Marital privilege in Maryland is really two separate protections. One, under Courts and Judicial Proceedings § 9-106, lets a spouse refuse to be called as a witness against their partner in a criminal case. The other, under § 9-105, keeps private communications between spouses out of court in civil and criminal matters alike. They come from different statutes, cover different things, and belong to different people, so knowing which one you are relying on matters.
The Right to Refuse to Testify Against Your Spouse
Section 9-106 says a spouse cannot be compelled to take the stand as an adverse witness in a criminal trial against the other spouse.1Maryland General Assembly. Maryland Code Courts and Judicial Proceedings 9-106 The word doing the work is “compelled.” The prosecution cannot force an unwilling spouse onto the stand. But if the witness spouse wants to testify, the defendant has no power to stop it. The privilege belongs to the witness alone.
You need a valid, existing marriage at the time the testimony is sought. Separation doesn’t defeat it. Bad feelings between the spouses don’t defeat it. But once the marriage ends by divorce or annulment, this privilege is gone. It is also strictly a criminal-case protection. In civil litigation, § 9-101 makes spouses both competent and compellable witnesses, and § 9-106 gives them nothing to hide behind.2Maryland General Assembly. Maryland Code Courts and Judicial Proceedings 9-101 – In General
The Privilege for Confidential Communications
Section 9-105 protects private communications exchanged between spouses during the marriage.3Maryland General Assembly. Maryland Code Courts and Judicial Proceedings 9-105 – Communications Between Spouses Where § 9-106 is about being called to the stand at all, § 9-105 is about specific content: what the spouses said to each other in confidence. A spouse is not competent to disclose those communications in court, and the rule applies in both civil and criminal proceedings.
This one outlives the marriage. The statute defines “spouse” to include a former spouse, so divorce or the death of one partner does not open the door to what was said while the marriage was intact. The communication must actually have been private, though. A conversation held in front of children, friends, or anyone else was never confidential, and the privilege never attaches in the first place.
Because the statute frames the bar in terms of competence rather than objection, both spouses effectively hold this privilege. Either can prevent disclosure, and a spouse who wants to talk still cannot reveal a confidential communication unless an exception applies.
When the Privileges Do Not Apply
Maryland has written exceptions into both statutes where the interest in protecting family members outweighs the interest in marital privacy. The two lists overlap but are not identical.
Exceptions to the Testimony Privilege
Section 9-106 strips away the right to refuse in three situations:1Maryland General Assembly. Maryland Code Courts and Judicial Proceedings 9-106
- Charges involving the abuse of a child under 18. The witness spouse can be compelled regardless of preference.
- A repeat assault against the witness spouse, where that same spouse was sworn in and refused to testify in an earlier assault case against the same defendant. All three pieces have to be present: the prior charge, the swearing in, and the recorded refusal.
- A marriage that took place after the date of the alleged crime. This closes off the tactic of marrying a witness to silence them.
The repeat-assault exception does not apply the first time. A spouse can refuse to testify in an initial assault prosecution without losing the privilege in the future. It only fails the next time around, and only if the prior refusal was documented.
Exception to the Communications Privilege
Section 9-105(c) allows a spouse who is an alleged victim to disclose confidential communications in a criminal case where the other spouse is charged with a crime against them. The nuance matters: the victim spouse becomes competent to disclose, but still cannot be compelled to. A victim who wants to share what was said in private may do so; the state cannot force it out of them.
The Court’s Record of a Prior Refusal
The repeat-assault exception only works because § 9-106(b) requires the courts to keep track of refusals. When a witness spouse is sworn in at an assault trial and then refuses to testify, the clerk of court has to record that refusal along with the spouse’s name.1Maryland General Assembly. Maryland Code Courts and Judicial Proceedings 9-106
Even if the underlying case is later expunged, the clerk has to maintain a separate record of the refusal that is not subject to expungement. Access is limited to the court, the State’s Attorney’s office, and the defendant’s attorney. The point is to make sure prosecutors in a second assault case can prove the earlier refusal and defeat the privilege.
How the Privileges Can Be Waived or Lost
For the testimony privilege, the witness spouse decides. They can refuse to testify, or they can agree to testify voluntarily, and the defendant has no say either way. The U.S. Supreme Court’s decision in Trammel v. United States takes the same approach at the federal level, placing the choice with the witness rather than the defendant.4Justia. Trammel v. United States, 445 U.S. 40 (1980)
The communications privilege is easier to lose by accident. A conversation held where a third party can hear it was never confidential, so nothing attaches. If a spouse later repeats a private conversation to someone outside the marriage, the protection for that particular communication is gone. You cannot un-ring that bell in court later.
Federal Court and Unmarried Partners
Not every Maryland case stays in state court. Federal Rule of Evidence 501 controls which privilege law applies in federal proceedings.5Office of the Law Revision Counsel. Federal Rules of Evidence, Article V – Rule 501 In federal criminal cases, federal common law governs, and Maryland’s statutes do not. In civil cases where state law supplies the rule of decision, state privilege law does apply. Federal common law recognizes a testimonial privilege and a communications privilege that resemble Maryland’s, but the exceptions do not line up exactly, so don’t assume the state rules carry over.
One more boundary worth stating plainly: these privileges require a legal marriage. Long-term unmarried partners are not covered. Maryland allows domestic partnerships to be registered with the Register of Wills for inheritance purposes, but that registration is not a marriage, and no Maryland authority extends marital privilege to domestic partners. The same is true in federal court.