(a) Confidential Communication. A communication is confidential if it is made privately by an individual to the individual's spouse and is not intended for disclosure to any other person.
(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) 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:
(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 31-01-02, NDCC. The rule is derived from Rule 504 of the Uniform Rules of Evidence.
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. See State v. McMorrow, 314 N.W. 2d 287 (N.D. 1982).
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.
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.
SUPERSEDED: N.D.C.C. § 31-01-02.
CONSIDERED: N.D.C.C. §§ 12.1-29-04, 27-05.1-14.