By now we should all be familiar with the convoluted plot twists commonly found in police procedural. Need a refresher? Just catch any episode from one of the many Law & Order franchises in syndication. Honestly, any Law & Order will do: original Law & Order; Special Victims Unit; Criminal Intent; the short lived Law & Order: LA or the even shorter lived Law & Order: Trial by Jury.
One popular trope is the jailhouse wedding. Detectives are set to blow the case wide open when suddenly their key witness marries the accused and we’re told that spousal privilege will block their testimony. It’s even come up recently in real life in the context of former Ravens running back Ray Rice’s assault on his then-fiancée (now wife) Janay Palmer.
So what’s the reality; does marriage provide absolute confidentiality? Like most aspects of the law, it’s not that simple.
Spousal Privilege in Maryland
In Maryland there are two aspects to spousal privilege: (1) confidential communication; (2) marital privilege.
Confidential communication limits testimony from spouses because, “One spouse is not competent to disclose any confidential communication between the spouses occurring during their marriage.” This means that even if one spouse volunteers to testify agaisnt the other that testimony cannot be heard if it involves any conversations between the spouses that were intended to remain private. The key point here though is the phrase “during their marriage” so you can’t marry someone to prevent their testimony, not matter what you’ve seen on TV.
The second half of the equation – marital privilege – only comes into play when the state is calling on one spouse to testify against the other in a criminal case. Under that scenario the spouse called to testify can choose to invoke their martial privilege and stay silent – similar to how you may have seen individuals invoke their 5th amendment rights in those police procedurals. However, there are two important exemptions. If the individual has previously refused to testify against their spouse in a domestic violence case they cannot do so again. Sadly, this has proven to be an all too necessary limitation to protect victims of domestic violence. For similar reasons, a spouse also cannot stay silent if the case involves accusations of child abuse.
So there you have it. Don’t believe Law & Order, in Maryland at least you cannot hide behind spousal privilege. At least not absolutely.
