New Mexico ruling abolishes privilege on spousal testimony

August 31, 2019 GMT

The New Mexico Supreme Court has barred the state’s court system from continued use of a longstanding legal privilege that disallows testimony by a defendant’s spouse, saying it is based in misogyny and “has outlived its useful life.”

The Santa Fe-based state high court ruled Friday in an appeal of a man who the ruling said had made incriminating statements to both a wife he later divorced and his second wife regarding the 2002 shotgun killing of a Clovis man.

Both women testified during David Gutierrez’s 2017 trial in the killing of Jose Valverde, who was found dead in a boxcar he used as his home.

Gutierrez, whose defense objected to the women’s testimony, was convicted of first-degree murder and sentenced to life in prison.

The ruling said use of the spousal communication privilege during his 2017 trial prompted the court to “question its continued viability in New Mexico.”

The ruling acknowledged that the U.S. Supreme Court has recognized that married people have a constitutional right to privacy in their intimate relationships.

However, the opinion authorized by Chief Justice Nakamura and joined by two other justices said the privilege is rooted in misogyny, and it cited threats that Gutierrez made against his ex-wife if she talked about the killing.

“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,” Nakamura wrote.

The court said its ruling abolishes use of the privilege prospectively, affecting “all cases filed on or after the date this opinion is filed.”

The ruling said the trial judge correctly ruled that the second wife’s testimony wasn’t privileged because of circumstances but that the judge erred in allowing the ex-wife’s testimony because Gutierrez had supposedly waived the privilege by disclosing his confidential conversations to somebody else. That was a “harmless error,” the ruling said.

Two other justices partially dissented. One said she opposed abolishing the privilege. That justice and another, who said he favors abolishing the privilege, said doing that should be considered in a formal court rulemaking process.