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Spousal communication privilege 'has outlived its useful life,' state supreme court says

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The New Mexico Supreme Court has abolished the spousal communication privilege in a murder case based on testimony by the defendant’s ex-wife and estranged current spouse.

The court said the privilege “has outlived its useful life,” report the Legal Profession Blog and the Associated Press. Justifications that have been cited for the privilege “seem little more than soaring rhetoric and legally irrelevant sentimentality,” the court said in its Aug. 30 opinion.

“We believe that the privilege is a vestige of a vastly different society than the one we live in today and has been retained in New Mexico simply through inertia,” the court said in a majority opinion by Chief Justice Judith Nakamura.

The decision makes New Mexico the only state in the nation that does not recognize any form of marital privilege, according to a partial dissenter, Justice Barbara Vigil.

Defendants in New Mexico could invoke the spousal communications privilege to prevent their spouses from testifying about confidential communications during the marriage, even after the marital relationship ends. Several policy justifications have been cited in support of the privilege, the court majority said.

They include protecting the solace of marriage and the marital relationship, protecting privacy in intimate relationships, and avoiding unwarranted government intrusion into marriage.

But the privilege rests on assumptions that spouses are aware that the privilege exists, and that they rely on it when deciding how much information to share, the New Mexico Supreme Court said. Those assumptions are untested and do not survive scrutiny, according to the court.

Some commentators have argued the cited justifications don’t justify the suppression of valuable evidence and are no longer relevant in a contemporary world where Americans increasingly share their marital and family problems with a public audience. The court agreed with that view.

The court also noted that the privilege was adopted at a time when the wife’s legal existence was deemed to be suspended during marriage or incorporated into the husband’s legal existence. Critics point to that history and say the privilege creates a disparate gender impact because it is more often invoked by men than women and is often used to isolate families from state interference, the court said.

“The misogynistic history of the privilege is obvious and odious,” the court said.

The defendant in the case, David Gutierrez, was convicted after his ex-wife and his estranged second wife testified about his confessions.

The court said Gutierrez’s decision to talk about the murder with his wives was not based on any legal guarantee of confidentiality because he had also bragged about the crime to third parties. His case “illustrates that abandonment of the privilege is unlikely to chill candor between spouses,” the court said.

The court abolished the privilege in future cases, but nonetheless upheld Gutierrez’s conviction.

In Gutierrez’s case, the court said admission of the first wife’s testimony was harmless error because she was allowed to testify about his acts—which included bringing her to the murder location where she saw the victim’s corpse.

The court also said admission of the second wife’s testimony was allowed because Gutierrez was unable to prove he made his statements about the crime only after their marriage, rather than before the marriage.

Vigil’s partial dissent said the court majority should not have abolished the privilege “by fiat in this opinion.” Instead, the matter should have been referred to a rules committee, the dissent argued.

In any event, Vigil said, the spousal privilege should be preserved because marriage “creates for many a sacred space to share oneself with a chosen other. That space should remain free from state intrusion and compulsion that would demand one spouse to reveal the intimate secrets of the other.”

Vigil’s dissent pointed out that New Mexico has already abolished the privilege in cases where one spouse is accused of harming the other.

A second partial dissenter who was sitting by designation, Charles Daniels, agreed that the spousal privilege should be abolished but said the proper procedure is to use the established rules process.

Both Daniels and Vigil agreed with the majority that Gutierrez’s conviction should be affirmed.