Darrayl John Wilson v. State of Maryland, No. 436, September Term 2018. Opinion by 

Beachley, J.

SPOUSAL PRIVILEGE—SHAM MARRIAGES

WITNESS TAMPERING AND OBSTRUCTION OF JUSTICE—CORRUPT 

MEANS

Defendant confessed to his girlfriend that he was responsible for a murder. 

Girlfriend subsequently informed the police, and defendant was charged with that murder. 

While awaiting the murder trial, defendant attempted to marry girlfriend via a telephone 

call so that she could invoke her spousal privilege and avoid being compelled to testify 

against him in defendant’s pending murder trial.

In response to defendant’s purported marriage to his girlfriend, the State charged 

defendant with “corrupt means” witness tampering and obstruction of justice—namely for 

seeking to silence the girlfriend’s testimony. A jury convicted defendant of witness 

tampering and obstruction of justice, and defendant appealed.

Held: Judgment reversed. The prevailing rule throughout the country is to allow a 

spouse to invoke the spousal privilege regardless of the reasons for the marriage—

including for the sole purpose of silencing a potential witness. Prior Maryland cases 

acknowledged the prevailing rule, but it is now expressly adopted.

In light of adopting the prevailing rule, there can be no “corrupt means” witness 

tampering or obstruction of justice for simply endeavoring to invoke a legally recognized 

evidentiary privilege. 
Circuit Court for Charles County

Case No. C-08-CR-17-000048

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 436

September Term, 2018

DARRAYL JOHN WILSON

v.

STATE OF MARYLAND

Berger,

Friedman,

Beachley,

JJ.

Opinion by Beachley, J.

Filed: July 30, 2019
On June 30, 2017, the State charged appellant Darrayl Wilson, by way of 

indictment, with two counts of obstruction of justice and two counts of witness tampering. 

In the indictment, the State alleged that appellant “did by corrupt means” try to impede, 

influence, and obstruct Kearra Bannister from testifying against him by seeking to marry 

her. On January 18, 2018, a jury sitting in the Circuit Court for Charles County convicted 

appellant of one count of obstruction of justice and one count of witness tampering. The 

court sentenced appellant to twenty years’ incarceration, all but three-and-a-half years 

suspended, for witness tampering, and a concurrent three-and-a-half-year sentence for 

obstruction of justice. Appellant timely appealed and presents the following two issues for 

our review:

1. Was the evidence sufficient to convict appellant of “corrupt means” 

 witness tampering and “corrupt means” obstruction of justice?

2. Does the sentence for witness tampering merge into the sentence for 

 obstruction of justice?

We conclude, as a matter of law, that appellant’s actions do not constitute “corrupt 

means” as contemplated by the crimes of witness tampering and obstruction of justice. 

Accordingly, we vacate appellant’s convictions, and need not decide the merger issue.

FACTUAL AND PROCEDURAL BACKGROUND

In August of 2011, Crystal Anderson’s mother reported her missing. Unfortunately, 

in January 2012, Ms. Anderson’s body was discovered in Nanjemoy, Maryland, near Purse 

State Park. The police investigation into Ms. Anderson’s death continued for several years. 
2

On August 20, 2014, Charles County patrol officers responded to a “domestic 

assist” call in Nanjemoy. When the officers arrived, they made contact with Ms. Bannister, 

who indicated that she had information concerning Crystal Anderson’s death. Detective 

Brian1 Buchanan interviewed Ms. Bannister that day and recorded the interview. Ms. 

Bannister told Detective Buchanan that appellant and another man, Raymond Posey, III, 

shot and killed Ms. Anderson.2 Ms. Bannister explained that, at the time of Ms. Anderson’s 

murder, she was dating appellant, and that appellant told her about the murder. Ms. 

Bannister also told Detective Buchanan that she observed appellant and Mr. Posey selling 

and giving away Ms. Anderson’s possessions following her disappearance. 

In 2015, the State indicted both appellant and Mr. Posey for crimes related to Ms. 

Anderson’s death.3 Following his indictment for Ms. Anderson’s murder, appellant 

remained incarcerated in the Charles County Detention Center. From December 2016 

through February 2017, appellant engaged in numerous telephone conversations with 

various individuals discussing his intention to marry Ms. Bannister before the State could 

compel her to testify against him and Mr. Posey in their respective murder trials. These 

 

1 Detective Buchanan did not provide his first name while on the witness stand at 

appellant’s trial. Consequently, we use the name “Brian” because the prosecutor identified 

him as “Detective Brian Buchanan” in opening statements. 

2 Ms. Bannister could not remember whether appellant told her that he personally 

shot Ms. Anderson. In her recorded statement, she indicated that “they”—both appellant 

and Mr. Posey—shot and killed Ms. Anderson. 

3 The State indicted Mr. Posey in February 2015, and appellant in June 2015.
3

efforts culminated in appellant “marrying” 4 Ms. Bannister over the telephone on February 

9, 2017, three days after the State’s murder trial against Mr. Posey had begun, but before 

Ms. Bannister was called to testify as a State’s witness in that trial. 

