Can I Prevent Someone from Testifying Against Me?
This question comes up frequently in connection with those charged with the commission of a crime. The subject can be complex, and clarity and specificity are vital in understanding the rules. It is a crime under Maryland Law to harm another or threaten to harm another with the intent to:
- influence them to testify falsely or withhold testimony
- to avoid the service of a subpoena or summons to testify, or
- to be absent from trial.
The offense is a serious one, carrying 5 years in prison, or 20 years if the underlying proceeding from which the person kept is a crime of violence. See Md. CRIMINAL LAW Code Ann. § 9-302. Maryland law also punishes, harshly, any retaliation against those who testify, or report crime. Md. CRIMINAL LAW Code Ann. § 9-303.
This article is not about any such conduct.
This article is about rules of evidence that may permit a participant in a proceeding to keep others from divulging confidential matters in open court. Note this does not mean that a witness can be kept from court altogether, nor does it mean that they are prevented from answering all questions.
Maryland law provides certain privileges that may be invoked to keep others from giving specific testimony or answering specific questions.
Perhaps the most frequently recurring of these situations is one in which a spouse is called upon to testify against the other. The non-testifying spouse possesses a privilege, and may affirmatively prevent the testifying spouse from disclosing any confidential communication made during the marriage. Note, the communication must be confidential. If a third person is present during the discussion, it is not confidential. The invocation of the privilege does not keep the witness from answering all questions, only specific questions to which the privilege applies. A related, but distinct privilege belongs not to the non-testifying spouse but to the testifying spouse. The spouse of one accused of a crime may elect not to testify against his or her spouse. The privilege does not exist if the crime alleged is child abuse. The privilege is further limited to one invocation only in assault cases wherein the testifying spouse is a victim. In other words, if a spouse invokes the privilege, they may not later invoke the privilege in a subsequent assault case in which he or she is the victim, and the souse is the accused.
-This Article was updated by Eric Kirk on 11/16/20.