Rule 504. Husband-wife privilege

Husband-wife privilege.

(a) Definition of “confidential” communication. A communication is “confidential” if it is made during marriage privately by any person to that person’s spouse and is not intended for disclosure to any other person.

(b) General rule of privilege. In any civil or criminal proceeding, a person has a privilege to refuse to testify, or to prevent any person from testifying, as to any confidential communication made by one spouse to the other during the marriage.

(c) Who may claim the privilege. The privilege may be claimed by either spouse, the lawyer for either spouse in that spouse’s behalf, the guardian or conservator of either spouse, or the personal representative of a deceased spouse. The authority of those named to claim the privilege in the spouse’s behalf is presumed in the absence of evidence to the contrary.

(d) Exceptions. There is no privilege under this rule:

(1) PARTIES TO A CIVIL ACTION. In any civil proceeding in which the spouses are adverse parties.

(2) FURTHERANCE OF CRIME. In any criminal proceeding in which the spouses are alleged to have acted jointly in the commission of the crime charged.

(3) CRIMINAL ACTION. In a criminal action or proceeding in which one spouse is charged with a crime against the person or property of (A) the other spouse, (B) a minor child of either, (C) a person residing in the household of either, or (D) a third person if the crime is committed in the course of committing a crime against any of the persons previously named in this sentence.

Committee Notes

Advisory Committee’s Notes For historical perspective, it is useful to note that spouses were once incompetent to testify for or against each other in civil or criminal cases. The only remaining vestige of this marital disqualification or incompetency is found in a statute that provides: “The husband and wife may testify either for or against each other in criminal cases, but shall not be compelled so to do.” Ala. Code 1975, § 12-21-227. This statute is interpreted to mean that a spouse may take the witness stand against an accused spouse if he or she decides to do so. Such a witness may be characterized as competent, but not compellable. This principle is sometimes described as providing the witness spouse a privilege to testify or not. Such a privilege, however, is not to be confused with the privilege set forth in Rule 504. Even if a witness spouse decides to take the stand against an accused spouse, such a witness yet remains precluded generally from divulging confidential, inter-spousal communications of the accused spouse. The preexisting statutory and case law dealing with the marital disqualification or competency question stands unaffected by the adoption of Rule 504. See Arnold v. State, 353 So.2d 524 (Ala.1977); C. Gamble, McElroy’s Alabama Evidence § 103.01 (4th ed. 1991). Section (a). Definition of “confidential” communication. Consistent with the language setting out other evidentiary privileges, the language of Rule 504 defines confidentiality in terms of the communicating spouse’s intent. No privilege arises unless the communicating spouse intends the communication to be confidential. This is fully consistent with preexisting Alabama law, which will continue to evolve the corresponding rules with regard to when the objective facts show intended confidentiality. See, e.g., Owen v. State, 78 Ala. 425 (1885); Harris v. State, 395 So.2d 1063 (Ala.Crim.App.1980), cert. denied, 395 So.2d 1069 (Ala.1981); C. Gamble, McElroy’s Alabama Evidence § 103.01(4) (4