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That was a “harmless error,” the ruling said.\u003C/p>\n\u003Cp>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.\u003C/p>\n\u003Cp>By Paul Davenport | (c) Associated Press Aug 31, 2019 reprinted with permission\u003C/p>\n\u003Cp>Text of Decision:\u003C/p>\n\u003Cp>1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO\u003Cbr>\n4 NO. S-1-SC-36394\u003Cbr>\n5 STATE OF NEW MEXICO,\u003Cbr>\n6 Plaintiff-Appellee,\u003Cbr>\n7 V.\u003Cbr>\n8 DAVID GUTIERREZ II,\u003Cbr>\n9 Defendant-Appellant.\u003C/p>\n\u003Cp>10 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY\u003Cbr>\n11 Drew Douglas Tatum, District Judge\u003C/p>\n\u003Cp>\u003Cstrong>12 Stephen D Aarons\u003C/strong>\u003Cbr>\n\u003Cstrong>13 Aarons Law Firm PC\u003C/strong>\u003Cbr>\n\u003Cstrong>14 Santa Fe, NM\u003C/strong>\u003Cbr>\n\u003Cstrong>15 for Appellant\u003C/strong>\u003Cbr>\n16 Hector H. Balderas, Attorney General\u003Cbr>\n17 Marko David Hananel, Assistant Attorney General\u003Cbr>\n18 Santa Fe, NM\u003Cbr>\n19 for Appellee\u003C/p>\n\u003Cp>1 James Walker Boyd\u003Cbr>\n2 Carter B. Harrison\u003Cbr>\n3 Peifer, Hanson & Mullins, P.A.\u003Cbr>\n4 Albuquerque, NM\u003Cbr>\n5 for Amicus Curiae, New Mexico Criminal Defense Lawyers Association\u003C/p>\n\u003Cp>1 OPINION\u003Cbr>\n2 NAKAMURA, Chief Justice.\u003Cbr>\n3 {1} In 2002, Defendant David Gutierrez shot and killed a man. Gutierrez disclosed\u003Cbr>\n4 this fact to his wife and threatened to kill her if she ever told anyone about the\u003Cbr>\n5 murder. They divorced a short time later. Gutierrez remarried and also told his\u003Cbr>\n6 second wife about the murder. By the time of his 2017 murder trial, Gutierrez was\u003Cbr>\n7 estranged from his second wife. At trial, he invoked the spousal communication\u003Cbr>\n8 privilege to preclude both women from testifying about his role in the killing.\u003Cbr>\n9 Gutierrez’s invocation of the spousal communication privilege prompts us to question\u003Cbr>\n10 its continued viability in New Mexico.\u003Cbr>\n11 {2} We conclude that the spousal communication privilege has outlived its useful\u003Cbr>\n12 life and prospectively abolish it. As abolishment is prospective, we must evaluate its\u003Cbr>\n13 applicability in Gutierrez’s case. We conclude that certain evidence was admitted at\u003Cbr>\n14 Gutierrez’s trial in violation of the privilege, but conclude that the error was harmless.\u003Cbr>\n15 We reject all other arguments advanced by Gutierrez and affirm his convictions.\u003Cbr>\n16 I. BACKGROUND\u003Cbr>\n17 {3} On April 8, 2002, Jose Valverde was found dead in a boxcar he used as his\u003Cbr>\n18 home in Clovis, New Mexico. He had been shot in the head with a shotgun. In July\u003Cbr>\n1 2015, more than thirteen years later, a grand jury indicted Gutierrez for the murder.\u003Cbr>\n2 Gutierrez’s trial commenced in 2017.\u003Cbr>\n3 {4} Gutierrez’s ex-wife Nicole Cordova offered the following testimony at trial.\u003Cbr>\n4 She married Gutierrez in 2002, and the marriage lasted only two years. The victim,\u003Cbr>\n5 her uncle, had raped her several times when she was thirteen or fourteen years old.\u003Cbr>\n6 She told Gutierrez about the rapes some months before the victim was killed, and\u003Cbr>\n7 Gutierrez told her “not to worry about anything anymore.” At the time the victim was\u003Cbr>\n8 killed, she and Gutierrez were living with his parents. On the day of the murder,\u003Cbr>\n9 Gutierrez left home for about a half hour and was visibly upset when he returned.\u003Cbr>\n10 Gutierrez told her that he “took care of it,” and although he did not explain further,\u003Cbr>\n11 she knew what had happened: Gutierrez had killed the victim. Gutierrez told her that\u003Cbr>\n12 he needed help to find a shotgun shell and then they drove to the victim’s boxcar.\u003Cbr>\n13 When she entered the boxcar, she saw that it was in disarray and that the victim’s\u003Cbr>\n14 body was face down on the floor. She sifted through some beer cans, found a shotgun\u003Cbr>\n15 shell, and then walked outside. After she and Gutierrez returned home, he put the\u003Cbr>\n16 clothes and shoes he had been wearing into a bag and left with his father and brother\u003Cbr>\n17 to dispose of them. Gutierrez later threatened that she would suffer the same fate as\u003Cbr>\n18 the victim if she ever told anyone about what happened. The police questioned her\u003Cbr>\n2\u003Cbr>\n1 on the day of the murder but she lied to them and never told anyone about Gutierrez’s\u003Cbr>\n2 conduct or what had occurred because she was afraid of him. The police did not\u003Cbr>\n3 contact her again until a couple of years before trial when she finally told the truth.\u003Cbr>\n4 {5} Gutierrez’s second wife, Evelyn Franco, also testified at Gutierrez’s trial and\u003Cbr>\n5 offered the following testimony. She married Gutierrez in May 2006. At the time of\u003Cbr>\n6 trial, they were still legally married but had not spoken in years. In early 2006, she\u003Cbr>\n7 and Gutierrez lived with his parents. There was frequent fighting and arguing in the\u003Cbr>\n8 household. During these fights, Gutierrez’s parents would threaten to “send him\u003Cbr>\n9 away for the rest of his life.” When she asked Gutierrez what his parents were talking\u003Cbr>\n10 about, he informed her that he had committed a murder. He elaborated that his ex-\u003Cbr>\n11 wife’s uncle had molested her, so he went to his house, walked up to where he was\u003Cbr>\n12 laying on the couch, and fired a shotgun into his face killing him.\u003Cbr>\n13 {6} The jury found Gutierrez guilty of willful, deliberate, and premeditated first-\u003Cbr>\n14 degree murder in violation ofNMSA 1978, Section 30-2-l(A)(l) (1994). The district\u003Cbr>\n15 court sentenced Gutierrez to life imprisonment plus one year. He appeals directly to\u003Cbr>\n16 this Court. See N.M. Const. art. VI, § 2; Rule 12-102(A)(l) NMRA.\u003Cbr>\n3\u003Cbr>\n1 II. DISCUSSION\u003Cbr>\n2 {7} Gutierrez raises five issues: (A) violation of the spousal communication\u003Cbr>\n3 privilege, (B) the sufficiency of the evidence to support the convictions, (C) violation\u003Cbr>\n4 of his right to testify before the grand jury, (D) destruction of evidence favorable to\u003Cbr>\n5 the defense, and (E) ineffective assistance of counsel. We address each issue in tum.\u003Cbr>\n6 Because we abolish the spousal communication privilege prospectively, we must also\u003Cbr>\n7 address its applicability in Gutierrez’s case. Accordingly, the privilege issue is\u003Cbr>\n8 addressed in two parts.\u003Cbr>\n9 A.\u003Cbr>\n10 {8}\u003Cbr>\nSpousal Communication Privilege\u003Cbr>\nRule 11-505(8) NMRA, New Mexico’s spousal communication privilege,\u003Cbr>\n11 provides that “[a] person has a privilege to refuse to disclose, or to prevent another\u003Cbr>\n12 from disclosing, a confidential communication by the person to that person’s spouse\u003Cbr>\n13 while they were married.” This privilege “prohibits one spouse from testifying as to\u003Cbr>\n14 conversations or communications with the other spouse made in confidence during\u003Cbr>\n15 their marriage.” 3 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal\u003Cbr>\n16 Evidence,§ 505.03[1], at 505-5 (Mark S. Brodin, ed., Matthew Bender 2d ed. 2018).\u003Cbr>\n17 The privilege protects confidential communications at the time they are made and\u003Cbr>\n18 may, therefore, be invoked after the termination of the marital relationship. See id.\u003Cbr>\n4\u003Cbr>\n1 1. Continued viability of the spousal communication privilege in New Mexico\u003Cbr>\n2 a. Evidentiary privileges and this Court’s authority over them\u003Cbr>\n3 {9} This Court’s constitutional authority to recognize or limit evidentiary privileges\u003Cbr>\n4 derives from the power of superintending control set forth in Article III, Section 1 and\u003Cbr>\n5 Article VI, Section 3 of the New Mexico Constitution. See Estate of Romero ex rel.\u003Cbr>\n6 Romero v. City of Santa Fe, 2006-NMSC-028, if 7, 139N.M. 671, 137P.3d 611. This\u003Cbr>\n7 Court determines whether and to what extent an evidentiary privilege should be\u003Cbr>\n8 permitted to “interfere with the orderly and effective administration of justice.” See\u003Cbr>\n9 Ammerman v. Hubbard Broad., Inc., 1976-NMSC-031, ,r,r 7, 17, 89 N.M. 307,551\u003Cbr>\n10 P.2d 1354 (internal quotation marks and citation omitted). For this reason, the\u003Cbr>\n11 existence ofNMSA 1978, Section 3 8-6-6 ( 1973) has little bearing upon whether New\u003Cbr>\n12 Mexico courts should continue to recognize the spousal communication privilege.\u003Cbr>\n13 This question is one bearing upon practice and procedure and, therefore, is one over\u003Cbr>\n14 which this Court has ultimate authority. See Albuquerque Rape Crisis Ctr. v.