did, could, it as it upon the trial court evidence before signifi- had disclosed a finding make defendant himself cant, twisted, if version of his conversation with his spouse.” *21 Id. Cal.Rptr. at 322.
In Cummings, the
also was
of
defendant
convicted murder-
ing
the
people.
two
evidence established that
murders
place
took
the home where the defendant and his wife lived.
his
each
He and
wife
claimed that the other committed the
Cummings
charged
murders.
was
with the murders and his
statement,
accessory. During
wife
an
charged
opening
defense counsel asserted that the
was the killer and that
wife
protect
the
a
accessory—simply “trying
defendant was
Cummings,
loved one.”
Neither of those supports cases finding waiver this case. The waiver Worthington essentially was based on finding that the defendant had himself disclosed a version conversation, of the and he could not then complain when the give wife was allowed to her version of it. Self-disclosure of an otherwise is generally regarded confidential communication as a § waiver See 8 privilege. supra, at Wigmore, 671; McCormick, 336; supra, supra, Taylor, Stone & 5.12, Bledsoe, at 5-28. also supra, See State 325 S.W.2d (when 762, 766 defendant testifies to confidential marital com wife, munication from no allowing error wife to testify rebuttal). Nothing said petitioner attorney prior or his Ms. testimony Brown’s be any part could taken as revealing conversations testified to Ms. Brown. is Worthington wholly inapposite. all
Cummings, court, with due to the respect Colorado not particularly begins well-reasoned. It with a far more case, statement, that the holder from an earlier
general taken himself from permitted “will not to ‘absolve privilege in order to privilege time assert the liability and at same truth of the ascertaining prevent party the other ” Court, 668 v. District P.2d (quoting at 926 Clark claim.’ Id. (Colo.1983)). nothing had to do with the Clark The issue was marital communications. for confidential in a action waived his wrongful death whether defendant by denying liability, and psychiatrist-patient privilege that, noted he so. The court court held that had done or mental physical his or her when the holder asserts defense, person of a claim or as the basis condition confidentiality respecting claim of waives implicitly had condition, held in the defendant done but Clark *22 Apart Worthington, from nothing privilege. waive his Cummings court all dealt with other cases cited object on a failure to the evidence or waivers based either herself) (or offering evidence person on the himself communication. lаrge leap arguing makes a
The State too “my a did it” proposition spouse these cases the broad that asserted, defense, to waive the however suffices circumstances, a on the Depending § 9-105. afforded object from a failure to or from may waiver be found conversation, “my but a (cid:127)voluntary self-disclosure case, invoke waiver. In this it” itself does not did defense object petitioner immediately not to Ms. Brown’s although did ground privilege, neither the Circuit Court statement on Special Appeals the Court of found a waiver on basis. nor statutory raise the eventually shall we. Petitioner did Nor upon by the court. privilege, which was entertained ruled indicated, Nor, any disclose petitioner as we have did himself testimony. with his wife to her part prior of the conversation was no waiver. There RE- APPEALS OF COURT OF SPECIAL
JUDGMENT VERSED; TO THAT COURT WITH CASE REMANDED OF CIR- TO REVERSE JUDGMENT INSTRUCTIONS COURT AND CUIT FOR BALTIMORE CITY REMAND TRIAL; THE CASE THAT COURT TO FOR NEW COSTS IN THIS AND IN OF AP- COURT COURT SPECIAL BE PAID BY PEALS TO MAYOR AND CITY COUNCIL OF BALTIMORE.
BELL, C.J., CATHELL, J., concur.
BELL, Chief Judge, Concurring: (1973, majority Maryland holds that Repl. Code Vol.) § 9-105 of the Proceedings Courts Judicial Article1 marital privilege, codifies confidential communications under a spouse, disclose, or former or be compelled disclose, objection waiver, over and absent a 180, 201, confidential marital communications. 359 Md. (2000). holds, nevertheless, A.2d It that the “privilege” and, thus, was not petitioner’s waived this case reverses the conviction. I agree with that result. I Accordingly, concur result. We have arrived at result by the same different routes, indeed, however; conclusion, I reaching my embrace majority rejects: § a rationale that the expressly 9-105 is statute, competency than setting rather one forth a privilege. I Whether majority is correct involves statutory inter- pretation. broadly,
Section 9-105 is but written. clearly, It is well process, settled the interpretative purpose of which is to ascertain legislature, and effectuate the intent of the Parri- State, 554, 559, son v. 335 Md. 644 A.2d *23 and, begins, when the words of statute are the clear and unambiguous, according to their and ordinary commonly un- derstood meaning, Chesapeake see Potomac Telephone Maryland Co. v. Director Mayor City Finance of of for Baltimore, 567, 578, 512, Council 343 Md. 683 A.2d 517 of case, Although § Judge 9-106 is not at issue in this Cathell would 1. it, 9-105, competency § hold that and not is the statute. As will well, apparent, differently become I see as and for this the same reason essentially company part majority respect that I with the with to the interpretation plain § language of 9-106 belies the interpretation Judge gives it. Cathell .208 Connors, 24, 35, 423, A.2d 429
(1996); 339 Md. 660 Oaks Buckman, 516, 523, Md. (1995); County v. 333 Montgomery ends, 448, of the ordinarily 451 with the words 636 A.2d State, 237, 24, 29, A.2d 351 Md. statute. Farris v. (1998). course, true, legislative history of the It is that account, confirm, not may only into but to enactment be taken contradict, according to the result derived from words commonly meaning. their understood See Cole- statute (1977). State, 49, man v. 281 Md. A.2d communica by Spouses—Confidential “Testimony Headed that, occurring § 9-105 “One during marriage,” provides tions spouse is not to disclose confidential communi occurring during marriage.” their cations between the th(7 ed.1999) Dictionary “compe Law defines Black’s legally testify,” is qualified tent witness” “a witness who and, extension, “incompetency”— on based the definition of testify,” legal ability respect, especially “the lack of some disqualified an is one incompetent legally id. at witness thus de clearly unambiguously Section 9-105 testify. testify against unable to the other as spouse clares one marital communications.2 The words used leave confidential intention; Legislature’s they provide no no doubt as to mean has a construing basis for the statute that discussions, a not to as to confidential marital be waived. interpretation is con- logic this underscored and §with when 9-105 is contrasted 9-106.3 That latter firmed provides: section Judge recognizes language
2.
with
Cathell
used is inconsistent
privilege:
continuing viability
“spousal
incompetency”
“But for
statute,
might
concept by
plain language of this
infer that
statute
competency.
history
is
section 9-105
a statute based on
however,
indicated,
9-106],
9-105 and
as I have
[§§
statutes
otherwise.”
