 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Brown v. State6/9/2000
240 (1998); Briggs v. State, 348 Md. 470, 477, 704 A.2d 904, 908 (1998); Gargliano v. State, 334 Md. 428, 435, 639 A.2d 675, 678 (1994); Williams v. State, 329 Md. 1, 616 A.2d 1275 (1992); Dickerson v. State, 324 Md. 163, 170-71, 596 A.2d 648, 651 (1991); State v. Bricker, 321 Md. 86, 92, 581 A.2d 9, 12 (1990); Kaczorowski v. City of Baltimore, 309 Md. 505, 513, 525 A.2d 628, 632 (1987); Jones v. State, 304 Md. 216, 220, 498 A.2d 622, 624 (1985); Coleman v. State, 281 Md. 538, 546, 380 A.2d 49, 54 (1977).
Treating § 9-105 as a competency statute is consistent with the purpose of shielding confidential marital communications from disclosure. That purpose was stated in Coleman, 281 Md. at 541, 380 A.2d at 51-52 (citing 8 Wigmore, Evidence, § 2332 (McNaughton rev. 1961 and McCormick, Handbook of the Law of Evidence §86 (2d ed. 1972):
" onfidential communications between husband and wife ... (1) ... originate in confidence, (2) the confidence is essential to the relation, (3) the relation is a proper object of encouragement by the law, and (4) 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. The essence of the privilege is to protect confidences only ... and thereby encourage such communications free from fear of compulsory disclosure, thus promoting marital harmony."
As the petitioner points out, " he important institution of marriage is served by a `bright-line' rule that legally ensures that confidential marital communication shall remain confidential marital communication."
The General Assembly has considered, and rejected, amendments to §9-105 nine times since its enactment in 1973. It certainly will be able, if it believes that we have misconstrued its intent, to amend the statute. But it ought to be the General Assembly, not this Court that makes that determination; it is not the Court's intention or what the Court believes to be the best policy or approach that is at issue.
Concurring Opinion by Cathell, J.:
Although I concur with the result reached by the majority, I differ somewhat in how that result is reached.
While I disagree with some of the majority's analysis of the early English history of the competency and privilege issues, I shall not take the time to take issue with their treatment of that historical perspective.
Section 9-101 of the Courts & Judicial Proceedings Article states that " nless otherwise provided in this subtitle . . . itigants and their spouses are competent and compellable to give evidence." Section 9-105 provides, however, that " ne spouse is not competent to disclose any confidential communication between the spouses occurring during their marriage." And section 9-106, in relevant part, provides that " he spouse of a person on trial for a crime may not be compelled to testify as an adverse witness . . . ." In seeking reversal of the Court of Special Appeals's opinion, petitioner proffers two arguments, which I rephrase and simplify: (1) section 9-105 is an unwaivable "competency" statute, not a waivable "privilege"; and (2) if section 9-105 does establish a privilege, then petitioner has not waived the privilege in this case. I am convinced that section 9-105 deals with privilege by virtue of the treatment of the issue by the General Assembly over the last hundred years or so.
Central to the arguments presented is the nature of section 9-105. Section 9-105, as I view it, cannot, in light of the history of testimonial limitations on spouses in Maryland and elsewhere, be resolved in a vacuum. The "competency" portion of Title 9, subtitle 1, entitled "Competency, C
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.
|
|
By using the system, you agree to TERMS OF SERVICE
|