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Md. bill would strip spousal privilege from post-crime weddings

Del. Luke Clippinger, D-Baltimore city and chair of the House panel, asked whether spousal privilege would nevertheless still apply -- and protect newlywed criminal defendants -- if the crime committed before marriage was part of a continuing course of illegal conduct that continued after the wedding. (The Daily Record/File Photo)

Del. Luke Clippinger, D-Baltimore city and chair of the House Judiciary Committee, asked whether spousal privilege would nevertheless still apply — and protect newlywed criminal defendants — if the crime committed before marriage was part of a continuing course of illegal conduct that continued after the wedding. (The Daily Record/File Photo)

The protection criminal defendants have against their spouses testifying against them would not apply in cases when the wedding occurred after the alleged crime was committed under legislation the House Judiciary Committee considered Thursday.

The longstanding “spousal privilege” against testifying is rooted in the belief that the important bond of marriage – rooted in love, trust and intimacy – would become frayed if husbands and wives were compelled by the prosecution to testify against the other.

However, neither that bond nor the need to protect it exists when the marriage occurs after the alleged crime because the belated nuptials raise the specter of a sham wedding for the sole purpose of preventing the newlywed spouse from testifying, Del. Robin L. Grammer Jr., chief sponsor of House Bill 268, told the Judiciary Committee.

Limiting the spousal privilege to marriages that occurred before the alleged crime would also remove the incentive for criminal defendants to force – through physical violence or emotional abuse — an unwilling partner to marry them in order to prevent their testimony, said Grammer, R-Baltimore County and a committee member.

“This is a well-known witness intimidation issue,” he added.

The Maryland Network Against Domestic Violence echoed Grammer’s concern in voicing its support for the bill’s timing restriction on spousal privilege.

“Not all intimate partner violence is physical,” Melanie Shapiro, the network’s public policy director, told the committee, which – like the rest of the General Assembly — is holding its hearings virtually this session due to the COVID-19 pandemic.

Del. Luke Clippinger, D-Baltimore City and chair of the House panel, asked whether spousal privilege would nevertheless still apply — and protect newlywed criminal defendants — if the crime committed before marriage was part of a continuing course of illegal conduct that continued after the wedding.

Grammer conceded that Clippinger’s hypothetical presents one of several legal issues that could arise under the legislation. Another issue is whether spousal privilege would still apply if the couple had announced their engagement before the crime that preceded their wedding, thereby reducing the likelihood their marriage was a sham, Grammer acknowledged.

The House passed similar legislation last year by a vote of 132-4. However, that measure was never considered by the Senate Judicial Proceedings Committee as the 2020 General Assembly adjourned 19 days early in an effort to stanch the spread of the COVID-19 virus.

The Judiciary Committee’s consideration of the measure this year follows the Maryland high court’s October ruling that a criminal defendant’s marriage to a prosecution witness after the alleged crime occurred can be illegal witness tampering or obstruction of justice if a judge or jury determines the wedding was intended to prevent the newlywed spouse from testifying.

The Court of Appeals’ decision in State of Maryland v. Darrayl John Wilson, however, left spousal privilege intact regardless of when the wedding occurred.


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