J.,
(Cathell,
concurring).
at 113
“(1) 18; of a The abuse child under “(2) in any Assault in which the is a victim degree spouse if:
“(i) person previously charged on trial was with The any degree battery assault in or assault of the and spouse;
“(ii) to spouse testify previous was sworn at the trial; and
“(iii) spouse testify trial previous refused on of this provisions the basis section.” § this speaks “compellabil- Unlike section terms of ity,” a privilege. clearly it addresses It suggesting prohibits of a on unambiguously spouse defendant trial compelled from as an being except adverse witness Thus, certain enumerated and well defined circumstances. spouse elect, the statute the witness but not allows compelled, “privilege” as an adverse witness. The testify belongs spouse, to the witness who is not statute, disqualified, the terms of the testifying spouse. comparison his or her This demonstrates that § clearly 9-106 is not a competency statute and that out, is clearly petitioner points not a As the privilege statute. “section 9-105 addresses when a is a wit- ness, and section 9-106 when a a compell- addresses able The comparison witness.” also demonstrates that the Legislature I knows difference between such statutes. think that significant it is most that both statutes are found in the subtitle “Competence, Compellability, headed and Privi- communications, confidential marital while 9-106 addresses a com- subject, pletely spouse’s compellabilty different as a witness. In event, both, required interpret give we are statutes as to effect to doing meaning
but without violence to the of either. See v. Beth Blitz 31, 40, Congregation, Isaac Adas Israel 352 Md. 720 A.2d (1998), cited cases therein. both, that, although using language absolute lege” “compelled” one and “competent” used Legislature *25 I am the fact that the first four sections by other. also struck 9-105,4 the a subtitle, qualification § involve including instance, particular in in a testify, general witness to either or (child § general);5 testimo- (competency § 9-101 9-103 see (convicted case);6 § § 9-104 9- perjurer);7 in a criminal ny that, communications), testimony (spouse confidential (adverse witness),8 § the party 9-113 exception, with one privilege particular or when a remaining sections address (defendant § may to 9-107 compelled testify. witness be See § witness);9 (attorney-client рrivilege);10 § 9-109 9-108 as (1973, Maryland Repl.Vol.) § § 4. Code 9-102 and 9-103.1 of Article, Proceedings pertaining, respectively, and Judicial Courts by testimony of television and the child abuse victims closed circuit victims, admissibility of the out of court statements of child abuse were transferred, 585, 1996, 5, 1, 1996, § Maryland by Acts c. eff. Oct. (1957, Repl.Vol.) respectively. §§ Article 774 and Code my argument; moving legislative by these sec- This action buttresses and, it, particular from the subtitle first section of tions contemplated by heading. Legislature intact the left scheme provides: 5. Section 9-101 provided in this subtitle: "Unless otherwise "(1) proceeding person testifying A shall not be excluded from ques- incapacity crime or interest in the matter in
because of tion. "(2) compellable Litigants and their are give evidence.” provides: 6. Section 9-103 trial, age may "In a of a child be the reason for criminal not testifying.”
precluding a child from provides: 7. Section 9-104 may testify.” person perjury
"A convicted not case, officer, provides an party 8. 9-113 civil or "[I]n Section director, managing agent corporation, partnership, or of a or associa- party interrogated tion called the adverse on cross- examination.” provides: 9. Section 9-107 person may compelled "A not be violation of his of a in a self-incrimination. failure defendant (ac- § psychologist privilege); 9-110
(patient/psychiatrist
§
§
9-111
privilege);
(clergy privilege);11
9-112
countant
(licensed
(news media);
privi-
§ 9-121
social worker/client
(witness
lege);
immunity
compulsory
§ 9-123
for
testimony).
I am
reliance on
persuaded
majority’s
dicta
State,
(1977),
281 Md.
A.2d (1977). 49, 54 A.2d § statute consistent with
Treating competency 9-105 as is marital communications shielding confidential purpose Coleman, stated in purpose That disclosure. Evidence, (citing Wigmore, A.2d at 51-52 Md. rev.1961) McCormick, § and Handbook of (McNaughton (2d ed.1972)): Law of Evidence communications between husband and wife “[Confidential (2) (1) confidence, originate ... ... the confidence is (3) relation, object proper essential the relation (4) law, encouragement by injury that would it than probably greater inure to the disclosure is judicial investigation result in the benefit that would „ protect is to confidences truth. The essence only thereby encourage ... such communications free from, disclosure, compulsory promoting fear of thus marital harmony.” out, important petitioner points
As the institution “[t]he marriage ‘bright-line’ legally is served rule that ensures confiden- that confidential marital communication shall remain tial marital communication.” considered, has Assembly rejected,
The General amend- times in 1973. ments to 9-105 nine since its enactment It able, will if it that we certainly believes have misconstrued intent, the statute. But it to be ought its amend not this Assembly, General Court makes determina- tion; it is not or what the Court’s intention the Court believes *27 that is at policy approach to be the best issue.
CATHELL, Judge, Concurring: majority, I the I Although concur with result reached in how that is reached. differ somewhat result majority’s I disagree analysis While with some of the issues, English I early history competency time to issue with treatment of shall take the take their that historical perspective.
Section 9-101 of the Courts & Judicial Proceedings Article “[ujnless states that provided otherwise this ... subtitle [ljitigants and their spouses are compellable give evidence.” provides, however, Section 9-105 that “[o]ne spouse is not competent to disclose confidential communi- cation between the occurring during marriage.” their 9-106, And section part, relevant provides “[t]he spouse of a person on trial for a compelled crime not be to testify as an adverse witness----” In seeking reversal of the Court of Special Appeals’ opinion, petitioner proffers two arguments, (1) which I rephrase and simplify: section 9-105 is an statute, unwaivable “competency” not a waivable “privi- (2) lege”; and if section 9-105 does establish a privilege, then petitioner has not waived the this I case. am convinced that section 9-105 deals with privilege by virtue the treatment of the issue the General Assembly over the last years hundred or so.
