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Brown v. State6/9/2000
lege and the related spousal testimony disqualification, which is often mislabeled as a "marital privilege," but functions, I think, basically as a rule of competency. The disqualification, which, in Maryland, is, I believe, codified in section 9-106, generally prohibits a witness-spouse from being compelled to testify against his or her spouse about anything. In modern statutes, the disqualification may apply only in criminal matters and often contains exceptions for when the witness-spouse or a related child is the victim of the defendant-spouse's crime.
At common law, the disqualification was much broader. At first it was absolute and there were no exceptions; then later the defendant-spouse could invoke it. It was also a disqualification for a spouse who wished to testify favorably for his or her spouse. As Parliament and the legislatures of the various American states began to repeal or limit the effect of spousal disqualification statutes, many saw a continuing need to protect marital communications meant to be held in confidence. That is what I perceive the Legislature has done in this State.
Section 9-105, establishing the communications privilege is set apart from the spousal incompetency provisions found in section 9-106. Although the legislative history available to us, as I have said, is not complete, i.e., legislative history files prior to 1975 have not been maintained, the Legislature is presumed to be aware of the holdings of this Court, including Coleman, and of the common law in general. It is fair to assume, given the sequence of statutory enactments, that the General Assembly had always viewed the evidentiary protection of marital communications as a privilege. The word "competent," used in section 9-105, appears to be a throwback to the original statute, which combined the communications privilege and the spousal incompetency rule in one paragraph.
This interpretation of section 9-105 as establishing a privilege is further bolstered by this type of legislative treatment of the confidential marital communication provisions in other jurisdictions. Many of these foreign states label the protection of marital communications as a "privilege" in their statutes relating to court procedure. Other jurisdictions grant a marital communications "privilege" in their rules of evidence. The federal courts also recognize a common-law marital communications privilege. See Wolfle v. United States, 291 U.S. 7, 54 S. Ct. 279, 78 L. Ed. 617 (1934); see also State v. Littlejohn, 199 Conn. 631, 649-50, 508 A.2d 1376, 1385-86 (1986) (recognizing a common-law marital communications privilege in Connecticut.
Having concluded that section 9-105 establishes a privilege, albeit for somewhat different reasons, I further agree, for the reasons stated in the majority opinion, that petitioner did not waive his privilege in the case sub judice.
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