Rule 504. Spousal Privilege

(a) Definition. A communication by a married person is confidential if:

(1) The person makes it privately to the person's spouse, and

(2) The person making it does not intend for it to be disclosed to any other person.

(b) General rule. A married person has a privilege to prevent the person's spouse from disclosing the contents of any confidential communication between the person and the spouse.

(c) Who may claim the privilege. The person who made the communication can claim the privilege. The spouse also has presumptive authority to claim the privilege on the person's behalf.

(d) Exceptions. The spousal privilege is subject to the following exceptions:

(1) The spousal privilege does not apply in a proceeding in which one spouse is charged with a crime against the person or property of:

(A) The other spouse;

(B) A child of either spouse;

(C) Any person residing in either spouse's household; or

(D) Any third person, if the crime against that person or property occurred in the course of committing a crime against the other spouse, a child of either spouse, or any person residing in either spouse's household.

(2) The spousal privilege does not apply in a civil proceeding when the spouses are adverse parties.

Committee Notes

Maine Restyling Note [November 2014] Maine Rule 504 has been restyled in accordance with the federal restyling conventions, and, as part of this process, the Committee has proposed some minor, nonsubstantive changes to clarify the Rule.

Advisers' Note to former M.R. Evid. 504 (February 2, 1976) This rule preserves 15 M.R.S.A. § 1315, which makes the spouse of an accused a competent witness in a criminal proceeding except in regard to "marital communications". This phrase has been § 1315, which makes the spouse construed to mean confidential communications. State v. Benner, 284 A.2d 91 (1971) (where the court assumed without deciding that the privilege comprehends conduct other than verbal exchanges). The rule also preserves the common law privilege recognized in Maine case law. Walker v. Sanborn, 46 Me. 470 (1859). The basis of the privilege was stated to be principles of public policy to preserve the peace of domestic life. It does not apply when the parties are hostile to each other and are living apart under articles of separation when the communication is made. Holyoke v. Holyoke's Estates, 110 Me. 469, 87 A. 40 (1913). Subdivision (d) gives no privilege if one spouse is charged with a crime against the other, a child of either, any person residing in the household of either, or a third person committed in the course of committing a crime against any of them. Nor is there any privilege in civil proceedings between the parties, such as divorce. The rule appears to be consistent with Maine law, although there are some points not covered by decisions. The rule as promulgated by the Supreme Court was markedly different. It recognized a privilege of an accused in a criminal proceeding to keep his or her spouse off the witness stand (with the exceptions later listed). It did not recognize any privilege for confidential communications between the spouses either in a criminal case, if the accused does not exercise the privilege to prevent the spouse from testifying, or in a civil action.