On February 13, 2017, Ms. Bannister took the witness stand in the State’s 

prosecution of Mr. Posey. During the State’s direct examination, the prosecutor asked Ms. 

Bannister questions about appellant, and Ms. Bannister responded by stating that she 

wished to invoke her newly-acquired spousal privilege. Presumably, Ms. Bannister sought 

to invoke Md. Code (1973, 2013 Repl. Vol.), § 9-106(a) of the Courts and Judicial 

Proceedings Article (“CJP”), which generally provides that the spouse of a person on trial 

for a crime may not be compelled to testify as an adverse witness. 5 The trial judge 

responded that Ms. Bannister held no such privilege and required her to answer the 

prosecutor’s questions. 

Following Mr. Posey’s trial, the State filed a Motion to Preclude Assertion of 

Spousal Privilege in appellant’s own murder case. In an order dated July 10, 2017, the 

circuit court granted the State’s motion, ruling that appellant’s marriage to Ms. Bannister 

was invalid. Appellant appealed that decision to our Court, and in an unreported opinion, 

 

4 The “marriage ceremony” took place over the telephone via a conference call, with 

a pastor from New Jersey officiating. Ms. Bannister called in from her workplace while 

appellant called from the detention center. As we shall explain, because we hold as a matter 

of law that appellant’s apparent efforts to take advantage of the spousal privilege do not 

constitute the “corrupt means” contemplated by the witness tampering and obstruction of 

justice statutes, we need not decide whether this ceremony constituted a valid marriage in 

Maryland.

5 The privilege is subject to certain exceptions that do not apply here.
4

Wilson v. State, No. 1122, Sept. Term, 2017 (filed June 18, 2018), a panel of this Court 

dismissed the appeal, holding that appellant not only lacked standing, but that he had 

improperly appealed from a non-final judgment.

In June 2017, the State issued a separate indictment against appellant, charging him 

with obstruction of justice and witness tampering in both Mr. Posey’s murder trial and his 

own pending murder prosecution.6 Appellant’s trial on these charges began on January 16, 

2018. Two days later, the jury acquitted appellant of obstruction of justice and witness 

tampering in the State’s case against Mr. Posey, but convicted appellant of obstruction of 

justice and witness tampering in his own murder case. This appeal concerns only the 

propriety of appellant’s convictions for obstruction of justice and witness tampering. 

DISCUSSION

In its brief, the State succinctly summarizes the issue for our review: “whether, 

viewed in the light most favorable to the State, there is any evidence from which a 

reasonable jury [could] conclude that Wilson’s course of conduct culminating in the 

telephonic marriage reflected the corrupt intent necessary for conviction under the 

obstruction of justice and witness-tampering statutes.” (Footnote omitted). The “course 

of conduct” the State refers to is appellant’s intent and actions to marry Ms. Bannister for 

the sole purpose of enabling her to invoke her spousal privilege and not testify against him. 

We shall follow the out-of-state courts that have declined to create a judicial 

 

6 According to the State’s brief, appellant’s trial for Ms. Anderson’s murder has 

been postponed several times, and is currently scheduled for October 28, 2019. 
5

exception to the spousal privilege and hold that a spouse may invoke the privilege even in 

the context of a sham marriage. Accordingly, we conclude that, even assuming appellant 

entered into a sham marriage for the purpose of allowing Ms. Bannister to invoke her 

spousal privilege, his actions and intentions do not satisfy the “corrupt means” element of 

“witness tampering” or “obstruction of justice.”7

The Spousal Privilege

“The history of the privilege not to testify against one’s wife or husband is involved 

. . . in a tantalizing obscurity.” 8 John Henry Wigmore, Wigmore on Evidence § 2227 at 

211 (McNaughton Rev. 1961). Although it is unknown when the privilege came to be, it 

“may be said to have been understood to exist in some shape before the end of the 1500s 

and to have been firmly established by the second half of the 1600s.” Id. at 213. The Court 

of Appeals acknowledged the unclear origin of the spousal privilege in Brown v. State, a 

case concerning the related “confidential communications privilege” now codified at CJP 

§ 9-105.8 359 Md. 180, 189-90 (2000). There, the Court noted that, dating back to English 

common law, “[t]he earliest root seems to be the privilege that a husband had to preclude 

adverse testimony by his wife.” Id. 190 (citing Wigmore, supra, § 2227 at 211). Like its 

 

7 We note that appellant disputes that his marriage is a sham. In his brief, he claims 

that “[he] married a woman whom he had known intimately for many years, and who was 

the mother of his two children.” Whether appellant and Ms. Bannister entered into a sham 

marriage is irrelevant to our decision in this case.

8 The confidential communications privilege provides that “One spouse is not 

competent to disclose any confidential communication between the spouses occurring 

during their marriage.” CJP § 9-105. See generally State v. Sewell, 463 Md. 291 (2019).
6

date of origin, the actual policy reasons underlying the privilege similarly remain unknown. 

In his treatise on evidence, Professor Wigmore posited that 

Possibly the true explanation is, after all, the simplest one, namely, 

that a natural and strong repugnance was felt (especially in those days of 

closer family unity and more rigid paternal authority) to condemning a man 

by admitting to the witness stand against him those who lived under his roof, 

shared the secrets of his domestic life, depended on him for sustenance and 

were almost numbered among his chattels. 

