The New Mexico Supreme Court just became the first state to eliminate one of the more obscure legal doctrines out there: the spousal privilege. Writing for the majority, Justice Nakamura criticized the privileged as rooted in misogyny and perpetuating violence against women. Justice Barbara Vigil would not have eliminated the privilege and would have referred that question to the Committee on the Rules of Evidence; retired Justice Daniels agreed with the majority but would have preferred that the committee handle the question of abolishing the privilege.
State v. Gutierrez was a direct appeal of a first degree murder conviction. Gutierrez murdered the uncle of his wife after his wife told him that her uncle had raped her. He had her help him search the scene for evidence, and told her he would kill her if she told anyone. She lied to the police, and the couple later divorced after two years of marriage. His second wife learned of the murder from his parents, who Gutierrez had also told about the murder.
At trial, Gutierrez asserted the spousal privilege to keep both wives from testifying that he told them about the murder, but the judge ruled that Gutierrez had waived the privilege by telling others about the murder. The court sentenced him to life imprisonment plus one year. Gutierrez appealed, arguing that the evidence should have been excluded, and making various more traditional arguments.
The spousal privilege can be found in Rule 11-505(B) NMRA, which provides that “[a] person has a privilege to refuse to disclose, or to prevent another from disclosing, a confidential communication by the person to that person’s spouse while they were married.” This privilege prohibits one spouse from testifying as to conversations or communications with the other spouse made in confidence during their marriage. There are a few exceptions, the most important of which is that the privilege does not apply in cases involving crimes by one spouse against the other or their children.
Writing for a four-judge majority, Justice Nakamura immediately dove into the main issue in the case: the spousal privilege. But because there is also a statute codifying a similar protection, the Court began by reiterating its primacy over the legislature in this area. The Court had previously interpreted the New Mexico Constitution to give the Court–not the legislature–power over procedural rules, including the rules of evidence.
With that out of the way, the Court was free to ignore the statute and concentrate on the task of balancing the policy issues at stake. On one side, all rules of evidence must be balanced against the goal of the judicial system: the pursuit of the truth. After, a privilege allows a person to withhold probative evidence from the courts, making it harder to discover the truth. On the other side, the Court needed to identify the policies served by a spousal privilege.
To do so, it turned to the history and scholarship of the spousal privilege. The privilege had its origins in feudal England and was imported into American law. Over 180 years ago, the U.S. Supreme Court described the policies behind the privilege as one of encouraging marital confidences to promote the “public good” of marriage. Other justifications, such as protecting privacy or personal autonomy, have been offered over the years. But the scholarship also suggests that few couples are aware of or influenced by the privilege. Finally, many critics argued that the privilege protected men and perpetuated gender imbalance.
Ultimately, the majority agreed with the critics of the privilege, stating:
The traditional justification for the spousal communication privilege is premised on assumptions that do not withstand scrutiny. The privacy and humanistic justifications, when closely examined, seem little more than soaring rhetoric and legally irrelevant sentimentality. The misogynistic history of the privilege is obvious and odious. And it appears that the existence of the privilege perpetuates gender imbalances and, most critically, may even be partly responsible for sheltering and occluding marital violence that disproportionately affects women in entirely unacceptable ways.
It concluded that the policy of pursuing the truth was undermined by a procedural rule that had “outlived its justification,” and eliminated the rule for all cases going forward.
Justice Barbara Vigil concurred with the result but dissented from the decision to abolish the privilege. In her view, the privilege served the important function of protecting the privacy rights of married couples. She was not persuaded by the argument that the privilege perpetuated violence against women, noting that the rule expressly did not apply to domestic violence cases.
In addition, she believed that the Court should have submitted the matter to the Rules of Evidence Committee, whose comprehensive and open rulemaking process might have provided a more appropriate mechanism for deciding the issue. Justice Vigil noted that the parties had not originally asked to see the rule abolished, and, when the Court requested additional briefing on the matter, neither the parties nor amicus suggested abolishing the rule. She was also concerned that despite longstanding scholarly criticism of the privilege, all states had some form of marital privilege, and none hand abolished it.
Justice Daniels also penned a partial dissent, keeping it brief because few additional words were needed and because he “ha[d] few words left for [his] beloved Court and beloved colleagues.” Though he agreed with almost the entire opinion, he also agreed with Justice Vigil that the decision to abolish the privilege would have been better handled through the rulemaking process.
Justice Daniels passed away just days after this opinion was filed. One gets the sense that he also intended it as a farewell. The Albuquerque Journal has done a good job summarizing Justice Daniel’s amazing life. He will be missed.