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Brown v. State6/9/2000
ot an incompetence, and that the privilege, "when appropriately claimed, functions to protect against the testimonial disclosure by a spouse of specific matters connected with the marital relationship." Id. at 107. The court reached that conclusion after examining, as we have, the derivation and purpose of the statute, noting particularly the legislative removal of the absolute disqualification imposed by the common law. In State v. Hastings, 466 N.W.2d 697 (Iowa Ct. App. 1990), the statute at issue stated, in relevant part, that neither husband nor wife "can be examined in any case as to any communication made by the one to the other while married." Id. at 699. The court viewed that statute as a "marital privilege statute," providing a privilege that could be waived by its holder. In the particular case, the court held that the privilege was not waived by the defendant.
In an early case, Ohio had construed its marital communication statute strictly. See Dick v. Hyer, 114 N.E. 251 (Ohio 1916) (wife, sued with husband on promissory note, precluded from testifying that she signed note at her husband's request). In State v. Adamson, 650 N.E.2d 875, 877 (Ohio 1995), however, the court construed the statute, stating, in relevant part, that a husband or wife "shall not testify concerning a communication made by one to the other" as creating a spousal privilege rather than a spousal incompetency. In Johnson v. United States, 616 A.2d 1216, 1219 (D.C. 1992), the court construed a District of Columbia statute providing that "a husband or his wife is not competent to testify as to any confidential communications made by one to the other during the marriage" as a privilege. (Emphasis added). See also State v. Bledsoe, 325 S.W.2d 762 (Mo. 1959).
The Massachusetts cases illustrate well the consequences of viewing § 9-105 as declaring an incompetence rather than a privilege. The Gallagher court candidly recognized those consequences but apparently felt bound by its prior holdings. We do not have that impediment and will not create it now. As the Pennsylvania statute and the decisions in Maine, Iowa, Ohio, and the District of Columbia indicate, use of the word "competent" in a statute like § 9-105 should not, and sometimes cannot, be taken literally. To construe § 9-105 as imposing an absolute disqualification would be to ignore the paramount legislative intent to abrogate, rather than preserve, the common law antecedent, to tie our law to a rationale that was of dubious validity in 1628 and that has, in any event, long since been discarded in this and almost every other State, and to create consequences that make utterly no sense. We therefore hold that § 9-105 does not render a spouse "incompetent" in any manner, but simply provides a privilege, exercisable and waivable by the person who made the confidential communication, to preclude the person's spouse from disclosing that communication through testimony.
Was The Privilege Waived?
Although we have declared § 9-105 as creating a privilege, rather than an incompetence, it is an important privilege, with a solid public policy underpinning, and is not to be found waived except in the clearest of circumstances. In Coleman and Enriquez, we emphasized that confidence was essential to the marital relationship, that that relationship was a proper subject of encouragement by the law, and that "the injury that would inure to it by the disclosure is probably greater than the benefit that would result in the judicial investigation of truth." Coleman, supra, 281 Md. at 541, 380 A.2d at 52; Enriquez, supra, 327 Md. at 372, 609 A.2d at 346. In both cases, we noted that there were no exceptions to the statute.
The Circuit Court ulti
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