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Brown v. State6/9/2000
nion of person: and therefore, if they were admitted to be witnesses for each other, they would contradict one maxim of law, `nemo in propria causa testis esse debet [no man may testify in his own cause]; and if against each other, they would contradict another maxim, `nemo tenetur seipsum accusare,'[no man can be compelled to incriminate himself]." 1 William Blackstone, Commentaries on the Laws of England 431 (Spec. ed. 1983) (emphasis in original). See also O'Connor v. Marjoribanks, 134 Eng. Rep. 179, 182 (C.P. 1842); The King v. Cliviger, 100 Eng. Rep. 143 (1788).
Although the disqualification enunciated by Coke extended beyond both marital communications and knowledge acquired as a consequence of the marital relationship and was stated in absolute terms, it was limited in some respects and was always subject to some exceptions. As both Greenleaf and Wigmore point out, it applied only when the husband or wife was a party to the suit in which the other was called as a witness and did not extend to collateral proceedings between third parties, and, from the earliest time, a wife was permitted to testify against her husband when she was the victim of his criminal conduct. 8 Wigmore, supra, § 2227, at 213 (citing Lord Audley's Case, 23 Eng. Rep. 1140, 1141 (1631)), in which the court held that a wife may be a witness against her husband "for rape upon her, instigated by him." See also Simon Greenleaf, Greenleaf on Evidence § 176, at 247 (1st ed. 1842); 1 Blackstone, supra, at 431. That exception was also recognized under Maryland common law. See Hanon v. State, 63 Md. 123, 125-26 (1885) acknowledging " he principle of necessity, by which under the common law a wife is permitted to testify against her husband on a charge affecting her liberty or person."
Although the disqualification remained tied, at least in part, to the fiction of husband and wife being a single entity with a presumed self-interest, it began, in time, to acquire as well a public policy rationale. Writing in 1842, Greenleaf observed that the exclusion of spouses as witnesses "is founded partly on the identity of their legal rights and interests; and partly on principles of public policy, which lie at the basis of civil society." Greenleaf, supra, § 334, at 384 (emphasis added). See also W. M. Best, The Principles of the Law of Evidence § 586, at 730 (5th ed. 1870).
A specific preclusion of testimony disclosing communications made between husband and wife during their marriage, even after the parties were divorced, was recognized at least by 1824 in England, although it is not clear whether that was the product of an independent rule focusing on marital communications or an extension of the general disqualification to cover testimony given after the parties were divorced. In Doker v. Hasler, 171 Eng. Rep. 992 (1824), Chief Judge Best recalled a case in which "Lord Alvanley refused to allow a woman, after a divorce, to speak to conversations which had passed between herself and her husband, during the existence of the marriage." Id. at 992. Judge Best announced his concurrence with such a rule, noting that "the happiness of the marriage state requires that the confidence between man and wife should be kept for ever inviolable." Id. In his 1842 work, Greenleaf noted that the general marital disqualification operated even if, at the time of trial, the party and the witness were no longer married, and he offered as a rationale for that extension that " he great object of the rule is to secure domestic happiness, by placing the protecting seal of the law upon all confidential communications between husband and wife; and whatever has come to the knowledge of either, by means of the hallowed confidence." Greenleaf, supra, § 33
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