Central to arguments presented is the nature section 9-105. Section it, cannot, as I view in light of the history of testimonial limitations on spouses Maryland and elsewhere, be resolved a vacuum. The “competency” por- tion of Title subtitle entitled “Competency, Compellabili- ty, Privilege,” believe, I require, minimum, at a a balanc- ing of those provisions relating to competence of spousal witnesses to testify at all other in a criminal proceeding and the privileges of spouses, generally, to decline to testify as to privileged prohib- communications or to it the other spouse from testifying as to such confidential marital communications. This Court and the Special Court of Appeals heretofore, have for the part, most almost always addressed the issues of spouses testifying in cases involving the other spouse using language of “privilege.” In the cases, however, parties generally have presented disputes of privilege matters assumed, and we have for purposes cases, of that the issues related to privilege only, exceptions 1. The to section 9-106 are not relevant in the case sub judice. *28 dicta, have, in the recognized in at least case we although one and context of competency difference between the spousal witnesses.
I is initially many that the matter treated different note con- ways jurisdictions. conclude that both by other Some matter of either the statutes of the cepts are a under jurisdictions jurisdiction’s or under the common law. Some distinction, in the recognized generally continue to a but find is rather compe- individual cases that involved than “privilege” tency. jurisdictions have their stat- interpreted Some state’s relating exclusively utes common law as the matter I the difference the competency. defining would start concepts.
“Spousal “spousal referred as incompetency,” sometimes disqualification,” “spousal or the immunity,” “prohibition against spousal testimony,” even re- adverse and sometimes see, Fisher, 442 “spousal People v. privilege,” e.g., ferred to as to the Mich. N.W.2d relevant is, a incompe- issues rule of testimonial presented, generally, may whether at all tency. governs testify The rule a spouse i.e., judicial appear in a as a witness proceeding, authorities) (or other for to some spouse spouse, according In party. a case in which the other is a most jurisdictions qualified by right the issue is of either the both, the other to such testifying spouse, spouse, or consent sense, however, juris- In a at testimony. pure least one held,2 prohibition against “spousal diction has so testimo- ny” jurisdiction, during spouse, absolute. all, issue, case in marriage, could as to party. “Spousal incompetency,” which the other if applicable, only during marriage. exists After the “spousal is no marriage, incompetency” termination longer ex-spouse testify, required at issue and to testify.
“Spousal privilege,” also referred to as the “communications
Court,
is a
privilege,” as relevant
to the issues before
(1988).
Goldstein,
2. See
402 Mass.
As I commence examination of construction. “The initially statutory the constraints note and statutory interpretation of is ascertain cardinal rule Connors, legislature.” of the Oaks v. effectuate the intention 423, (1995), Board 24, 35, 429 quoted 339 Md. 660 A.2d of 407, 116, 122, 729 A.2d 410 Toye, License Comm’rs v. 354 Md. (1999). said, for deter- starting point “As often have the we of the statute itself. mining legislative language intent is the statutory language ambigui- is and free from plain Where the meaning, courts do not ty, expresses simple definite and of the statute itself to deter- normally beyond look the words State, 400, 417, v. 352 Md. legislative Degren mine intent.” (citations omitted). (1999) 887, Tracey In v. 722 A.2d 895 590, (1992), however, 380, 387, 614 594 Tracey, 328 Md. A.2d plain meaning that “the rule of construction opined this Court absolute; rather, must reason- is not the statute be construed aim, of purpose, policy to the or the ably with reference context, larger will look at the enacting body. The Court statutory the within which lan- including legislative purpose, (Citations omitted.) Thus, this Court is not guage appears.” of terms at meaning constrained the literal usual the Liston, 803, 808, Inc. v. 349 Md. Edgewater Liquors, issue. (1998). 1301, Rather, “interpret 1303 we must 709 A.2d language objectives meaning light and effect State, enacted.” Lewis v. 348 purposes provision (1998) 1128, 648, 654, (citing v. Gargliano Md. 705 A.2d 1131 (1994)). State, 428, 435, 675, 334 639 A.2d 678 Md. intent, legislative
In
the Court
resort to
determining
enactment,
Kuntz,
v.
history
legislative
behind the
Welsh
(1950);
State,
86, 93,
343,
v.
186
196
75 A.2d
345
Barnes
Md.
52,
denied,
754,
287, 291,
50,
67
Md.
47 A.2d
cert.
329 U.S.
95,
development
470, 475 (noting necessary is often to look at “[i]t development legislative a statute to discern intent that may not be as clear initial examination upon of the current State, language (quoting the statute.” Condon v. 332 Md. (1993) (alteration 481, 492, 632 A.2d original))). statute, of a reviewing history we must bear mind that Legislature presumed is to be aware of the common law it stands at the time of the enactment law not change intended to the common law absent an express, specif State, 124, 131, ic declaration to Hardy do so. See 301 Md. (1984) (“Maryland A.2d courts adhere to the policy that statutes are not to be construed alter the common-law by implication.” (citing Bradshaw v. Prince 294, 302, George’s (1979); County, Md. 396 A.2d State, 12, 15, (1934))). Lutz v. 167 Md. 172 A. *30 jurisdictions interpreted Most have the common law as related, recognizing separate, though the common origins law of concepts “spousal competency” “spousal privi- lege.” adopted position urged Some have the on us that such virtually always competency statutes are statutes.3 Maryland attempted, point, at one to abolish concept the of incompetency, but process absolute enactments and re-enactments has competency language used to limit the effect the abolition of the concept old common-law “spousal or incompetency” “spousal disqualification.” 1864 Laws, 1, Maryland Chapter section provided, as relevant to present issue: nor, any
Sec. 3 .... criminal proceeding, any shall competent husband be or compellable give evidence for or wife, vice-versa], against his as except [and now allowed law, case, criminal, in any nor civil or any shall husband be competent or compellable any disclose communication 3. jurisdictions I have found no statutes in the other identical to the earlier, Maryland three supra. sections of the subtitle described language-of Maryland unique. statutes be vice- marriage, [and during him his wife made to versa]. It concepts. view, both this statute codified my Laws, section Maryland Chapter by 1876
