(1) Neither husband nor wife can be examined in any case as to any confidential communication made by one to the other while married, nor shall they after the marriage relation ceases be permitted to reveal in testimony any such communication while the marriage subsisted except as otherwise provided by law. This privilege may be waived only with the consent of both spouses. After the death of one, it may be waived by the survivor.

For purposes of this section (a) a confidential communication shall mean a communication which is made privately by any person to his or her spouse with no intention that such communication be disclosed to any other person and (b) communication shall include any action on the part of a spouse if the action reasonably appears to have been intended to communicate a message from one spouse to the other.

(2) During the existence of the marriage, a husband and wife can in no criminal case be a witness against the other. This privilege may be waived only with the consent of both spouses.

(a) In any criminal case where the crime charged is a crime of violence, bigamy, incest, or any crime committed by one against the person or property of the other or of a child of either or in any criminal prosecution against the husband for wife or child abandonment;

(b) In any case brought by either husband or wife against a third person relating to their marriage relationship or the interruption of or interference with such relationship; or

(c) In any case brought by either husband or wife against the other for divorce or annulment of the marriage or for support.

Annotations

1. Scope

2. Constitutionality

1. Scope

Subdivision (3)(a) of this statutory section, as amended in 1984, now permits a spouse to testify against the other spouse in any criminal case where the crime charged is a crime of violence. State v. Keithley, 227 Neb. 402, 418 N.W.2d 212 (1988).

In a prosecution for a crime of violence, the defendant's spouse may be called to testify against the defendant as to any matter, including confidential communications. State v. Burchett, 224 Neb. 444, 399 N.W.2d 258 (1986).

In a criminal case, a spouse may not testify when motion for new trial is still pending and when the testimony would occur during the time period during which the parties are barred from remarriage. State v. Palmer, 215 Neb. 273, 338 N.W.2d 281 (1983).

Spousal privilege may not be asserted in a case of sexual assault under section 28-319, R.R.S.1943, even though that statute does not use the term rape. State v. Vicars, 207 Neb. 325, 299 N.W.2d 421 (1980).

2. Constitutionality

The phrase "crime of violence" as used in this section is not unconstitutionally vague. The privilege against spousal testimony in a criminal case may be waived with the consent of both parties, and may not be claimed in any criminal case where the crime charged is a crime of violence. State v. Williams, 239 Neb. 985, 480 N.W.2d 390 (1992).

Statute as amended in 1984 determined not to be ex post facto as applied to the defendant. State v. Burchett, 224 Neb. 444, 399 N.W.2d 258 (1986).

Amendment to section was neither unconstitutionally vague nor an ex post facto law. The clear meaning of statute is that the privilege may not be claimed where the crime charged is a crime of violence, bigamy, incest, or any crime committed by one against the person or property of another. Murder is a crime of violence under this section, and this section applies to all crimes of violence regardless of who the victim may be. State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).

Abolition of the privilege preventing a spouse from testifying about any confidential communications made by one spouse to the other in crimes of violence does not constitute special legislation and does not grant a special privilege in violation of Neb. Const., Art. III, sec. 18, nor does it offend concepts of due process and equal protection. State v. Hunt, 220 Neb. 707, 371 N.W.2d 708 (1985).