Rule 505 Spousal privilege. (a) Criminal proceedings. In a criminal proceeding, the spouse of the accused has a privilege not to testify against the accused. This privilege may be claimed only by the spouse who is called to testify.

(b) Confidential marital communications; all proceedings.

(1) Definition. A "confidential marital communication" is a private communication between spouses that is not intended for disclosure to any other person.

(2) Either party to a confidential marital communication has a privilege to refuse to disclose and to prevent any other person from disclosing that communication.

(c) Exceptions. There is no privilege under this rule (1) in proceedings in which one spouse is charged with a crime against the person or property of (A) the other, (B) a child of either, (C) a third person residing in the household of either, or (D) a third person committed in the course of committing a crime against any of these, or (2) as to matters occurring prior to the marriage. L 1980, c 164, pt of §1

RULE 505 COMMENTARY

This rule supersedes two previous Hawaii statutes, Hawaii Rev. Stat. §621-18 (1976) (repealed 1980) (originally enacted as L 1876, c 32, §53; am L 1927, c 164, §1; am L 1971, c 151, §1; am L 1972, c 104, §1(m)), and Hawaii Rev. Stat. §621-19 (1976) (repealed 1980) (originally enacted as L 1876, c 32, §54). The former provided that in criminal cases spouses were not "competent or compellable" to give evidence against each other except in cases where the spouse was accused of an offense against the testifying spouse or against the children of either. The latter read as follows: "No husband shall be compellable to disclose any communication made to him by his wife during the marriage, and no wife shall be compellable to disclose any communication made to her by her husband during the marriage."

The present rule recodifies and clarifies the two superseded Hawaii statutes. It also derives in part from Uniform Rule of Evidence 504 and the U.S. Supreme Court proposal for federal Rule 505, see Rules of Evidence for U.S. Courts and Magistrates as promulgated by the U.S. Supreme Court, 28 App. U.S. Code Service, App. 6 (1975). Subsection (a), applicable only in criminal cases, follows the recent holding of the U.S. Supreme Court in Trammel v. United States, 455 U.S. 40, 100 S. Ct. 906, 63 L. Ed. 2d 186 (1980), investing the spousal disqualification only in the spouse called to testify and holding that the accused has no privilege to prevent adverse spousal testimony. The Trammel court said: "When one spouse is willing to testify against the other in a criminal proceeding--whatever the motivation--their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve." 63 L. Ed. 2d 196.

The prior statute barring disclosure of marital communications was a rule of privilege; however, although the wording implied that the testifying spouse was the holder of the privilege, this was not expressed in the statute, rendering uncertain the question whether the privilege was waivable by either or both the parties. Further, the statute purported to embrace all communications made during the marriage, not merely those intended as confidential, a provision somewhat more sweeping than is required by the intent of such a rule. The present rule invests the privilege in either spouse and limits the scope to confidential communications.

Appellate decisions construing the two predecessor statutes are consistent with the present rule. In an early case, Republic of Hawaii v. Kahakauila, 10 H. 28 (1895), the court noted that testimony by the husband of a wife charged with adultery, to prove that she was married, was improperly admitted. In construing the scope of the exceptions to the rule of spousal incompetency, the court in Territory v. Alford, 39 H. 460, 472 (1952), held that testimony of the wife forced into prostitution by her husband was properly admitted against him on the grounds that the crime charged was "an offense against the person of the wife." The court has also held that general spousal testimony is not barred in civil litigation, Briggs v. Mills, 4 H. 450 (1882).

Case Notes

Presumption of confidentiality not overcome by spouse's statements to third parties regarding subject of communication. 67 H. 247, 686 P.2d 9 (1984).

The spousal privilege under this rule is not a constitutional right requiring an in-court colloquy or express waiver prior to a spouse's testifying against his or her spouse; thus, trial court did not err by failing to conduct an in-court colloquy with or obtain an express waiver from wife prior to wife testifying against husband. 99 H. 219 (App.), 53 P.3d 1204 (2002).