repealed re- 3. The and re-enact section repeal purported person “the so general terms statute was couched enacted otherwise, be shall, but request at his own charged ” re-enacted, were As there witness.... competent deemed wives, husbands, spouses or relating to specific provisions no 515, was, in Laws, part, Chapter Maryland general. section and re-enact with amendments repeal “AN ACT to portions The reievant three, thirty-seven----” of article the hus- proceedings “In all criminal re-enactment read: competent shall party accused be band or wife of the case, criminal, husband or shall but in no civil testify; communication any confidential competent be to disclosе wife ” marriage.... Id. during other by the one to the made spouses § 1. This statute declared the disclosure of only right prohibit reserved to It, it, I see communications. as abolished confidential marital Mary- time the Accordingly, at that incompetency.” “spousal of confidential protection was limited to the land statute in the language last remained marital communications. This 1951 codification. See Md.Code through statutes “spousal incompe- 1964 there was no Through Art. 4. completely compella- tency” Maryland. Spouses rule were over ble, i.e., they testify, could not competent, although either, to confidential communications. objection of it, relating to this issue history, interpret as I statutory (or incompetency” early “spousal existence indicates *31 rule, and distinct from immunity) separate or disqualification of confi- involuntary disclosure forbidding provisions Then, 1888, “spousal communications. dential marital until Up from the statute. repealed rule was incompetency” provision re- marital communication the confidential been, seventy-five for over in the statute and had mained testimony. spousal to only provision respect years, re-enacted Then, again repealed Legislature statute,' it, I the relevant see for the sole of re- purpose establishing a modified “spousal incompetency” provision, that a provided witness-spouse compelled could not be testify against his or her wishes to the other Laws, Maryland a criminal case. Chapter provided: re-enact, amendments, to repeal
AN ACT with Section (1957 4 of Maryland Article 35 the Annotated Code of Edition), “Evidence,” title “Competency subtitle of Wit- ness,” provide that a or is not compelled husband wife testify party as an adverse or witness in a criminal action involving his or her but at his or her election only. body
In the only following the statute was added: “nor shall the compelled husband wife be as an adverse party or in any proceeding involving witness criminal his or spouse.” By her Id. 1. time the transfer of some of Article 35’s provisions “witness” into the Courts & Judicial (see Proceedings during Article recodification in 1973 Sp. Sess., 1), Laws, 2, § Chap. Md. thеre was a “spousal incompe- tency” provision, carried forward apparently Mary- Laws, Chapter land 835.4 None of the modifications to the subtitle since the 1973 changed any recodification have provisions relevant to the issues before us in the case at bar. combined, As statutory provisions relevant respect spouses now state: “Unless otherwise ... provided [Litigants competent and their are compellable give evidence,” 9-101, section spouse is not “[o]ne disclose confidential communication between the spouses occurring during marriage,” their section and “[t]he Interestingly, incorporated 4. privilege against when the 1973 Act communications, the forced disclosure of confidential marital it titled added.) Spouse-CiviZ Proceedings.” (Emphasis that section "9-105 codifiers, however, apparently modified the title to read "9-105. Testimony spouses—Confidential occurring during communications marriage.” party judice argues Neither in the provi- case sub that the limiting applies only sion the disclosure in civil cases. *32 compelled not be for a crime on trial person of a ....”§ 9-106. witness testify as an adverse to what, given just is to be resolved of the issues One statute, created has been of the current antecedents historical “spousal or incompetency” it “spousal Is Legislature? context of the testimo- both, upon the depending privilege,” heretofore, never, have spouses? We activity nial of the of the other positions the issue. The directly addressed (sometimes jurisdic- within the same are mixed jurisdictions tion). have held either jurisdictions that I first those mention testimony competency is a spousal range that the entire issue incompetency” general “spousal is a issue or that there non-waivable) and, as to confidential (whether waivable or communications, issue. “spousal privilege” marital in Gallagher Court of Massachusetts Supreme Judicial Goldstein, was ad- 524 N.E.2d 402 Mass. patient issue dressing malpractice a medical as a result mentally incompetent allegedly had been rendered plaintiffs actions of the defendants. negligent hus- testimony patient’s from the attorney sought present prior to her mental patient as to conversations with band statute, part, relevant The Massachusetts deterioration. understanding” person of “sufficient provided then that “neither hus- proceedings, except in court testify could conversations with private nor wife shall as to band similar language at 54. This Id. at 524 N.E.2d other.” normally 9-105. This is considered Maryland’s section court The Massachusetts privilege.” the “communications held otherwise: disqualification the statute is one of
The rule established of a Testimony as to the contents than privilege.... rather spouses if both is inadmissible even private conversation the evidence be admitted. desire marital testimony as to a imprudent prohibit It seems want parties both to the conversation conversation when However, has enacted Legislature disclosure.... stating statute a clear unambiguous preference for the disqualification. consistently marital We have ruled that the statute incompetent renders as to the private contents their conversations with their marital partners.... agree plaintiff many While we with the policy of the stated reasons for this statute anachronistic are *33 outmoded, and that those that not preserva- are such as the tion of confidentiality harmony, marital are not fur- thered inadmissibility testimony, this we must construe the statute as it is written. strictly Were this a rule, common law we would not hesitate to transform it However, from a rule of disqualification privilege. to one of statute, given the existence of the that decision is for the Legislature. (citations omitted) (foot-
Id. at at N.E.2d 54-55 omitted). Maillet, *34 testify spouse elect testifying that the requires The rule 601(B), a Thus, R. under Evid. spouse.... against her until she makes incompetent spouse remains right of her knowledge with testify, choice deliberate refuse. 30 Ohio Savage, 433-34, 650 at 877. State at N.E.2d
Id. of the prior version applied 506 N.E.2d St.3d whether a rule which the decision competency Ohio accused. The Court with the could rested spouse rule of privilege: the rule from a distinguished treatment, not received different incompetency [S]pousal incompe- a rule.of absolute upon but upon privilege, bаsed failure of the defendant- not be waived tency which could called his defendant object. Only when the spouse incompe- testifying spouse’s ... was the to the stand waived, allowed. and cross-examination tency be- Furthermore, significant are differences ... there one which privilege and granting particular tween a rule rule incompetent.... [A] a class of witnesses defines incompetency defines which witness not offer testimo- ny and then forth exceptions sets limited for when witnesses may be heard. [Citations omitted.] Id. at at N.E.2d 198. See also State v. Phelps, Ohio 187, 192, (1995) App.3d 652 N.E.2d (“Having dem- rules, uniqueness onstrated the of the two it becomes apparent spousal is not incompetency subsumed spousal within omitted)). privilege.” (quotation
It appears that at least the intermediate
appellate court
Minnesota is in agreement with the holdings of the Ohio
courts.
v. Thompson,
State
Thе state concedes that she cannot be called as witness previous husband’s consent. hold that her without her We inadmissable, testimony is likewise and reverse.
