Spousal Privilege in the Context of a Maryland Criminal Case

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.

Hearsay:

MD Rule 5-801(c) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Unless subject to an exception, this type of evidence is inadmissible.

If the State offers wife’s police statement as substantive evidence to prove the truth of anything contained therein, it is objectionable as classic hearsay. The State would respond by attempting to fit her statement under a hearsay exception. Although more information would be helpful, this attempt would likely fail as no exception seems applicable. Each relevant exception, and the reason for which it doesn’t apply, are below:

(i) Present Sense Impression: Inapplicable because wife’s police statement was not made while she was perceiving the event, nor was it “immediately thereafter”

(ii) Excited Utterance: Inapplicable because wife’s police statement was probably not made while she was “under the stress or excitement caused by the event.”

(iii) Business Record: More information would be helpful but this is likely inapplicable since the statement was generated by wife, not the police officer.

(iv) Former Testimony: Inapplicable because husband never had opportunity to examine wife via direct, cross, or redirect examination
Confrontation Clause:

In the unlikely scenario that the State successfully argued that wife’s statement fit under a hearsay exception, it would nonetheless be inadmissible “testimonial” pursuant to the Confrontation Clause. In Crawford v. Washington, the Supreme Court held that the Confrontation Clause bars the introduction of a “testimonial” hearsay statement unless: 1) the hearsay declarant is unavailable, and 2) the defendant had a prior opportunity to cross-examine the declarant.

objective witness reasonably to believe that the statement would be available for use at a later trial.” The Court further stated that “extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions” almost always constitute “testimonial.” Because the circumstances surrounding wife’s police statement objectively indicated that it was part of an investigation into husband’s potentially criminal conduct, her police statement is almost certainly “testimonial” hearsay evidence.

The State, on the other hand, will try to argue that wife’s police statement is “non-testimonial.” In support, they will argue that at the time of her statement, wife could not reasonably have foreseen her statement being used at a later trial. Basically, the State would be arguing that her statement was “made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation [was] to enable police assistance to meet an ongoing emergency.” Although more information is needed on the circumstances surrounding the wife’s statement, this argument seems particularly weak and would likely fail.

Once it is determined that a statement is “testimonial” it will not admissible unless 1) the hearsay declarant is unavailable, and 2) the defendant passed on a prior opportunity to cross-examine the declarant. One way a declarant can be “unavailable” is by properly invoking a privilege. Thus, wife will be deemed “unavailable” if she asserts the spousal privilege and refuses to testify against her husband. However, because husband has not had any prior opportunities to cross examine wife, her police statement would stay out as inadmissible “testimonial” hearsay evidence.

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