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