.. . can no but question testimony There be what the being [by the witness of the defendant the time was not unless he waived his competent trial] against testifying. her
Id. at 563. Hood, Burlington Northern Railroad v. 802 P.2d (Colo.1990), stated “[a] the statute husband shall consent, examined for or his wife without her [and vice-versa], ‘during or marriage afterward’ nei- ther spouse shall ‘be examined without the consent of the as to other communications made one to the other ” during marriage.’ (quoting 13-99- Colo.Rev.Stat. (1990) (first 107(l)(a)(I), 6A alteration in original)). The Colo- Supreme rado Court held:
This statute creates two distinct with privileges respect spousal testimony. The first is sometimes re- ferred to as of spousal disqualification prohibits the rule testifying against one the other without the other’s consent. The privilege prohibits second the disclo- of a spousal sure communication made one spouse to the during marriage. other (citations omitted). State,
Id. at 465 See also Fisher v. (“We (Miss.1996), So.2d ... note the difference between the marital privilege spousal incompetency. 601(a)(2) Rule spousal incompetence testify.... abolishes spouse may testify, non-offender be called to but the spouse may other still privilege regarding invoke the confiden- ”). tial communications.... statute, existing Pennsylvania Maryland’s like section
9-105, uses the term “competent” its treatment of confidential marital “in privilege: communications a criminal proceeding neither husband nor wife shall be permitted to confidential communications made by
224 other, upon is waived unless this
one to the (West 1982) (emphasis 42 Ann. 5914 trial.” Pa. Cons.Stat. added). testi- relating spouse’s to a also has statute
Pennsylvania once a defendant that was to a criminal mony while married to a changed used was terminology incompetency. rule Savage, v. 1989. See Commonwealth by an Act of “privilege” ( statutory provision “The 820, (Pa.Super.1997) 695 A.2d 823 ... was against each other as witnesses dealing with rewritten, 1989. that section was by Act 16 of When rewritten rendering spouse incompetent one changed ‘from a rule it was recognizing privilege other to a rule testify against to ” v. (quoting Commonwealth testify against spouse.’ to one’s (1993))). 1069, Newman, 424, 427, 1070 No Pa. 633 A.2d Code, & section 9-106 of the Courts change Maryland such Proceedings Article has occurred. Judicial at issue in testimonial statute was Pennsylvania The new 1069, Newman, 424, case. The contempt Pa. 633 A.2d statute, whether the effective there was question presented knowl- testifying spouse’s acquisition of the after the date trial, was crime but before the defendant’s edge about the her husband. The testimony against to her applicable compel opined: court to for the Commonwealth always permissible
It has been to build a case obtained from one use information rule, privi- now spouse. competency the other against is a testimonial one.... lege, testimony, regard spousal the rules with paraphrase
To testify competent wife is now deemed a husband or but has a to refuse spouse, his or her against may which he or she waive.... testimony, adverse give give testimony be called to Even if a husband or wife however, she is not or her he or spouse, adverse his communications. to confidential competent 1071,1072. 429, Id. at 633 A.2d statute competency/privilege Early the evolution Pennsylva- Act of there were Pennsylvania, prior to the nia cases that it was a holding “spousal incompetency” strict rule, competency where the issue of not be In could waived. Moore, 305 n. 309 A.2d Commonwealth Pa. 570 n. the statute then in effect provided “[n]or permitted shall husband and wife be ” Moore, court, commenting each other.... footnote, stated: “This is a statute to distin- competency guished purpose governing privi- and effect from the rules *37 leges or confidential n. communications.” Id. 306 309 held, at 570 n. 4. Supreme Pennsylvania A.2d The Court of ruling prosecution that the should not have to permitted been comment to the on the jury defendant’s failure to call his wife testify defense, to in his that:
It bar, is clear the purpose the statute is to either wife, other, husband or from testifying against the and this is a rule which is not by parties.... waivable The by very statute its terms stops spouse either from adversely affecting other; a criminal сase it although does allow a to on testify behalf of the other....
Id. at
Supreme Court of Tennessee described a spouse’s right to refuse to testify privilege.” as “a Legislature Tennessee apparently had abolished the statutory right not to testify, but intended to retain the judicially created common- law “spousal incompetency” rule leaving the latter issue to the that courts had created it. The court said: R. except [Tenn. 501] Evid. sets out that as otherwise constitution, provided statute, law, common ... no per- son has a privilege to:
(1) witness; Refuse to be a
(2) matter; any Refuse to disclose that a husband provides the statute part, ... In pertinent ... neither though witnesses be and wife shall matter that oc- shall husband nor wife consequence them virtue of or between curred marital relation.
Id. at 61. in the change to the prior court noted that even that wit-
statutes, provided Rules of Evidence the Tennessee defendant- testify against compelled could ness-spouses in criminal cases. Evidence, Rules of T.C.A. adoption Prior cases, in all criminal the husband that provided 40-17-104 for or competent witnesses or the wife were other____ years ... the cases have Over against each abrogate the rule as the statute did held husband communications between or confidential privileged, husband Generally they have held neither and wife. objection, testify, criminal nor are over permitted, wife *38 virtue or cases, occurring by matter between them any as to relation, any marital nor as to confi- in of the consequence this them.... view of communications between dential that, at the time of the defendant’s apparent it becomes statutory trial, provision constitutional or there was cases, leaving in criminal testimony in to spousal reference A for guidance. common law of this State us to look than leaves no other conclusion study early decisions states, Tennessee that, many in with of our sister company cases, hybrid in combination criminal adopted, courts interspousal testimony barring common law rule the ancient cases, hand, in civil estab- on and the marital one statute, on the other. lished Id. at 61-62. in re- statutory history of Tennessee’s
After discussion respect spouse’s competency to a spect confidential marital spouses, communications between court concluded:
After the foregoing legislation, enactment of the not with- standing that there was neither statutory nor common law precedent decisions, for involving such the cases criminal proceedings in this consistently State have referred to the rule found in wife, Goodwin Nicklin and 53 Tenn. Heiskell a civil case which the Court “The said: common places rejection law of such upon evidence high grounds public policy, greater because mischief and inconvenience would result from the than the reception exclusion of such evidence. general On this account it is a rule that the husband and wife cannot give evidence to affect each other either civilly criminally; for to admit such evidence would occasion domestic dissensions and ” discord....
