Spousal Privilege

(a) Definition. A communication is “confidential” if a person makes it privately to the person’s spouse and does not intend its disclosure to any other person. (b) General Rule of Privilege. A person has a privilege to prevent the person’s current or former spouse from testifying in a civil or criminal case about any confidential communication between them. (c) Who may Claim the Privilege. Either spouse may claim the privilege. A spouse has authority to claim the privilege on the other spouse’s behalf. (d) Exceptions. The privilege does not apply: (1) in a civil case between the spouses; or (2) in a criminal case when one spouse is charged with a crime against: (A) the person of a minor child; or (B) the person or property of: (i) the other spouse; (ii) a resident of either spouse’s household; or (iii) a third person when committed during a crime against any person described in paragraphs (d)(1) and (2). [Restyled effective July 1, 2016.] Advisory Committee Historical Note Effective July 1, 2016, the Rule was amended as part of the general restyling of the Evidence Rules. Effective June 16, 2016, the “Comment” was retitled “Advisory Committee Note.” Effective April 3, 2003, Rule 504 was amended to effect technical changes. ____ So. 2d (West Miss. Cas. 2003). Effective May 2, 2002, Rule 504(d) and its Advisory Committee Note were amended to remove the privilege in civil actions between the spouses. 813-815 So. 2d XXI (West Miss. Cases 2002). Rule 504(d) was amended in Fisher v. State, 690 So. 2d 268, 272 (Miss. 1996) to substitute “any minor child” for “a child of either” and to effect technical changes. The amendment applied prospectively upon publication (May 1, 1997, advance sheet) in West’s Southern Reporter. Advisory Committee Note The language of Rule 504 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. There are two areas of law which govern if and when one spouse may testify against the other, spousal competency and marital privilege. M.C.A. § 13-1-5 governs matters of spousal competency. On the other hand, marital privilege protects certain communications made during the marriage. The privilege extends only to communications which were intended to be confidential. Thus, the presence of another person, even a family member, is deemed to mean that the communication was not intended to be confidential. Likewise, if the intent was that the communication would be confidential, a third party may not testify regarding the communication, even if that third party learned it from one of the spouses directly. Rule 504(a) is in accord with existing Mississippi practice. [Amended March 20, 1995; “Advisory Committee Note” substituted for “Comment,” effective June 16, 2016; amended July 1, 2016, to note restyling.]