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Brown v. State6/9/2000
se. The competency rule, now privilege, is a testimonial one. . . .
To paraphrase the rules with regard to spousal testimony, a husband or wife is now deemed competent to testify against his or her spouse, but has a privilege to refuse to give adverse testimony, which he or she may waive. . . . Even if a husband or wife may be called to give testimony adverse to his or her spouse, however, he or she is not competent to testify to confidential communications. Id. at 429, 431-32, 633 A.2d at 1071, 1072.
Early in the evolution of the competency/privilege statute in Pennsylvania, prior to the Act of 1989, there were Pennsylvania cases holding that it was a strict "spousal incompetency" rule, where the issue of competency could not be waived. In Commonwealth v. Moore, 453 Pa. 302, 305 n.4, 309 A.2d 569, 570 n.4 (1973), the statute then in effect provided that " or shall husband and wife be competent or permitted to testify against each other . . . ." In Moore, the court, commenting in a footnote, stated: "This is a competency statute to be distinguished in purpose and effect from the rules governing privileges or confidential communications." Id. at 306 n.4, 309 A.2d at 570 n.4. The Supreme Court of Pennsylvania held, in ruling that the prosecution should not have been permitted to comment to the jury on the defendant's failure to call his wife to testify in his defense, that:
It is clear the purpose of the statute is to bar, either husband or wife, from testifying against the other, and this is a rule which is not waivable by the parties. . . . The statute by its very terms stops either spouse from adversely affecting a criminal case against the other; although it does allow a spouse to testify on behalf of the other. . . . Id. at 307, 309 A.2d at 571.
It appears that the Pennsylvania courts have interpreted the 1989 change in their statute as modifying the rule of "spousal incompetency" into a rule of "spousal privilege" separate from the confidential marital communications provision, which expresses a "privilege" that can be "waived."
In State v. Hurley, 876 S.W.2d 57 (Tenn. 1993), cert. denied, 513 U.S. 933, 115 S. Ct. 328, 130 L. Ed. 2d 287 (1994), the Supreme Court of Tennessee described a spouse's right to refuse to testify as "a privilege." The Tennessee Legislature apparently had abolished the statutory right of a spouse not to testify, but intended to retain the judicially created common-law "spousal incompetency" rule leaving the latter issue to the courts that had created it. The court said: [Tenn. R. Evid. 501] sets out that except as otherwise provided by constitution, statute, common law, . . . no person has a privilege to :
(1) Refuse to be a witness;
(2) Refuse to disclose any matter;
. . . In pertinent part, the statute provides that a husband and wife shall be competent witnesses . . . though neither husband nor wife shall testify as to any matter that occurred between them by virtue of or in consequence of the marital relation. Id. at 61.
The court noted that even prior to the change in the statutes, the Tennessee Rules of Evidence provided that witness-spouses could be compelled to testify against defendant-spouses in criminal cases.
Prior to the adoption of the Rules of Evidence, T.C.A. ยง 40-17-104 provided that in all criminal cases, the husband or the wife were competent witnesses to testify for or against each other. . . . Over the years . . . the cases have held that the statute did not abrogate the rule as to privileged, or confidential communications between husband and wife. Generally they have held that neither husband nor wife are permitted, over objection,
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