Chapter 1: History and Development of Rules of Evidence
Case Study 1
Overview — Based on: Trammel v. United States, 445 U.S. 40, 1980 U.S. LEXIS 84 (1980).
Otis and Elizabeth Trammel, a married couple, were involved in activities that transgressed federal law. Otis Trammel had been indicted, but his wife, Elizabeth, had not, and was listed as an unindicted co-conspirator. The prosecution planned to have Elizabeth Trammel testify against Otis Trammel, over his objection that he should be able to prevent his wife from testifying against him. He claimed that he was a holder of the spousal testimonial privilege and could assert it to prevent the adverse testimony of his wife. Otis Trammel cited an earlier Supreme Court decision, Hawkins v. United States, 358 U.S. 74 (1958), which held that a wife could not be compelled to testify against her husband over his objection. The modern justification for the privilege against adverse spousal testimony is its perceived role in fostering the harmony and sanctity of the marriage relationship. While the Court, in Hawkins, reaffirmed the vitality of the common-law privilege in the federal courts, it made clear that its decision was not meant to “foreclose whatever changes in the rule may eventually be dictated by ‘reason and experience.’” 358 U.S., at 79. The trial court permitted Elizabeth Trammel to testify against her husband over his objection. In the Trammel prosecution, Elizabeth Trammel was willing to testify against her husband in exchange for leniency from the federal government. The federal prosecutor contended that where a wife was to testify against a husband about non-confidential matters, the old rationale about protecting marriages should have no application in the modern world. The Supreme Court of the United States noted that the Federal Rules of Evidence acknowledged the authority of the federal courts to continue the evolutionary development of testimonial privileges in federal courts. The Court emphasized that since its decision in Hawkins, a number of states had abolished the spousal privilege when the spouse wished to testify about non-confidential matters, and the Court noted that the privilege had been subject to much criticism.
No. The Federal Rules of Evidence contemplated that courts would have to interpret the rules of evidence in light of changing conditions, especially in the area of privileges. Because society changes, rules of evidence cannot be frozen and become immovable. Judicial interpretations change, and adjustments must be made to assure fairness and logic. Legislatures as well as courts may change rules of evidence. Neither the legislative nor the judicial branches of government have complete control over the changes that might be implemented by the other branch. See Hawkins v. United States, 358 U.S. 74 (1958), and Trammel v. United States, 445 U.S. 40 (1980).
Yes. The old rule that allowed a defendant’s spouse to prevent the other spouse from testifying against the defendant’s spouse no longer made sense. The original rule prohibiting such testimony was designed to ensure marital harmony, but when a spouse’s interests radically diverge from the other’s interests, and one spouse is willing to testify against the other, there is little marital harmony to preserve, and the witness spouse should be allowed to testify concerning non-confidential matters.
Case Study 2
Overview — Based on: State v. Gutierrez, 2019 N.M. LEXIS 33 (2019).
The defendant shot and killed his then-wife’s uncle, one Jose Valverde, because his wife told the defendant that Valverde had raped her several times when she was 13 or 14 years old. The defendant’s then-wife had confided to him concerning the sexual attacks by her uncle several months before the killing. After killing Valverde, the defendant and his wife returned to the scene of the crime to look for a shotgun shell that he had accidentally left in the boxcar that served as the uncle’s home. The defendant also verbally threatened his wife that she would suffer the same fate as her uncle if she ever told anybody about the killing. No third parties were present when this confidential threat was made to his wife. The defendant and the wife were long divorced at the time of trial.
Defendant Gutierrez’s estranged second wife testified at the murder trial, and indicated that they were still legally married, but had not spoken in years. This was not a harmonious marriage, and the couple lived with the defendant’s parents. During some fights, and at the conclusion of some of them, the defendant’s parents would threaten him with life in prison. When the second wife questioned the defendant concerning this recurring threat, the defendant told the second wife that he had committed a murder, and he told her how he did it and offered the name of the victim. The second wife testified concerning the defendant’s murder confession over the objection of the defendant.
Following the defendant’s murder trial, at which he was convicted, the defendant initiated an appeal. Among other issues, the defendant contended that the testimony of his wife and former wife violated the New Mexico spousal confidential communication privilege. Succinctly, this provides that a person has a privilege to refuse to disclose, or to prevent another from disclosing, a confidential communication by a husband or wife to that person’s spouse made while they were married. This confidential communication privilege effectively prevents one spouse from testifying as to confidential conversations with the other and can be asserted after the marriage has ended.
