But Your Honor I Really Love Her

By Evidence ProfBlogger Share

Maryland has a spousal testimonial privilege, which states in pertinent part that 

(a) The spouse of a person on trial for a crime may not be compelled to testify as an adverse witness unless the charge involves:

(1) The abuse of a child under 18; or

(2) Assault in any degree in which the spouse is a victim if:

(i) The person on trial was previously charged with assault in any degree or assault and battery of the spouse;

(ii) The spouse was sworn to testify at the previous trial; and

(iii) The spouse refused to testify at the previous trial on the basis of the provisions of this section.

So, let’s say that a defendant is accused of a crime and marries a prospective witness against him so that she can invoke this spousal testimonial privilege. Can that defendant be charged with witness tampering and obstruction of justice? This was the question of first impression addressed by the Court of Appeals of Maryland in its recent opinion in State v. Wilson, 2020 WL 6266905 (Md. 2020).

The court answered this question in the affirmative, concluding that

Here, we conclude that, where a person marries a potential witness for the State with the intent to have the witness invoke the spousal testimonial privilege at a criminal proceeding in order to prevent the witness from testifying at the proceeding, the evidence is sufficient to support convictions for witness tampering and obstruction of justice. This Court’s holding in Romans, 178 Md. at 593, 598, 600, 16 A.2d at 644, 647, 648, and federal appellate case law support the conclusion that engaging in otherwise lawful conduct with the intent of trying to preclude a witness for the State from testifying at an upcoming criminal trial may constitute corrupt means under the witness tampering and obstruction of justice statutes. We conclude that the use of corrupt means involves acting with corrupt intent, i.e., a person uses corrupt means by marrying with the intent to preclude another person from testifying at a criminal proceeding, even though the conduct involved-entering into a marriage-is otherwise lawful.

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