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Brown v. State6/9/2000
e to disclose any communication made to her by her husband during the marriage." (emphasis added).
In 1876, the Legislature rewrote § 3 of Article 37. The main purpose of the 1876 amendment seems to have been to remove the disqualification of defendants to testify in their own behalf (but to continue their status as non-compellable witnesses), but, in rewriting the section the Legislature repealed the provisions enacted in 1864 regarding spousal testimony. It simply declared defendants to be competent witnesses but stated that the neglect or refusal of a defendant to testify shall not create any presumption against him. See 1876 Md. Laws, ch. 357.
We considered the effect of the 1876 amendment in Turpin v. State, 55 Md. 462 (1881). Turpin, accused of murder, called his wife as a defense witness and complained when the court declared her incompetent to testify. He argued that, under § 1 of Article 37, as rewritten in 1864, his wife would have been a competent and compellable witness, that it was only the provisions of § 3 that precluded her from testifying, and that the repeal of those provisions in § 3 by the 1876 Act left § 1 in full force. We found no merit in that argument, noting that the purpose of the 1864 Act was to remove the incapacity of persons called to testify arising from crime or their interest in the action, but that "the incompetency of a husband or wife to testify for or against each other in a criminal proceeding at the common law arose not from interest in the result of the suit, but was based upon considerations of public policy, growing out of the marital relation." Id. at 477-78. Effectively, we adopted the Greenleaf rationale for the disqualification rule rather than that posited by Coke. We thus held that § 1 of Article 37, standing alone, "would not operate to alter the rule of the common law which made a husband or wife an incompetent witness in a criminal prosecution against the other." Id. Section 1, we declared, applied only to civil actions and had no reference to criminal cases. The only effect of the 1876 amendment to § 3, we said, was to permit defendants to testify in their own behalf and not to remove "the incompetency of the wife, which existed at the common law, to testify in the case of a criminal prosecution against her husband." Id. at 478. Compare Classen v. Classen, 57 Md. 510 (1882), holding that a wife was competent to testify against her husband in a civil case.
Perhaps as a result of Turpin, the provisions regarding spousal testimony were restored by 1888 Md. Laws, ch. 545. That Act added back to § 3 of Article 37 the provision that, " n all criminal proceedings the husband or wife of the accused party shall be competent to testify," but that "in no case, civil or criminal, shall any husband or wife be competent to disclose any confidential communication made by the one to the other during the marriage."
As a result of the 1888 amendment, the law, as ultimately codified in Maryland Code Article 35, §§ 1 and 4 (1957) was that (1) spouses were generally competent and compellable witnesses; (2) in criminal proceedings, the spouse of the defendant was "competent to testify," but (3) "in no case, civil or criminal, shall any husband or wife be competent to disclose any confidential communication made by the one to the other during the marriage." The law remained in that state until 1965, when the Legislature added to what was then § 4 of Article 35 the provision that a person could not be compelled to testify as an adverse party or witness in any criminal proceeding involving the person's spouse. In enacting CJP, the Legislature further divided these provisions into separate sections. The general competence and compellability of s
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