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Brown v. State6/9/2000
8, at 386. He analogized the exclusion, "in its spirit and extent," to the attorney-client privilege. Id. In essence, he was stating the same rationale for a narrower, more focused, rule that was enunciated by Chief Judge Best - a rule much more akin to a privilege than to a lack of competence to testify.
Notwithstanding these precursors, the general spousal disqualification continued to operate until modified by statute, and it was largely through those statutes that the narrower rule precluding disclosure of marital communications came into the law. As both Wigmore and McCormick point out, so long as the disqualification operated, there was no practical need for a separate rule dealing just with confidential marital communications. 8 Wigmore, supra, §2233, at 644; 1 McCormick on Evidence § 78, at 324. The statutory march began in 1851 with 14 & 15 Vict. c. 99 § 2, which partially abolished the disqualification of parties and declared that, in civil actions, the parties were competent and compellable to give evidence on behalf of either party. The next step was taken two years later with the enactment of the Evidence Amendment Act of 1853, 16 & 17 Vict. c. 83. §§ 1-3. In that Act, Parliament declared, in relevant part, that (1) except as otherwise provided, the husbands and wives of the parties were competent and compellable to give evidence on behalf of either or any of the parties in any civil case, (2) nothing in the Act rendered any husband or wife competent or compellable to give evidence for or against the other in any criminal action, and (3) " o Husband shall be compellable to disclose any Communication made to him by his Wife during the Marriage, and no Wife shall be compellable to disclose any Communication made to her by her Husband during the Marriage." That last provision, which dealt only with compellability, appears to be the first statutory articulation of the confidential marital communication rule.
Many of the American States followed the lead of Parliament. As we observed in Coleman v. State, supra, 281 Md. at 542, 380 A.2d at 52, "when a trend appeared, in the period from 1840 to 1870, to abolish or restrict these common law marital disqualifications, the present privilege for confidential communications between spouses was enacted." The Maryland General Assembly first dealt with the matter by 1864 Md. Laws, ch. 109, in which it rewrote the first five sections of the existing Evidence Code (then Article 37 of he Maryland Code). In new § 1, the Legislature abolished the common law rule precluding testimony by parties on account of their presumed self interest and declared instead that no person offered as a witness shall be excluded by reason of incapacity from crime or interest from giving evidence in any suit, civil or criminal . It specified that, in any such action, the parties litigant "and their wives and husbands shall be competent and compellable to give evidence in the same manner as other witnesses, except as hereinafter excepted." In a new § 3 added to Article 37, the Legislature set forth a number of exceptions to that new doctrine. It first retained the rule that a defendant in a criminal case was neither competent nor compellable to give evidence for or against himself. It then stated, with respect to spousal testimony:
" or, in any criminal proceeding, shall any husband be competent or compellable to give evidence for or against his wife, nor shall any wife be competent or compellable to give evidence for or against her husband, except as now allowed by law, nor in any case, civil or criminal, 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 compellabl
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