\u003Cbr>\n15 Blackmer, 2005-NMSC-032, ,r 11, 138 N.M. 398, 120 P.3d 820 (“[I]f a privilege is\u003Cbr>\n16 not recognized or required by the New Mexico Constitution or court rule, then the\u003Cbr>\n17 Legislature may not enact such a privilege because to do so would conflict with Rule\u003Cbr>\n18 11-50 I.”); see also Ammerman, 1976-NMSC-031, ,r 15 (“Our constitutional\u003Cbr>\n5\u003Cbr>\n1 power … of superintending control over all inferior courts carries with it the inherent\u003Cbr>\n2 power to regulate all pleading, practice and procedure affecting the judicial branch\u003Cbr>\n3 of government.” (internal quotation marks and citation omitted)). Whether our courts\u003Cbr>\n4 should continue to recognize any given privilege requires a balancing of competing\u003Cbr>\n5 concerns of the broadest kind.\u003Cbr>\n6 {IO} The administration of justice is coextensive with the pursuit of truth, and but\u003Cbr>\n7 for certain well-defined exceptions, all persons can be compelled to appear in court\u003Cbr>\n8 and give testimony to accomplish this end. See Rios v. United States, 364 U.S. 206,\u003Cbr>\n9 234 (1960) (Frankfurter, J., dissenting). (“[T]he underlying aim of judicial inquiry\u003Cbr>\n10 is ascertaina.ble truth[.]”). Limitations on this fundamental rule shall be recognized\u003Cbr>\n11 “only to the very limited extent that permitting a refusal to testify or excluding\u003Cbr>\n12 relevant evidence” produces a “public good” that transcends “the normally\u003Cbr>\n13 predominant principle of utilizing all rational means for ascertaining truth.” Id.\u003Cbr>\n14 {11} Similarly, “[t]he purpose of the rules of evidence is to ascertain the truth by\u003Cbr>\n15 determining what evidence is admissible during the trial.” Pincheira v. Allstate Ins.\u003Cbr>\n16 Co., 2008-NMSC-049, ,I 21, 144 N.M. 601, 190 P.3d 322. Consistent with this\u003Cbr>\n1 7 purpose, all persons generally are required to “disclose any information” that they\u003Cbr>\n18 “may possess that is relevant to a case pending before a court of justice.” Estate of\u003Cbr>\n6\u003Cbr>\nl Romero, 2006-NMSC-028, ~ 7 (internal quotation marks and citation omitted). An\u003Cbr>\n2 evidentiary privilege constitutes an exception to this general rule and permits a person\u003Cbr>\n3 to withhold probative evidence. See id.\u003Cbr>\n4 {12} Evidentiary privileges “‘ are not lightly created nor expansively construed”‘\u003Cbr>\n5 because ‘”they are in derogation of the search for truth.”‘ Albuquerque Rape Crisis\u003Cbr>\n6 Ctr., 2005-NMSC-032, ~ 18 (quoting United States v. Nixon, 418 U.S. 683, 709-10\u003Cbr>\n7 (1974)). We thus consider whether the spousal communication privilege promotes\u003Cbr>\n8 “sufficiently important interests to outweigh the need for probative evidence.” See\u003Cbr>\n9 Trammel v. United States, 445 U.S. 40, 51 (1980). In doing so, we examine both the\u003Cbr>\n10 justifications advanced in support of the privilege and criticisms of it. Before doing\u003Cbr>\n11 that, one final comment is necessary.\u003Cbr>\n12 {13} Secondary literature discussing the spousal privileges abounds. That literature\u003Cbr>\n13 illuminates much. The earliest iterations of the spousal privilege can be traced to\u003Cbr>\n14 feudal England. 8 John Henry Wigmore, Evidence in Trials at Common Law, § 222 7,\u003Cbr>\n15 at 211 (McNaughton rev. 1961 ). The privilege took different forms at different points\u003Cbr>\n16 in history, evolved over time, and has not been discussed in uniform terminology. 25\u003Cbr>\n17 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure:\u003Cbr>\n18 Evidence,§ 5572, at 463-64 (1989) (explaining that the spousal privileges have been\u003Cbr>\n7\u003Cbr>\n1 given “a wide variety of names” and lamenting the lack of uniformity); 2 Christopher\u003Cbr>\n2 B. Mueller & Laird C. Kirkpatrick, Federal Evidence,§ 5:39, at 729 (4th ed. 2013)\u003Cbr>\n3 (discussing the spousal witness privilege); Trammel, 445 U.S. at 44 (discussing the\u003Cbr>\n4 spousal disqualification rule). This present case is not the first time New Mexico\u003Cbr>\n5 courts have questioned the utility and validity of the spousal privileges. See State v.\u003Cbr>\n6 Howell, 1979-NMCA-069, ‘if 9, 93 N.M. 64, 596 P.2d 277 (citing with approval\u003Cbr>\n7 authorities doubting the validity of the spousal privilege then in existence in New\u003Cbr>\n8 Mexico); Richard A. Gonzales, Evidence, 11 N.M. L. Rev. 159, 174-75 (1981)\u003Cbr>\n9 (discussing amendments to New Mexico’s rules of evidence that eliminated one\u003Cbr>\n10 iteration of the spousal privilege).\u003Cbr>\n11 {14} The existence of abundant secondary literature is no justification for us to write\u003Cbr>\n12 yet another treatise on the subject of the history and development of the spousal\u003Cbr>\n13 privilege we have today. Our focus is specific. Our task discrete. We are here\u003Cbr>\n14 concerned with the spousal communication privilege as it exists in New Mexico and\u003Cbr>\n15 to the merits of the policy justifications offered in support of the privilege as\u003Cbr>\n16 measured from the ground upon which we stand. While it is necessary to consider\u003Cbr>\n1 7 some aspects of the history of spousal privilege to understand the purpose of the\u003Cbr>\n18 privilege we have today, we discuss that history only to the limited extent necessary.\u003Cbr>\n8\u003Cbr>\n1 Readers interested in legal history as an end in itself may explore-as we have-the\u003Cbr>\n2 many secondary sources cited throughout the discussion that follows.\u003Cbr>\n3 b. Justifications for the spousal communication privilege\u003Cbr>\n4 {15} More than one hundred and eighty years ago, the United States Supreme Court\u003Cbr>\n5 described the policy concerns giving rise to the spousal communication privilege in\u003Cbr>\n6 the following manner:\u003Cbr>\n7\u003Cbr>\n8\u003Cbr>\n9\u003Cbr>\n10\u003Cbr>\n11\u003Cbr>\n12\u003Cbr>\n13\u003Cbr>\n14\u003Cbr>\nThis rule is founded upon the deepest and soundest principles of our\u003Cbr>\nnature. Principles which have grown out of those domestic relations,\u003Cbr>\nthat constitute the basis of civil society; and which are essential to the\u003Cbr>\nenjoyment of that confidence which should subsist between those who\u003Cbr>\nare connected by the nearest and dearest relations of life. To break\u003Cbr>\ndown or impair the great principles which protect the sanctities of\u003Cbr>\nhusband and wife, would be to destroy the best solace of human\u003Cbr>\nexistence.\u003Cbr>\n15 Stein v. Bowman, 38 U.S. 209, 223 (1839). The principles articulated in Stein\u003Cbr>\n16 developed into what most commentators characterize as the traditional justification\u003Cbr>\n17 for the privilege: it “is needed to encourage marital confidences, which confidences\u003Cbr>\n18 in tum promote harmony between husband and wife.” 1 Kenneth S. Broun,\u003Cbr>\n19 McCormick on Evidence, § 86, at 523 (7th ed. 2013 ); see also 25 Wright & Graham,\u003Cbr>\n20 supra, § 5572, at 518-19 ( explaining that the rationale set forth in Stein has “been\u003Cbr>\n21 only slightly clarified in the ensuing 150 years”); see Wolfie v. United States, 291\u003Cbr>\n9\u003Cbr>\n1 U.S. 7, 14 (1934) (“The basis of the immunity given to communications between\u003Cbr>\n2 husband and wife is the protection of marital confidences, regarded as so essential to\u003Cbr>\n3 the preservation of the marriage relationship as to outweigh the disadvantages to the\u003Cbr>\n4 administration of justice which the privilege entails.”). The traditional justification\u003Cbr>\n5 for the privilege is considered to be an instrumental or utilitarian rationale because\u003Cbr>\n6 it views the privilege as a way to promote “the public good” by protecting the marital\u003Cbr>\n7 relationship. See R. Michael Cassidy, Reconsidering Spousal Privileges After\u003Cbr>\n8 Crawford, 33 Am. J. Crim. L. 339,358 (2006) (internal quotation marks omitted).\u003Cbr>\n9 {16} In addition to the traditional justification, a variety of humanistic and privacy\u003Cbr>\n10 arguments have been offered to support the spousal communication privilege. See\u003Cbr>\n11 I Broun, supra,§ 72, at 467-68; see also e.g., Ryan v. Comm ‘r of Internal Revenue,\u003Cbr>\n12 568 F.2d 531, 543 (7th Cir. 1977) (recognizing that the spousal communication\u003Cbr>\n13 privilege protects “the privacy interests of husband and wife”). Unlike the traditional\u003Cbr>\n14 justification, which views the privilege ”as a means of promoting the public good,”\u003Cbr>\n15 the privacy and humanistic “theories focus on the value of protecting individual\u003Cbr>\n16 rights.” Harvard Law Review Association, Developments in the Law: Privileged\u003Cbr>\n17 Communications, 98 Harv. L. Rev. 1450, 1583 (1985); see also 1 Broun, supra,§ 72,\u003Cbr>\n18 at 468 (“[P]rivacy interests in society are deserving of protection by privilege\u003Cbr>\n10\u003Cbr>\n1 irrespective of whether the existence of such privileges actually operates substantially\u003Cbr>\n2 to affect conduct within the protected relationships.”).