Monday, September 2, 2019

Pillow Talkers Beware: The Marriage Of Bonnie And Clyde

The New Mexico Supreme Court has abolished the spousal communication privilege

In 2002, Defendant David Gutierrez shot and killed a man. Gutierrez disclosed this fact to his wife and threatened to kill her if she ever told anyone about the murder. They divorced a short time later. Gutierrez remarried and also told his second wife about the murder. By the time of his 2017 murder trial, Gutierrez was estranged from his second wife. At trial, he invoked the spousal communication privilege to preclude both women from testifying about his role in the killing. Gutierrez’s invocation of the spousal communication privilege prompts us to question its continued viability in New Mexico.

We conclude that the spousal communication privilege has outlived its useful life and prospectively abolish it. As abolishment is prospective, we must evaluate its applicability in Gutierrez’s case. We conclude that certain evidence was admitted at Gutierrez’s trial in violation of the privilege, but conclude that the error was harmless. We reject all other arguments advanced by Gutierrez and affirm his convictions.


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...

This Court has a constitutional duty to ensure that the pursuit of truth is not unduly undermined by a procedural rule that has outlived its justification. Having carefully examined the spousal communication privilege, we cannot accept that it meaningfully encourages marital confidences, promotes marital harmony, or produces any substantial public benefit that justifies its continued recognition. Rather, 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.

A dissent on the abolition from Justice Barbara Vigil

I concur in the judgment affirming Defendant’s conviction and agree with the Majority’s conclusion on each of the issues Defendant has raised on appeal. I respectfully dissent from the Majority’s decision to abolish the spousal communications privilege and to withdraw Rule 11-505 NMRA for two reasons. First, because it plays a significant role in protecting the privacy rights of married couples, I do not agree that the spousal communications privilege should be abolished. Second, regardless of my view that the privilege should remain intact, I do not believe the Majority is justified in abolishing the privilege by way of this precedential opinion. If the Majority is indeed concerned that the spousal communications privilege has outlived its utility in our justice system, then it should refer the matter to the Rules of Evidence Committee. The committee rulemaking process allows for a more transparent and comprehensive study of the implications of abolishing this longstanding rule of evidence. By avoiding this process and abolishing the spousal communications privilege by fiat in this opinion, the Majority has unnecessarily exercised its rulemaking authority. Accordingly, I respectfully dissent from the Majority’s decision to abolish the spousal communications privilege in New Mexico.

Justice Daniels wrote of his love for the court and his colleagues

I write in brevity for two reasons. One is that few additional words are needed. The other is that I have few words left for my beloved Court and beloved colleagues.

I concur fully with the views expressed in the opinions of my colleagues affirming Defendant’s convictions. I share the views of the majority, views that I have held for a long time as a courtroom lawyer, as an evidence professor, and as a jurist, with regard to considering abolition or severe evisceration of the husband-wife communication privilege. That privilege obstructs the truth-seeking mission of our courts in order to protect criminals and other law-evaders and tort-feasors from being held responsible for their unlawful actions. And all this to hold sacred the marriage of Bonnie and Clyde?

 But I must agree with Justice Vigil one last time. Her preference is that a change to an evidence rule, particularly a significant change unnecessary to a dispositive outcome in litigation before us, should be handled through our established rules process, with input from the rules committee, with input from the larger legal community, and with input from the state we serve.

With my profound respect for my colleagues who view the issue otherwise, I therefore dissent solely from using this appellate opinion to lay aside the regrettable marital communication privilege.

Tragically, Justice Daniels passed away yesterday, two days after the opinion was issued.  (Mike Frisch)

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