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Rule 502. Husband ? Wife.

 

(a)      Definition.

(a)(1)   ?Confidential communication? means acommunication:

 (a)(1)(A)   made privately by anyperson to his or her spouse; and

 

 (a)(1)(B)   not intended fordisclosure 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: 

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

 

(c)(2)   to prevent anotherperson from disclosing any such confidential communication.

 

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

(d)(1)   the person who made theconfidential communication;

 

(d)(2)   the person?s guardianor conservator;

 

(d)(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:

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

 

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

 

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

(e)(3)(A)   the other spouse;

 

(e)(3)(B)   the child of eitherspouse;

 

(e)(3)(C)   a person residing inthe household of either spouse; or

 

(e)(3)(D)   a third person if thecrime or tort is committed in the course of committing a crime or tort againstany of the persons named above.

 

(e)(4)   Interest of Minor Child. If the interest of aminor child of either spouse may be adversely affected, the Court may refuse toallow invocation of the privilege.

 

 

2011 Advisory CommitteeNote. ?The language of this rule has been amended as part of therestyling of the Evidence Rules to make them more easily understood and to makestyle and terminology consistent throughout the rules. These changes areintended to be stylistic only. There is no intent to change any result in anyruling on evidence admissibility.

 

Original Advisory CommitteeNote. Evidentiary privilege concerning the marriage relationship has taken two basicforms. First, a testimonial privilege shields one spouse from testifyingagainst the other. Second, a communications privilege prevents disclosure ofconfidential communications between spouses (sometimes expanded to informationlearned by virtue of the marriage relationship). Each form of the privilege isfurther defined by who can invoke the privilege, whether it extends to civil aswell as criminal proceedings, and the exceptions to the privilege.

 

In Utah,both forms of the privilege are recognized. Article I, section 12 of the UtahConstitution provides that "a wife shall not be compelled to testifyagainst her husband, nor a husband against his wife." See Utah Code ?77-1-6(2)(d) (1990) (same). Utah Code ? 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 oneto the other during the marriage.

 

(b) Thisexception does not apply:

 

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

 

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

 

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

 

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

 

(v) if otherwise specially provided by law.

 

As theUtah Supreme Court has noted in a case in which the husband was a criminaldefendant, the Utah Constitution and the statute together give "both thehusband and the wife a privilege that the wife shall not testify under thesecircumstances 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 thetestimonial privilege is an open issue when the non-testifying defendant spouseasserts it: "Whether Section 78-24-8(1) envisions an absolute privilege toprevent a spouse from testifying without the consent of the other, or whetherthat privilege pertains to communications only, is an issue we leave foranother day." State v. Bundy, 684 P.2d 58, 61 (Utah 1986); cf. Statev. Wilson, 771 P.2d 1077 (Utah App. 1989). As for the communicationsprivilege in the Utah statute, it is noteworthy that neither the statute northe case law answers directly who is the holder of the communicationsprivilege, although the statutory language suggests that both spouses hold theprivilege for communications between them.

 

TheCommittee was convinced that Utah law on marital privilege needs clarificationand reform. Both forms of marital privilege and the various features of theprivilege - the holder, the scope, and exceptions - were addressed. In doingso, the Committee recognized that "[t]he need todevelop all relevant facts is both fundamental and comprehensive." 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. Wigmore ?? 2228, 2241 (McNaughton Rev. 1961).Although these justifications are important, the Committee concluded that theyare insufficient to justify a spousal privilege covering non-communicativeconduct. In short, the Committee recommended against adoption of a testimonialprivilege that either spouse could invoke. Accordingly, the Committeerecommended that any marital privilege be limited to confidentialcommunications.

 

Thisposition comports with the view of many leading commentators on evidence whooppose the testimonial privilege because it does not promote marital felicity,is based on the outmoded concept that the husband and wife are one, and causessuppression of relevant evidence. For example, Wigmore calledthe privilege "a legal anachronism." Wigmore ? 2228 at 221 (McNaughton Rev. 1961).However, for the Committee's full recommendation to be adopted, the followinglanguage 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 husbandagainst his wife."

 

TheCommittee's preferred rule would not include subparagraph (a) and wouldaccordingly require constitutional change. Absent constitutional change, therule repeats the state constitutional testimonial privilege for criminal cases insubparagraph (a), to be asserted or waived by the witness spouse. For all othercircumstances in which the Rules of Evidence apply, including civil andcriminal proceedings, the Committee proposed a privilege for confidentialhusband-wife communications. Subparagraph (b)(1) ispatterned after Rule 504(a) of the Uniform Rules of Evidence (1974), andsubparagraph (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).

 

TheCommittee decided that the communications privilege should apply in civil andcriminal proceedings. Many Committee members thought that limiting theprivilege to criminal proceedings would fail adequately to protect fromintrusive civil process the interests secured by the privilege.

 

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

 

Underthis view, in the case of a unilateral oral message or statement, of a husbandto his wife, only the husband could assert the privilege, where the solepurpose 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 hersilence, then the husband's statement and her conduct both become hercommunication and she can claim the privilege. Similarly, if a conversation oran exchange of correspondence between them is offered to show the collectiveexpressions of them both, either it seems could claim privilege as to theentire exchange.

 

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

 

Theexceptions in subparagraph (b)(4) of the proposed rule represent circumstances,in the Committee's judgment, in which the values of encouraging maritalconfidences and protecting spousal expectation of privacy are at their weakestor simply cannot stand in the way of the production of evidence that isrelevant to the ascertainment of significant legal rights. They are patternedupon Rule 504(c) of the Uniform Rules of Evidence (1986) and are similar to theexceptions contained in Utah Code ? 78-24-8(1) (Cum. Supp. 1991) and Rules23(2) and 28 of the Utah Rules of Evidence (1971). The exceptions apply only tosubparagraph (b) because art. I, ? 12 of the Utah Constitution prevents theirapplication to subparagraph (a).

 

Theperson making the confidential communication is entitled not only to refuse todisclose the communication, but also to prevent disclosure by the present orformer spouse or others who, without the knowledge of the person making theconfidential communication, learn its content. Problems of waiver are dealtwith in Rule 507.

 

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