\u003Cbr>\n3 {17} One such justification offered for t~e spousal communication privilege is that\u003Cbr>\n4 it eliminates the “‘natural repugnance”‘ that would necessarily flow from forcing a\u003Cbr>\n5 person to testify against a spouse. See 1 Edward J. Imwinkelried, The New Wigmore:\u003Cbr>\n6 A Treatise on Evidence, § 2.3, at 136-37 (2d ed. 2010) (quoting 8 John Henry\u003Cbr>\n7 Wigmore, Evidence in Trials at Common Law,§ 2228, at 217 (1961)); see also\u003Cbr>\n8 2 Mueller & Kirkpatrick, supra,§ 5 :39, at 731 (“[P]itting spouse against spouse … is\u003Cbr>\n9 deeply offensive to widely shared values.”); 1 Broun, supra, § 86, at 524 (“All ofus\u003Cbr>\n10 have a feeling of indelicacy and want of decorum in prying into the secrets of\u003Cbr>\n11 husband and wife.”). Leading treatises surmise that this “matter of emotion and\u003Cbr>\n12 sentiment” has, in fact, been “the prime influence in creating and maintaining” the\u003Cbr>\n13 spousal communication privilege. 1 Broun, supra,§ 86, at 524.\u003Cbr>\n14 {18} The protection of informational privacy and avoidance of unwarranted\u003Cbr>\n15 governmental intrusion are offered as alternative justifications for the privilege. See,\u003Cbr>\n16 e.g., Mark Reutlinger, Policy, Privacy, and Prerogatives: A Critical Examination of\u003Cbr>\n17 the Proposed Federal Rules of Evidence as They Affect Marital Privilege, 61 Calif.\u003Cbr>\n18 L. Rev. 1353, 1371 (1973) (“[U]tter freedom of marital communication from all\u003Cbr>\n11\u003Cbr>\n1 government supervision, constraint, control or observation [is] a psychological\u003Cbr>\n2 necessity to successful marriage.” (internal quotation marks and citation omitted)).\u003Cbr>\n3 This “rationale recognizes that it is morally repugnant to require the disclosure of\u003Cbr>\n4 certain private information or to force an otherwise honest and decent person to\u003Cbr>\n5 choose among betraying his or her spouse, lying, or going to jail.” Mikah K. Story,\u003Cbr>\n6 Twenty-First Century Pillow-Talk: Applicability of the Marital Communications\u003Cbr>\n7 Privilege to Electronic Mail, 58 S.C. L. Rev. 275, 315 (2006). One federal court\u003Cbr>\n8 quite persuasively made the case for the privacy justification for the privilege.\u003Cbr>\n9\u003Cbr>\n10\u003Cbr>\n11\u003Cbr>\n12\u003Cbr>\n13\u003Cbr>\n14\u003Cbr>\n15\u003Cbr>\n16\u003Cbr>\nOver at least the past decade, the circle of privacy surrounding\u003Cbr>\neach of us has drawn smaller with each new governmental incursion and\u003Cbr>\neach new technological advance. Courts have sought to preserve\u003Cbr>\ninviolable some small island of privacy as a refuge for the human spirit\u003Cbr>\nwhere government may not intrude. Here the question is whether one\u003Cbr>\nsuch sanctuary, protected by the common law for centuries, shall be\u003Cbr>\nbreached, rendering the secrets told to wives by husbands fair game for\u003Cbr>\ngovernment investigators.\u003Cbr>\n17 United States v. Neal, 532 F. Supp. 942, 946 (D. Colo. 1982), aff’d, 743 F.2d 1441\u003Cbr>\n18 (10th Cir. 1984); see also 25 Wright & Graham, supra,§ 5572, at 524 (expressing\u003Cbr>\n19 the idea that “limitation on government power … is inherently valuable and ought\u003Cbr>\n20 to be fostered for its own sake”). This privacy rationale carries significant weight.\u003Cbr>\n12\u003Cbr>\n1 {19} The United States Supreme Court has recognized that married people have a\u003Cbr>\n2 constitutional right to privacy in their intimate relationships. See Griswold v.\u003Cbr>\n3 Connecticut, 381 U.S. 479, 485-86 (1965) (concluding that the “right to privacy” in\u003Cbr>\n4 the marital relationship is “older than the Bill of Rights”). Thus, commentators have\u003Cbr>\n5 relied on this right to privacy to conclude that “the abolition of the [ spousal\u003Cbr>\n6 communication] privilege would offend the spirit of the constitutional guarantees.”\u003Cbr>\n7 25 Wright & Graham, supra, § 5572, at 528 (internal quotation marks and citation\u003Cbr>\n8 omitted).\u003Cbr>\n9 {20} Finally, a “humanistic theory based on personal autonomy” has been utilized\u003Cbr>\n10 to evaluate privileges generally. See 1 Imwinkelried, supra, § 1.2.1, at 16 ( arguing\u003Cbr>\n11 that the recognition of evidentiary privileges for certain fundamental relationships\u003Cbr>\n12 “promotes personal autonomy in the sense of decisional privacy”); see also Thomas\u003Cbr>\n13 G. Krattenmaker, Testimonial Privileges in Federal Courts: An Alternative to the\u003Cbr>\n14 Proposed Federal Rules of Evidence, 62 Geo. L. J. 61, 87 (1973) (arguing that the\u003Cbr>\n15 “recognition of a right to privacy serves to promote and protect personal autonomy”).\u003Cbr>\n16 Under this line of thought, personal autonomy is accepted as an “ultimate value” in\u003Cbr>\n17 a “democratic society.” 1 Imwinkelried, supra, § 1.2.1, at 16; see K.rattenmaker,\u003Cbr>\n18 supra, at 88-89 ( explaining that the protection of privacy supports “individual\u003Cbr>\n13\u003Cbr>\n1 political freedom/’ which in tum supports democracy); see also 1 McCormick, supra,\u003Cbr>\n2 § 72, at 468 (protecting private communications enables people “to make more\u003Cbr>\n3 intelligent, independent life preference choices”). Whether this line of thought has\u003Cbr>\n4 figured into or has any value to the debate about the benefits of the spousal\u003Cbr>\n5 communication privilege is an open question. See 1 McCormick, supra, § 72, at 468\u003Cbr>\n6 (“Given [the] comparatively recent origin [of the humanistic, autonomy rationales,\u003Cbr>\n7 they] probably have not operated as a conscious basis for either the judicial or\u003Cbr>\n8 legislative creation of existing privileges.”).\u003Cbr>\n9 c. Criticisms of the spousal communication privilege\u003Cbr>\n10 {21} When scrutinized, the traditional justification for the spousal communication\u003Cbr>\n11 privilege is not as forceful as it may initially seem. One of its principal wealmesses\u003Cbr>\n12 is that it rests on two untested assumptions: that (1) married people know the\u003Cbr>\n13 privilege exists, and (2) they rely on it when deciding how much information to share.\u003Cbr>\n14 See 1 Broun, supra, § 86, at 523. Critics argue “that there is no empirical evidence\u003Cbr>\n15 to support [these] factual assumptions.” 25 Wright & Graham, supra, § 5572, at 532-\u003Cbr>\n16 33.\u003Cbr>\n17 {22} As to the first of these assumptions, it is likely that most people are entirely\u003Cbr>\n18 unaware of the privilege. See, e.g., Robert M. Hutchins & Donald Slesingert, Some\u003Cbr>\n14\u003Cbr>\n1 Observations on the Law of Evidence Family Relations, 13 Minn. L. Rev. 675,682\u003Cbr>\n2 ( 1929). The United States Supreme Court, agreeing with this assessment, omitted the\u003Cbr>\n3 spousal communication privilege from the Court’s proposed rules of evidence. See\u003Cbr>\n4 Rules of Evidence for United States Courts and Magistrates, 56 F.R.D. 183, 246,\u003Cbr>\n5 Advisory Committee’s Note to Rule 505 (1973) (“Nor can it be assumed that marital\u003Cbr>\n6 conduct will be affected by a privilege for confidential communications of whose\u003Cbr>\n7 existence the parties in all likelihood are unaware.”).\u003Cbr>\n8 {23} Even if married people are aware of the spousal communication privilege, it is\u003Cbr>\n9 unclear whether the availability of the privilege has any effect on the extent to which\u003Cbr>\n10 spouses communicate. 1 Broun, supra, § 86, at 523 ( observing that “the contingency\u003Cbr>\n11 of courtroom disclosure” is not “in the minds of [spouses] in considering how far they\u003Cbr>\n12 should go in their secret conversations”). This point, explained in greater detail in the\u003Cbr>\n13 succeeding paragraphs, significantly undermines the second assumption underlying\u003Cbr>\n14 the traditional justification.\u003Cbr>\n15 {24} In a relationship involving a layperson and a professional, the absence of a\u003Cbr>\n16 privilege protecting confidentiality could chill beneficial communication because the\u003Cbr>\n1 7 layperson might refuse to communicate with the professional. See, e.g., Fisher v.\u003Cbr>\n18 United States, 425 U.S. 391,403 (1976) (explaining that the attorney-client privilege\u003Cbr>\n15\u003Cbr>\n1 “protects only those disclosures necessary to obtain informed legal advice which\u003Cbr>\n2 might not have been made absent the privilege”); Albuquerque Rape Crisis Ctr.,\u003Cbr>\n3 2005-NMSC-032, ,r 16 (“Without the psychotherapist-patient privilege, many\u003Cbr>\n4 individuals would likely be reluctant to seek treatment.”). And in a professional\u003Cbr>\n5 relationship that depends heavily on confidentiality, “there is an evidentiary\u003Cbr>\n6 wash-while evidence might be excluded at trial pursuant to a privilege objection,\u003Cbr>\n7 but for the privilege the evidence would not have come into existence.”