2015 ORS 40.255¹
Rule 505. Husband-wife privilege

Caution-flag-2-25x25
This section is amended
Effective March 14, 2016
Relating to gender neutrality in laws; creating new provisions; amending ORS 40.135 and 40.255; and declaring an emergency.

(1) As used in this section, unless the context requires otherwise:

(a) "Confidential communication" means a communication by a spouse to the other spouse and not intended to be disclosed to any other person.

(b) "Marriage" means a marital relationship between husband and wife, legally recognized under the laws of this state.

(2) In any civil or criminal action, a spouse has a privilege to refuse to disclose and to prevent the other spouse from disclosing any confidential communication made by one spouse to the other during the marriage. The privilege created by this subsection may be claimed by either spouse. The authority of the spouse to claim the privilege and the claiming of the privilege is presumed in the absence of evidence to the contrary.

(3) In any criminal proceeding, neither spouse, during the marriage, shall be examined adversely against the other as to any other matter occurring during the marriage unless the spouse called as a witness consents to testify.

(4) There is no privilege under this section:

(a) In all criminal actions in which one spouse is charged with bigamy or with an offense or attempted offense against the person or property of the other spouse or of a child of either, or with an offense against the person or property of a third person committed in the course of committing or attempting to commit an offense against the other spouse;

(b) As to matters occurring prior to the marriage; or

(c) In any civil action where the spouses are adverse parties. [1981 c.892 §34; 1983 c.433 §1]

(Rule 505)

See also annota­tions under ORS 44.040 in permanent edi­tion.

Notes of Decisions

Under Former Similar Statute (Ors 44.040)

A bigamous or otherwise void marriage does not support a claim of marital privilege. State v. Kelsey, 28 Or App 255, 558 P2d 1299 (1977)

The marital privilege is available in proba­tion revoca­tion pro­ceed­ings. State v. Schier, 47 Or App 1075, 615 P2d 1147 (1980)

A party does not waive marital privilege when privileged subject is opened for first time on cross-examina­tion. State v. Schier, 47 Or App 1075, 615 P2d 1147 (1980)

Under Evidence Code

Invoca­tion of spousal privilege in front of jury is inherently prejudicial; privilege was violated where spouse repeatedly asserted it in front of jury and was ordered to testify anyway. State v. Quintero, 110 Or App 247, 823 P2d 981 (1991), Sup Ct review denied

For purposes of excep­tion to spousal privilege, whether "of­fense" or "at­tempted of­fense" is against per­son or prop­erty of spouse depends on specific con­duct that resulted in defendant being charged, not crime with which defendant is charged. State v. Jansen, 198 Or App 260, 108 P3d 92 (2005)

Intent of communicating spouse controls whether spousal communica­tions are confidential. State v. Serrano, 346 Or 311, 210 P3d 892 (2009)

Chapter 40

(Generally)

Notes of Decisions

General rule is that polygraph evidence is inadmissible in pro­ceed­ing governed by Oregon Evidence Code. State v. Brown, 297 Or 404, 687 P2d 751 (1984)

Party could introduce results of polygraph test taken by spouse for purpose of showing that response of party upon learning polygraph results was reasonable. Fromdahl and Fromdahl, 314 Or 496, 840 P2d 683 (1992)

Where state law completely precludes reliable, ma­te­ri­ally exculpatory evidence, exclusion of that evidence violates Due Process Clauses of United States Constitu­tion. State v. Cazares-Mendez, 233 Or App 310, 227 P3d 172 (2010), aff'd State v. Cazares-Mendez/Reyes-Sanchez, 350 Or 491, 256 P3d 104 (2011)

Oregon Evidence Code articulates min­i­mum standards of reliability that apply to many types of evidence for admissibility, including eyewitness identifica­tion evidence, and parties must employ code to address admissibility of eyewitness testimony. State v. Lawson/James, 352 Or 724, 291 P3d 673 (2012)

Law Review Cita­tions

59 OLR 43 (1980); 19 WLR 343 (1983)

Chapter 40

Evidence Code

Annota­tions are listed under the heading "Under former similar statute" if they predate the adop­tion of the Evidence Code, which went into effect January 1, 1982.


1 Legislative Counsel Committee, CHAPTER 40—Evidence Code, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors040.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 40, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano040.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.