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Brown v. State6/9/2000
me or interest in the matter in question, and (2) " itigants and their spouses are competent and compellable to give evidence." There are two exceptions to that general rule dealing with spouses. Section 9-105, as noted, precludes a spouse from disclosing any confidential communication between the spouses during the marriage, and § 9-106 declares that, except in cases of spousal or child abuse, the spouse of a person on trial for a crime may not be compelled to testify as an adverse witness.
As we pointed out in Coleman v. State, 281 Md. 538, 380 A.2d 49 (1977), as the Supreme Court observed a short time later in Trammel v. United States, 445 U.S. 40, 100 S. Ct. 906, 63 L. Ed. 2d 186 (1980), and as Wigmore and McCormick relate, the limitations on spousal testimony, including those embodied in §§ 9-105 and 9-106, stem from different roots - an ancient common law privilege to preclude one's spouse from testifying adversely, a nearly-as-ancient common law disqualification to testify either adversely or on each other's behalf, and, more recently, a predominantly statutory preclusion of testimony regarding confidential communications made during the marriage.
The earliest root seems to be the privilege that a husband had to preclude adverse testimony by his wife. Wigmore cites a 1580 chancery decision, Bent v. Allot, 21 Eng. Rep. 50 (Ch. 1580), for the proposition that, at that early time, "the wife's testimony on her husband's behalf is treated as receivable, while his privilege to keep her from testifying against him is apparently sanctioned." 8 John Henry Wigmore, Wigmore on Evidence § 2227, at 211 (McNaughton Rev. 1961). Wigmore posits that the privilege may have derived from principles applied by the ecclesiastical courts and from "a natural and strong repugnance [that] was felt (especially in those days of closer family unity and more rigid paternal authority) to condemning a man by admitting to the witness stand against him those who lived under his roof, shared the secrets of his domestic life, depended on him for sustenance and were almost numbered among his chattels." Id. at 212.
Writing in 1628, Edward Coke described a very different exclusionary rule, with a different theoretical basis. Coke treated the rule not as a husband's privilege but as an absolute disqualification -that a wife "cannot be produced either against or for her husband, quia sunt duae animae in carne una [for they are two souls in the same flesh]." 8 Wigmore, supra, § 2227, at 212 (quoting Edward Coke, A Commentarie upon Littleton 65 (1628)). The Trammel Court explained:
"This spousal disqualification sprang from two canons of medieval jurisprudence: first, the rule that an accused was not permitted to testify in his own behalf because of his interest in the proceeding; second, the concept that husband and wife were one, and that since the woman had no recognized separate legal existence, the husband was that one. From those two now long-abandoned doctrines, it followed that what was inadmissible from the lips of the defendant-husband was also inadmissible from his wife." Trammel, supra, 445 U.S. 44, 100 S. Ct. at 909, 63 L. Ed. 2d at 190-91. See also Coleman, supra, 281 Md. at 541-42, 380 A.2d at 52.
Coke's rule of disqualification was obviously much broader than the earlier-recognized privilege. It not only applied in both civil and criminal cases but precluded testimony either for or against the spouse. Blackstone, writing 140 years after Coke, commented:
"But, in trials of any sort [husband and wife] are not allowed to be evidence for, or against, each other: partly because it is impossible their testimony should be indifferent; but principally because of the u
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