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 §621-18 (1976) (repealed 1980) (originally enacted as L 1876,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 §621-19 (1976) (repealed 1980) (originally
enacted as L 1876, c 32, §54).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  The present rule recodifies and clarifies the two superseded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.



  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.