\u003Cbr>\n8 1 Imwinkelried, supra, § 3.2.3, at 163 (footnote, internal quotation marks, and\u003Cbr>\n9 citation omitted); e.g., Swidler & Berlin v. United States, 524 U.S. 399,408 (1998)\u003Cbr>\n10 (“[T]he loss of evidence admittedly caused by the [attorney-client] privilege is\u003Cbr>\n11 justified in part by the fact that without the privilege, the client may not have made\u003Cbr>\n12 such communications in the first place.”); Jaffee v. Redmond, 518 U.S. 1, 11-12\u003Cbr>\n13 (1996) ( concluding that any evidentiary benefit of rejecting the psychotherapist-\u003Cbr>\n14 patient privilege would be modest because the absence of the privilege would chill\u003Cbr>\n15 communications). Unlike communication between a professional and a layperson,\u003Cbr>\n16 communication between spouses does not depend on a legal guarantee of\u003Cbr>\n1 7 confidentiality and does not come into existence because of that guarantee.\u003Cbr>\n16\u003Cbr>\n1 {25} Spouses communicate openly with one another due to the “trust they place in\u003Cbr>\n2 the loyalty and discretion of each other,” not because the privilege shields their\u003Cbr>\n3 communications from future disclosure in court. 1 Broun, supra, § 86, at 523.\u003Cbr>\n4 Additionally, most people are unlikely to alter their behavior based on the privilege\u003Cbr>\n5 because most people seldom appear in court and do not tailor their conversations\u003Cbr>\n6 around what may or may not be privileged. See id. at 523-24 (“In the lives of most\u003Cbr>\n7 people appearance in court as a party or a witness is an exceedingly rare and unusual\u003Cbr>\n8 event, and the anticipation ofit is not one of those factors which materially influence\u003Cbr>\n9 in daily life the degree of fullness of marital disclosures.”). Because neither\u003Cbr>\n10 assumption underlying the traditional justification survives scrutiny, the traditional\u003Cbr>\n11 justification for the privilege seems entirely unfounded.\u003Cbr>\n12 {26} As with the traditional justification, questions have been raised as to whether\u003Cbr>\n13 the privacy and humanistic rationales are sufficient to justify recognition of the\u003Cbr>\n14 spousal communication privilege. For example, Wigmore argued that the natural\u003Cbr>\n15 repugnance people feel about compelling one spouse to testify against the other is\u003Cbr>\n16 nothing “more than a sentiment” and that sentimental feelings do not justify\u003Cbr>\n17 interference with courts’ truth-seeking function. 8 Wigmore, supra,§ 2228, at 217;\u003Cbr>\n18 see id. (“[T]he law … does not proceed by sentiment, but aims at justice.”); see also\u003Cbr>\n17\u003Cbr>\n1 Edmund M. Morgan, Foreword, Model Code of Evidence, A.L.I., at 5 (1942)\u003Cbr>\n2 ( arguing that “a mere sentiment or an outgrown theory as to relative social values”\u003Cbr>\n3 cannot justify the suppression of “valuable evidence”). Others have “argued that\u003Cbr>\n4 married couples no longer care about privacy as it was supposed they did in an\u003Cbr>\n5 agrarian society.” 25 Wright & Graham, supra, § 5572, at 538. The increasing\u003Cbr>\n6 frequency with which modern Americans share their marital and familial problems\u003Cbr>\n7 with a public audience provides “contemporary confirmation for the claim that marital\u003Cbr>\n8 privacy is no longer an esteemed value.” See id. at 539.\u003Cbr>\n9 {27} To the extent that protecting marital privacy is a legitimate goal of a rule of\u003Cbr>\n10 evidence, the spousal communication privilege has been criticized as inadequate and\u003Cbr>\n11 under-inclusive. As the privilege has been construed to protect only those\u003Cbr>\n12 “interactions through which one spouse intends to convey a message to the other,” the\u003Cbr>\n13 privilege does not apply to “some of the most personal and intimate interactions\u003Cbr>\n14 between spouses.” Amanda H. Frost, Updating the Marital Privileges: A\u003Cbr>\n15 Witness-Centered Rationale, 14 Wis. Women’s L.J. 1, 25 (1999). For instance, the\u003Cbr>\n16 privilege would not permit a spouse to decline to testify as to whether his or her\u003Cbr>\n1 7 spouse uttered inculpatory remarks in their sleep or if they exhibited other\u003Cbr>\n18 irrepressible behaviors like nervousness, tiredness, or illness. Id. This is significant\u003Cbr>\n18\u003Cbr>\n1 as “it is precisely at these private moments when the social mask is removed, and a\u003Cbr>\n2 spouse engages in unguarded, unfiltered behavior[.]” Id.\u003Cbr>\n3 {28} This point highlights the obvious fact that marriage is a very different endeavor\u003Cbr>\n4 and involves communication quite distinct from that which occurs in a relationship\u003Cbr>\n5 between laypersons and professionals, like doctors and lawyers. Married couples\u003Cbr>\n6 necessarily engage in a nearly unlimited range of possible communicative acts the\u003Cbr>\n7 spousal communication privilege might never reach. Communication between\u003Cbr>\n8 laypersons and professionals, on the other hand, “are essentially and almost\u003Cbr>\n9 exclusively verbal in nature, quite unlike marriage.” Advisory Committee’s Note to\u003Cbr>\n10 Rule 505, 56 F.R.D. at 246. So, while the efficacy of the privileges protecting the\u003Cbr>\n11 communications between laypersons and professionals seems quite sensible and self-\u003Cbr>\n12 evidently efficacious, the efficacy of the spousal communication privilege to protect\u003Cbr>\n13 and foster frank communication between spouses appears, in contrast, quite doubtful.\u003Cbr>\n14 {29} Critics have also looked to the ancient origins of the spousal communication\u003Cbr>\n15 privilege and its disparate gender impact to argue that the privilege has outlived its\u003Cbr>\n16 purpose. See 25 Wright & Graham, supra, § 5572, at 466 (observing that modern\u003Cbr>\n1 7 theorists have attacked the spousal privileges and the familial privileges more\u003Cbr>\n18 generally as relics of “ancient origins” that should be a “source of scorn rather than\u003Cbr>\n19\u003Cbr>\n1 admiration” and derided these “sentimental relics” as patently incompatible with the\u003Cbr>\n2 modem and “changed social context” of present society (internal quotation marks and\u003Cbr>\n3 citation omitted)). Blackstone described the legal principles-which by\u003Cbr>\n4 contemporary values can only be deemed misogynistic-that coincided with the\u003Cbr>\n5 creation of the privilege as follows: “By marriage the husband and wife are one\u003Cbr>\n6 person in law; that is, the very being or legal existence of the woman is suspended\u003Cbr>\n7 during the marriage or at least is incorporated or consolidated into that of the\u003Cbr>\n8 husband.” Id. at 490 (internal quotation marks omitted) ( quoting 1 William\u003Cbr>\n9 Blackstone, Commentaries on the Laws of England, 442 (1768)). These words make\u003Cbr>\n10 obvious why some commentators suggest that “the most serious concern about the\u003Cbr>\n11 privilege is its disparate gender impact[.]” Milton C. Regan, Jr., Spousal Privilege\u003Cbr>\n12 and the Meanings of Marriage, 81 Va. L. Rev. 2045, 2051 (1995).\u003Cbr>\n13 {30} Despite drastic changes in law and society since Blackstone’s day, “the spousal\u003Cbr>\n14 communication privilege perpetuates the role of male domination in the marriage\u003Cbr>\n15 because a husband usually invokes the privilege to prevent his wife’s disclosure of\u003Cbr>\n16 confidential communications, thereby benefitting men more often than women.”\u003Cbr>\n17 Story, supra, at 280; see also Regan, supra, at 1587 & n.170 (noting that “in practice,\u003Cbr>\n18 marital privileges are more likely to protect male confidences than female\u003Cbr>\n20\u003Cbr>\n1 confidences” and citing evidence that indicates that ninety percent of spousal\u003Cbr>\n2 privilege cases involve wives testifying against husbands).\u003Cbr>\n3 {31} Feminist scholars have vigorously attacked the privilege suggesting that it was\u003Cbr>\n4 “created to protect men, who are often reluctant to share their personal thoughts and\u003Cbr>\n5 therefore may need the assurance of protection that the privilege rules supply, rather\u003Cbr>\n6 than women, who are more likely to decide to confide in others independent of the\u003Cbr>\n7 evidentiary safeguard.” Kit Kin ports, Evidence Engendered, 1991 U. Ill. L. Rev. 413,\u003Cbr>\n8 440 ( 1991 ). They contend that “privacy is frequently used as an excuse to isolate the\u003Cbr>\n9 family from interference by the state, perpetuating traditional gender hierarchies and\u003Cbr>\nIO power imbalances.” Frost, supra, at 24. The rhetoric of “privacy,” these theorists\u003Cbr>\n11 contend, simply ignores the fact that women are all too frequently the victims of a\u003Cbr>\n12 pernicious form of unseen and “private” violence and that appeals to privacy have\u003Cbr>\n13 rhetorical value in the abstract but are nothing short of repressive when applied to the\u003Cbr>\n14 actual social circumstances confronting women in our society.