N.M. R. Evid. 11-505
N.M. R. Evid. 11-505
Committee Commentary. - This rule was completely rewritten in 1976 to include a privilege for confidential communications between husband and wife. This rule is not in the federal rules.
ANNOTATIONS The 2013 amendment, approved by Supreme Court Order No. 13-8300-025, effective December 31, 2013, clarified the language of the rule; deleted the exception for matters occurring prior to the marriage; in the title, deleted "Husband-wife" and added "Spousal"; in Paragraph A, at the beginning of the sentence, deleted "As used in this rule, a" and added "A", and after "further disclosure", added the remainder of the sentence; in Paragraph B, deleted the former title "General rule of privilege" and added the current title, after "has a privilege", deleted "in any proceeding", after "refuse to disclose", changed "and" to "or", and after "while they were", deleted "husband and wife" and added "married"; in Paragraph C, deleted the former language, which provided that the privilege applied to confidential communications made to a guardian, conservator, personal representative or a spouse on behalf of the other spouse, and added Subparagraphs (1) through (3); and in Paragraph D, deleted the former language, which provided that there was no privilege in criminal proceedings involving a crime against the other spouse or child of either spouse or involving a third person that was committed in the course of committing a crime against the other spouse, in matters occurring prior to the marriage, and in civil actions by one spouse or a child against the other spouse or a child, and added Subparagraphs (1) and (2). The 1993 amendment, effective December 1, 1993, made gender neutral and related changes throughout the rule.
For statutory privilege as to communications between husband and wife, see Section 38-6-6 NMSA 1978 and Rule 11-501 NMRA. "Confidential communications". - The "communication" contemplated under this rule should be limited to an utterance or expressive act intended by one spouse to convey a meaning or message to the other. State v. Teel, 1985-NMCA-115, 103 N.M. 684, 712 P.2d 792. Observations by one spouse of the noncommunicative acts of the other, especially acts which are open to the view of others, are not "confidential" communications. State v. Teel, 1985-NMCA-115, 103 N.M. 684, 712 P.2d 792. Negating presumption of privacy. - Any presumption of privacy granted a marital communication is negated by proof of the presence of a third party at the time the communication was made, or proof that the information communicated was meant to be conveyed to a third person. State v. Teel, 1985-NMCA-115, 103 N.M. 684, 712 P.2d 792. Privilege inapplicable to testimony of mistress. - Claim that witness and defendant were living together "as man and wife" is insufficient to show a marriage under New Mexico statutes (40-1-1 to 40-1-20 NMSA 1978) and therefore is insufficient to show that witness was defendant's spouse. Testimony of mistress or concubine, being not a legal wife, is admissible, and the privilege contained in this rule does not apply. State v. Lard, 1974-NMCA-004, 86 N.M. 71, 519 P.2d 307. Defendant's decision not to call wife as witness sufficient exercise of privilege. - It is not necessary for a husband or wife to go upon the stand and there affirmatively "exercise" the marital privilege not to testify; rather the decision of a husband not to call his wife as a witness is a sufficient exercise of the privilege to justify invocation of the protection. State v. Frank, 1979-NMSC-012, 92 N.M. 456, 589 P.2d 1047 (decided prior to 1980 amendment). No child abuse exception if child is unrelated. - In a prosecution for child abuse, where the child involved is neither the natural child, adopted child, nor stepchild of either the defendant or his wife, no exception to the husband-wife privilege may be established. State v. Howell, 1979-NMCA-069, 93 N.M. 64, 596 P.2d 277. Admission of wife's testimony held harmless error. - Where the defendant was sentenced to death for the killing of a peace officer, the admission of his wife's testimony that the defendant knew the victim was a police officer was harmless error. State v. Compton, 1986-NMSC-010, 104 N.M. 683, 726 P.2d 837, cert. denied, 479 U.S. 890, 107 S. Ct. 291, 93 L. Ed. 2d 265 (1986). Waiver of privilege. - The trial court did not err in admitting defendant's statement to his wife, since he waived the husband-wife privilege prior to trial by disclosing the statement to third parties. State v. Allen, 2000-NMSC-002, 128 N.M. 482, 994 P.2d 728, cert. denied, 530 U.S. 1218, 120 S. Ct. 2225, 147 L. Ed. 2d 256 (2000). Law reviews. - For note, "The Privilege for Marital Communications in New Mexico," see 4 Nat. Resources J. 123 (1964). For article, "Survey of New Mexico Law, 1979-80: Evidence," see 11 N.M.L. Rev. 159 (1981). Am. Jur. 2d, A.L.R. and C.J.S. references. - 81 Am. Jur. 2d Witnesses § 296 et seq. Applicability and effect in suit for alienation of affections of rule excluding confidential communications between husband and wife, 36 A.L.R. 1068, 82 A.L.R. 825. Effect of knowledge of third person acquired by overhearing or seeing communication between husband and wife upon rule as to privileged communication, 63 A.L.R. 107. Conversations between husband and wife relating to property or business as within rule excluding private communications between them, 4 A.L.R.2d 835. "Communications" within testimonial privilege of confidential communications between husband and wife as including knowledge derived from observation by one spouse of acts of other spouse, 10 A.L.R.2d 1389. Effect of divorce or annulment on competency of one former spouse as witness against other in criminal prosecution, 38 A.L.R.2d 570. Calling or offering accused's spouse as witness for prosecution as prejudicial misconduct, 76 A.L.R.2d 920. Spouse as competent witness for or against cooffender with other spouse, 90 A.L.R.2d 648. Competency of one spouse to testify against another in prosecution for offense against third party as affected by fact that offense against spouse was involved in same transaction, 36 A.L.R.3d 820. Competency of one spouse to testify against other in prosecution for offense against child of both or either, 93 A.L.R.3d 1018. Effect, on competency to testify against spouse or on marital communication privilege, of separation or other marital instability short of absolute divorce, 98 A.L.R.3d 1285. Admissibility of evidence discovered in search of defendant's property or residence authorized by defendant's spouse (resident or nonresident) - state case, 1 A.L.R.4th 673. Spouse's betrayal or connivance as extending marital communications privilege to testimony of third person, 3 A.L.R.4th 1104. Communication between unmarried couple living together as privileged, 4 A.L.R.4th 422. Testimonial privilege for confidential communications between relatives other than husband and wife - state cases, 6 A.L.R.4th 544. Existence of spousal privilege where marriage was entered into for purpose of barring testimony, 13 A.L.R.4th 1305. Communications between spouses as to joint participation in crime as within privilege of interspousal communications, 62 A.L.R.4th 1134. Crimes against spouse within exception permitting testimony by one spouse against other in criminal prosecution - modern state cases, 74 A.L.R.4th 223. Competency of one spouse to testify against other in prosecution for offense against third party as affected by fact that offense against spouse was involved in same transaction, 74 A.L.R.4th 277. Adverse presumption or inference based on party's failure to produce or examine spouse - modern cases, 79 A.L.R.4th 694. Testimonial privilege for confidential communications between relatives other than husband and wife - state cases, 62 A.L.R.5th 629. Marital privilege under Rule 501 of Federal Rules of Evidence, 46 A.L.R. Fed. 735. Immunity's sufficiency to meet federal grand jury witness' claim of privilege against adverse spousal testimony, 82 A.L.R. Fed. 600. 97 C.J.S. Witnesses §§ 266 to 275, 303.