Rule 502. Husband - Wife

(a)      Definition.

(1)   “Confidential communication” means a communication:

          (A)   made privately by any person to his or her spouse; and

          (B)   not intended for disclosure to any other person.

(b)      Privilege in Criminal Proceedings. In a criminal proceeding, a wife may not be compelled to testify against her husband, nor a husband against his wife.

(c)      Statement of the Privilege. An individual has a privilege during the person’s life:

(1)   to refuse to testify or to prevent his or her spouse or former spouse from testifying as to any confidential communication made by the individual to the spouse during their marriage; and

(2)   to prevent another person from disclosing any such confidential communication.

(d)      Who May Claim Privilege. The privilege may be claimed by:

(1)   the person who made the confidential communication;

(2)   the person’s guardian or conservator;

(3)   the non-communicating spouse to whom the confidential communication was made may claim the privilege on behalf of the person who made the confidential communication during the life of the communicating spouse.

(e)      Exceptions to the Privilege. No privilege exists under paragraph (c) in the following circumstances:

(1)   Spouses as Adverse Parties. In a civil proceeding in which the spouses are adverse parties;

(2)   Furtherance of Crime or Tort. As to any communication which was made, in whole or in part, to enable or aid anyone to commit; to plan to commit; or to conceal a crime or a tort.

(3)   Spouse Charged with Crime or Tort. In a proceeding in which one spouse is charged with a crime or a tort against the person or property of:

(A)   the other spouse;

(B)   the child of either spouse;

(C)   a person residing in the household of either spouse; or

(D)   a third person if the crime or tort is committed in the course of committing a crime or tort against any of the persons named above.

(4)   Interest of Minor Child. If the interest of a minor child of either spouse may be adversely affected, the Court may refuse to allow invocation of the privilege.

2011 Advisory Committee Note. – The language of this rule has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

ADVISORY COMMITTEE NOTE

Evidentiary privilege concerning the marriage relationship has taken two basic forms. First, a testimonial privilege shields one spouse from testifying against the other. Second, a communications privilege prevents disclosure of confidential communications between spouses (sometimes expanded to information learned by virtue of the marriage relationship). Each form of the privilege is further defined by who can invoke the privilege, whether it extends to civil as well as criminal proceedings, and the exceptions to the privilege.

In Utah, both forms of the privilege are recognized. Article I, section 12 of the Utah Constitution provides that "a wife shall not be compelled to testify against her husband, nor a husband against his wife." See Utah Code Ann. § 77-1-6(2)(d) (1990) (same). Utah Code Ann. § 78-24-8(1) (Cum. Supp. 1991) provides:

(a) Neither a wife nor a husband may either during the marriage or afterwards be, without the consent of the other, examined as to any communication made by one to the other during the marriage.

(b) This exception does not apply:

(i) to a civil action or proceeding by one spouse against the other;

(ii) to a criminal action or proceeding for a crime committed by one spouse against the other;

(iii) to the crime of deserting or neglecting to support a spouse or child;

(iv) to any civil or criminal proceeding for abuse or neglect committed against the child of either spouse; or

(v) if otherwise specially provided by law.

As the Utah Supreme Court has noted in a case in which the husband was a criminal defendant, the Utah Constitution and the statute together give "both the husband and the wife a privilege that the wife shall not testify under these circumstances without the consent of both the husband and the wife." State v. Brown, 14 Utah 2d 324, 383 P.2d 930, 932 (1963). The Court recently declared in a criminal case that the scope of the testimonial privilege is an open issue when the non-testifying defendant spouse asserts it: "Whether Section 78-24-8(1) envisions an absolute privilege to prevent a spouse from testifying without the consent of the other, or whether that privilege pertains to communications only, is an issue we leave for another day." State v. Bundy, 684 P.2d 58, 61 (Utah 1986); cf. State v. Wilson, 771 P.2d 1077 (Utah App. 1989). As for the communications privilege in the Utah statute, it is noteworthy that neither the statute nor the case law answers directly who is the holder of the communications privilege, although the statutory language suggests that both spouses hold the privilege for communications between them.

The Committee was convinced that Utah law on marital privilege needs clarification and reform. Both forms of marital privilege and the various features of the privilege - the holder, the scope, and exceptions - were addressed. In doing so, the Committee recognized that "[t]he need to develop all relevant facts is both fundamental and comprehensive." United States v. Nixon, 418 U.S. 683, 709 (1974). The Committee also considered competing values supporting the privilege. The traditional justifications for the testimonial privilege have been the prevention of marital dissension and the repugnance of requiring a person to condemn or be condemned by his or her spouse. 8 Wigmore §§ 2228, 2241 (McNaughton Rev. 1961). Although these justifications are important, the Committee concluded that they are insufficient to justify a spousal privilege covering non-communicative conduct. In short, the Committee recommended against adoption of a testimonial privilege that either spouse could invoke. Accordingly, the Committee recommended that any marital privilege be limited to confidential communications.

