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Brown v. State6/9/2000
confidential marital communications. At the time, therefore, that the "spousal incompetency" rule was last made a part of statutory spousal testimonial protections in Maryland, it was totally unrelated to any need to protect confidential marital communications. That already existed. In all probability, although we cannot be sure because of the non-existence of bill files, the location of this latter testimonial protection in section 9-106 is due to the fact that it was added to the previous protection against compelled disclosure of confidential marital communications provision. 1964 Maryland Laws, Chapter 835 inserted the "spousal incompetency" provision immediately after the already extant confidential marital communications provision, and it read, "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." In other words, in the re-codifications of the statute, the provisions contained in section 9-106, in all likelihood, follow the provisions contained in section 9-105 because that is the sequence in which they were last enacted and the sequence in which they were found in Maryland Code (1957), Article 35, section 4, prior to the recodification of these provisions in the Courts & Judicial Proceedings Article.
Considering the legislative history, the common law antecedents we have discussed, and the cases of this and other jurisdictions we have reviewed, I would hold that Section 9-106 of the Courts & Judicial Proceedings Article is a "spousal incompetency," "spousal disqualification" or "spousal immunity" rule. In other words, during the marriage itself, a spouse, with certain exceptions found in section 9-106, may not be forced to testify in a criminal case where the other spouse is a defendant. Given the language of the Maryland statute, a spouse who elects to testify may do so; however, even then, he or she may not, without the consent of the other, testify as to confidential marital communications.
Section 9-105 establishes a privilege
As petitioner emphasizes to this Court, section 9-105 states that one spouse "is not competent" to testify regarding any marital communications. But for the continuing viability of the "spousal incompetency" concept by statute, the plain language of this statute might infer that section 9-105 is a statute based on competency. The history of the statutes, however, as I have indicated, is otherwise. The existence of section 9-106 as a modified "spousal incompetency" provision reinforces, by contrast, my belief that section 9-105 relates to privilege.
The "competent" language has been in the legislative enactment of the marital communications privilege since its inception. See 1864 Md. Laws, Chap. 109, ยง 1 (" or in any case . . . shall any husband be competent or compellable to disclose any communication made to him by his wife during the marriage, nor shall any wife be compellable to disclose any communication made to her by her husband during the marriage."). A number of sources indicate that the marital communications privilege was never intended to be a matter of competency. By the passage of 1888 Maryland Laws, Chapter 515, the Legislature declared spouses to be competent, but created an exception for confidential communications. It used the words "in no case . . . shall any husband or wife be competent to disclose any confidential communication made . . . during the marriage." In essence, as I now perceive it, the Legislature at that point established competency that was limited by a privilege in spite of the use of the inaccurate term "competent." Next, it is important to again note the distinction between the marital communications privi
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