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Brown v. State6/9/2000
to testify, in criminal cases, as to any matter occurring between them by virtue or in consequence of the marital relation, nor as to any confidential communications between them. . . . In view of this it becomes apparent that, at the time of the defendant's trial, there was not any constitutional or statutory provision in reference to spousal testimony in criminal cases, leaving us to look to the common law of this State for guidance. A study of the early decisions leaves no other conclusion than that, in company with many of our sister states, Tennessee courts adopted, in criminal cases, a hybrid combination of the ancient common law rule barring inter-spousal testimony on one hand, and the marital privilege in civil cases, established by statute, on the other. Id. at 61-62.
After a discussion of Tennessee's statutory history in respect to a spouse's competency to testify and in respect to confidential marital communications between spouses, the court concluded:
After the enactment of the foregoing legislation, not withstanding that there was neither a statutory nor common law precedent for such decisions, the cases involving criminal proceedings in this State consistently have referred to the rule found in Goodwin v. Nicklin and wife, 53 Tenn. 256, 6 Heiskell (1871), a civil case in which the Court said: "The common law places the rejection of such evidence upon the high grounds of public policy, and because greater mischief and inconvenience would result from the reception than the exclusion of such evidence. On this account it is a general rule that the husband and wife cannot give evidence to affect each other either civilly or criminally; for to admit such evidence would occasion domestic dissensions and discord . . . ." Id. at 62.
The Tennessee court then discussed subsequent cases in which the testimonial issue was couched in terms of competency. It then noted that the common law rule as to spousal testimony had been created by the courts, and that, given that the new statute was made subject to the common law, the courts could still change the common law.
The present rule is an anachronism, perhaps suitable for the times in which it was created, but no longer a viable guideline for the conduct of criminal proceedings in a world which has experienced so much change. We consider it timely to establish a policy which is better adapted to the circumstances marked by today's standards. Id. at 63.
The court then modified the common law to provide that the testifying spouse alone had a privilege not to testify and that a willing spouse could testify. Id. at 64; accord State v. Bragan, 920 S.W.2d 227, 240-41 (Tenn. Crim. App. 1995).
In State v. Holmes, 330 N.C. 826, 829, 412 S.E.2d 660, 661 (1992), the Supreme Court of North Carolina noted: "At common law, the general rule regarding spousal testimony was that neither spouse could testify for or against the other in either a civil or criminal proceeding. The spousal incompetency rule was later relaxed to provide that a spouse was competent to testify in favor of the other spouse and be subject to cross-examination. This modification . . . gave rise to a rule against adverse spousal testimony." (Citations omitted). The North Carolina Supreme Court had abrogated the common law rule of spousal incompetency and the North Carolina Legislature had enacted a law, much more extensive than Maryland's, that retained the competency-compellability language, but referred to the lack of compellability as a "privilege." The North Carolina Supreme Court has since referred to spousal incompetency in terms of "privilege," although acknowledging: "While our cases and statutes have not been models of clarity, c
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