This position comports with the view of many leading commentators on evidence who oppose the testimonial privilege because it does not promote marital felicity, is based on the outmoded concept that the husband and wife are one, and causes suppression of relevant evidence. For example, Wigmore called the privilege "a legal anachronism." 8 Wigmore § 2228 at 221 (McNaughton Rev. 1961). However, for the Committee's full recommendation to be adopted, the following language from art. I, § 12 of the Utah Constitution would need to be repealed: "a wife shall not be compelled to testify against her husband, nor a husband against his wife."

The Committee's preferred rule would not include subparagraph (a) and would accordingly require constitutional change. Absent constitutional change, the rule repeats the state constitutional testimonial privilege for criminal cases in subparagraph (a), to be asserted or waived by the witness spouse. For all other circumstances in which the Rules of Evidence apply, including civil and criminal proceedings, the Committee proposed a privilege for confidential husband-wife communications. Subparagraph (b)(1) is patterned after Rule 504(a) of the Uniform Rules of Evidence (1974), and subparagraph (b)(2) is patterned after Rule 504(a) of the Uniform Rules of Evidence (1986). Although empirical validation is problematic, several on the Committee supported a communications privilege as needed to encourage marital confidences, which in turn promote marital harmony. More persuasive to the Committee was the interest in securing an expectation of privacy pertaining to confidential communications between spouses. This expectation interest is based in part on whatever reliance married couples have placed on their understanding of existing marital privilege law. It is based as well on the private nature of the marriage relationship. Judge Weinstein states the argument: "[T]he stresses of modern society make more attractive than ever before the prospect of safe harbor of intimacy where spouses can confide in each other freely without any fear that what they say will be published under compulsion." 2 J. Weinstein & M. Berger, Weinstein's Evidence p. 505[02] at 505-12 (1986).

The Committee decided that the communications privilege should apply in civil and criminal proceedings. Many Committee members thought that limiting the privilege to criminal proceedings would fail adequately to protect from intrusive civil process the interests secured by the privilege.

Subparagraph (b)(3) makes the communicating spouse the holder of the privilege, which is consistent with the policy of encouraging freedom of communication and follows the view of leading commentators. E.g., 8 Wigmore, Evidence § 2340(1) (McNaughton Rev. 1961); McCormick on Evidence § 83 at 198 (E. Cleary ed., 1984).

Under this view, in the case of a unilateral oral message or statement, of a husband to his wife, only the husband could assert the privilege, where the sole purpose is to show the expressions and attitude of the husband. If the object, however, were to show the wife's adoption of the husband's statement by her silence, then the husband's statement and her conduct both become her communication and she can claim the privilege. Similarly, if a conversation or an exchange of correspondence between them is offered to show the collective expressions of them both, either it seems could claim privilege as to the entire exchange.

Id. See also, Rule 28(1), Utah Rules of Evidence (1971). The Committee intends that, during the life of the communicating spouse, the non-communicating spouse may claim the privilege on behalf of the communicating spouse if the latter is alive but not present to assert it. Upon the death of the communicating spouse, the privilege ceases to exist.

The exceptions in subparagraph (b)(4) of the proposed rule represent circumstances, in the Committee's judgment, in which the values of encouraging marital confidences and protecting spousal expectation of privacy are at their weakest or simply cannot stand in the way of the production of evidence that is relevant to the ascertainment of significant legal rights. They are patterned upon Rule 504(c) of the Uniform Rules of Evidence (1986) and are similar to the exceptions contained in Utah Code Ann. § 78-24-8(1) (Cum. Supp. 1991) and Rules 23(2) and 28 of the Utah Rules of Evidence (1971). The exceptions apply only to subparagraph (b) because art. I, § 12 of the Utah Constitution prevents their application to subparagraph (a).

The person making the confidential communication is entitled not only to refuse to disclose the communication, but also to prevent disclosure by the present or former spouse or others who, without the knowledge of the person making the confidential communication, learn its content. Problems of waiver are dealt with in Rule 507.

The Committee felt that exceptions to the privilege should be specifically enumerated, and further endorsed the concept that in the area of exceptions, the rule should simply state that no privilege existed, rather than expressing the exception in terms of a "waiver" of the privilege. The Committee wanted to avoid any possible clashes with the common law concepts of "waiver."