\u003Cbr>\n15\u003Cbr>\n16\u003Cbr>\n17\u003Cbr>\n18\u003Cbr>\n19\u003Cbr>\n20\u003Cbr>\n21\u003Cbr>\nPrivacy says that violence against women is immune from sanction, that\u003Cbr>\nit is permitted, acceptable and part of the basic fabric of American\u003Cbr>\nfamily life. Privacy says that what goes on in the violent relationship\u003Cbr>\nshould not be the subject of state or community intervention. Privacy\u003Cbr>\nsays that it is an individual, and not a systemic problem. Privacy\u003Cbr>\noperates as a mask for inequality, protecting male violence against\u003Cbr>\nwomen.\u003Cbr>\n1 Malinda L. Seymore, Isn’t it a Crime: Feminist Perspectives on Spousal Immunity\u003Cbr>\n2 and Spousal Violence, 90 Nw. U. L. Rev. 1032, 1072-73 (1995-96) (internal\u003Cbr>\n3 quotation marks and citation omitted).\u003Cbr>\n4 d. Weighing the justifications and criticisms\u003Cbr>\n5 {32} The traditional justification for the spousal communication privilege is\u003Cbr>\n6 premised on assumptions that do not withstand scrutiny. The privacy and humanistic\u003Cbr>\n7 justifications, when closely examined, seem little more than soaring rhetoric and\u003Cbr>\n8 legally irrelevant sentimentality. The misogynistic history of the privilege is obvious\u003Cbr>\n9 and odious. And it appears that the existence of the privilege perpetuates gender\u003Cbr>\n10 imbalances and, most critically, may even be partly responsible for sheltering and\u003Cbr>\n11 occluding marital violence that disproportionately affects women in entirely\u003Cbr>\n12 unacceptable ways.\u003Cbr>\n13 {33} Our review of the justifications for and criticisms of the privilege leaves us in\u003Cbr>\n14 agreement with Wigmore: “the occasional compulsory disclosure in court of even the\u003Cbr>\n15 most intimate marital communications would not in fact affect to any perceptible\u003Cbr>\n16 degree the extent to which spouses share confidences.” 8 Wigmore, supra, § 2332,\u003Cbr>\n17 at 642. Gutierrez’s invocation of the privilege illustrates this point vividly and\u003Cbr>\n22\u003Cbr>\n1 assures us that we have correctly weighed the competing interests and our decision\u003Cbr>\n2 to abandon the privilege is correct.\u003Cbr>\n3 {34} Gutierrez’s decision to talk about the murder with his wives was not premised\u003Cbr>\n4 on any legal guarantee of confidentiality; to the contrary, he not only told his wives\u003Cbr>\n5 about the killing but also bragged about the murder to third parties who were not\u003Cbr>\n6 covered by the privilege. Gutierrez’s case also illustrates that abolishment of the\u003Cbr>\n7 privilege is unlikely to chill candor between spouses, one of the putative reasons for\u003Cbr>\n8 recognizing the privilege.\u003Cbr>\n9 {35} Gutierrez told Nicole about the murder not because he required a confidant he\u003Cbr>\n10 knew could not divulge information shared; rather, he told Nicole about the murder\u003Cbr>\n11 because, it seems, he surmised that she would be pleased by what he had done. He\u003Cbr>\n12 then threatened her with death if she ever divulged the secret to anyone. Similarly,\u003Cbr>\n13 Evelyn learned of Gutierrez’s role in the murder not because Gutierrez perceived her\u003Cbr>\n14 as a person legally obligated to maintain confidences, but because Gutierrez’s\u003Cbr>\n15 parents-who knew about Gutierrez’s role in the victim’s death-spoke openly about\u003Cbr>\n16 the killing in only the most thinly-veiled terms and threatened to expose him to the\u003Cbr>\n17 criminal consequences of the act. It is clear the spousal communication privilege, and\u003Cbr>\n18 the principles the privilege was intended to advance, played no role whatsoever in\u003Cbr>\n23\u003Cbr>\n1 Gutierrez’s decision to disclose to Nicole and Evelyn the fact that he killed the\u003Cbr>\n2 victim.\u003Cbr>\n3 {36} While the purported benefits of the spousal communication privilege are\u003Cbr>\n4 questionable, the resulting loss of evidence is nearly certain. Again, Gutierrez’s case\u003Cbr>\n5 amply demonstrates this point.\u003Cbr>\n6 {37} Gutierrez used threats and intimidation to silence Nicole, and when Nicole\u003Cbr>\n7 finally agreed to testify against him-thirteen years after she divorced him-he\u003Cbr>\n8 invoked the spousal communication privilege to suppress the truth. Evelyn described\u003Cbr>\n9 the fighting that had typified her relationship with Gutierrez and testified at trial that\u003Cbr>\n10 she had not spoken to him in years. Permitting Gutierrez to use the spousal\u003Cbr>\n11 communication privilege to block the testimony of Nicole and Evelyn would have\u003Cbr>\n12 deprived the court of probative evidence without advancing spousal communication\u003Cbr>\n13 or marital harmony in any way. In Gutierrez’s case, application of the spousal\u003Cbr>\n14 communication privilege would only subvert the fair administration of justice and\u003Cbr>\n15 would not advance any socially beneficial interest.\u003Cbr>\n16 e. Conclusion: prospective abolition\u003Cbr>\n17 {38} This Court has a constitutional duty to ensure that the pursuit of truth is not\u003Cbr>\n18 unduly undermined by a procedural rule that has outlived its justification. Having\u003Cbr>\n24\u003Cbr>\n1 carefully examined the spousal communication privilege, we cannot accept that it\u003Cbr>\n2 meaningfully encourages marital confidences, promotes marital harmony, or produces\u003Cbr>\n3 any substantial public benefit that justifies its continued recognition. Rather, we\u003Cbr>\n4 believe that the privilege is a vestige of a vastly different society than the one we live\u003Cbr>\n5 in today and has been retained in New Mexico simply through inertia.\u003Cbr>\n6 {39} “[W]e cannot escape the reality that the law on occasion adheres to doctrinal\u003Cbr>\n7 concepts long after the reasons which gave them birth have disappeared and after\u003Cbr>\n8 experience suggest[s] the need for change.” Trammel, 445 U.S. at 48. We conclude\u003Cbr>\n9 that the spousal communication privilege is such a concept. Accordingly, we\u003Cbr>\n10 prospectively abolish it and withdraw Rule 11-505, effective for all cases filed on or\u003Cbr>\n11 after the date this opinion is filed. Because abolishment is prospective, we must\u003Cbr>\n12 nonetheless assess its applicability in Gutierrez’s case.\u003Cbr>\n13 2. Application of the spousal communication privilege in Gutierrez’s case\u003Cbr>\n14 {40} The district court permitted Nicole and Evelyn to testify about confidential,\u003Cbr>\n15 spousal communications because, according to the district court, Gutierrez waived the\u003Cbr>\n16 privilege by telling third parties about the subject matter of those communications,\u003Cbr>\n17 i.e., he told individuals other than his wives that he murdered the victim. Gutierrez\u003Cbr>\n18 argues that the district court’s ruling was error and that Nicole’s and Evelyn’s\u003Cbr>\n25\u003Cbr>\n1 testimony about these confidential, spousal communications should not have been\u003Cbr>\n2 admitted. The State~ responds that the district court correctly concluded that Gutierrez\u003Cbr>\n3 waived the spousal communication privilege. These arguments require us to clarify\u003Cbr>\n4 the circumstances under which a party waives the spousal communication privilege\u003Cbr>\n5 and, because we conclude that there was no waiver here, to address whether the\u003Cbr>\n6 confidential, spousal communications Nicole and Evelyn offered at trial were\u003Cbr>\n7 admissible on other grounds. If not, we must decide what consequence flows from\u003Cbr>\n8 the erroneous admission of any confidential, spousal communications. This Court\u003Cbr>\n9 reviews the district court’s construction of privilege law de novo. See Pacheco v.\u003Cbr>\n10 Hudson, 2018-NMSC-022, ,r 24,415 P.3d 505.\u003Cbr>\n11 a. Waiver\u003Cbr>\n12 {41} Rule 11-511 NMRA, the waiver rule, provides that “[a] person who possesses\u003Cbr>\n13 a privilege against disclosure of a confidential matter or communication waives the\u003Cbr>\n14 privilege if the person voluntarily discloses or consents to disclosure of any\u003Cbr>\n15 significant part of the matter or communication.” State v. Allen, 2000-NMSC-002,\u003Cbr>\n16 128 N.M. 482,994 P.2d 728, is the only published New Mexico opinion addressing\u003Cbr>\n17 waiver of the spousal communication privilege and both parties rely on Allen to\u003Cbr>\n26\u003Cbr>\n1 support their respective positions. Some clarification of the principles articulated in\u003Cbr>\n2 Allen are necessary.\u003Cbr>\n3 {42} In Allen, the defendant told his wife that “he had raped and killed a girl, and\u003Cbr>\n4 that … he killed the girl because she threatened to report the rape to the police.”