Definition. Confidential Communication. A
communication is confidential if it is made
privately by any person an individual to his or her
the individual's spouse and is not intended
for disclosure to any other person.
(b) General rule of privilege. An accused in a criminal proceeding has a privilege
his spouse from testifying as to any confidential communication between the accused and
(b) Marital Communications. An individual has a privilege to refuse to testify and to prevent the individual's spouse or former spouse from testifying as to any confidential communication made by the individual to the spouse during their marriage. The privilege may be waived only by the individual holding the privilege or by the holder's guardian, conservator, or personal representative if the individual is deceased.
(c) Who may claim the privilege. The privilege may be claimed by the accused or
spouse on behalf of the accused. The authority of the spouse to do so is presumed.
(c) Spousal Testimony in Criminal Proceeding. The spouse of an accused in a criminal proceeding has a privilege to refuse to testify against the accused spouse.
(d) Exceptions. There is no privilege under this rule:
in a proceeding in
which one spouse
is charged with a crime against the person or property of (1) the other, (2) a child of either,
(3) a person residing in the household of either, or (4) a third person, committed in the course
of committing a crime against any of them.
(1) in any civil proceeding in which the spouses are adverse parties;
(2) in any criminal proceeding in which an unrefuted showing is made that the spouses acted jointly in the commission of the crime charged;
(3) in any proceeding in which one spouse is charged with a crime or tort against the person or property of the other, a minor child of either, an individual residing in the household of either, or a third person if the crime or tort is committed in the course of committing a crime or tort against the other spouse, a minor child of either spouse, or an individual residing in the household of either spouse; or
(4) in any other proceeding, in the discretion of the court, if the interests of a minor child of either spouse may be adversely affected by invocation of the privilege.
Rule 504 was amended, effective March 1, 2014.
Rule 504 provides a husband-wife privilege, formerly provided by N.D.C.C. §
31-01-02. The rule
is substantially the same as is derived from Rule
504 of the Uniform Rules of
By the terms of the definition contained in Under subdivision (a),
a communication is not
"confidential" if it is intended to be disclosed to any person other than one's spouse. This
would include one's children.
The intent with which a communication is made may determine whether it is confidential.
If a communication is made privately, with the intent that it not be disclosed, it is
confidential for the purposes of this rule even though it is overheard by an eavesdropper to
But cf. § 82, McCormick on Evidence (2d ed. 1972).
See State v.
McMorrow, 314 N.W. 2d 287 (N.D. 1982).
A major alteration in the husband-wife privilege, as it has existed in North Dakota,
occasioned by subdivision (b), which applies only to an accused in a criminal proceeding.
Under prior law, the privilege was applicable, with certain exceptions, to criminal and civil
Given the limited application of this rule, there can be no claim of privilege made
representatives of the holder of the privilege. Under subdivision ( b), only the accused,
the spouse on behalf of the accused, may claim the privilege.
The exceptions listed in subdivision (d), or at least the instances in which one spouse commits a crime against the other or a child of either, have been said to be based upon necessity, i.e., a necessity to avoid the injustice which would occur should the privilege be granted in these instances. This is, however, an inadequate explanation, for injustice may be said to occur in any case in which evidence is suppressed by privilege.
The real basis for the exceptions, as Wigmore has cogently stated (VIII Wigmore on Evidence § 2239 (McNaughton rev. 1961)), is that in these instances the very reason for the privilege is lacking. The social policy behind the husband-wife privilege is to promote or, at least, to avoid disrupting marital harmony. In proceedings in which a spouse is accused on committing a crime against (1) the other, (2) a child of either, (3) a member of either household, or (4) a third person, in the course of committing a crime against any of them, it can hardly be said that allowing a spouse to testify against the other will disrupt an otherwise compatible relationship. In those cases, the theoretical basis for the privilege should not be blindly followed to the needless detriment of the administration of justice.
Rule 504 was amended, effective March 1, 2014, to incorporate the 1999 amendments to Rule 504 of the Uniform Rules of Evidence. Under the amendments, spousal privilege is extended to civil cases and the term "person" is replaced by "individual," which is intended to mean a human being.
Sources: Joint Procedure Committee Minutes
: of April 25-26, 2013,
pages 32-33; January
29, 1976, page 7. Rule 504, Uniform Rules of Evidence (1974).
Superseded: N.D.C.C. § 31-01-02.
Considered: N.D.C.C. §§ 12.1-29-04, 27-05.1-14.