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The Solution
UTAH RULES ADVISORY COMMITTEE
The Utah Supreme Court Advisory Committee on the Rules of Evidence acts as the primary expert engine behind the rules that dictate what information, testimony, and physical items can be introduced during a trial in Utah state courts. Under Article VIII, Section 4 of the Utah Constitution, the Utah Supreme Court holds the ultimate authority to adopt and manage rules of evidence and procedure. The committee is appointed specifically to assist the Court in exercising that authority. The Utah Rules Advisory Committee is comprised of judges, prosecutors, defense attorneys, legal academics, and litigators.
The Advisory Committee notes for rule 502 regarding spousal privilege states:
...the Committee recommended that any marital privilege be limited to confidential communications. This position comports with the view of many leading commentators on evidence who oppose the testimonial privilege because it does not promote marital felicity, is based on the outmoded concept that the husband and wife are one, and causes suppression of relevant evidence. For example, Wigmore called the privilege "a legal anachronism." 8 Wigmore § 2228 at 221 (McNaughton Rev. 1961). However, for the Committee's full recommendation to be adopted, the following language from art. I, § 12 of the Utah Constitution would need to be repealed: "a wife shall not be compelled to testify against her husband, nor a husband against his wife."
AMENDING THE UTAH CONSTITUION
Eliminating the absolute spousal privilege from the Utah Constitution requires removing just twelve words:
Article I, Section 12. [Rights of accused persons.]
In criminal prosecutions the accused shall have the right to appear and defend in person and by counsel, to demand the nature and cause of the accusation, to have a copy thereof, to testify in the accused's own behalf, to be confronted by the witnesses against the accused, to have compulsory process to compel the attendance of witnesses in the accused's own behalf, to have a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed, and the right to appeal in all cases. In no instance shall any accused person, before final judgment, be compelled to advance money or fees to secure the rights herein guaranteed. The accused shall not be compelled to give evidence against himself or herself; a person shall not be compelled to testify against the person's spouse, nor shall any person be twice put in jeopardy for the same offense.
THE RESULT
By removing the spousal privilege language from the Utah Constitution, the Utah Code and Utah Rules of Evidence are given full effect - including the exceptions to the privilege.
No privilege exists . . . in the following circumstances:
. . . .any communication which was made, in whole or in part, to enable or aid anyone to commit; to plan to commit; or to conceal a crime or a tort.
There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate. Therefore, a person cannot be examined as a witness in the following cases:
(1)(a) Neither a wife nor a husband may either during the marriage or afterwards be, without the consent of the other, examined as to any communication made by one to the other during the marriage.
(b) This exception does not apply:
(i) to a civil action or proceeding by one spouse against the other;
(ii) to a criminal action or proceeding for a crime committed by one spouse against the other;
(iii) to the crime of deserting or neglecting to support a spouse or child;
(iv) to any civil or criminal proceeding for abuse or neglect committed against the child of either spouse; or
(v) if otherwise specifically provided by law.
