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.[1] 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.[2]
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.
Luis Asprino
Staffer, Criminal Law Practitioner
Image by the Constitutional Convention, via Wikimedia Commons.
[1] 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).
[2]
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).
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