Maryland’s Marital Privilege: A person can refuse to testify against his or her spouse

As a criminal defense attorney, I see a lot of defendants come through the door who have been charged with second degree assault, or worse, where the complainant (or victim) is the spouse. Often these defendants come to the office with their spouse and a common explanation–they got into a fight, things got physical, but they don’t want to proceed with the case. Well, just because the spouse may not want to proceed does not mean that the charges are just going to go away. The State’s Attorney’s Office is charged with prosecuting criminal offenses, and it is their decision to Nolle Prosequi (or drop) the charges against the defendant, not the victim’s decision. The State may subpoena the spouse to appear for trial, send the sheriff’s office to pick up the spouse if they do not appear, and call them as a witness in the case against the defendant.

However, just because the spouse has to show up for court and testify does not mean that all hope is lost. Maryland has a special law that allows for a spouse to refuse to testify against their spouse when their spouse is the defendant charged with a crime against them. This law is commonly known as the marital privilege because it allows the spouse the privilege of not testifying despite being called as a witness. For instance, if the husband is charged with second degree assault against the wife, the wife may decide to take the marital privilege and refuse to testify against her husband at trial. How this works is the wife would take the stand, be sworn in at trial, and then assert her marital privilege and state she refuses to testify. If the spouse’s testimony was the only evidence against the defendant, then that’s the end of the State’s case and the defendant will walk home not guilty.

The one catch to the marital privilege in Maryland is that it may only be invoked one time. If a spouse has previously used the marital privilege in Maryland, then that spouse cannot use it a second time. So that is something that needs to be taken into consideration and you should discuss the matter at length with an experienced defense attorney.

Additionally, just because a spouse can and does invoke the marital privilege does not necessarily mean the case is automatically won–it only removes the spouse’s potential testimony from the case. If there were other witnesses or other evidence that can come in against the defendant, the State may elect to present that evidence and go forward with the case at trial, even without the spouse’s testimony.

If you or a loved one has a domestic violence case and wants to know more about the marital privilege, and all the other options available in his or her case, contact the Law Offices of Christopher L. Peretti today at 301-875-3472 for a complimentary consultation.

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