New Mexico Abolishes The Spousal Privilege

David Gutierrez wasn’t a sympathetic defendant. Worse yet, there was little doubt that he did what he was accused of doing, shooting and killing Jose Valverde. He even told his wife about it. And his next wife as well. And when he went to trial, they testified against him.

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.

The spousal privilege, like attorney/client, priest/penitent, physician/patient, exists to permit communication without fear of compulsion to testify. The privilege predated this nation, and was explained 180 years ago by the United States Supreme Court in Stein v. Bowman.

This rule is founded upon the deepest and soundest principles of our nature. Principles which have grown out of those domestic relations, that constitute the basis of civil society; and which are essential to the enjoyment of that confidence which should subsist between those who are connected by the nearest and dearest relations of life. To break down or impair the great principles which protect the sanctities of husband and wife, would be to destroy the best solace of human existence.

But this is old news, and these are new times.

Rule 11-505(B) NMRA, New Mexico’s spousal communication privilege, 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.”

At least it used to. The New Mexico Supreme Court, in an opinion by its Chief Judge Judith K. Nakamura, exercised its constitutional “superintending power” to hold that the spousal privilege was no longer “viable” as it failed to promote “sufficiently important interests to outweigh the need for probative evidence.” Despite the historical rationales for the privilege, the court doubted its efficacy.

When scrutinized, the traditional justification for the spousal communication privilege is not as forceful as it may initially seem. One of its principal weaknesses is that it rests on two untested assumptions: that (1) married people know the privilege exists, and (2) they rely on it when deciding how much information to share. Critics argue “that there is no empirical evidence to support [these] factual assumptions.” (Citations omitted.)

The court found that spouses communicate with each other, or not, without regard to the privilege, even if they know it exists. But what of the fact that this is an “ancient privilege,” long recognized in law even if some academics have challenged it as sentimentality?

Critics have also looked to the ancient origins of the spousal communication privilege and its disparate gender impact to argue that the privilege has outlived its purpose. See 25 Wright & Graham, supra, § 5572, at 466 (observing that modern theorists have attacked the spousal privileges and the familial privileges more generally as relics of “ancient origins” that should be a “source of scorn rather than admiration” and derided these “sentimental relics” as patently incompatible with the modern and “changed social context” of present society (internal quotationmarks and citation omitted)).

Not only can it result in “disparate gender impact,” but its roots are grounded in evil.

Blackstone described the legal principles—which by contemporary values can only be deemed misogynistic—that coincided with the creation of the privilege as follows: “By marriage the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage or at least is incorporated or consolidated into that of the husband.”

Despite drastic changes in law and society since Blackstone’s day, “the spousal communication privilege perpetuates the role of male domination in the marriage because a husband usually invokes the privilege to prevent his wife’s disclosure of confidential communications, thereby benefitting men more often than women.”

That the privilege is more often invoked by men than women isn’t to say that it’s not invoked by women as well, who will lose the privilege nonetheless. Nor does knowledge of the privilege, per se, alter the pervasive, if vague, belief that spouses (of any gender combination) can speak freely without fear that their words will be used against them in a criminal prosecution. But hey, if it’s misogynistic, then it’s contrary to “contemporary values.”

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

And as bad cases make bad law, the fact that the court harbored no sympathy for Gutierrez sealed the deal.

Gutierrez’s invocation of the privilege illustrates this point vividly and assures us that we have correctly weighed the competing interests and our decision to abandon the privilege is correct.

Of course, the fact that Gutierrez wasn’t the poster boy for weighing spousal privilege doesn’t mean the next case, or next thousand cases, will reflect the same competing interests. And yet, the court held that the time had come to abolish the spousal privilege.

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.

The spousal privilege has been abolished in New Mexico. Welcome to contemporary values.

H/T Emil J. Kiehne

20 thoughts on “New Mexico Abolishes The Spousal Privilege

  1. DaveL

    I’m sure there could be no good reason for that fence to be there. Besides, I got splinter from it once, so clearly it’s only there to give people splinters. Away it goes.

  2. B. McLeod

    This is a shaky privilege everywhere. Some jurisdictions, without declaring it utterly gone, have refused to apply it where the marriage has ended at the time the privilege is invoked. Here, the court went the extra mile and simply threw it on the scrap heap.

  3. Richard Kopf


    In one sentence*, the New Mexico Supreme Court blew up a statute. See NSMA 38-6-6. “Privileged communications. “A. No husband shall be compelled to disclose any communication made by his wife during the marriage, and no wife shall be compelled to disclose any communication made to her by her husband during the marriage.” One would have thought that the court would have and should have been more solicitous of a choice made by the elected representatives of the people of New Mexico.

    Not only that, but in throwing out the statute on policy grounds, the court has set a perjury trap for happily married spouses (no matter the gender). For example, what is Joan to do if, the Gods forbid, we resided in New Mexico and she was called to testify whether I had ever admitted to chasing bunnies with my powerful John Deere while using the headlights of the beast to illuminate and thus freeze the bastard bunnies preparatory to a kill shot with my .22? Poor old women.

