September 14, 2019
The Rules of Evidence have long contained a marital privilege: a spouse cannot be compelled to testify about what the other spouse said in the privacy of the marital relationship.
But the marital privilege may be about to go the way of the horse and buggy.
The first step was recently taken by the New Mexico Supreme Court in an appeal brought by convicted murderer David Gutierrez. Both his ex-wife and his second wife testified, over his objection, that he had spoken to them about the murder. Gutierrez was convicted of first-degree murder and sentenced to life in prison. In affirming his conviction, the New Mexico Supreme Court decreed that the marital privilege had “outlived its useful life.”
The author of the majority opinion, Chief Justice Judith Nakamur, wrote: “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.” Nakamur went on to note that the privilege was adopted at a time when the wife’s legal existence was deemed to be suspended during marriage or incorporated into the husband’s legal existence. “The misogynistic history of the privilege is obvious and odious,” she wrote.