RULE 504. HUSBAND-WIFE PRIVILEGE
(a) Definition. A communication is confidential if it is made privately by any person to his or her 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 to prevent his spouse from testifying as to any confidential communication between the accused and the spouse.
(c) Who May Claim the Privilege. The privilege may be claimed by the accused or by the spouse on behalf of the accused. The authority of the spouse to do so is presumed.
(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.
Rule 504 provides a husband-wife privilege, formerly provided by 31-01-02, NDCC. The rule is substantially the same as Rule 504 of the Uniform Rules of Evidence (1974).
By the terms of the definition contained in 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 the conversation. But cf.82, McCormick on Evidence (2d ed. 1972).
A major alteration in the husband-wife privilege, as it has existed in North Dakota, is 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 actions.
Given the limited application of this rule, there can be no claim of privilege made by representatives of the holder of the privilege. Under subdivision (c), only the accused, or 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 Evidence2239 (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 of 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.
SOURCES: Minutes of Joint Procedure Committee: January 29, 1976, page 7. Rule 504, Uniform Rules of Evidence (1974).
SUPERSEDED: 31-01-02, NDCC.
CONSIDERED: 12.1-29-04, 27-05.1-14, NDCC.