Wigmore, supra, § 2227 at 212. 

Whatever its source and rationale, the spousal privilege was first codified in 

Maryland in 1864 when the General Assembly rewrote the first five sections of Evidence 

Code, Article 37. Brown, 359 Md. at 195. In adopting § 3 to Article 37 in 1864, the 

legislature enacted the following language:

No person who, in any criminal proceeding, is charged with the commission 

of any indictable offence, or any offence punishable on summary conviction, 

shall be competent or compellable to give evidence for or against himself, 

nor shall any person be compellable to answer any question tending to 

criminate himself, nor, in any criminal proceeding, shall any husband be 

competent or compellable to give evidence for or against his wife, nor shall 

any wife be competent or compellable to give evidence for or against her 

husband, except as now allowed by law, nor in any case, civil or criminal, 

shall any husband be competent or compellable to disclose any 

communication made to him by his wife during the marriage, nor shall any 

wife be compellable to disclose any communication made to her by her 

husband during the marriage.

(Emphasis added). Notably, the original privilege precluded a spouse from testifying either 

for or against the other spouse—the spouse was neither competent nor compellable.

One of the earliest interpretations of the spousal privilege is found in Turpin v. State, 

55 Md. 462 (1881). There, John Turpin, who was accused of murder, unsuccessfully 
7

sought to call his wife to testify in his defense. Id. at 475. Following his conviction, the 

Court of Appeals was tasked with interpreting the effect of the Act of 1876, ch. 357, which 

repealed Article 37 § 3 of the 1864 Act and instead provided:

3. “In the trial of all indictments, complaints and other proceedings against 

persons charged with the commission of crimes and offences, and in all 

proceedings in the nature of criminal proceedings, in any Court of this State, 

&c., &c., the person so charged shall, at his own request, but not otherwise, 

be deemed a competent witness.”

Id. at 476. Mr. Turpin argued that by repealing Article 37 § 3 of the Act of 1864, his wife 

became a competent witness under § 1 of the Act of 1864. Id. at 476-77. That section 

addressed who could be called as a witness and provided that “the parties litigant and all 

persons in whose behalf any suit, action or other proceeding may be brought or defended, 

themselves and their wives and husbands shall be competent and compellable to give 

evidence in the same manner as other witnesses, except as hereinafter excepted.” Id. at 

476. 

The Court of Appeals rejected Mr. Turpin’s interpretation of the effect of the 1876 

amendment, holding that § 1 of Article 37 only applied in civil actions, and that it “would 

not operate to alter the rule of the common law which made a husband or wife an 

incompetent witness in a criminal prosecution against the other.” Id. at 477-78. Instead, 

the Court concluded that the effect of the 1876 amendment to Article 37 § 3 was to allow 

a criminal defendant to testify in his own defense, not to remove “the incompetency of the 

wife, which existed at the common law, to testify in the case of a criminal prosecution 

against her husband.” Id. at 478. 
8

In 1888, the General Assembly again amended the law. This time, the legislature 

“added back to § 3 of Article 37 the provision that, ‘[i]n all criminal proceedings the 

husband or wife of the accused party shall be competent to testify[.]’” Brown, 359 Md. at 

196. 

As a result of the 1888 amendment, the law, as ultimately codified in 

Maryland Code Article 35, §§ 1 and 4 (1957) was that (1) spouses were 

generally competent and compellable witnesses; (2) in criminal proceedings, 

the spouse of the defendant was “competent to testify,” but (3) “in no case, 

civil or criminal, shall any husband or wife be competent to disclose any 

confidential communication made by the one to the other during the 

marriage.” The law remained in that state until 1965, when the Legislature 

added to what was then § 4 of Article 35 the provision that a person could 

not be compelled to testify as an adverse party or witness in any criminal 

proceeding involving the person’s spouse.

Id. at 197. 

Between 1888 and 1965, the Maryland Code acknowledged a spouse’s competency 

to testify in criminal proceedings, but did not specifically provide whether a spouse could 

invoke the privilege to prevent being compelled to testify. Despite this silence, the Court 

of Appeals nevertheless construed the Code as recognizing the existence of the spousal 

privilege. See Raymond v. State ex rel. Younkins, 195 Md. 126, 128-29 (1950) (recognizing 

that where husband abused wife, wife was a competent witness, free to decide whether she 

would testify against her husband in trial for criminal abuse); see also Richardson v. State, 

103 Md. 112, 117 (1906) (stating that wife of criminal defendant was a competent witness 

who was free to testify against him “although she could not have been compelled to 

testify”). 
9

In 1971, the General Assembly amended Article 35 § 4 by providing that neither a 

husband nor wife could be compelled to testify as an adverse party in any criminal 

proceeding involving his or her spouse unless the proceeding involved abuse of a child 

under the age of sixteen. The legislature again amended Article 35 § 4 in 1973 to provide 

that a husband or wife could be compelled to testify against his or her spouse in criminal 

proceedings involving abuse of a child under the age of eighteen. 

