Second-degree assault charges in Baltimore County often involve people who are married. Maryland law gives a spouse a privilege that can prevent the State from forcing that spouse to testify as an adverse witness. The privilege is not absolute. Courts and Judicial Proceedings § 9-106 sets the rule and the narrow exceptions. Understanding when the privilege applies, and when it does not, is essential for anyone facing a second-degree assault charge in Towson, Essex, Catonsville, or the Circuit Court in Towson.
Second-degree assault under Criminal Law § 3-203 is a misdemeanor. The maximum penalty is 10 years in prison and a $2,500 fine. Because that maximum penalty exceeds 90 days, the defendant may pray a jury trial. A case that begins in District Court in Towson, Essex, or Catonsville can therefore move to the Circuit Court for Baltimore County, which sits only in Towson. The privilege question arises whether the case stays in District Court or proceeds to Circuit Court.
The Basic Rule Under § 9-106
Section 9-106(a) states that the spouse of a person on trial for a crime may not be compelled to testify as an adverse witness. The privilege belongs to the witness-spouse, not to the person on trial. If the spouse wants to testify, the defendant cannot stop the testimony by invoking the privilege. If the spouse does not want to testify, the State cannot force the spouse to take the stand in most cases.
The privilege applies to testimonial evidence. It does not erase other evidence the State may already have, such as a 911 recording, photographs, medical records, or statements made to police before the privilege is asserted. It also does not prevent the spouse from testifying voluntarily. The practical effect is that an unwilling spouse cannot be placed on the stand against the person on trial unless an exception applies.
Exceptions That Remove the Privilege
Section 9-106 lists three situations in which the spouse can be compelled to testify. The first is when the charge involves the abuse of a child under 18. The second is when the person on trial and the spouse married after the date the alleged crime occurred. The third, and the one that most often matters in second-degree assault cases, is the prior-refusal exception.
The prior-refusal exception applies only when three conditions are all met. The person on trial was previously charged with assault in any degree, or assault and battery, of the same spouse. The spouse was sworn to testify at that previous trial. And the spouse refused to testify at that previous trial on the basis of § 9-106. If any one of those conditions is missing, the exception does not apply. A first-time assault charge between spouses does not remove the privilege.
Maryland courts keep a record when a spouse refuses to testify in an assault case on the basis of this section. That record is maintained separately and is not subject to ordinary expungement. If the same person is later charged with assaulting the same spouse, the earlier refusal can be used to show that the exception applies the second time.
How the Privilege Works in a Second-Degree Assault Case
In a typical second-degree assault case between spouses, the State often lists the spouse as a witness. If the spouse invokes the privilege and none of the exceptions apply, the State cannot call the spouse as an adverse witness. The case then proceeds on the remaining evidence. That evidence may include body-worn camera footage, statements made at the scene, photographs, or testimony from other witnesses. The absence of the spouse’s testimony does not automatically end the case, but it can affect what the State is able to prove.
If the exception does apply, the spouse can be compelled to testify. The spouse is then treated as any other witness. The State can call the spouse, and the defense can cross-examine. The privilege does not prevent the spouse from asserting other privileges or objections that may apply to particular questions.
The timing of the marriage also matters. If the couple married after the date of the alleged assault, the privilege does not apply at all. The State can compel the spouse to testify regardless of whether there was a prior charge or a prior refusal. This exception exists to prevent a person from marrying a potential witness solely to block testimony.
Practical Considerations in Baltimore County Courts
District Court judges in Towson, Essex, and Catonsville, and Circuit Court judges in Towson, apply § 9-106 when the issue is raised. The party asserting the privilege must do so clearly. A spouse who is sworn and then refuses to answer on the basis of the statute creates the record described in § 9-106(b). That record can affect a later case. Counsel who appears regularly in these courts can address the privilege at the appropriate stage so that the court has a clear ruling before trial.
The privilege is only one part of the case. Second-degree assault still requires the State to prove the elements of the offense beyond a reasonable doubt. Those elements can be proved through evidence other than the spouse’s testimony. At the same time, the ability to keep an unwilling spouse off the stand can change the strength of the State’s case and the options available for resolution.
Contact Shepard Law
If you are facing a second-degree assault charge in Baltimore County and the case involves a spouse, the marital privilege under § 9-106 may apply. Principal attorney Stephen P. Shepard provides client-centered and compassionate representation focused on Baltimore County courts. Call Shepard Law at (410) 648-4008 for a free, confidential consultation. Our office is at 303 W. Pennsylvania Avenue, Towson, MD 21204.