 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Brown v. State6/9/2000
ion provides:
"(a) The spouse of a person on trial for a crime may not be compelled to testify as an adverse witness unless the charge involves:
"(1) The abuse of a child under 18; or
"(2) Assault in any degree in which the spouse is a victim if:
"(i) The person on trial was previously charged with assault in any degree or assault and battery of the spouse;
"(ii) The spouse was sworn to testify at the previous trial; and
"(iii) The spouse refused to testify at the previous trial on the basis of the provisions of this section."
Unlike § 9-105, this section speaks in terms of "compellability," suggesting that it addresses a privilege. It clearly and unambiguously prohibits the spouse of a defendant on trial from being compelled to testify as an adverse witness except in certain enumerated and well defined circumstances. Thus, the statute allows the witness spouse to elect, but not be compelled, to testify as an adverse witness. The "privilege" not to testify belongs to the witness spouse, who is not disqualified, by the terms of the statute, from testifying against his or her spouse. This comparison demonstrates that § 9-106 is clearly not a competency statute and that § 9-105 is clearly not a privilege statute. As the petitioner points out, "section 9-105 addresses when a spouse is a competent witness, and section 9-106 addresses when a spouse is a compellable witness." The comparison also demonstrates that the Legislature knows the difference between such statutes. I think that it is most significant that both statutes are found in the subtitle headed "Competence, Compellability, and Privilege" and that, although using absolute language in both, the Legislature used "competent" in one and "compelled" in the other. I am also struck by the fact that the first four sections of the subtitle, including § 9-105, involve the qualification of a witness to testify, either in general or in a particular instance, see § 9-101 (competency in general); § 9-103 (child testimony in a criminal case); § 9-104 (convicted perjurer); § 9-105 (spouse testimony- confidential communications), and that, with one exception, § 9-113 (adverse party witness), the remaining sections address privilege or when a particular witness may be compelled to testify. See § 9-107 (defendant as a witness); § 9-108 (attorney-client privilege); § 9-109 (patient/psychiatrist or psychologist privilege); § 9-110 (accountant privilege); § 9-111 (clergy privilege); § 9-112 (news media); § 9-121 (licensed social worker/client privilege); § 9-123 (witness immunity for compulsory testimony).
I am not persuaded by the majority's reliance on dicta in Coleman v. State, 281 Md. 538, 380 A.2d 49 (1977), and State v. Enriquez, 327 Md. 365, 609 A.2d 343 (1991), the historical analysis or cases from other jurisdictions to support the conclusion that §9-105 is a privilege statute. In neither Coleman nor Enriquez was the issue in this case, the nature of §9-105, presented. Thus, the characterization we gave the statute sheds absolutely no light on the Legislative intent in enacting it. The historical analysis and the cases from other jurisdictions overlook or, at least, undervalue the plain language and clarity of the statute. It is the legislative intent that is sought to be determined. That is best determined by reference to the words that body used in enacting it. As this is a case of first impression in this Court, it simply is inappropriate to ascribe a legislative intent contrary to the statute's plain, clear and unambiguous language, no matter how tight the logic or persuasive the reasoning may appear to be. See, Farris v. State, 351 Md. 24, 28, 716 A.2d 237,
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Maryland Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|