As part of the recodification of the Maryland Code, in 1973 the General Assembly 

enacted the Courts and Judicial Proceedings Article. For the first time, the legislature gave 

the spousal privilege its own section, codified at § 9-106. That section provided “The 

spouse of a person on trial for a crime may not be compelled to testify as an adverse witness 

unless the charge involves the abuse of a child under 18.” In 1994, in an apparent effort to 

combat domestic violence, the General Assembly narrowed the privilege by allowing the 

State to compel a spouse to testify as an adverse witness when the spouse was the victim 

of assault and battery in certain circumstances. 

Despite legislative amendments subsequent to 1994 that created exceptions for 

spouses who are assault victims, the general rule that a spouse may not be compelled to 

testify as an adverse witness has remained in Maryland since 1864. Having established 

that the spousal privilege has existed in Maryland for over 150 years, we next turn to 

consider whether the privilege applies in a sham marriage, i.e., where the parties marry 

with the intent and purpose of invoking the privilege in a criminal proceeding.
10

The Prevailing Rule: Recognizing the Spousal Privilege in Sham Marriages

Although Maryland courts have not addressed whether a spouse may successfully 

invoke the privilege in a sham marriage, our dicta in Hagez v. State, 110 Md. App. 194, 

211 n.7 (1996), suggests that the privilege may be invoked. There, the State charged Adel 

Hagez with first-degree murder, and his wife attempted to invoke her spousal privilege not 

to testify against him. Id. at 197-98, 207-08. The couple had divorced approximately two 

years prior to the murder trial, but Mr. Hagez presented evidence that he remarried his wife 

three days before the trial began. Id. at 207-08. Although evidence of the remarriage 

contained apparent inconsistencies, the trial court assumed a valid marriage and 

nevertheless ruled that Ms. Hagez could not invoke the privilege because “the purpose of 

the marriage was to hinder justice by preventing Ms. Hagez’s testimony if asserted.” Id. 

at 209. 

Because we reversed Mr. Hagez’s conviction on other grounds, we did not reach the 

issue of “whether the statutory testimonial privilege is available to a witness who has 

married solely to assert the spousal privilege or to obstruct justice.” Id. at 211. We offered 

some guidance on the topic, however, in a footnote. We observed that the ability to invoke 

the privilege seemed to only depend upon the existence of a valid marriage, not upon the 

reasons for the marriage: 

We note that the spousal privilege, codified in [CJP] § 9-106, does not 

seem to include any exceptions concerning an improper motive or purpose 

in marrying. Rather, it appears to pertain to anyone who qualifies as a 

“spouse,” without regard to the motive for the marriage. Thus, one who 

marries for money, or to enhance one’s career, or for estate purposes, 

seemingly would be entitled to invoke the privilege, so long as the marriage 
11

is valid; the statute does not specifically authorize a trial court to go behind 

the marriage to discern its validity or to pass judgment on the reasons for the 

marriage.

Id. at 211 n.7. This language, though dicta, supports the conclusion that the ability to 

invoke the spousal privilege should not depend on the underlying reason for the marriage. 

Instead, it appears that the only relevant factor in deciding whether a party may assert the 

spousal privilege is whether the marriage is valid. 

The Hagez footnote further acknowledged that this principle appeared consistent 

with application of the confidential communications privilege. We noted that “application 

of [that] privilege does not depend upon the stability of the marriage, either at the time of 

the communication or at the time the privilege is asserted.” Id. (quoting Coleman v. State, 

281 Md. 538, 544 (1977)). Recognizing a potential flaw with the scope of the confidential 

communications privilege, we noted, “It may be . . . that where there is no actual marital 

relationship to preserve and protect, that public policy dictates not permitting the privilege 

to become an obstruction to the administration of justice. That argument, quite obviously, 

should be addressed to the legislature, not the courts.” Id. (quoting Coleman, 281 Md. at 

545). This language suggested that the spousal privilege, like the confidential 

communications privilege, can be invoked, even if the marriage is a sham.9

Nearly a year after Hagez, the Court of Appeals decided State v. Walker, 345 Md. 

293, 325 (1997), a case concerning the “exceptional circumstances” hearsay exception. In 

 

9 The footnote in Hagez also references contradictory authority, namely Lutwak v. 

United States, 344 U.S. 604 (1953), and Osborne v. State, 623 P.2d 784 (Alaska 1981). 

We shall address these cases in further detail below.
12

Walker, the Court mentioned, without explicitly holding, that the prevailing rule 

throughout the country seemed to be that the spousal privilege applied, even in a sham 

marriage.

There have, to be sure, been cases in which the defendant and the witness 

have entered into a marriage immediately prior to trial, the inference being 

that the marriage was a sham, arranged solely to preclude the witness from 

testifying or having to testify. Most of those cases seem to have arisen under 

the common law rule that either made the spouse incompetent as a witness 

or allowed the defendant to preclude the testimony. See Michael G. 

