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Brown v. State6/9/2000
herwise, be deemed a competent witness . . . ." As re-enacted, there were no specific provisions relating to husbands, wives, or spouses in general. 1888 Maryland Laws, Chapter 515, was, in part, "AN ACT to repeal and re-enact with amendments section three, of article thirty-seven . . . ." The relevant portions of the re-enactment read: "In all criminal proceedings the husband or wife of the accused party shall be competent to testify; but in no case, civil or criminal, shall any husband or wife be competent to disclose any confidential communication made by the one to the other during the marriage . . . ." Id. § 1. This statute declared spouses to be competent and reserved to spouses only the right to prohibit the disclosure of confidential marital communications. It, as I see it, abolished "spousal incompetency." Accordingly, at that time the Maryland statute was limited to the protection of confidential marital communications. This last language remained in the statutes through the 1951 codification. See Md. Code (1951), Art. 35, § 4. Through 1964 there was no "spousal incompetency" rule in Maryland. Spouses were completely compellable, i.e., competent, although they could not testify, over the objection of either, as to confidential communications.
The statutory history, as I interpret it, relating to this issue indicates the early existence of a "spousal incompetency" (or disqualification or immunity) rule, separate and distinct from the provisions forbidding the involuntary disclosure of confidential marital communications. Then, in 1888, the "spousal incompetency" rule was repealed from the statute. Up until 1965, the confidential marital communication provision remained in the statute and had been, for over seventy-five years, the only provision in respect to spousal testimony. Then, in 1965, the Legislature again repealed and re-enacted the relevant statute, as I see it, for the sole purpose of re-establishing a modified "spousal incompetency" provision, which provided that a witness-spouse could not be compelled against his or her wishes to testify against the other spouse in a criminal case. In 1965, Maryland Laws, Chapter 835, provided:
AN ACT to repeal and re-enact, with amendments, Section 4 of Article 35 of the Annotated Code of Maryland (1957 Edition), title "Evidence," subtitle "Competency of Witness," to provide that a husband or wife is not compelled to testify as an adverse party or witness in a criminal action involving his or her spouse but may testify at his or her election only.
In the body of the statute only the following was added: "nor shall the husband or wife be compelled to testify as an adverse party or witness in any criminal proceeding involving his or her spouse." Id. § 1. By the time of the transfer of some of Article 35's "witness" provisions into the Courts & Judicial Proceedings Article during recodification in 1973 (see 1973 Sp . Sess., Md. Laws, Chap. 2, § 1), there was a "spousal incompetency" provision, carried forward apparently from 1965 Maryland Laws, Chapter 835. None of the modifications to the subtitle since the 1973 recodification have changed any of the provisions relevant to the issues before us in the case at bar. As combined, the relevant statutory provisions in respect to spouses now state: "Unless otherwise provided . . . itigants and their spouses are competent and compellable to give evidence," section 9-101, " ne spouse is not competent to disclose any confidential communication between the spouses occurring during their marriage," section 9-105, and " he spouse of a person on trial for a crime may not be compelled to testify as an adverse witness . . . ." § 9-106.
One of the issues to be resolved is just wha
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