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Brown v. State6/9/2000
expressly termed it by statute to be a privilege, titling it as the "Anti-Marital Fact Privilege." See State ex rel. Woods v. Cohen, 173 Ariz. 497, 501-02, 844 P.2d 1147, 1151-52 (Ariz. 1992) ("A person shall not be examined as a witness in the following cases: 1. A husband for or against his wife without her consent, [and vice-versa], as to events occurring during the marriage." (quoting Ariz. Rev. Stat. § 13-4062(1))); see also 8 Wigmore, supra, § 2335, at 546. Arizona, like Maryland, codifies its marital communications protection in a separate statute. The Arizona statute expressly titles that protection as "Husband and wife; privileged communications." Ariz. Rev. Stat. Ann. § 12-2232 (West 1994).
The Court of Appeals of Washington, while referring to it as a "marital privilege," nonetheless maintained the distinction between the two concepts in State v. Modest, 88 Wash. App. 239, 246-47, 944 P.2d 417, 421 (1997), rev. denied, 134 Wash. 2d 1017, 958 P.2d 317 (1998):
The marital privilege is contained in RCW 5.60.060 (1), which provides that neither a husband nor a wife can testify for or against the other spouse without the spouse's consent. Because Ms. Modest was not married to Mr. Modest at the time of trial, this provision does not preclude her testimony. Even a former spouse, however, cannot be examined regarding any confidential communication made by one to the other during the marriage. [Citation omitted.] [Footnote omitted.]
That court also said in State v. Denison, 78 Wash. App. 566, 574, 897 P.2d 437, 441, rev. denied, 128 Wash. 2d 1006, 907 P.2d 297 (1995): The privilege . . . consists of two parts. The first applies to an existing marriage; it prevents testimony by a spouse, without the consent of the non-testifying spouse, as to events before or during marriage. The second applies either during or after a marriage; a spouse, without the consent of the other, cannot be examined as to confidential communications made during the marriage. See also Shepard v. State, 257 Ind. 229, 231, 277 N.E.2d 165, 166 (1971) ("Although the statute refers to husbands and wives as being incompetent witnesses, as to communications made to each other, the matter is actually one of privileged communication." (citation omitted)); State v. Benner, 284 A.2d 91, 107 (Me. 1971) (" ven though the 1969 exception for `marital communications' was created in the context of witness competency, the Legislature was intending to specify a privilege . . . .").
Section 9-106 codifies the common law concept of "spousal incompetency."
Petitioner argues that section 9-106 is not a competency section. Instead, he argues, section 9-106 is a "compellability section." He states: "Beginning with section 9-106 , subtitle 1 addresses compellability and privilege." I believe that is incorrect. Section 9-106, by its use of the word "Same -" in its title, relates to the spousal testimony provisions of the previous section, 9-105. As these statutes have been codified in the subtitle, the word "privilege" is first mentioned in section 9-107 ("Defendant in a criminal trial.").
The juxtaposition of sections 9-105 and 9-106 reinforces my belief that they are intended and designed for a different purpose than that suggested by petitioner. Section 9-106 governs whether a spouse, against that spouse's wishes, may be compelled to testify at all during the marriage. It is a classic "spousal incompetency" issue. At the time this provision was added to the Maryland statutes by 1965 Maryland Laws, Chapter 835, there had been no statutory "spousal incompetency" rule in Maryland for over seventy-five years. During that entire period, there had been in existence only statutory protection for
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