\u003Cbr>\n5 Id. ,r 18. Allen’s wife disclosed the statement to the police, who incorporated the\u003Cbr>\n6 statement into an affidavit and gave a copy to Allen. Id. ,r,r 18, 20. When the police\u003Cbr>\n7 asked Allen about the statement, he “admitted that he had made the statement to his\u003Cbr>\n8 wife, but he claimed that the statement was a lie.” Id. ,r 19. Allen also “showed the\u003Cbr>\n9 affidavit to a co-worker and acknowledged … that he had made a statement similar\u003Cbr>\n10 to the one contained in the affidavit. Later, he discussed the statement again with a\u003Cbr>\n11 jail inmate.” Id. ,r 20. On appeal, this Court held that Allen waived the spousal\u003Cbr>\n12 communication privilege “by disclosing the statement at issue to third parties.”\u003Cbr>\n13 Id. ,r 24. Allen did not adequately highlight the distinction between disclosing a\u003Cbr>\n14 confidential, spousal communication to a third party and disclosing only the\u003Cbr>\n15 underlying subject matter of a spousal communication. This distinction is all\u003Cbr>\n16 important.\u003Cbr>\n17 {43} The defendant in Allen disclosed the actual statement he made to his wife,\u003Cbr>\n18 which was memorialized in an affidavit. The defendant admitted to police that he\u003Cbr>\n27\u003Cbr>\n1 made the statement to his wife and also disclosed to a coworker and a jail inmate the\u003Cbr>\n2 fact that he made a statement to his wife. Id. ,r,r 18-20. Critically, Allen did not\u003Cbr>\n3 merely discuss his crimes-he raped and then killed a young woman-with a third\u003Cbr>\n4 party. The crucial point is this: Allen waived the spousal communication privilege\u003Cbr>\n5 by disclosing to others that he told his wife that he raped and killed the victim. Id.\u003Cbr>\n6 ,r 24. He did not merely tell others he raped and killed the victim. The former waives\u003Cbr>\n7 the spousal communication privilege; the latter does not.\u003Cbr>\n8 {44} When interpreting the waiver rule set forth in Rule 11-511, we are mindful that\u003Cbr>\n9 the rule applies to evidentiary privileges other than the spousal privilege, including\u003Cbr>\n10 the lawyer-client privilege, see Rule 11-503 NMRA, and the physician-patient\u003Cbr>\n11 privilege, see Rule 11-504 NMRA. New Mexico cases discussing Rule 11-511 in\u003Cbr>\n12 these contexts provide further guidance and confirm that a person waives a\u003Cbr>\n13 confidential communication by disclosing the communication itself, but not by mere\u003Cbr>\n14 disclosure of the underlying facts or subject matter. SeePincheira, 2008-NMSC-049,\u003Cbr>\n15 ,r 33 (observing that the communication privileges, including the physician-patient\u003Cbr>\n16 privilege, “are destroyed by any revelation of the actual communications” ( emphasis\u003Cbr>\n17 added)); see also State ex rel. State Highway Comm ‘n v. Steinkraus, 1966-NMSC-\u003Cbr>\n18 134, ,r 4, 76 N.M. 617, 417 P.2d 431 (“It is clear to us that the attorney-client\u003Cbr>\n28\u003Cbr>\n1 privilege should only be applied to protect communications-not facts.”); Gingrich\u003Cbr>\n2 v. Sandia Corp., 2007-NMCA-101, ,r,r 12-13, 142 N.M. 359, 165 P.3d 1135\u003Cbr>\n3 ( concluding that a client waived the attorney-client privilege for a report prepared by\u003Cbr>\n4 its attorney when the client disclosed the report to the opposing party and to third\u003Cbr>\n5 parties outside the litigation). These New Mexico cases are consistent with the federal\u003Cbr>\n6 approach to waiver.\u003Cbr>\n7 {45} Under federal law, a disclosure to a third party waives the spousal\u003Cbr>\n8 communication privilege “if the spouse discloses the statement, but not if the spouse\u003Cbr>\n9 simply talks again about the same act, event, or condition that is the subject of the\u003Cbr>\n10 statement.” 2 Mueller & Kirkpatrick, supra,§ 5:40, at 756; see, e.g., United States\u003Cbr>\n11 v. Lea, 249 F.3d 632, 641-42 (7th Cir. 2001) (concluding that the defendant did not\u003Cbr>\n12 waive the spousal communication privilege for statements he made to his wife by\u003Cbr>\n13 making statements to others that “dealt with a similar topic”). We conclude that, to\u003Cbr>\n14 waive a privilege under Rule 11-511, a person must disclose a significant part of the\u003Cbr>\n15 privileged communication. This means that the person must disclose the actual\u003Cbr>\n16 privileged communication. It is not enough to disclose the subject matter of the\u003Cbr>\n17 communication. We return now to the case at hand.\u003Cbr>\n29\u003Cbr>\n1 {46} The district court erred when it concluded that Gutierrez waived the spousal\u003Cbr>\n2 communication privilege by disclosing to third parties the subject matter of the\u003Cbr>\n3 confidential communications he shared with Nicole and Evelyn. Such disclosure\u003Cbr>\n4 does not give rise to a waiver. We proceed to evaluate whether Nicole’s and Evelyn’s\u003Cbr>\n5 testimony was otherwise admissible and, if not, what consequences flow from the\u003Cbr>\n6 district court’s erroneous admission of the testimony. We examine the testimony of\u003Cbr>\n7 each wife separately.\u003Cbr>\n8 b. Nicole’s testimony\u003Cbr>\n9 {47} Nicole gave testimony about three communications between her and Gutierrez.\u003Cbr>\n10 First, she testified that when she told Gutierrez her uncle had raped her, Gutierrez told\u003Cbr>\n11 her “not to worry about anything anymore.” Second, Nicole testified that, after\u003Cbr>\n12 Gutierrez committed the murder, he told her that he “took care of it” and needed help\u003Cbr>\n13 finding a shotgun shell. Third, Nicole testified that Gutierrez threatened her life and\u003Cbr>\n14 warned her not to tell anyone what had happened.\u003Cbr>\n15 {48} We may summarily reject the assertion that Gutierrez’s threat against Nicole’s\u003Cbr>\n16 life is privileged. “Verbal threats between spouses are not marital ‘confidences’\u003Cbr>\n1 7 which the spousal privilege was intended to shield from courtroom disclosure.\u003Cbr>\n18 Indeed, abusive language is not privileged since it is not warranted or induced by the\u003Cbr>\n30\u003Cbr>\nI marital relation.” 81 Am. Jur. 2d Witnesses § 307 (2019) (footnote omitted); 98\u003Cbr>\n2 C.J.S., Witnesses,§ 323, at 293 (2013) (same). Accordingly, we dedicate no further\u003Cbr>\n3 attention to the third communication-that communication was admissible. We need\u003Cbr>\n4 only focus on the first and second communications.\u003Cbr>\n5 {49} The first and second communications between Nicole and Gutierrez were\u003Cbr>\n6 confidential, spousal communications. Nevertheless, the State argues that even if the\u003Cbr>\n7 district court erred by permitting Nicole to testify about these statements, the spousal\u003Cbr>\n8 communication privilege did not preclude Nicole from testifying about her own\u003Cbr>\n9 observations and experiences. We agree.\u003Cbr>\n10 {50} The spousal communication privilege applies only to “utterances or expressive\u003Cbr>\n11 acts intended by one spouse to convey a meaning or message to the other.” State v.\u003Cbr>\n12 Teel, 1985-NMCA-l 15, ,r 9, 103 N.M. 684, 712 P.2d 792. “Observations by one\u003Cbr>\n13 spouse of the non-communicative acts of the other, especially acts which are open to\u003Cbr>\n14 the view of others, are not confidential communications.” Id. ,r 10. “Generally, the\u003Cbr>\n15 defendant cannot invoke the marital communications privilege to prevent the spouse\u003Cbr>\n16 from testifying to what the witness-spouse saw.” 3 Weinstein & Berger, supra,\u003Cbr>\n17 § 505.10[2], at 505-16 to -17. For these reasons, Nicole’s first-hand testimony was\u003Cbr>\n31\u003Cbr>\n——————\u003Cbr>\n1 not privileged, and this conclusion is significant. Her admissible testimony renders\u003Cbr>\n2 the district court’s erroneous admission of the privileged testimony harmless.\u003Cbr>\n3 {51} “Improperly admitted evidence is not grounds for a new trial unless the error\u003Cbr>\n4 is determined to be harmful.” State v. Tollardo, 2012-NMSC-008, ,r 25, 275 P.3d\u003Cbr>\n5 110. The evidentiary error in this case was harmless if “there is no reasonable\u003Cbr>\n6 probability the error affected the verdict.” Id. ,r 36 (emphasis, internal quotation\u003Cbr>\n7 marks, and citation omitted). To determine the effect the error had on the verdict,\u003Cbr>\n8 “[ w ]e examine all the circumstances surrounding the error; examine the importance\u003Cbr>\n9 to the prosecution’s case of the erroneously admitted evidence, and ask, among other\u003Cbr>\n10 things, whether the erroneously admitted evidence was cumulative or introduced new\u003Cbr>\n11 facts.” State v. Rivas, 2017-NMSC-022, ,r 52, 398 P.3d 299.