 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Brown v. State6/9/2000
t, given the historical antecedents of the current statute, has been created by the Legislature? Is it "spousal incompetency" or "spousal privilege," or both, depending upon the context of the testimonial activity of the spouses? We have never, heretofore, directly addressed the issue. The positions of the other jurisdictions is mixed (sometimes within the same jurisdiction). I mention first those jurisdictions that have held either that the entire range of spousal testimony is a competency issue or that there is a general "spousal incompetency" issue (whether waivable or non-waivable) and, as to confidential marital communications, a "spousal privilege" issue.
The Supreme Judicial Court of Massachusetts in Gallagher v. Goldstein, 402 Mass. 457, 524 N.E.2d 53 (1988), was addressing a medical malpractice issue in which the patient allegedly had been rendered mentally incompetent as a result of the negligent actions of the defendants. The plaintiff's attorney sought to present testimony from the patient's husband as to conversations with the patient prior to her mental deterioration. The Massachusetts statute, in relevant part, then provided that a person of "sufficient understanding" could testify in court proceedings, except that "neither husband nor wife shall testify as to private conversations with the other." Id. at 459, 524 N.E.2d at 54. This language is similar to Maryland's section 9-105. This normally is considered to be the "communications privilege." The Massachusetts court held otherwise:
The rule established by the statute is one of disqualification rather than privilege. . . . Testimony as to the contents of a private conversation is inadmissible even if both spouses desire the evidence to be admitted.
It seems imprudent to prohibit testimony as to a marital conversation when both parties to the conversation want disclosure . . . . However, the Legislature has enacted a statute stating a clear and unambiguous preference for the marital disqualification. We have consistently ruled that the statute renders spouses incompetent to testify as to the contents of their private conversations with their marital partners . . . . While we agree with the plaintiff that many of the stated policy reasons for this statute are anachronistic and that those that are not outmoded, such as the preservation of marital confidentiality and harmony, are not furthered by the inadmissibility of this testimony, we must construe the statute as it is written. Were this strictly a common law rule, we would not hesitate to transform it from a rule of disqualification to one of privilege. However, given the existence of the statute, that decision is for the Legislature. Id. at 459-61, 524 N.E.2d at 54-55 (citations omitted) (footnotes omitted). But see Commonwealth v. Maillet, 400 Mass. 572, 575-78, 511 N.E.2d 529, 531-33 (1987) (referring, a year earlier, to the incompetency provisions as a "privilege," although the nature of the testimonial rule was not at issue).
The Supreme Court of Ohio in State v. Adamson, 72 Ohio St. 3d 431, 650 N.E.2d 875 (1995), construed a provision similar to Maryland's section 9-106. Ohio Rule of Evidence 601(B), in relevant part, stated:
"Every person is competent to be a witness, except:
"(B) A spouse testifying against the other spouse charged with a crime except when . . . :
"(2) The testifying spouse elects to testify." Id. at 433, 650 N.E.2d at 877.
The court compared the spousal "competency" rule with the statute concerning the marital communications privilege:
The focus of Evid. R. 601(B) is the competency of the testifying spouse; in contrast, R.C. 2945.42 focuses on the privileg
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.
|
|