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Brown v. State6/9/2000
nite misconception." Spencer A. Gard, Jones On Evidence § 21:7, at 760 (6th ed. 1972). He adds that, as applied to husband and wife, "this terminology is not surprising as the privilege against disclosure of confidential communications is often regarded as a survival of the common law rules of incompetency arising out of the marriage relation." Id. Jones agrees, however, that "it is not truly such as the privilege rule came into existence in the place of the more drastic rules of complete disqualification." Id. See also Scott N. Stone & Robert K. Taylor, Testimonial Privileges § 5.02, at 5-3 (2d ed. 1993) ("The absolute disqualification on the ground of incompetence, which is retained in only a few states, is based upon archaic notions of the nature of the marital relationship and the role of women."). The two preeminent commentators on Maryland evidence law also regard § 9-105 as creating only a privilege. See Lynn McLain, Maryland Evidence §505.2, at 548-51 (1987 & 1995 Supp.); Joseph F. Murphy, Maryland Evidence Handbook § 903(B), at 377-79 (3d ed. 1999).
As Stone and Taylor point out, the notion that spouses are actually "incompetent" to testify to confidential marital communications exists today only in a few States. Most States have either written or rewritten their statutes or adopted rules of evidence to make clear that the preclusion is but a privilege, so judicial construction on that issue is not required. Massachusetts has construed its statute literally. In Commonwealth v. Cronin, 69 N.E. 1065 (Mass. 1904), the defendant, in support of his plea of insanity to a charge of murder, offered the testimony of his wife that he suffered from epilepsy and that, two days before the murder, upon recovery from an attack, he told her that he intended to drown himself. The court affirmed the exclusion of that evidence, notwithstanding that it was favorable to and solicited by the defendant, on the ground that it was a private communication and barred by the statute declaring that neither husband nor wife "shall testify as to private conversations with each other." Id. at 1066. See also Commonwealth v. Spencer, 99 N.E. 266 (Mass. 1912).
In Gallagher v. Goldstein, 524 N.E.2d 53 (Mass. 1988), a medical malpractice action by a wife who had been rendered mentally incompetent and unable to testify, the husband was precluded from testifying to a conversation occurring prior to the wife's visit to the defendant doctor in which she related the list of symptoms she intended to discuss with defendant doctor, on the ground that contents of private communications were absolutely excluded. The court construed the Massachusetts statute as rendering private communications between spouses inadmissible "even if both spouses desire the evidence to be admitted." Id. at 54. In doing so, it recognized that the underpinnings of a disqualification rule had "fallen in extreme disfavor among courts and commentators alike," that such a rule "may be viewed as a statutory preservation of a remnant of an outdated common law concept" and that " t seems imprudent to prohibit testimony as to a marital conversation when both parties to the conversation want disclosure and the interests of the marital unit would be furthered by disclosure." Id. at 55. The court nonetheless felt bound by its prior decisions construing the statute strictly.
Maine, Iowa, Ohio, Missouri, and the District of Columbia have taken a different approach. In State v. Benner, 284 A.2d 91, 103 (Me. 1971), the court construed a statute providing that the spouse of an accused "is a competent witness except in regard to marital communications." The court concluded that the exception for marital communications was in the nature of a privilege, n
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