Brown v. State6/9/2000
pouses to testify was stated in § 9-101. The non-compellability of a spouse to testify as an adverse witness in a criminal case was placed in § 9-106, and the preclusion against the disclosure of confidential marital communications was stated in § 9-105.
What we see from this development is the legislative replacement of an actual disqualification, that had a shaky origin and was based ultimately on the common law fiction that a married woman had no separate legal status as an individual, with a much more narrowly focused rule that rested solely on the public policy objective of preserving confidences shared between husband and wife. Section 9-105 is not based, and never was based, on a notion of the true incompetence of a spouse as a witness. The seeds of this can be traced at least to Greenleaf, in 1842, who, having given a public policy rationale for the exclusion of marital confidences, treated the exclusion, "in its spirit and extent," as analogous to the exclusion of confidences made by a client to his or her attorney. Greenleaf, supra, § 338, at 386. The Trammel Court regarded the exclusion as a "privilege for confidential marital communications." Trammel, supra, 445 U.S. at 47, 100 S. Ct. at 911, 63 L. Ed. 2d at 193. Although in State v. Enriquez, 327 Md. 365, 373, 609 A.2d 343, 346 (1992), we, in one passage, declared a wife "incompetent under the statute to divulge the marital communication over her husband's objection," we otherwise consistently referred to § 9-105 as conferring a statutory marital communication "privilege," id. at 367, 369-73, 609 A.2d at 343-46, which is consistent with how we characterized the statute in Gutridge v. State, 236 Md. 514, 517, 204 A.2d 557, 559 (1964); Coleman , supra, 281 Md. at 541-546, 380 A.2d at 51-54; and State v. Mazzone, 336 Md. 379, 384, 648 A.2d 978, 980 (1994).
Every major commentator on the law of evidence has characterized statutes limiting or precluding the disclosure of marital communications as conferring a "privilege," and as not rendering a spouse actually incompetent, notwithstanding the language used in the statute. Wigmore, throughout his discussion of the rule embodied in § 9-105, refers to it as a privilege, declaring it "plainly different" from the discarded common law disqualification. 8 Wigmore, supra, §2334, at 645. He notes in particular that " erhaps the commonest error caused by the confusion with the moribund marital disqualification was the ignoring of the right of the communicating spouse to waive the privilege in his own behalf." Id. (emphasis in original). In § 2340, at 671, he confirms that " he spouse possessing the privilege may of course waive it." (emphasis in original). McCormick agrees that the preclusion is a rule of privilege, not incompetence, and observes:
"Many legislatures . . . when they came to write the privilege into law phrased the rule simply as a survival in this special case of the ancient incompetency of the spouses, which the same statutes undertook to abolish or restrict. So it is often provided that spouses are `incompetent' to testify to marital communications. Consequently, the courts frequently overlook this `common law' background of privilege, and permit any party to the action to claim the benefit of the rule by objection. Doubtless counsel often fail to point out that privilege, not incompetency, is the proper classification, and that the distinctive feature of privilege is that it can only be claimed by the holder or beneficiary of the privilege, not by a party as such. The latter principle is clearly correct." 1 McCormick, supra, § 83, at 335-36.
Jones parrots McCormick's view, agreeing that statutes sometime "couch privileges in terms of incompetency, a defi
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