Bill Summary – FastDemocracy

HB 268
                      Department of Legislative Services
                              Maryland General Assembly
                                    2021 Session
                           FISCAL AND POLICY NOTE
                                 Third Reader
House Bill 268                  (Delegate Grammer)
Judiciary                                                              Judicial Proceedings
                     Criminal Trials - Spousal Privilege - Exception
This bill establishes that the spouse of a person on trial for a crime may be compelled to
testify as an adverse witness if the person on trial and the spouse married after the date on
which the alleged crime for which the person is on trial occurred.
                                    Fiscal Summary
State Effect: The bill does not materially impact the finances of the Judiciary or the Office
of the Public Defender (OPD).
Local Effect: The bill does not materially impact the finances of State’s Attorneys’ offices
or the circuit courts.
Small Business Effect: None.
                                         Analysis
Current Law: The spouse of a person on trial for a crime may not be compelled to testify
against that person unless the charge involves the abuse of a child younger than age 18.
The spousal testimony privilege is also unavailable when the charge is assault in any degree
in which the spouse is a victim under the following circumstances:
      the person on trial was previously charged with assault in any degree or assault and
       battery of the spouse;
      the spouse was sworn to testify at the previous trial; and
      the spouse refused to testify at the previous trial by asserting the spousal testimony
       privilege.
Recently, in State v. Wilson, ___ Md. ___ (2020), the Court of Appeals considered the
applicability of the spousal testimony privilege in the context of a “sham marriage” (i.e., a
purported marriage in which the formal requirements of marriage may be met, but in which
the parties have no intent of living together as spouses). The court did not ultimately reach
the question of whether to judicially establish a categorical “sham marriage” exception that
would become applicable to all persons who might subsequently attempt to assert the
spousal testimony privilege. Instead, the court more narrowly held that, under the particular
facts of the case, the defendant in question could be found guilty of witness tampering and
obstruction of justice for having entered into a sham marriage for the purpose of silencing
a potential witness.
State/Local Fiscal Effect: Although the bill may reduce the number of criminal cases in
which a spousal privilege is available, potentially increasing the number of cases that are
tried, any resulting impact on workload does not materially impact the finances of the
Judiciary, OPD, or State’s Attorneys’ offices.
                                Additional Information
Prior Introductions: HB 64 of 2020 passed the House and was referred to the Senate
Judicial Proceedings Committee, but no further action was taken.
Designated Cross File: None.
Information Source(s): Judiciary (Administrative Office of the Courts); Office of the
Public Defender; Maryland State’s Attorneys’ Association; Department of Legislative
Services
Fiscal Note History:      First Reader - January 11, 2021
rh/jkb                    Third Reader - February 24, 2021
Analysis by: Tyler Allard                               Direct Inquiries to:
                                                        (410) 946-5510
                                                        (301) 970-5510
HB 268/ Page 2
Statutes affected: 
Text - First - Criminal Trials - Spousal Privilege - Exception: 9-106 Courts and Judicial Proceedings
Text - Third - Criminal Trials - Spousal Privilege - Exception: 9-106 Courts and Judicial Proceedings