Walsh, Existence of Spousal Privilege Where Marriage Was Entered Into 

For Purpose of Barring Testimony, 13 A.L.R.4th 1305 (1982). Some courts, 

in that circumstance, have refused to apply the privilege, although the 

prevailing rule seems to be, even in that circumstance, that the privilege 

applies. Id. at 1308. 

Id. at 330 (emphasis added). Our research vindicates the Walker Court’s assessment of the 

prevailing rule, as many states allow a spouse to invoke the spousal privilege even in the 

context of a sham marriage. 

In State v. Peters, 444 S.E.2d 609, 610 (Ga. Ct. App. 1994), Georgia’s intermediate 

appellate court concluded that the spousal privilege “may be invoked regardless of the 

underlying motives for a valid, existing marriage.” There, the State charged Linda Peters 

with murdering her husband. Id. Eleven days after the murder, Walter Sargent, who was 

having an affair with Ms. Peters, finalized his own divorce. Id. Before she married Mr. 

Sargent, Ms. Peters “told her daughters she probably would have to marry [Mr.] Sargent 

so he would not testify against her.” Id. The State subpoenaed Mr. Sargent to testify before 

a grand jury, and Mr. Sargent moved to quash the subpoena. Id. The trial court found the 

marriage to be valid, and granted the motion to quash. Id. at 611. The State then took an 
13

interlocutory appeal because of the importance of Mr. Sargent’s testimony to the murder 

investigation and prosecution. Id.

On appeal, the court reviewed the scope of Georgia’s spousal privilege. Id. 

Specifically, the Peters court recognized that the Georgia spousal privilege statute 

essentially incorporated the common-law rule [that] spouses were neither 

competent nor compellable to testify. An exception was created providing 

that a wife was competent but not compellable to testify against her husband 

for a criminal offense upon her person. This exception later was expanded 

to include a criminal offense committed by either spouse upon the other. . . . 

Finally, subsection (b) was added in 1987, providing that the privilege shall 

not apply where the husband or wife is charged with a crime against the 

person of a minor child. 

Id. at 611 (internal citations omitted). The court specifically declined to create an 

additional exception for sham marriages, noting that Georgia’s legislature “has not 

provided an exception for the circumstances of this case.” Id. at 612. In doing so, the 

Peters court stated that it was following the prevailing rule throughout the country: 

“Allegations that a marriage was contracted solely for the purpose of barring testimony 

have been considered by a number of state courts, and they have overwhelmingly declined 

to create such a judicial exception to the marital privilege.” Id. 

Pennsylvania’s intermediate appellate court has also adopted the prevailing rule. In 

Commonwealth v. Lewis, 39 A.3d 341, 343 (Pa. Super. Ct. 2012), petition for allowance of 

appeal denied, 51 A.3d 838, Erin Lewis developed a romantic relationship with Jeffrey 

Gardner despite the fact that she was employed as his probation supervisor. Mr. Gardner 

admitted their relationship to a chief county detective, and the Commonwealth charged Ms. 

Lewis with tampering with public records and obstruction of justice. Id. Following the 
14

filing of criminal charges, Ms. Lewis married Mr. Gardner. Id. Prior to her trial, Ms. 

Lewis filed a motion to preclude the Commonwealth from calling Mr. Gardner as a witness, 

and the Commonwealth filed its own motion seeking to compel Mr. Gardner’s testimony. 

Id. The trial court granted the Commonwealth’s motion to compel, finding that although 

genuine love existed between them, Ms. Lewis and Mr. Gardner’s marriage was 

“collusive” in that the two married “for the express purpose of preventing Mr. Gardner 

from testifying against [Ms. Lewis].” Id. at 344. 

On appeal, the Pennsylvania Superior Court held that the trial court improperly 

compelled Mr. Gardner to testify. The court began its analysis by noting that the spousal 

privilege was a creature of statute, and that the statute only provided four exceptions to the 

privilege, none of which concerned sham marriages. Id. at 346. The court then 

acknowledged “three prevailing approaches” concerning the “reach” of the spousal 

privilege: 1) that the privilege is not available in a collusive marriage,10 2) that the privilege 

only applies to events that occurred during the marriage,11 and 3) that the privilege is 

available “as long as a valid marriage exists[.]”12 Id. at 347.

 

10 The Lewis court cited to Lutwak v. United States, 344 U.S. 604 (1953) to support 

this approach. We shall discuss Lutwak in greater detail below.

11 The Lewis court cited to United States v. Clark, 712 F.2d 299 (7th Cir. 1983) to 

support this approach. The Clark court, in adopting the “premarriage acts exception,” 

relied on “principles of the common law as they may be interpreted by the courts of the 

United States [federal courts],” as well as the Federal Rules’ “flexibility to develop rules 

of privilege on a case-by-case basis.” Id. at 302. Our research has not revealed any state 

court adopting this exception.