Id. at 62.
The Tennessee court then subsequent discussed cases in which the testimonial issue was couched terms of competen- cy. It then noted that the common law rule as to spousal testimony courts, that, had been created given subject law, new statute was made to the common courts change could still the common law. anachronism,
The present rule is an perhaps for suitable created, times which it was longer but no a viable guideline for the conduct criminal proceedings a world which has experienced so much change. We it consider timely to policy establish a adapted is better to the by today’s circumstances marked standards.
Id. at 63. The court then the common provide modified law to that the testifying spouse alone a privilege had not to and that a willing spouse 64; could Id. at testify. accord State v. Bragan, 920 S.W.2d 240-41 (Tenn.Crim.App.1995). *39 Holmes, 826, 829, State v. N.C. 412 S.E.2d (1992), the Supreme Court of North Carolina noted: “At law, common general rule regarding spousal testimony was that neither spouse could for or against the other incompe- The proceeding. spousal criminal
in either civil or provide spouse that a tency rule was later relaxed other and be spouse favor of the gave modification ... rise subject to This cross-examination. (Citations omit- spousal testimony.” against to a rule adverse ted). abrogated Court Supreme The North Carolina had North spousal incompetency law of and the common rule law, much had- more extensive Legislature enacted Carolina Maryland’s, competency-compellability than that retained the lack of compellability but referred language, has since Supreme The North Carolina Court “privilege.” in terms of incompetency “privilege,” referred spousal have acknowledging: our cases statutes although “While and clarity, collectively they for the stand not been models communication hus- that a confidential between proposition that this even privileged privilege, is and band wife cases, both North Carolina Rules criminal survives Id. amendments to relevant [the statute].” Evidence and the 833, 412 at 664. S.E.2d concepts by referring mixed Wyoming has also the two although, interpreta- in a case privileges, involving both as statute, Court Wyoming Wyoming Supreme tion of the clearly them: distinguished that we be-
Clarity consistency distinguish demand privilege the confidential marital communication tween immunity. spousal The privilege spousal privilege not wish immunity spouse be invoked who does instrumentality directed at his to be condemnation privi- marital communication partner. her confidential com- private is the that ensures that marital lege private. munications will remain initially marital The confidential communication communicates the confidential belongs who testimony whom the information. marital right to invoke the confidential offered has the privilege. communication
229 If refuses to the confidential party spouse waive privilege, spouse marital witness cannot communicatiоn if testify communication] to the confidential even he or [as spousal immunity privilege.... she waives the ... We also hold once the has waived party the confidential marital communication the non- privilege, party elect to waive spouse may then invoke or of spousal immunity. (citations Pasek, 272, 275, v. (Wyo.1994)
Curran
886 P.2d
277
omitted).
though
It
in Wyoming,
is clear that
even
the Court
concepts
refers to both
as
concepts
“privileges,” the
nonethe-
retain
separate
“spousal immunity,”
less
their
identities as a
i.e., incompetency, provision
privilege.”
and a “communications
Virginia Supreme
Appeals similarly
West
Court of
privileges,
maintaining
refers
both
as
while
concepts
Bradshaw,
519, 537-38,
distinction.
State v.
193 W.Va.
457
456,
denied,
S.E.2d
cert.
516 U.S.
S.Ct.
(1995),
ted clearly what most often Thus, the involved was concept After termed, “spousal incompetency” as a issue. generally, rule” to the discussing relating incompetency “ancient were, in her they husband because wife law, that the “rule single person, the Court noted eyes intact most common- spousal disqualification remained 44, 100 century.” into the Id. at jurisdictions law well 19th Supreme at 909. Court then stated: S.Ct. *41 States,
Indeed, 1983, 290 it until in Funk v. United was not (1933)], 371, 212, 78 this [ 54 L.Ed. 369 U.S. S.Ct. disqualification the testimonial the feder- Court abolished courts, testify of a permit spouse al so as to defendant Funk, however, in the left undisturbed defendant’s behalf. other from spouse prevent the rule that either could of testimony. rule thus into one giving adverse The evolved disqualification. than one of privilege [Em- rather absolute phasis added].
The Court later commented: Hawkins[5] privilege
It is that the essential remember protect privately not is needed information disclosed marital between husband and wife in the confidence of the Those are under relationship.... privileged confidences commu- independent protecting rule confidential marital nication. (citations omitted). 50-51,
Id. at 100 S.Ct. 912-13 Tram- mel, although speaking “spousal the abolishment of the disqualification,” defining “privilege,” really, it as modified, only spouse power which to waive it. end had 53,100 at 914. id. at S.Ct. See way for
Trammel led the some of federal circuits “spousal In a incompetency” “privileges.” define issues allegations drug case the United involving smuggling, Court for Circuit Appeals States the Fifth noted United States, 74, 136, 5. Hawkins v. 358 79 S.Ct. 125 United U.S. 3 L.Ed.2d (1958).
231
(5th
Ramirez,
345,
Cir.),
denied,
States v.
145 F.3d
355
cert.
1046,
602,
525
119
U.S.
S.Ct.
L.Ed.2d
that:
“The marital
into two
privilege
privileges by
divided
distinct
the federal courts. The first privilege
spouse
bars a
from
testifying adversely to the
privilege
other.
second
bars a
spouse
testifying
as to the confidential marital communi
Rakes,
cations of the other.” See
United
v.
also
States
(1st
1,
Bahe,
Cir.1998);
F.3d
3 n. 2
United States v.
128 F.3d
1440,
(10th Cir.1997),
denied,
1033,
cert.
523 U.S.
(1998).
1327,
S.Ct.
Although clearly what common speaking under the law as “spousal incompetency,” referred to Arizona has ex byit a it pressly privilege, titling termed statute to be as the 232 v. ex Privilege.”
