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Rule 502. Husband - Wife

 

(a)      Definition.

 

(1)   “Confidential communication” means acommunication:

 

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

 

          (B)   notintended for disclosure to any other person.

 

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

 

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

 

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

 

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

 

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

 

(1)   theperson who made the confidential communication;

 

(2)   theperson’s guardian or conservator;

 

(3)   the non-communicatingspouse to whom the confidential communication was made may claim the privilegeon behalf of the person who made the confidential communication during the lifeof the communicating spouse.

 

(e)      Exceptionsto the Privilege. No privilege exists under paragraph (c) in the followingcircumstances:

 

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

 

(2)   Furtheranceof Crime or Tort. As to any communication which was made, in whole or in part, toenable or aid anyone to commit; to plan to commit; or to conceal a crime or atort.

 

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

 

(A)   the other spouse;

 

(B)   the child of eitherspouse;

 

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

 

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

 

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

 

 

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

 

ADVISORY COMMITTEE NOTE

 

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

 

In Utah, both forms of the privilege arerecognized. Article I, section 12 of the Utah Constitution provides that"a wife shall not be compelled to testify against her husband, nor ahusband 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 mayeither 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 acivil action or proceeding by one spouse against the other;

 

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

 

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

 

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

 

(v) if otherwise specially provided bylaw.

 

As the Utah Supreme Court has noted ina case in which the husband was a criminal defendant, the Utah Constitution andthe statute together give "both the husband and the wife a privilege thatthe wife shall not testify under these circumstances without the consent ofboth the husband and the wife." State v. Brown, 14 Utah 2d 324, 383 P.2d930, 932 (1963). The Court recently declared in a criminal case that the scopeof the testimonial privilege is an open issue when the non-testifying defendantspouse asserts it: "Whether Section 78-24-8(1) envisions an absoluteprivilege to prevent a spouse from testifying without the consent of the other,or whether that privilege pertains to communications only, is an issue we leavefor another day." State v. Bundy, 684 P.2d 58, 61 (Utah 1986); cf. Statev. Wilson, 771 P.2d 1077 (Utah App. 1989). As for the communications privilegein the Utah statute, it is noteworthy that neither the statute nor the case lawanswers directly who is the holder of the communications privilege, althoughthe statutory language suggests that both spouses hold the privilege forcommunications between them.

 

The Committee was convinced that Utahlaw on marital privilege needs clarification and reform. Both forms of maritalprivilege 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 andcomprehensive." United States v. Nixon, 418 U.S. 683, 709 (1974). TheCommittee also considered competing values supporting the privilege. Thetraditional justifications for the testimonial privilege have been theprevention of marital dissension and the repugnance of requiring a person tocondemn or be condemned by his or her spouse. 8 Wigmore§§ 2228, 2241 (McNaughton Rev. 1961). Although these justifications areimportant, the Committee concluded that they are insufficient to justify aspousal privilege covering non-communicative conduct. In short, the Committeerecommended against adoption of a testimonial privilege that either spousecould invoke. Accordingly, the Committee recommended that any marital privilegebe limited to confidential communications.

 

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

 

The Committee's preferred rule wouldnot include subparagraph (a) and would accordingly require constitutionalchange. Absent constitutional change, the rule repeats the state constitutionaltestimonial privilege for criminal cases in subparagraph (a), to be asserted orwaived by the witness spouse. For all other circumstances in which the Rules ofEvidence apply, including civil and criminal proceedings, the Committeeproposed 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 ofEvidence (1986). Although empirical validation is problematic, several on theCommittee supported a communications privilege as needed to encourage maritalconfidences, which in turn promote marital harmony. More persuasive to theCommittee was the interest in securing an expectation of privacy pertaining toconfidential communications between spouses. This expectation interest is basedin part on whatever reliance married couples have placed on their understandingof existing marital privilege law. It is based as well on the private nature ofthe marriage relationship. Judge Weinstein states the argument: "[T]hestresses of modern society make more attractive than ever before the prospectof safe harbor of intimacy where spouses can confide in each other freelywithout any fear that what they say will be published under compulsion." 2J. Weinstein & M. Berger, Weinstein's Evidence p. 505[02] at 505-12 (1986).

 

The Committee decided that thecommunications privilege should apply in civil and criminal proceedings. ManyCommittee members thought that limiting the privilege to criminal proceedingswould fail adequately to protect from intrusive civil process the interestssecured by the privilege.

 

Subparagraph (b)(3) makes thecommunicating spouse the holder of the privilege, which is consistent with thepolicy of encouraging freedom of communication and follows the view of leadingcommentators. 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 aunilateral oral message or statement, of a husband to his wife, only the husbandcould assert the privilege, where the sole purpose is to show the expressionsand attitude of the husband. If the object, however, were to show the wife'sadoption of the husband's statement by her silence, then the husband'sstatement and her conduct both become her communication and she can claim theprivilege. Similarly, if a conversation or an exchange of correspondencebetween them is offered to show the collective expressions of them both, eitherit seems could claim privilege as to the entire exchange.

 

Id. See also, Rule 28(1), Utah Rulesof Evidence (1971). The Committee intends that, during the life of thecommunicating spouse, the non-communicating spouse may claim the privilege onbehalf of the communicating spouse if the latter is alive but not present toassert it. Upon the death of the communicating spouse, the privilege ceases toexist.

 

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

 

The person making the confidentialcommunication is entitled not only to refuse to disclose the communication, butalso 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 tothe privilege should be specifically enumerated, and further endorsed theconcept that in the area of exceptions, the rule should simply state that noprivilege existed, rather than expressing the exception in terms of a"waiver" of the privilege. The Committee wanted to avoid any possibleclashes with the common law concepts of "waiver."