Brown v. State6/9/2000
ompellability, and Privilege," I believe, require, at a minimum, a balancing of those provisions relating to the competence of spousal witnesses to testify at all against the other spouse in a criminal proceeding and the privileges of spouses, generally, to decline to testify as to privileged communications or to prohibit the other spouse from testifying as to such confidential marital communications. This Court and the Court of Special Appeals have heretofore, for the most part, almost always addressed the issues of spouses testifying in cases involving the other spouse using the language of "privilege." In the cases, however, the parties generally have presented the disputes as matters of privilege and we have assumed, for the purposes of the cases, that the issues related to privilege only, although in at least one case we have, in dicta, recognized the difference between competency and privilege in the context of spousal witnesses.
I note initially that the matter is treated in many different ways by other jurisdictions. Some conclude that both concepts are a matter of privilege either under the statutes of the jurisdictions or under the jurisdiction's common law. Some continue to recognized a distinction, but generally find in the individual cases that "privilege" is involved rather than competency. Some jurisdictions have interpreted their state's statutes and common law as relating exclusively to the matter of competency. I would start by defining the difference in the concepts.
"Spousal incompetency," sometimes referred to as "spousal disqualification," "spousal immunity," or the "prohibition against adverse spousal testimony," and sometimes even referred to as "spousal privilege," see, e.g., People v. Fisher, 442 Mich. 560, 566, 503 N.W.2d 50, 53 (1993), as relevant to the issues presented, is, generally, a rule of testimonial incompetency. The rule governs whether a spouse may testify at all in a judicial proceeding, i.e., appear as a witness against the other spouse (or for the spouse, according to some authorities) in a case in which the other spouse is a party. In most jurisdictions the issue is qualified by the right of either the testifying spouse, the other spouse, or both, to consent to such testimony. In a pure sense, however, and a least one jurisdiction has so held, the prohibition against "spousal testimony" is absolute. In that jurisdiction, a spouse, during the marriage, could not testify at all, as to any issue, in a case in which the other spouse was a party. "Spousal incompetency," if applicable, only exists during the marriage. After the termination of the marriage, "spousal incompetency" is no longer at issue and the ex-spouse may testify, and be required to testify.
"Spousal privilege," also referred to as the "communications privilege," as relevant to the issues before the Court, is a prohibition against a spouse, or former spouse, being required, or permitted, to testify in a court proceeding, as to a confidential marital communication occurring during the marriage, over her or his objection or over the objection of the other spouse or former spouse. "Spousal privilege" survives the termination of the marriage.
As I commence an examination of the Maryland statute, I note initially the constraints of statutory construction. "The cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature." Oaks v. Connors, 339 Md. 24, 35, 660 A.2d 423, 429 (1995), quoted in Board of License Comm'rs v. Toye, 354 Md. 116, 122, 729 A.2d 407, 410 (1999). "As we often have said, the starting point for determining legislative intent is the language of the statute itself. Where the statutory language is plain and free f
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