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Maryland Criminal Defense News: State Amends Spousal Privilege Law

What is spousal privilege?

Spousal privilege covers two things:

  • A spouse testifying against the other spouse in a civil or criminal trial and
  • Private communications between spouses — such as text messages, letters, etc.

The privilege can be invoked by either spouse and applies in both criminal and civil cases. The privilege means that a spouse can prevent the other from testifying (even if the other spouse wants to testify) and can exclude communications that are covered by the privilege from being used at any sort of trial.

Not all between-spouse communications are covered by the privilege. Generally, there are three requirements. In addition to being made during a valid marriage, the spousal communications must have been made only to the other spouse (that is, not also communicated to third parties), and the communications were intended to be private/confidential.

Maryland exceptions

In many States, the spousal privilege is absolute. But, by law, in Maryland, there are a couple of exceptions (and Maryland has recently enacted another exception). See Md. Courts and Judicial Proceedings Code, § 9-106. One exception involves criminal charges of abuse of a child under 18. The second exception involves criminal charges of assault — in any degree — where the spouse is a victim. This exception only applies if:

  • The person on trial was previously charged with assault in any degree or assault and battery of the spouse
  • The spouse was sworn to testify at the previous trial; and
  • The spouse refused to testify at the previous trial based on spousal privilege

A new exception went into effect on October 1, 2022. The new exception removed the spousal privilege if the spouses married after the date on which the alleged crime occurred. See here for a media report on the new law. So, for example, if the crime occurred in 2020 and the couple were married in 2021, then in 2022, one spouse could be compelled to testify as an adverse witness against the spouse charged with the crime.

How can the spousal privilege help my Maryland criminal defense?

One of the most powerful tools that can be used by a Maryland criminal defense attorney is the exclusion of evidence from use at trial. Evidence can be barred from use at criminal trials for many reasons such as in response to a violation of constitutional rights. But privileges — like the spousal privilege — can also be used to exclude evidence. Every piece of evidence excluded makes the prosecutor’s job more difficult. Remember, you are innocent until proven by the prosecutors to be guilty.

Contact Waldorf, Maryland Criminal Defense Lawyer Robert Castro Today

This article has been provided by the Law Office of Robert Castro. For more information or questions, contact our office to speak to an experienced Maryland criminal defense lawyer at (301) 705-5137. We are Waldorf, MD, Criminal Defense lawyers. Our address is 2670 Crain Highway, Waldorf, MD, 20601.