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A New Legal Reason to Keep Secrets From Your Spouse: No More Privilege

Husband whispering in wife's ear
By Joseph Fawbush, Esq. on September 06, 2019 | Last updated on September 09, 2019

New Mexico just became the first state to outright abolish spousal privilege. This comes after years of exceptions, workarounds and a general policy of courts to interpret the spousal privilege as narrowly as possible. While New Mexico is the first state, it may very well not be the last.

Spousal Communications, a Weakening Privilege

New Mexico Rules of Evidence 11-505(B) holds 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 is spousal testimonial privilege.

However, many courts, including the Supreme Court, have weakened spousal testimonial privilege. The Supreme Court in Trammel, for example, limited the privilege to the witness spouse only back in 1980.

A Rule for Another Time and Place?

It isn’t news to write about how marriage is changing. Marriage rates have been steadily declining for years. Various theories on the cause or causes exist, from weakening support of institutions overall among younger generations to high student debt. Regardless, marriage today looks different than it did just a few decades ago. And marriage certainly is different than when spousal privilege was first introduced into feudal England.

When revisiting spousal privilege in the appeal of a murder conviction, the New Mexico Supreme Court concluded that the privilege has “outlived its useful life.” The justices for the majority noted the antiquated beliefs and origins of the policy. When writing about the policy in 1768, for example, William Blackstone wrote that part of the reason for spousal privilege is that the wife’s legal entity was “suspended during the marriage or at least incorporated” into the husband’s. Chief Justice Judith Nakamura wrote that concerns over the rule’s disparate gender impact and potential role in marital violence outweighed its purported social benefits, which Chief Justice Nakamura and the majority found to be mostly “soaring rhetoric and legally irrelevant sentimentality.”

A Sign of Things to Come?

It is interesting to note that abolishing spousal privilege was not determinative in the case before New Mexico’s highest court. The court unanimously held that spousal privilege did not apply in the case before them. Two justices dissented on the prospective abolishment of spousal privilege, writing that it was better to have the New Mexico Rules of Evidence Committee submit a recommendation to the court.

Whether through statute, federal and state courts, or through evidentiary rules, it is likely the spousal privilege will continue to receive scrutiny in years to come.

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