\u003Cbr>\n12 {52} Nicole testified that she saw the victim’s corpse, participated in the attempt to\u003Cbr>\n13 gather the spent shotgun-shell casings, and could readily deduce ( apart from any\u003Cbr>\n14 admissions made by Gutierrez) that Gutierrez did indeed kill the victim. The fact that\u003Cbr>\n15 Nicole was wrongly permitted to testify that Gutierrez told her “not to worry about\u003Cbr>\n16 anything anymore” and that he “took care of it” and needed help finding a shotgun\u003Cbr>\n17 shell was cumulative of other far more significant portions of her first-hand account\u003Cbr>\n18 of the events surrounding the victims’s death.\u003Cbr>\n32\u003Cbr>\n1 {53} There is no reasonable probability that the erroneous admission of Gutierrez’s\u003Cbr>\n2 confidential, spousal communications to Nicole affected the verdict. The improper\u003Cbr>\n3 admission of Gutierrez’s statements to Nicole was harmless error.\u003Cbr>\n4 c. Evelyn ‘s testimony\u003Cbr>\n5 {54} The spousal communication privilege applied to Evelyn’s testimony only if\u003Cbr>\n6 Gutierrez told her about the murder during the marriage. Rule 11-S0S(B); State v.\u003Cbr>\n7 Lard, 1974-NMCA-004, ,r,r 10-12, 86 N.M. 71, 519 P.2d 307 (holding that the\u003Cbr>\n8 spousal privilege did not apply to a couple who lived together but was not married).\u003Cbr>\n9 At the evidentiary hearing, the parties disputed whether Gutierrez told Evelyn about\u003Cbr>\n10 the murder before or after their wedding. This factual dispute presented a preliminary\u003Cbr>\n11 question of fact for the district court to determine under Rule 11-104(A) Nl\\t1RA. See\u003Cbr>\n12 25 Wright & Graham, supra,§ 5602, at 818 (explaining that the court determines a\u003Cbr>\n13 factual dispute about the existence of a valid marriage “like any other question of\u003Cbr>\n14 preliminary fact” under Rule 104 of the Federal Rules of Evidence).\u003Cbr>\n15 {55} To enable the district court to make this determination, Gutierrez had to prove\u003Cbr>\n16 by a preponderance of the evidence that he married Evelyn before the communication\u003Cbr>\n17 was made. See Santa Fe Pac. Gold Corp. v. United Nuclear Corp., 2007-NMCA-133,\u003Cbr>\n18 ,r 13, 143 N.M. 215, 175 P.3d 309 (“The party claiming privilege has the burden of\u003Cbr>\n33\u003Cbr>\n1 establishing that a communication is protected[.]”); see also State v. Martinez,\u003Cbr>\n2 2007-NMSC-025, ,r 19, 141 N.M. 713, 160 P.3d 894 (explaining that when\u003Cbr>\n3 determining the admissibility of evidence, the district court “need only be satisfied\u003Cbr>\n4 by a preponderance of the evidence that the foundational requirement has been met”).\u003Cbr>\n5 Based on the evidence Gutierrez introduced at the hearing, the district court was\u003Cbr>\n6 unable to determine whether he and Evelyn were married when the statements were\u003Cbr>\n7 made. “[I]f the probabilities are equal there is no preponderance of evidence, [ and]\u003Cbr>\n8 the burdenofproofhasnotbeensustained[.]” Lopezv. Townsend, 1938-NMSC-058,\u003Cbr>\n9 ,r 49, 42 N.M. 601, 82 P .2d 921 (internal quotation marks and citation omitted). This\u003Cbr>\n10 point of law governs here.\u003Cbr>\n11 {56} Because the district court could not resolve the issue, we conclude that\u003Cbr>\n12 Gutierrez failed to prove by a preponderance of the evidence that he and Evelyn were\u003Cbr>\n13 married at the time the statements were made. Accordingly, Gutierrez’s statements\u003Cbr>\n14 to Evelyn were not privileged communications under Rule 11-505. We affirm the\u003Cbr>\n15 district court’s admission of Evelyn’s testimony under the right for any reason\u003Cbr>\n16 doctrine. State v. Vargas, 2008-NMSC-019, ,r 8, 143 N.M. 692, 181 P.3d 684.\u003Cbr>\n34\u003Cbr>\n1 d. Conclusion: consequence of any evidentiary errors\u003Cbr>\n2 {57} The district court wrongly admitted confidential, spousal communications\u003Cbr>\n3 between Nicole and Gutierrez. Nevertheless, that error was harmless. The alleged\u003Cbr>\n4 confidential, spousal communications that Evelyn was permitted to testify about were\u003Cbr>\n5 not, in fact, privileged, spousal communications. There is no reason to reverse\u003Cbr>\n6 Gutierrez’s convictions or grant him a new trial simply because some evidence was\u003Cbr>\n7 admitted in violation of the spousal communication privilege.\u003Cbr>\n8 B. Sufficiency of the Evidence\u003Cbr>\n9 {58} Gutierrez claims that his conviction is not supported by sufficient evidence.\u003Cbr>\n10 This claim is premised on the assertion that the spousal communication privilege\u003Cbr>\n11 precluded the admission ofNicole’s and Evelyn’s testimony. As we have explained,\u003Cbr>\n12 although the district court erred by admitting portions of Nicole’s testimony, the\u003Cbr>\n13 district court properly admitted Nicole’s testimony to the extent it was not privileged\u003Cbr>\n14 or was based on her own observations and experiences. Evelyn’s testimony was\u003Cbr>\n15 admissible. The collective impact of the admissible testimony was quite damaging\u003Cbr>\n16 for Gutierrez.\u003Cbr>\n17 {59} Nicole testified that she could deduce Gutierrez killed the victim regardless of\u003Cbr>\n18 any statements he made. Gutierrez brought her to the crime scene to help him locate\u003Cbr>\n35\u003Cbr>\n1 the shotgun shells used in the murder. She saw the victim’s body lying face down on\u003Cbr>\n2 the floor of the boxcar. She knew Gutierrez destroyed or concealed the clothes and\u003Cbr>\n3 shoes worn during the murder. She testified that she lied to police about Gutierrez’s\u003Cbr>\n4 role in the killing because she was afraid of him. Evelyn testified that Gutierrez went\u003Cbr>\n5 to the victim’s home and shot him in the face with a shotgun because the victim had\u003Cbr>\n6 molested Nicole earlier in her life. This evidence demonstrated that Gutierrez had a\u003Cbr>\n7 reason to kill the victim and did in fact kill him. Other evidence at trial corroborated\u003Cbr>\n8 Nicole’s and Evelyn’s testimony.\u003Cbr>\n9 {60} Expert testimony indicated that the victim died as a result of being shot in the\u003Cbr>\n10 head with a shotgun fired at close or intermediate range. A crime scene investigator\u003Cbr>\n11 testified that the victim’s boxcar was “in a shambles” and that it appeared that the\u003Cbr>\n12 body had been moved or rolled over prior to the arrival of police. Another police\u003Cbr>\n13 officer testified that, when he arrived at the scene, the boxcar looked like it had been\u003Cbr>\n14 ransacked and was filthy, with overturned furniture and beer cans scattered around.\u003Cbr>\n15 The victim’s body was face down on the floor, surrounded by clutter.\u003Cbr>\n16 {61} We view the evidence as a whole and in the light most favorable to the State.\u003Cbr>\n17 State v. Sena, 2008-NMSC-053, if 10, 144 N.M. 821, 192P.3d1198. Viewing the\u003Cbr>\n36\u003Cbr>\n1 evidence in this manner, we conclude that the evidence was sufficient to support\u003Cbr>\n2 Gutierrez’s conviction·.\u003Cbr>\n3 C. Grand Jury Proceedings\u003Cbr>\n4 {62} Prior to trial, Gutierrez moved to dismiss the indictment arguing that he did not\u003Cbr>\n5 receive timely notice of the grand jury proceedings as required by NMSA 1978,\u003Cbr>\n6 Section 31-6-1 l(C) (2003), and Rule 5-302A(A) NMRA (2010). At a motion\u003Cbr>\n7 hearing, the parties presented conflicting evidence about whether Gutierrez received\u003Cbr>\n8 timely notice. The district court found that Gutierrez received timely notice and\u003Cbr>\n9 denied his motion. On appeal, Gutierrez argues that the prosecution’s failure to\u003Cbr>\n10 provide timely notice resulted in the violation of his right to testify before the grand\u003Cbr>\n11 jury.\u003Cbr>\n12 {63} If the target of a grand jury investigation believes that there has been a\u003Cbr>\n13 violation of the grand jury statutes, the “target may file a motion to quash the\u003Cbr>\n14 indictment in the district court, apply for an interlocutory appeal, or file a petition for\u003Cbr>\n15 an extraordinary writ with this Court.” Herrera v. Sanchez, 2014-NMSC-018, il 10,\u003Cbr>\n16 328 P.3d 1176. But a challenge to a grand jury indictment “should be raised before\u003Cbr>\n17 trial because a petitjury’s finding at trial of guilt beyond a reasonable doubt typically\u003Cbr>\n37\u003Cbr>\n1 will moot any post-conviction challenges to the grand jury’s determination of\u003Cbr>\n2 probable cause.” Id.; see also State v. Bent, 2012-NMSC-038, ,r 1,289 P.3d 1225.\u003Cbr>\n3 {64} Gutierrez’s argument that the State violated his right to testify before the grand\u003Cbr>\n4 jury is moot. The trial jury found him guilty beyond a reasonable doubt.\u003Cbr>\n5 D. Destruction of Evidence\u003Cbr>\n6 {65} In a pretrial “motion to dismiss for suppression of evidence,” Gutierrez alleged\u003Cbr>\n7 that the State lost the raw data from a polygraph examination of an early suspect,\u003Cbr>\n8 Ulysses Wilson, who allegedly had a motive to kill the victim. During the polygraph\u003Cbr>\n9 examination, Wilson denied shooting and killing the victim. The polygraph examiner\u003Cbr>\n10 reported that Wilson’s responses were “deceptive” or false.