12 Notably, the Lewis court cited Peters, supra, for this approach. 
15

Ultimately, the court chose to adopt the third approach—that the privilege is 

available provided that a valid marriage exists. To reach this result, the court employed 

simple statutory construction. Recognizing that the statute did not provide an exception 

for “collusive” or sham marriages, the court stated, “Because the privilege set forth . . . is 

a creature of statute, we are bound by its expression and decline to imply exceptions for 

collusive marriages or pre-marriage events or acts.” Id. at 350. The court noted that “no 

one disputes that [Ms. Lewis] and Mr. Gardner were lawfully married when he asserted his

. . . spousal testimony privilege. Notably, neither the statute nor the exceptions eliminate 

or limit the privilege for collusive marriages, or pre-marriage events or actions.” Id. 

Because Ms. Lewis and Mr. Gardner’s marriage was valid, the court held that the trial court 

erred in compelling Mr. Gardner’s testimony.13 Id. at 351.

Our research confirms that numerous states throughout the country have declined to 

create a judicial exception to the spousal privilege in the case of a sham marriage. See

Walsh, supra, at 1305; State v. Chismore, 274 N.W. 3, 4 (Iowa 1937) (adopting view that 

Iowa statute precludes spouse’s testimony even if defendant marries witness “for the sole 

purpose of suppressing her testimony”); Norman v. State, 155 S.W. 135, 135-37 (Tenn. 

1913) (upholding the common law spousal privilege when “it is clear that the marriage, so 

far as [defendant] was concerned, was entered into for the express purpose of shielding 

himself against prosecution”); State v. McGinty, 126 P.2d 1086, 1090 (Wash. 1942) 

 

13 Although the court held that the trial court improperly compelled Mr. Gardner to 

testify, it went on to hold that the admission of his testimony constituted harmless error 

because it was “merely cumulative of other untainted evidence.” Lewis, 39 A.3d at 352. 
16

(recognizing application of the privilege even if defendant married witness “to prevent her 

from giving testimony which would have been harmful to his defense”); Cole v. State, 243 

S.W. 1100, 1103 (Tex. Crim. App. 1922) (recognizing that the privilege applies even when 

the defendant married the witness “for the express purpose of closing her mouth”); Moore 

v. State, 75 S.W. 497, 498 (Tex. Crim. App. 1903) (“When the marriage ceremony is 

performed, no matter what the motive was or may be, the witness thenceforward becomes 

the lawful wife of defendant, and is prohibited under [the Texas] statute from testifying 

against her husband, except where the offense is by the husband against her person.”); 

United States v. White, 11 P. 570, 571 (Utah 1886) (“when the marriage ceremony was 

performed, no matter what the motive was, the witness became beyond all question the 

lawful wife of the defendant, and in this case she could not testify against his objection”); 

State v. Anderson, 396 P.2d 558, 559-60 (Or. 1964) (noting that timing of marriage did not 

affect defendant’s statutory right to assert the spousal privilege and prevent his wife from 

testifying against him); Stevens v. Commonwealth, 150 S.E.2d 229, 230-31 (Va. 1966) 

(recognizing that statutory spousal privilege applied where defendant married witness 

eighteen days before trial); cf. Commonwealth v. DiPietro, 367 N.E.2d 811, 823 (Mass. 

1977) (recognizing statutory spousal privilege for the sole purpose of preventing testimony, 

but finding no error in admitting transcript of testimony given by witness prior to marriage). 

Although many states recognize the spousal privilege even in the context of a sham 

marriage, some courts consider the circumstances behind the marriage before deciding 

whether the privilege may be invoked. In Osborne v. State, 623 P.2d 784, 787 (Alaska 
17

1981), “the defendant married his wife, an important witness for the prosecution, just a 

week before trial.” Mr. Osborne argued that “there was no proof that his marriage was a 

sham, and that absent such proof” his wife was entitled to invoke the spousal privilege not 

to testify against him. Id. The trial court rejected application of the privilege, and the 

Supreme Court of Alaska affirmed, holding that,

the circumstances under which the marriage was entered into permit an 

inference that the purpose of the marriage was to hinder justice, by 

preventing [the wife’s] testimony. Neither the trial court nor we are required 

to ignore this reality. Moreover, in determining the scope of the marital 

privilege, i.e., in determining its marginal reach, a court may consider 

whether sound public policy would be served by applying the privilege in a 

situation of this kind.

Id. 

We note, however, that in rejecting the application of the spousal privilege in 

Osborne, the trial court invoked Alaska Criminal Rule 53, a rule of procedure which 

provides that “These rules are designed to facilitate business and advance justice. They 

may be relaxed or dispensed with by the court in any case where it shall be manifest to the 

court that a strict adherence to them will work injustice.” Id. In affirming the trial court, 

the Alaska Supreme Court held that, “the spousal testimonial immunity privilege is capable 

of being relaxed under Criminal Rule 53.” Id. Whereas Alaska’s procedural rules 

permitted the court to consider the reasons for the marriage, Maryland has no such rule. 

In addition to Alaska, other states have failed to expressly adopt the prevailing rule. 

