In a Maryland criminal case a couple of years ago, a man was charged with assaulting his fiancée. When he appeared for trial, he asked the judge for a postponement to marry the victim in a not so subtle effort to allow the victim to invoke the spousal privilege and avoid having to testify against him. Understanding completely the defendant’s strategy, the judge offered to marry the couple in court. The case was postponed to allow the couple to obtain a marriage license. Later that day, the defendant and the victim appeared in court with the license in hand. The judge took the couple back to his chambers and married them. When the criminal case resumed in the courtroom, the defendant’s brand-new bride invoked her privilege not to testify against her husband and the defendant was found not guilty. At that point, the judge told the defendant: “I can’t sentence you as a defendant…. I earlier today sentenced you to life — marriage to her.”
It may not come as a surprise that the judge in that case was reprimanded by a commission that oversees judicial practices. Additionally, backlash from the case inspired legislative action to prevent its reoccurrence. As of October 1, 2022, the law regarding spousal privilege in Maryland will have changed to preclude a spouse from invoking the privilege not to testify against the other spouse in a criminal case where the marriage takes place after the date on which the crime occurred. Aside from the general distaste left by the antics in the case, the legislature was motivated by a genuine concern that victims of domestic violence would be pressured by a partner to participate in a sham marriage in order to undermine a criminal prosecution.
The spousal privilege is grounded in the public policy that it is desirable to protect the marital relationship from the damage of compelling spouses to testify against one another. Yet the law balances the goal of marital harmony against the competing intertest in admitting probative evidence at trial in order to promote just outcomes. Thus, there are limitations to the spousal privilege.
Spousal privilege takes on two forms: The testimonial privilege and the communication privilege. The testimonial privilege applies in the context of criminal prosecutions, such as the domestic assault case that prompted the recent change in Maryland law. The communication privilege may be invoked in civil cases.
Despite the latest change in the spousal privilege law, the spousal testimonial privilege is alive and well in Maryland. Here, the spouse of a criminal defendant may refuse to testify against the defendant provided the defendant and the witness were married at the time the crime occurred and remain married on the date of trial. If spouses divorce between the time a crime was committed and the date of trial, the spousal testimonial privilege does not apply. Further, a victim of spousal abuse may not invoke the testimonial privilege where they previously invoked the privilege in an earlier case of spousal abuse against the same criminal defendant.
The spousal communication privilege allows a spouse to avoid disclosing statements made to him or her by the other spouse in confidence. This privilege may be invoked as long as the spouses were married at the time the confidential communication occurred. Thus, information shared between spouses while married remains privileged even after divorce. Not all information obtained during the marriage is deemed to constitute a confidential communication. For example, reading journal entries made by a spouse does not constitute a communication that would render the entries privileged. Further, if the spouses did not have an expectation of privacy about a communication, the privilege may not be invoked. For example, a third party may testify about disclosures one spouse made about statements made by the other spouse. Additionally, courts have held that there is no expectation of privacy regarding work emails between spouses. Finally, the communication privilege is defeated if the communication at issue is not in furtherance of the marital relationship. Thus, a threat of violence by one spouse against the other is not considered a confidential communication. Similarly, an admission of adultery has been deemed destructive of the marriage and not privileged.
If you are faced with a situation in which you are considering whether to invoke the spousal privilege, or if your spouse is in a position of having to decide whether to invoke the spousal privilege against you, feel free to contact me to discuss your options at firstname.lastname@example.org or at (410) 659-1348.