    All the best.


    *Citing the courts generalized constitutional authority to regulate all things regarding the courts, the opinion slaps away the statute, with the following wave of the omnipotent judicial hand: “For this reason, the existence of NMSA 1978, Section 38-6-6 (1973) has little bearing upon whether New Mexico courts should continue to recognize the spousal communication privilege.”

    Statutes have “little bearing?”

    1. SHG Post author

      Kind of ironic, given how difficult it is to get a vague or overbroad statute declared unconstitutional, and yet this statute is waved away because disparate impact.

      1. B. McLeod

        Well, because its historic roots were “odious.” Bizarrely waved away, too, because the court had already found that the privilege didn’t bar the first wife from testifying to “acts” she had witnessed, and didn’t bar the second wife’s testimony because the defendant had failed to prove that the statements were made during the marriage. So, proceeding on to throw out the statute for all future cases, because of its odious roots, was completely unnecessary to resolving the case before the court. Rather, the judges in the majority appear to have been simply protecting themselves from ever having to smell this rule again (they probably don’t allow garlic in the courtroom either).

    2. wilbur

      “One would have thought that the court would have and should have been more solicitous of a choice made by the elected representatives of the people of New Mexico.”

      Get with the program, Your Honor. The modern trend is that wise judges know better than the legislature what public policy should be.

      No more of this “We are constrained to follow the law as set out by the legislature, but suggest they re-examine it for the reasons stated above.” That’s definitely old school and out of date judging.

      1. B. McLeod

        Wilbur, the legislature in New Mexico is notoriously weak, as its sessions are limited to a duration of two weeks, and the governor can pocket veto any legislative measure by simply not acting on it after the session has closed. Accordingly, it isn’t surprising that the courts also don’t worry too much about blowing off enactments. Especially really old ones that legislators probably aren’t going to see as a priority in the next year’s two-week session.

        1. Jeff Gamso

          The legislature may be weak, but it can fuck with the legal system just as easily as the court can. Case in point, this news story from 1996:

          In the New Mexico Legislature’s 1995 session, Sen. Duncan Scott, a Republican from Albuquerque, proposed an amendment to a psychologist regulatory bill offered by another senator. The Scott amendment would have dramatically changed the face of New Mexico’s legal system: The amendment said: “When a psychologist or psychiatrist testifies during a defendant’s competency hearing, the psychologist or psychiatrist shall wear a cone-shaped hat that is not less than two feet tall. The surface of the hat shall be imprinted with stars and lightning bolts.
          “Additionally, a psychologist or psychiatrist shall be required to don a white beard that is not less than 18 inches in length, and shall punctuate crucial elements of his testimony by stabbing the air with a wand. Whenever a psychologist or psychiatrist provides expert testimony regarding a defendant’s competency, the bailiff shall contemporaneously dim the courtroom lights and administer two strikes to a Chinese gong.” The bill, with the wizard amendment, passed the Senate by voice vote and cleared the House 46-14.
          Unfortunately, Gov. Gary Johnson vetoed the legislation.

          1. L. Phillips

            A real shame it was vetoed. I would have moved to New Mexico just for a chance to watch all that happen in court.

    3. szr

      This opinion is lawless and will lead to future legal headaches, as demonstrated by your oddly specific perjury-trap hypothetical.

      For Erie purposes, is the spousal communication privilege now substantive or procedural? Since the Court’s reasoning is based on policy concerns about men oppressing women, does the NM ruling apply to cases involving same-sex couples? Can spousal communications that were disclosed in a NM court proceeding be introduced in a subsequent federal case pursuant to Fed. R. Evid. 803(22) (Judgment of a Previous Conviction)?

      I used to wonder if SHG’s focus on bad arguments advanced by the woke was really necessary. Today I learned that it is. And he is losing.

  4. Jeff Gamso

    And, of course, it was bullshit. In law-speak, the court went on a frolic taking the case as an opportunity to change a law that
    (A) nobody asked it to (not even when it asked for briefing on the question);
    (B) it didn’t have to in order to resolve the case (the privilege was wiped out only prospectively; Guttierrez’s conviction was affirmed despite the violations of the privilege in his case were, as they say, harmless error); and
    (C) the ultimate justification was a lie; as the aptly named Judge Vigil pointed out in dissent, the privilege does not prevent anyone from testifying in domestic violence cases.

    But, hey, New Mexico is the Land of Enchantment. So maybe the court was bewitched. (Imagine, here, that I’d embedded a gif of Elizabeth Montgomery twitching her nose – or Hermione waving a wand.)

  5. Kathryn Kase

    Now that the New Mexico Supreme Court believes it “has a constitutional duty to ensure that the pursuit of truth is not unduly undermined by a procedural rule that has outlived its justification,” perhaps it will eliminate the dying declaration exception to the hearsay rule (because there is no evidence whatsoever that dying people are accurate or tell the truth) and go on to strike several other exceptions, such as the excited utterance and present sense impression..

    In the meantime, I will not hold my breath.

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