See Glover v. State, 836 N.E.2d 414, 417-19 (Ind. 2005) (refusing to create an exception 

to Indiana’s statutory marital communications privilege, but recognizing that a sham 

marriage “may amount to a fraud on the court”); State v. Taylor, 642 So.2d 160, 166 (La. 
18

1994) (granting trial court discretion to disregard spousal privilege “where the evidence 

supports a finding that the victim spouse asserting the spousal witness privilege is more 

probably than not acting under fear, threats or coercion, or that the marriage itself is a sham 

confected for the purpose of making the privilege available”); State v. Mauti, 33 A.3d 1216, 

1229 n.11 (N.J. 2012) (although refusing to engraft a judicial exception to statutory spousal 

privilege, court suggested in a footnote that “[a] sham marriage would present entirely 

different considerations”); State v. Gianakos, 644 N.W.2d 409, 415-18 (Minn. 2002) 

(acknowledging that, in a proper case, the court may recognize a “sham marriage” 

exception to Minnesota’s statutory spousal privilege, but noting that “[in] no case [has a 

Minnesota court] ruled that a marriage is not worthy of the protection of the marital 

privilege, a statutory rule engrained in [Minnesota’s] jurisprudence well over a century 

ago”).14 

The final outlier is Lutwak v. United States, 344 U.S. 604 (1953), a United States 

Supreme Court case holding that spouses were competent to testify where the marriages 

were fraudulent. There, the petitioners were charged with defrauding the United States 

“concerning its governmental function and right of administering the immigration laws . . .

by obtaining the illegal entry into this country of three aliens as spouses of honorably 

discharged veterans.” Id. at 605 (internal quotation mark omitted). At the time, “Alien 

spouses of honorably discharged veterans of World War II were permitted to enter this 

 

14 We also note that South Dakota, which repealed its statutory spousal privilege in 

1979, currently only recognizes the confidential communications privilege. State v. 

Witchey, 388 N.W.2d 893, 894 n.2 (S.D. 1986). 
19

country under the provisions of the so-called War Brides Act.” Id. at 606. The petitioners 

organized marriage ceremonies with the intent that “[t]he parties to the marriages were not 

to live together as husband and wife, and thereafter would take whatever legal steps were 

necessary to sever the legal ties.” Id. at 607.

Following the petitioners’ convictions, the Supreme Court considered “whether 

these so-called wives [were] competent to testify against their purported husbands in this 

criminal prosecution and thus incriminate the so-called husbands.” Id. at 613. The 

Supreme Court concluded that the spouses were competent to testify, stating,

When the good faith of the marital relation is pertinent and it is made 

to appear to the trial court, as it was here, that the relationship was entered 

into with no intention of the parties to live together as husband and wife but 

only for the purpose of using the marriage ceremony in a scheme to defraud, 

the ostensible spouses are competent to testify against each other. Here 

again, we are not concerned with the validity or invalidity of these so-called 

marriages. We are concerned only with the application of a common-law 

principle of evidence to the circumstances of this case.

Id. at 614. Although this language appears to permit a trial court to look behind the 

marriage to determine whether a spouse is competent to testify, Lutwak’s context makes 

its holding distinguishable. 

Importantly in Lutwak, the Supreme Court stated that, “The common understanding 

of a marriage, which Congress must have had in mind when it made provision for ‘alien 

spouses’ in the War Brides Act, is that the two parties have undertaken to establish a life 

together and assume certain duties and obligations.” Id. at 611. Unlike the various states 

which simply require a valid marriage to invoke the spousal privilege, the Lutwak Court 

defined marriage as the specific intent to “establish a life together and assume certain duties 
20

and obligations.” Id. This narrow definition of “marriage” made sense in that post-war 

circumstance:

Congress intended to make it possible for veterans who had married aliens 

to have their families join them in this country without the long delay 

involved in qualifying under the proper immigration quota. Congress did not 

intend to provide aliens with an easy means of circumventing the quota 

system by fake marriages in which neither of the parties ever intended to 

enter into the marital relationship[.]

Id. This proposed definition of marriage, for purposes of the War Brides Act and federal 

immigration policies, is unique to Lutwak. As noted in Hagez, however, in Maryland, “one 

who marries for money, or to enhance one’s career, or for estate purposes, seemingly would 

be entitled to invoke the privilege, so long as the marriage is valid[.]” 110 Md. App. at 211 

n.7. Accordingly, we are not persuaded that Lutwak’s interpretation of “marriage” as 

described in a federal statute applies to the circumstances present in the instant case.15

Having surveyed the cases concerning the spousal privilege in the context of a sham 

marriage, we cannot discern any prevailing minority position. Alaska’s specific procedural 

rules allow it to disregard the spousal privilege in the interests of justice. Osborne, 623 

P.2d at 787. Louisiana allows a trial court to determine whether the witness is acting under 

fear, threats, or coercion, or that the marriage is a sham, before allowing a spouse to invoke 

 

15 We note that both the Ninth and Tenth Circuit Courts of Appeal have followed 

Lutwak’s holding and declined to recognize the privilege when the marriage was not 

entered into in good faith. See United States v. Saniti, 604 F.2d 603, 604 (9th Cir. 1979); 

United States v. Apodaca, 522 F.2d 568, 571 (10th Cir. 1975). Additionally, in United 

