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Rule 505. Husband-Wife Privileges.
Evidence Rule 505 has been substantially revised since this commentary was first published.
In most states the marital relationship gives rise to two distinct privileges. One, the spousal immunity privilege, enables a party to bar a current spouse from testifying against that party. The other, the privilege for marital communications, protects confidential communications made to one's spouse during the course of a marriage. Although the Proposed Federal Rule of Evidence dealing with Husband-Wife privilege (PFRE 505) adopted only the spousal immunity privilege, Rule 43(h) (1), Alaska R. Civ. P., and Rule 26(b) (2), Alaska R. Crim. P., both superseded by this Rule, recognized both privileges. This Rule makes no change in the basic state of the law. Both marital privileges are recognized in civil and criminal cases.
(a)0Spousal Immunity. (1) Spouse Immunity. The spousal immunity privilege belongs to the party spouse. See Hawkins v. United States, 358 U.S. 74, 3 L.Ed.2d 125 (1958). If the party fails to object to a spouse being called to testify, the party waives any right to object to any portion of the testimony on the ground of spousal immunity.
Spousal immunity applies only to testimony by a spouse. If the marriage is a sham or has been terminated by divorce, annulment, or death, there is no privilege. See AS 25.05.011-25.05.391.
(2)0Exceptions. (A) This is a standard exception in modern statutes. Model Code of Evidence rule 216 (1942); Cal. Evid. Code § 984 (West). "[H]usband and wife, while they would desire that their confidences be shielded from the outside world, would ordinarily anticipate that if a controversy between themselves should arise in which their mutual conversations would shed light on the merits, the interests of both would be served by full disclosure." McCormick (2d ed.) § 84, at 171. This exception covers custody battles.
(B)0and (C). Commitment and competency proceedings are undertaken for the benefit of the subject person. Frequently, much or all of the evidence bearing on a spouse's competency or lack of competency will consist of communications to the other spouse. It would be undesirable to permit either spouse to invoke a privilege to prevent the presentation of this vital information inasmuch as these proceedings are of such vital importance both to society and to the spouse who is the subject of the proceedings. See Cal. Evid. Code §§ 982 and 983 (West); Rule 504(d) (4) supra.
(D)0The need of limitation upon the privilege in order to avoid grave injustice in cases of offenses against the other spouse or child of either can scarcely be denied. The rule therefore disallows any privilege against spousal testimony in these cases. See Proposed Federal Rule of Evidence 505 (c) (1); 8 Wigmore § 2239; Model Code of Evidence rule 216 (1942). For relevant Alaska law see AS 25.25.230 (pimping) and 11.40.430 (non-support). Subdivision (a) (2) (D) (iii) is not limited to natural or adoptive children of the spouse. Subdivision (a) (2) (D) (iv) is directed at the case where the defendant marries the prosecution's star witness to prevent him or her from testifying.
(E)0In custody cases under subdivision (a)(2)(E), the spouse is treated as if they were opposing parties.
(F)0In business cases under subdivision (a) (2) (F), the need for third parties to have information outweighs the spouse's need for protection, especially about non-personal, commercial matters.
(b)0Confidential Marital Communications. (1) General Rule. Under this subdivision, both spouses are the holders of the privilege and either spouse may claim it. See Cal. Evid. Code § 980 (West); superseded Alaska R. Crim. P. 26(b) (2) and R. Civ. P. 43(h) (1); cf. 8 Wigmore § 2340. A guardian of an incompetent spouse may claim the privilege on behalf of that spouse. However, when a spouse is dead, no one can claim the privilege for him; the privilege, if it is to be claimed at all, can be claimed only by or on behalf of the surviving spouse. See Comment, Cal. Evid. Code § 980 (West).
The concept of "confidential communication" is analogous to a similar concept used in lawyer-client and physician/psychotherapist-patient privileges (Rule 503(a) (5) and 504(a) (4)). Thus, the intent of the communicator plays a key role. Communications between spouses made during the marriage outside the presence of third persons are presumptively confidential.
(2)0Exceptions. (A) All of the exceptions under the spousal immunity privilege apply to the confidential marital communications privilege.
(B)0This exception is applied to all confidential communication privileges. See Rule 503(d) (1) and 504(d) (2); Model Code of Evidence Rule 217 (1942). In many cases, the evidence which would be admissible under this exception will be vital in order to do justice between the parties to a lawsuit. See Comment, Cal. Evid. Code § 981 (West). The importance of protecting the marriage explains why this exception is confined to subdivision (b).
This exception does not permit disclosure of communications that merely reveal a plan to commit a crime or fraud; it permits disclosure only of communications made to enable or aid anyone to commit or plan to commit a crime or fraud.
(C)0Both the surviving spouse and the competing claimant are attempting to vindicate claims through the deceased spouse. Since the competing claimant urges that the deceased spouse had an intent regarding transfer of property different from that being urged by the surviving spouse, the case is treated as a dispute between the spouses and the privilege disappears.
(D)0When a married person is the defendant in a criminal proceeding and seeks to introduce evidence which is material to his defense, his spouse (or his former spouse) should not be privileged to withhold the information. See, Model Code of Evidence rule 216 (1942); Cal. Evid. Code § 987 (West). "It is plain that where an accused spouse needs the evidence of communications (by either spouse to the other), the privilege should cease or a cruel injustice may be done." 8 Wigmore § 2338 (emphasis in original).
(E)0Alaska's Children's Rules are designed to secure for each child the same care, correction and guidance that he should receive from his parents. (Rule 1(c)). The interests of the child and of society require that parental confidences bow to the need of juvenile court judges for full information concerning the activities and problems of the child, and his relationship with his parents together with the parents' relationship with each other.
(F)0In order to avoid the unfairness of spouses doing business together and then invoking the husband-wife privilege to prevent an inquiry into the business relationship, exception (F) provides that a communication is not confidential if it is made in the context of an agency relationship between the spouses, or in the context of any primarily business and nonmarital relationship. This is a special application of the principle that spouses who do not intend their communications to remain private cannot claim the privilege. Once spouses enter into business relationships with third parties, the Rule presumes that they do not intend that the third parties will be excluded from inquiring about the business arrangements of the spouses as they affect the third party's interests.
It should also be noted that at times privilege rules may have to give way to confrontation rights. See, e.g., Salazar v. State, 559 P.2d 66 (Alaska 1976).
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Last Modified 7/14/1999
