Marital Privilege

There are definitely some laws in in Maryland that most other states would call dated and even illogical.  The traditional alcohol laws are just one example.  Many of these laws will never affect the average citizen, and others are just plain annoying.  But the marital privilege law is one example of a tradition based statute that can actually serve to benefit defendants in criminal cases.  Other states mock the marital privilege law, and it certainly does not exist in the federal criminal courts.  But in Maryland it continues to surface frequently in the district and circuit courthouses for a variety of criminal cases.  The marital privilege law is based on the fact that marriage is sacred, and the state should not do anything to interfere with marriage unless absolutely necessary.  It allows a husband or wife to decline to testify against his or her spouse in any criminal proceeding.  If the privilege is invoked the state will not be able to compel testimony of one spouse against the other.  Now in some jurisdictions such as Baltimore City, the privilege is rarely used because prosecutors simply dismiss or nolle prose cases when the alleged victim does not cooperate.  But in the majority of Maryland courts the state will take extreme measures to assure that all witnesses show and cooperate.  This includes requesting a rule to show cause and a body attachment.  A body attachment orders the sheriff to go out and arrest a non-cooperative witness, and then bring him or her to court.  In these jurisdictions the marital privilege is a valuable tool for defendants and defense attorneys.

The marital privilege can be used for all types of cases.  It is more commonly used in the criminal setting though, where one spouse is either a witness or victim.  We have seen the marital privilege used in cases such as theft schemes, and even drug distribution cases, but without a doubt the most common use for the statue is during assault cases.  There is an alarming trend in the last few years that when police are called to the scene of a domestic disturbance someone ends up in handcuffs.  There is no law or police policy that says cops must arrest someone in a domestic dispute, and it’s unfortunate that it ends up this way.  Ideally the police should treat every call to service with a degree of objectivity.  Arrive on scene, observe the situation, and then take action if necessary.  But it doesn’t happen this way out on the street, and it’s usually the male that ends up in jail.  Regardless of who is arrested, if the two are legally married the victim cannot be compelled to testify against the defendant if he or she asserts the privilege.  Keep in mind that for assault cases the victim may only assert the privilege one time.  The judge and prosecutor will typically questions the victim under oath with the penalty of perjury if the victim were to be untruthful.  After the privilege is invoked the judge will typically find the defendant not guilty, but this is not a guarantee.  There still may be independent witnesses that can testify that a crime was committed.  If you or a love one has been arrested for assault, or any other crime, you may be eligible to invoke the marital privilege.  Contact Benjamin Herbst for a free consultation at 410-207-2598 about your case.