Ultimately, the Supreme Court of New Mexico upheld the trial court rulings on the marital privileges and held that the communication to the first wife was not privileged because the defendant threatened her with physical harm, which was a crime against her. In addition, the top court noted that the first wife could testify to what she saw at the murder scene because that was not a communication. Regarding the second wife, the top court found that defendant Gutierrez failed to prove by a preponderance of the evidence that he was actually married to the second wife at the time he first confided to her his involvement in the murder. So there was no confidential marital communication privilege available to the defendant for either spouse. The conviction was affirmed.
[Rules of evidence evolve and may be changed by legislatures or by courts in the various states, or by Congress or by federal courts. Often these rules are interpreted to mean something slightly different from what was otherwise known or originally understood. The New Mexico Supreme Court has the ability to reinterpret some of the rules of evidence, and for those that are not clearly unchangeable, the top court has the ability to alter how the rules are applied as society makes progress and as needs change. In this case, it appears that either the prosecution contended that there should be some changes made in the spousal confidential communication privilege or the Supreme Court of Mexico, on its own motion, decided to reassess the continued validity of the spousal confidential communication privilege within New Mexico courts.]
Yes. The Supreme Court of New Mexico indicated that it possessed constitutional authority to recognize or limit evidentiary privileges and that such authority is derived from the Court’s power of superintending control under the New Mexico Constitution. According to the top state court, it has the power to determine whether and to what extent an evidentiary privilege should be permitted to interfere with the orderly and effective administration of justice. The existence and usage of a privilege is one that bears upon the practice and procedure of courts and is one over which the New Mexico Supreme Court believed it had ultimate authority.
Yes. The top court noted, “The administration of justice is coextensive with the pursuit of truth, and but for certain well-defined exceptions, all persons can be compelled to appear in court and give testimony to accomplish this end.” See Rios v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 4 L.Ed. 2d 1669 (1960). (Frankfurter, J., dissenting). (“[T]he underlying aim of judicial inquiry is ascertainable truth[.]”). Limitations on this fundamental rule shall be recognized “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence” produces a “public good” that transcends “the normally predominant principle of utilizing all rational means for ascertaining the truth.”
The Supreme Court of New Mexico noted that one of the purposes of the rules of evidence is to ascertain the truth by determining what evidence should be admissible during a trial. Under the search for the truth is the general rule that all persons generally are required to give evidence of which they are aware. Any privilege that restricts that search for the truth should be an exception to the general rule, and should be strictly construed because it is in conflict with the search for truth.
In reviewing the rationale for the spousal confidential communication privilege, the original concept was that it was necessary to encourage marital confidences, which in turn tended to promote harmonious and close relationships between husbands and wives, and, in the modern world, between spouses. Further, the Gutierrez court offered a rationale for the privilege: “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.” Another historical justification cited by the court offered a justification in support of the spousal communication privilege, concerning the fact that it eliminates a natural repugnancy that would certainly flow if one spouse were forced to testify against another spouse. In the original Gutierrez case, the Supreme Court of New Mexico reviewed other rationales in support of the spousal confidential communication privilege.
In opposition to continuing to recognize this privilege, the top court noted that in most cases, both spouses are completely unaware of the privilege and would, therefore, not be relying upon it in their everyday interactions with each other. According to the court, even if the spouses were aware of the privilege, it is not clear that it would have any effect on their day-to-day interactions. An additional reason to oppose the continued existence of the privilege surrounds the fact that most spouses are unlikely to change their behavior or spousal communication based on the privilege because most spouses rarely if ever appear in court as either a party or as a witness. The court also mentioned ancient origins of the spousal communication privilege, but indicated that its disparate gender impact may mean that it has outlived its purpose. There was some indication that the court believed that the use of the spousal privilege perpetuates the role of male domination and marriage because a husband usually evokes the privilege as a way to prevent his or her wife’s disclosure of confidential communications, therefore benefiting men more than women. Not mentioned by the Gutierrez court is the concern that same-sex marriage might alter the assumed benefits to a wife, so such an argument might not be as forceful as it would have been prior to the advent of same-sex marriage. The Supreme Court of New Mexico also reviewed some other rationales that pointed toward ceasing to recognize the spousal confidential communication privilege.
Ultimately, the New Mexico top court concluded that the marital confidential communication privilege will no longer be recognized in New Mexico state courts for any future cases. For additional information on this concept presented by this case, please consult State v. Gutierrez, 2019 N.M. LEXIS 33, 2019 WL 4167270 (2019).