“Anti-Marital Fact See State rel. Woods (Ariz. Cohen, 497, 501-02, 1147, Ariz. 844 P.2d 1151-52 1992) (“A in the as a witness shall not be examined person 1. A for or his wife without following against cases: husband vice-versa], consent, during as occurring to events [and her 13-4062(1))); § see also Ariz.Rev.Stat. marriage.” (quoting 2335, Arizona, Maryland, at 546. Wigmore, supra, like communications separate in a protection codifies its marital expressly protection Arizona titles that statute. The statute wife; Ariz. communications.” privileged as “Husband 1994). (West Rev.Stat. Ann. it as Washington, referring while Appeals
The Court of
nonetheless maintained the distinction
privilege,”
“marital
Modest, Wash.App.
the two
State v.
concepts
between
denied,
239, 246-47,
944 P.2d
rev.
134 Wash.2d
(1998):
1017,
The is contained marital RCW nor a can neither husband wife provides spouse’s consent. for or the other without Mr. at the Because Ms. Modest was married to Modest trial, testimony. this provision preclude time does not her however, re- spouse, Even cannot be a former examined to the confidential communication made one garding any during marriage. other [Citation omitted.] [Footnote omitted.] Denison, 78 Wash.App.
That court also said in State denied, 437, 441, 907 P.2d 897 P.2d rev. 128 Wash.2d (1995): ... two applies consists of first parts. testimony existing marriage; prevents spouse, an it to events nontestifying spouse, without the consent of the during marriage. applies before The second either dur- ing marriage; spouse, or after a without the consent other, cannot be as to confidential communica- examined during marriage. tions made *43 State, 165, also 257 Ind. 277 N.E.2d Shepherd See (1971) (“Although the statute to husbands and wives refers witnesses, incompetent as being to communications made other, actually privileged each the matter of communi- is one (citation omitted)); Benner, cation.” State v. 284 A.2d (Me.1971) (“[Ejven though exception the 1969 for ‘marital in communications’ was compe- created the context witness tency, Legislature intending specify was ....”). concept
Section 9-106 codifies the common law “spousal incompetency.” argues competency Petitioner that section 9-106 is not a Instead, argues, section. he section 9-106 is a “compellability section.”6 He states: “Beginning with section subtitle compellability privilege.” 1[ ] addresses I that is believe 9-106, by incorrect. its Section use of the word “Same—” title, its testimony provisions relates spousal section, previous As 9-105. these statutes have been codified subtitle, in the “privilege” word first mentioned (“Defendant trial.”). section 9-107 a criminal juxtaposition my sections 9-105 and 9-106 reinforces they belief that are designed intended and for different purpose than that suggested by petitioner. Section governs wishes, a spouse, against spouse’s whether may compelled testify at all It during marriage. is a “spousal incompetency” classic provi- issue. At the time this sion Maryland was to the Maryland added statutes Laws, Chapter no “spousal there had been statutory rule in incompetency” Maryland for over seventy-five years. During period, that entire there had been existence only statutory for protection confidential marital communications. time, therefore, At the that the “spousal incompetency” rule was last part statutory made a spousal protec- testimonial in Maryland, tions it totally unrelated to any need protect confidential marital already communications. That presented 6. only the context of the issue witnesses are "compellable.” compellability It be that well is an indication of competence, general appear least in a sense. two terms throughout ways. the cases to be used almost identical *44 be be- In we cannot sure probability, although all existed. files, this of bill location of the non-existence the cause of to fact in section 9-106 is due the prоtection testimonial latter compelled previous protection against to the that it was added provision. marital communications disclosure confidential Laws, in- “spousal the Maryland Chapter 835 inserted already after the extant immediately competency” provision read, and it provision, communications confidential marital an testify to as compelled husband or wife be “nor shall the involving any proceeding criminal party or witness adverse words, In in the re-codifications spouse.” his her other or 9-106, in all statute, in section contained provisions likelihood, contained in section 9-105 provisions follow they were last enacted sequence because that is the Maryland Code they in which were found sequence and the of these prior section to recodification Article Proceedings Judicial Article. provisions the Courts & ante- legislative history, the common law Considering the discussed, other and the cases of this and we have cedents reviewed, 9- I that Section jurisdictions we have would hold is a Proceedings “spousal Article of the Courts & Judicial or immuni- “spousal disqualification” “spousal incompetency,” itself, words, during spouse, a ty” marriage rule. other may in section exceptions with certain found spouse other is to in a criminal case where the forced statute, a of the language Maryland Given defendant. however, then, so; he testify may who to do even elects other, not, or of the as she without consent marital communications. confidential privilege
Section 9-105 establishes Court, states emphasizes this section 9-105 petitioner- As any competent” testify regarding “is not that one But for continuing viability marital communications. statute, the lan- incompetency” concept by plain the “spousal infer is statute might of this statute that section 9-105 guage statutes, however, history competency. on based indicated, 9- The existence of section I have otherwise. reinforces, “spousal incompetency” provision 106 as a modified contrast, 9-105 relates to by my privilege. belief section “competent” language legislative been in the enact- has incep- ment of the marital communications since its (“[N]or Laws, any § 1 See tion. 1864 Md. case Chap. any ... shall husband be compellable disclose during any communication made to him his wife nor marriage, compellable any shall wife be disclose during to her her the mar- communication made husband riage.”). A com- number sources indicate that marital munications never intended be matter *45 Laws, Chapter competency. By passage Maryland the of Legislature competent, the declared to be but for exception created an communications. It used confidential “in ... the words no case shall husband or be any wife to disclose confidential communication made during essence, it, ... marriage.” perceive the as I now Legislature point competency the at that established limited a in term by privilege spite of the use of the inaccurate Next, “competent.” it is to note important again the distinc- tion marital between the communications and the spousal testimony disqualification, related which is misla- often functions, think, beled as a “marital I privilege,” basically but a competency. disqualification, which, as rule of in Mary- land, is, believe, 9-106, I in generally prohibits codified section a witness-spouse being to or compelled testify against his statutes, her spouse anything. about In modern disqualifi- the cation may apply only criminal matters and often contains exceptions witness-spouse for the a when or child is related of defendant-spouse’s the victim the crime. law,
At common
disqualification
the
was much
At
broader.
first it was absolute and
exceptions;
there were no
later
then
the
it.
defendant-spouse could invoke
It was also a disqualifi-
cation
a for
who
testify favorably
wished to
for his or
spouse.
her
As
legislatures
Parliament and the
of
various
the
American
began
repeal
states
limit
effect
spousal
the
statutes,
disqualification
a
many
continuing
pro-
saw
need
meant to be held
confidence.
marital communications
tect
in this
has done
State.