States v. Blair, 54 F.3d 639, 645 (10th Cir. 1995), the Tenth Circuit upheld a district court’s 

sentence enhancement for obstructive conduct where the defendant married a witness who 

did not wish to testify against him in grand jury proceedings. 
21

the privilege. Taylor, 642 So.2d at 166. Indiana has refused to create a judicial exception, 

yet it has not foreclosed the possibility that a sham marriage “may amount to a fraud on 

the court.” Glover, 836 N.E.2d at 419. New Jersey has also declined to create a judicial 

exception, but has cryptically noted that “[a] sham marriage would present entirely 

different considerations.” Mauti, 33 A.3d at 1229 n.11. Minnesota suggests that in an 

appropriate case, a court could recognize a sham marriage exception, but its Supreme Court 

nevertheless noted that no Minnesota court has ever done so. Gianakos, 644 N.W.2d at 

417-18. South Dakota legislatively repealed the spousal privilege, taking the issue away 

from the courts altogether. State v. Witchey, 388 N.W.2d 893, 894 n.2 (S.D. 1986). Finally, 

in Lutwak the Supreme Court construed “marriage” as it pertained to the War Brides Act, 

i.e., “that the two parties have undertaken to establish a life together and assume certain 

duties and obligations.” 344 U.S. at 611. 

We find none of these approaches persuasive. Instead, we expressly adopt the 

prevailing rule, and hold that in Maryland, if the parties are validly married, a spouse may 

invoke the spousal privilege codified at CJP § 9-106, subject to the exceptions expressly 

provided in § 9-106(a)(1) and (2).

Marrying for the Purpose of Invoking the Spousal Privilege is not “Corrupt Means”

Having adopted the prevailing rule that permits a witness to invoke the spousal 

privilege in the context of a sham marriage, we now turn to appellant’s convictions. In this 

case, the State’s theory of prosecution was that appellant’s alleged marriage to Ms. 

Bannister constituted “corrupt means” as that term appears in both the witness tampering 
22

and obstruction of justice criminal statutes.

 Md. Code (2002, 2012 Repl. Vol., 2018 Supp.), § 9-305 of the Criminal Law 

Article (“CL”), which prohibits witness tampering, provides, in relevant part:

(a) Prohibited. – A person may not, by threat, force, or corrupt means, try 

to influence, intimidate, or impede a juror, a witness, or an officer of a 

court of the State or of the United States in the performance of the 

person’s official duties.

(b) Solicitation prohibited. – A person may not solicit another person to, by 

threat, force, or corrupt means, try to influence, intimidate, or impede a 

juror, a witness, or an officer of the court of the State or of the United 

States in the performance of the person’s official duties.

(Emphasis added). Section 9-306(a) of that Article, which prohibits obstruction of justice, 

provides:

(a) Prohibited. – A person may not, by threat, force, or corrupt means, 

obstruct, impede, or try to obstruct or impede the administration of justice 

in a court of the State.

(Emphasis added).

Both statutes prohibit action by “threat, force, or corrupt means” intended to either 

tamper with a witness or obstruct justice. During argument on appellant’s motion for 

judgment of acquittal, the State acknowledged that its only theory of appellant’s criminal 

culpability stemmed from the statute’s “corrupt means” language. When the trial court 

asked the State for its theory of “corrupt means” culpability, the State responded, “The 

corrupt means is engaging in a fraudulent marriage for the sole purpose of shutting up a 

witness, to put it bluntly.” 

As we have shown, in many states “engaging in a fraudulent marriage for the sole 

purpose of shutting up a witness” is a statutorily sanctioned means to prevent a witness 
23

from testifying.16 Those states simply require a valid marriage in order to invoke the 

privilege—it is irrelevant for purposes of the privilege whether the marriage serves a 

fraudulent purpose. In light of our adoption of the “prevailing rule,” we fail to see how the 

act of marrying for the express purpose of invoking the privilege can constitute “corrupt 

means” witness tampering or obstruction of justice. In short, a person cannot be guilty of 

“corrupt means” witness tampering or obstruction of justice where the allegedly criminal 

act—marrying with the express purpose of invoking the spousal privilege—is recognized 

as a lawful and permissible means for the new spouse to avoid being compelled to testify.

We recognize that this rule creates an obvious potential for mischief. Nevertheless, 

there is currently no “sham marriage” exception to the spousal privilege set forth in CJP § 

9-106, and we decline to create a judicial exception. Any amendment to CJP § 9-106 must 

come from the General Assembly. 17

JUDGMENTS OF THE CIRCUIT COURT 

FOR CHARLES COUNTY REVERSED. 

COSTS TO BE PAID BY CHARLES 

COUNTY.

 

16 Additionally, at least one state, Tennessee, reaches the same conclusion based on 

the common law. Norman, 155 S.W. at 135-37.

17 Nothing in our opinion should be construed as deciding whether appellant’s 

phone-marriage to Ms. Bannister constituted a legally valid marriage as defined in Md. 

Code (1984, 2012 Repl. Vol., 2018 Supp.), §§ 2-201 to -407, -409, -410 of the Family Law 

Article. We simply hold that, regardless of his intent, appellant’s efforts to marry Ms. 

Bannister do not constitute “corrupt means” as a matter of law.