EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, November 12, 2020

Supreme Court of New Mexico (Temporarily?) Restores the Spousal Communications Privilege

In pertinent part, New Mexico's spousal communications privilege states 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.

In the appeal of David Gutierrez II of his murder conviction, the Supreme Court of New Mexico initially abolished this spousal communications privilege. But then, it had second thoughts.

In State v. Gutierrez, 2020 WL 6538330 (N.M. 2020), ordered that

With this order we hereby retract the ruling in the original majority opinion that abolished the spousal communications privilege contained in Rule 11-505....The spousal communications privilege contained in Rule 11-505 is hereby reinstated for all cases pending or filed as of the date of our order granting rehearing in this case, June 26, 2020....

We determine that whether the spousal communications privilege contained in Rule 11-505 should be modified or abolished in New Mexico should be the subject of comprehensive study and robust public discussion. Accordingly, we refer to the Rules of Evidence Committee the matter of whether Rule 11-505 should be amended or abolished or should remain unchanged, and we ask the committee to submit its recommendation to this Court pursuant to Rules 23-106 and -106.1 NMRA....In conducting the review of this matter, we further instruct the Rules of Evidence Committee to consider the views and reasoning expressed by the Justices in the original majority opinion...as well as the partial concurring and dissenting opinions....



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