Legislature
I
the
perceive
That is what
is
9-105,
the
establishing
communications
Section
spousal incompetency рrovisions
found
apart from
set
us,
history
Although
legislative
available
9-106.
section
i.e.,
history files
said,
complete,
legislative
is not
I have
as
maintained,
Legislature
to 1975 have not been
prior
Court, including
this
holdings
be aware of
presumed
Coleman,
It is fair to
general.
law in
and of
common
enactments,
assume,
statutory
that the
sequence
given
evidentiary protec-
Assembly
always
had
viewed
General
a
word
privilege.
of marital communications as
tion
9-105,
appears
section
throwback
“competent,” used
statute,
original
which combined
communications
to the
rule in
spousal incompetency
paragraph.
one
privilege and
establishing
as
privi-
This
of section 9-105
interpretation
legislative
this
treatment
lege
type
is further bolstered
provisions
other
marital communication
of the confidential
protec-
jurisdictions. Many
foreign
these
states label
in their
“privilege”
of marital communications
stat-
tion
grant
procedure.7
jurisdictions
court
relating
utes
Other
in their rules of evidence.8
“privilege”
marital communications
(West 1999);
§§
Ann.
Cal. Evid.
Ariz.Rev.Stat.
7. See
1999);
1995);
(West
(West
Fla. Stat. Ann.
90.504
Kan.
Code
*46
504(b) (1995);
60-428(a) (1995);
§
Ann.
Ann.
La.Code Evid.
art.
Stat.
(Michie
(1995);
§
§ 27-505
Nev.Rev.Stat. Ann.
49.295
Neb.Rev.Stat.
1996);
(West 1994);
§
§Ann.
38-
N.J. Stat. Ann.
2A:84A-22
N.M. Stat.
(Consol. 1978);
(Michie 1999);
4502(b)
§
N.Y. C.P.L.R. Law
Ohio
6-6
(Anderson 1998);
2317.02(D)
§
Okla. Stat. Ann. tit.
Rev.Code Ann.
2504(B) (1993);
40.255(2) (1997);
§
§
Codified
Or.Rev.Stat.
S.D.
Laws
24-1-201(b)
(1999);
(Michie 1995);
§
§
Tenn.Code Ann.
19-13-13
(1998);
(1996);
§
§
Code
78-24-8
Wash. Rev.Code
5.60.060
Utah
Ann.
(West 1993);
905.05(1)
§
Wyo.
Ann.
Stat.
Stat.
1-12-
Wis.
Ann.
(Michie 1999).
101(a)(iii)
Virginia
provides
that
are
Code
cases,
competent
for
another
civil
but
one
(Michie
excepts privileged
Va.Code Ann.
8.01-398
communications.
1992).
spouse
provides
cases a
criminal statute
certain
testify "except
privileged
as to
communications.”
Id.
(1999).
§ 19.2-271.2
505(b);
504(b);
504(b);
R.
R. Evid.
8. See Ala. R. Evid.
Alaska
Evid.
Ark.
504(b);
505(b)(2); Ky. R.
Haw. R. Evid.
Evid.
Del. Unif. R. Evid.
recognize
The federal courts also
a common-law marital com-
States,
privilege.
munications
291 U.S.
See
United
Wolfle
(1934);
Littlejohn,
S.Ct.
Having concluded that section 9-105 establishes a privilege, reasons, albeit for somewhat I agree, different further for the reasons majority opinion, petitioner stated did not waive judice. his the case sub 504(b); 504(b); 504(b); 504; R.Me. Evid. Miss. R. Evid. N.H. R. Evid. 504(b); 504(a)(2); 504(b). N.D. R. Evid. Evid. Tex.R. Vt. R. Evid. 504(a)
Uniform Rule of Evidence also states that has a "[a]n individual prevent refuse to or to or her his or former testifying as to confidential communication made spouse during marriage.’' individual their notes practice, proceedings involving custody orthodox in ”[i]n of children, misconduct, depends partly where the issue on the husband’s affidavit, testimony, by the wife's at least was conceded to be admissi- (emphasis original). ble.” Id. at 247-48 in He observes that no such actions, however, exception recognized was in divorce and that the ability spouses provide testimony of adverse in such actions derives partial abrogation disqualification either from total or of the or from special problem statute. Id. at 250. That would have been a then, Maryland granted by until after Prior 1851. divorces were courts, Assembly, by special private General not the bills. See Carl N. Maryland Of at Assembly Everstine, The General (1982). tied, in part, at least Although disqualification remained with a being single entity a fiction of husband and wife to the self-interest, time, as well a acquire it began, presumed Greenleaf observed Writing rationale. public policy partly “is founded of as witnesses that the exclusion interests; partly legal rights their identity on the of civil lie at the basis public policy, principles on added). (emphasis § at 384 supra, Greenleaf, society.” Principles Best, of Evidence also W.M. of the Law See 1870). (5th at ed. testimony disclosing communications preclusion A specific marriage, even during and wife their made between husband divorced, least recognized was parties after the were although it is not clear whether that England, on marital communi- independent focusing of an rule product general disqualification cover cations or an extension divorced. In Doker v. testimony given parties after the were Hasler, Judge Best recalled a Eng. Rep. Chief woman, Alvanley refused to allow after case which “Lord divorce, had between speak passed to conversations which husband, existence of the mar- during herself and her his concurrence Judge Id. at 992. Best announced riage.” rule, noting happiness marriage that “the with such between man and wife requires state the confidence work, In for inviolable.” Id. his 1842 kept should bе ever general disqualification oper- noted that the marital Greenleaf trial, if, party time of and the witness ated even at the married, for that no and he offered as rationale longer were object of the rule is to secure great extension that “[t]he of the law by placing protecting seal happiness, domestic all communications between husband and upon confidential either, wife; knowledge and whatever has come to the Greenleaf, supra, means of the hallowed confidence.” exclusion, extent,” spirit “in its analogized at 386. He essence, Id. he was attorney-client privilege. to the
Notes
notes
But see Commonwealth v.
400 Mass.
(1987)
572, 575-78,
511 N.E.2d
(referring,
year
earlier, to the incompetency provisions
“privilege,”
as a
al-
issue).
though the nature of the testimonial rule was not at
Adamson,
Supreme Court of Ohio
State v.
72 Ohio
St.3d