Evidentiary privileges purport to safeguard interests and relationships. They arise from the rules of evidence and can bar certain pieces of evidence from being used in a trial or other judicial proceedings. The most common and well-known privilege is the attorney-client privilege where an attorney cannot testify to the relationship between him and his client, encouraging an open and honest dialogue with clients and their attorneys. Another example of these privileges is the marital privilege where, in the interest of keeping the marriage tranquil and conflict-free, a husband cannot testify against his wife and vice versa (although the intricacies of how exactly this works varies from jurisdiction to jurisdiction). In general, these privileges can help defendants exclude evidence arising from relationships where society has deemed communications to be private. Understandably, these forms of evidence should be excluded at judicial proceedings, but what happens in a jurisdiction where these privileges exclude evidence that could help, or even exculpate, a defendant? Doesn’t that defendant have the right to a fair trial and due process under the Sixth Amendment? Can privileges created under evidentiary rules really circumvent a defendant’s constitutional rights?
Comes now the example of the privilege of marital communications in Maryland. Maryland law provides little to no exceptions to the marital communication privilege as there are no clear exceptions outlined in the statute that created it. Additionally, unlike other jurisdictions, Maryland does not allow waiver of this right by one spouse, it has to be waived by both spouses for it to be admitted at trial. In Brown v. State, the Court of Appeals notes no clear exceptions to this statute. The only plausible exception provided in Maryland common law is in State v. Enriquez, where the Court of Appeals recognized that where there is a crime by one spouse against another spouse, this privilege may not apply. In situations where a spouse has evidence against a defendant in his trial this strict privilege can be very beneficial as, in the essence of marital tranquility, the State could not compel a spouse to testify against her husband or his wife. However, this strict interpretation becomes especially problematic when a defendant’s spouse has a marital communication that exonerates him from guilt and that spouse refuses to waive that privilege. This then begs the question of whether that defendant’s right to present a defense and right to due process supersedes an evidentiary privilege created in the rules of evidence of a certain jurisdiction.
Both the U.S. Supreme Court and the Maryland Court of Appeals recognize that a defendant’s constitutional right to present a defense that may supersede rules of evidence and procedure. Although the Maryland Court of Appeals has not ruled directly on the issue of the marital communication privilege in a case where that communication is exculpatory for a defendant, they have held in Goldsmith that privileged psychiatric records can be admissible at trial when they are essential to a defendant’s right to a fair trial and right to present a defense. Additionally, many states uphold the notion that the right to prepare a defense supersedes procedural and evidentiary rules as well as absolute privileges.
Many jurisdictions hold a defendant’s constitutional right to prepare a defense overcomes statutory privileges. However, jurisdictions like Maryland where the Sixth Amendment can supersede certain evidentiary privileges but very strict privileges, like the marital privilege, remain in a legal grey area and can both help and hinder defendants, depending on their circumstances. Until the legislature adds exceptions to this privilege, Maryland courts remain skeptical to court challenges to the marital privilege statute.
Because there are jurisdictions with strict evidentiary privileges with little to no exceptions where courts might be extremely skeptical to a defendant’s challenge based on due process or his right to prepare a defense, practitioners should be keenly aware of the law in their jurisdictions. Additionally, because a right solely based on due process might be unpersuasive in some jurisdictions, practitioners should create an alternate or a parallel legal argument based in the law of that jurisdiction. This, in conjunction to a due process argument, may prove to be persuasive enough for a court to find exceptions to evidentiary privileges. Although in general evidentiary privileges can prove beneficial to defendants, practitioners should be aware of circumstances where these privileges contradict constitutional rights and, thus, form a solid legal theory of defense that combines due process with other arguments based in local statute or common law.
Staffer, Criminal Law Practitioner
Image by the Constitutional Convention, via Wikimedia Commons.
 See Davis v. Alaska, 415 U.S. 308 (1974) (holding that the right to prepare a defense supersedes procedure to seal juvenile records); Chambers v. Mississippi, 410 U.S. 284 (1973) (holding that the right to prepare a defense supersedes hearsay evidentiary rules); Goldsmith v. State, 337 Md. 112 (1995) (holding right to prepare a defense supersedes absolute psychiatric privilege).
 See In re Crisis Connection, 930 N.E.2d 1169, 1189 (Ind. Ct. App. 2010) (“[W]hen a defendant’s constitutional rights are implicated, the legislature cannot shield potentially exculpatory evidence from all judicial scrutiny.”); U.S. v. Neku, 620 A.2d 259 (D.C. 1993) (holding that privileged evidence must be admitted if there is a sufficient probability on credibility to outweigh the interest served by the privilege); Commonwealth v. Barroso, 122 S.W.3d 554 (Ky. 2003) (holding that defendants right to a fair trial superseded therapy privilege).