Articles Posted in Evidence

The “spousal privilege” under Maryland criminal law precludes a person from being compelled to testify against their spouse who is charged with a crime. Even if the two are estranged at the time of trial, the privilege remains applicable until the marriage is officially annulled or dissolved. The only exceptions, where a person can be compelled to testify against their spouse, are when: 1) the defendant/spouse is charged with abuse of a child under 18; and 2) the defendant/spouse is charged with assault of the other spouse and, in a previous trial of the same nature, the other spouse invoked the spousal privilege and refused to testify.

It’s important to note that invocation of the spousal privilege does not require the exclusion of an otherwise admissible out-of-court statement by that spouse. Even if wife invokes the privilege and refuses to testify, her out-of-court statements may nonetheless be deemed admissible if the State can successfully argue that they fall under a particular hearsay exception.

In a situation where the wife has previously inked her privilege as a victim, affect her ability to invoke the privilege and refuse to testify against husband in the trial when she is not a victim but rather is called as a witness against her husband.
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This criminal defense issue arises in situations where an unknown person makes a 911 call and the prosecutor tries to use the tape against a criminal defendant at trial. In State v. Parker, 365 Md. 299 (2001), the Maryland Court of Appeals confronted the issue of whether the statements of two unidentified declarants to a police officer following a shooting were admissible. In determining whether the statements of the unidentified declarants were properly admitted by the trial court under the excited utterance hearsay exception, the appellate court observed that:

Where the identity of the hearsay declarant is unknown, the courts hold that the party seeking to introduce the excited utterance carries a heavy burden to prove the requisite indicia of reliability. It is held that the burden of the proponent is heightened, primarily because it is more difficult to establish personal observation and spontaneity where the declarant is unknown. Id. at 314.

The court analogized the facts of that case to a Third Circuit case involving unknown declarants at the scene of a car accident. In the Third Circuit case, the court found that the proponent of the hearsay statement had not satisfied the heavy burden of admissibility because “the record…was void of any circumstances from which it could be inferred that the declarant personally observed the accident and that the declarant was excited when he spoke.” Id.

Furthermore, under Crawford v. Washington, some of the statements made by the 911 caller were testimonial. These statements “were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford, 541 U.S. 36, 52 (2004). In further defining the nature of testimonial statements, the Supreme Court in Davis v. Washington concluded that statements made to a 911 operator that are not related to assisting in an ongoing emergency are testimonial. 547 U.S. 813, 827-28 (2006).
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