Abstract
Part I of this article is a detailed description of the original Gutierrez decision, the dissents as well as the majority opinion. Part II then critically evaluates the majority’s analysis of the application of the instrumental theory to the spousal communications privilege. Part II argues that the majority correctly concluded that the instrumental case for the spousal privilege is weak. The majority rigorously applied the instrumental criteria to the privilege and came to the honest, realistic conclusion that, in most cases, spouses would consult and confide even if there were no spousal privilege. However, Part II points out that the majority failed to appreciate that a similar approach to the professional privileges would call many of them into question. The majority implicitly overstated the case for those privileges under the instrumental theory. The upshot is that the majority’s decision not only raised the issue of the viability of the spousal privilege under the instrumental rationale but also the much more profound question of the soundness of continuing to rely on that traditional rationale as the exclusive justification for recognizing privileges in American evidence law. The thesis of this article is that relationships such as marriage should receive privilege protection, but to secure that protection, courts will have to move beyond the instrumental rationale. Part III takes up the alternative, humanistic rationale. Part III respectfully submits that there is more to the humanistic theory than “overblown rhetoric.” Quite to the contrary, Part III explains that the humanistic theory furnishes a strong, constitutional basis for recognizing evidentiary privileges for certain personal and professional relationships. While the majority overestimated the strength of the case for recognizing professional privileges under the instrumental rationale, it underestimated the strength of the humanistic rationale. Part III demonstrates that, given the weakness of the instrumental case for many privileges, going forward, reliance on the humanistic theory is essential to protecting privacy in the United States. The protection of privacy has been called “the major social issue of the information society.” If, in the future, other courts apply the instrumental theory with the same honesty and realism as the Gutierrez majority, the instrumental theory will prove to be inadequate to provide that protection.
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Recommended Citation
Edward J. Imwinkelried,
State v. Gutierrez Abolishing the Spousal Communications Privilege: An Opinion Raising Profound Questions About the Future of Evidentiary Privileges in the United States,
53
N.M. L. Rev.
71
(2023).
Available at:
https://digitalrepository.unm.edu/nmlr/vol53/iss1/4