\u003Cbr>\n11 {66} The State disclosed the results ofWilson’s polygraph examination to Gutierrez\u003Cbr>\n12 prior to trial. Although the State had the results of the examination, the associated\u003Cbr>\n13 charts and any recordings of the examination had been destroyed before Gutierrez\u003Cbr>\n14 was charged as a suspect in this case. The unavailability of the charts and recordings\u003Cbr>\n15 could have prevented Gutierrez from meeting the evidentiary prerequisites to the\u003Cbr>\n16 admission of the polygraph results at trial. See Lee v. Martinez, 2004-NMSC-027,\u003Cbr>\n17 ,r,r 36-41, 136 N.M. 166, 96 P.3d 291 (describing prerequisites to the admissibility of\u003Cbr>\n18 polygraph results); see also Rule 11-707(C), (D) NMRA (same). To prevent\u003Cbr>\n38\u003Cbr>\n1 prejudice to Gutierrez and resolve his motion to dismiss, the State stipulated that\u003Cbr>\n2 Gutierrez could use the polygraph results as evidence at trial without objection.\u003Cbr>\n3 {67} Despite the State’s stipulation, Gutierrez renewed his motion to dismiss after\u003Cbr>\n4 learning that the State had retained an expert witness to testify about the reliability\u003Cbr>\n5 of the polygraph results. Gutierrez asked the district court to dismiss the case as a\u003Cbr>\n6 sanction for the State’s loss of evidence or, alternatively, to exclude the testimony of\u003Cbr>\n7 the State’s expert witness. The district court denied Gutierrez’s motion, admitted the\u003Cbr>\n8 polygraph report into evidence at trial, and allowed the State’s polygraph expert to\u003Cbr>\n9 testify.\u003Cbr>\n10 {68} On appeal, Gutierrez claims that the district court erred by denying his motion\u003Cbr>\n11 to either dismiss the case or exclude the State’s expert witness. Gutierrez also asserts\u003Cbr>\n12 that the district court failed to instruct the jury about the spoliation of evidence. We\u003Cbr>\n13 review the district court’s rulings for abuse of discretion. State v. Riggs, 1992-\u003Cbr>\n14 NMSC-057, ,r 10, 114 N.M. 358, 838 P.2d 975.\u003Cbr>\n15 {69} District courts possess authority to impose sanctions on the State if the\u003Cbr>\n16 defendant has suffered prejudice as a result of the State’s deliberate or bad faith loss\u003Cbr>\n17 of evidence. See State v. Chouinard, 1981-NMSC-096, ,r,r 12-15, 96 N.M. 658,\u003Cbr>\n18 634 P.2d 680. But the sanction of dismissal is extreme and may be “used only in\u003Cbr>\n39\u003Cbr>\n1 exceptional cases.” State v. Harper, 2011-NMSC-044, ~~ 16, 19, 150 N.M. 745,266\u003Cbr>\n2 P.3d 25 (internal quotation marks and citation omitted), modified on other grounds\u003Cbr>\n3 by State v. Le Mier, 2017-NMSC-0l 7, 394 P.3d 959. In this case, nothing in the\u003Cbr>\n4 record suggests that the State’s loss of evidence was deliberate or in bad faith, and\u003Cbr>\n5 Gutierrez suffered no prejudice because he was permitted to introduce the polygraph\u003Cbr>\n6 results as evidence at trial. Accordingly, the district court did not err by declining to\u003Cbr>\n7 dismiss the case as a sanction for the State’s loss of evidence. We similarly conclude\u003Cbr>\n8 that the court did not err in rejecting Gutierrez’s request to preclude the State’s expert\u003Cbr>\n9 witness from testifying.\u003Cbr>\n10 {70} In Chouinard, this Court explained that, if the State’s loss of evidence is known\u003Cbr>\n11 prior to trial, the district court may choose between two alternative remedies: either\u003Cbr>\n12 (1) exclude “all evidence which the lost evidence might have impeached,” or (2)\u003Cbr>\n13 allow admission of all of the evidence that the lost evidence would impeach “with full\u003Cbr>\n14 disclosure of the loss and its relevance and import.” 1981-NMSC-096, ~ 23. The\u003Cbr>\n15 district court’s choice between these two alternatives depends on the court’s\u003Cbr>\n16 “assessment of materiality and prejudice. The fundamental interest at stake is\u003Cbr>\n17 assurance that justice is done, both to the defendant and to the public.” Id.\u003Cbr>\n40\u003Cbr>\n1 {71} In Gutierrez’s case, the district court had two options: either (1) exclude the\u003Cbr>\n2 polygraph results and any associated evidence, or (2) admit the polygraph results and\u003Cbr>\n3 inform the jury that the associated charts and recordings had been lost, with full\u003Cbr>\n4 disclosure of the relevance and importance of the lost evidence. Gutierrez wanted to\u003Cbr>\n5 introduce the polygraph results, so the district court chose the second option. This\u003Cbr>\n6 remedy ensured that justice was done, both for Gutierrez and for the State. Gutierrez\u003Cbr>\n7 was permitted to use the polygraph results to argue that Wilson committed the\u003Cbr>\n8 murder, and the State was allowed to introduce expert testimony to assist the jury in\u003Cbr>\n9 evaluating the reliability of the polygraph results. See generally Lee, 2004-NMSC-\u003Cbr>\n10 027, ,r,r 4, 41, 48 (holding that although there are “a number of potential problems\u003Cbr>\n11 with polygraph results,” the results of a polygraph examination conducted in\u003Cbr>\n12 accordance with Rule 11-707 may be admissible subject to “cross-examination,\u003Cbr>\n13 presentation of rebuttal evidence, and argumentation”).\u003Cbr>\n14 {72} Finally, Gutierrez’s assertion that the district court failed to instruct the jury\u003Cbr>\n15 concerning the lost evidence lacks merit. The district court gave the following jury\u003Cbr>\n16 instruction at trial: “In this case certain evidence in the custody and control of the\u003Cbr>\n17 State ofNew Mexico was lost and is not available. The loss of this evidence means\u003Cbr>\n18 some material facts may be unknown. You must determine what weight should be\u003Cbr>\n41\u003Cbr>\n1 given to the absence of this evidence.” The record reflects that Gutierrez stipulated\u003Cbr>\n2 to this instruction. We affirm the district court’s denial of Gutierrez’s pretrial motion.\u003Cbr>\n3 E. Ineffective Assistance of Counsel\u003Cbr>\n4 {73} Gutierrez argues that he received ineffective assistance of counsel when\u003Cbr>\n5 defense counsel failed to meet the deadline for filing a witness list. Some discussion\u003Cbr>\n6 of the law governing witness disclosure and additional facts from Gutierrez’s trial\u003Cbr>\n7 must be presented to make Gutierrez’s argument comprehensible.\u003Cbr>\n8 {74} Rule 5-502(A)(3) NMRA required Gutierrez to disclose his witness list to the\u003Cbr>\n9 State within thirty days after arraignment. Defense counsel filed a list of eleven\u003Cbr>\n10 potential witnesses well after this deadline, just two business days prior to jury\u003Cbr>\n11 selection. The State did not receive notice of Gutierrez’s witness list until after jury\u003Cbr>\n12 selection was underway and moved to exclude Gutierrez’s witnesses due to the\u003Cbr>\n13 untimely notice.\u003Cbr>\n14 {75} At a hearing, defense counsel explained that he did not intend to call all eleven\u003Cbr>\n15 witnesses to testify at trial. Instead, he clarified that he had included eight of the\u003Cbr>\n16 eleven names for the sole purpose of reading the names to the jury panel during voir\u003Cbr>\n1 7 dire. The remaining three witnesses included ( 1) the custodian of records for the\u003Cbr>\n42\u003Cbr>\n1 district court, (2) the custodian of evidence for the police department, and (3) Richard\u003Cbr>\n2 Silva.\u003Cbr>\n3 {76} Through a proffer, defense counsel informed the district court that Silva had\u003Cbr>\n4 written a letter stating that Nicole told him that Gutierrez was not involved in the\u003Cbr>\n5 murder. Defense counsel equivocated about whether he would actually call Silva to\u003Cbr>\n6 testify at trial.\u003Cbr>\n7 {77} The State stipulated that Gutierrez could call the custodian of records for the\u003Cbr>\n8 district court and custodian of evidence for the police department, but the State\u003Cbr>\n9 opposed Gutierrez calling Silva to testify at trial. The district court granted the\u003Cbr>\n10 State’s motion to exclude Gutierrez’s witnesses, subject to the State’s stipulation.\u003Cbr>\n11 Gutierrez’s position on appeal is that this ruling “gutt[ ed] the entire defense case” and\u003Cbr>\n12 denied him a fair trial.\u003Cbr>\n13 {78} “To establish ineffective assistance of counsel, a defendant must show: (1)\u003Cbr>\n14 counsel’s performance was deficient, and (2) the deficient performance prejudiced the\u003Cbr>\n15 defense.” State v. Paredez, 2004-NMSC-036, ,r 13, 136 N.M. 533, 101 P.3d 799\u003Cbr>\n16 (internal quotation marks and citation omitted). “Failure to prove either prong of the\u003Cbr>\n17 test defeats a claim of ineffective assistance of counsel.” State v. Guerra,\u003Cbr>\n18 2012-NMSC-027, ,r 23, 284 P.3d 1076 (internal quotation marks and citation\u003Cbr>\n43\u003Cbr>\n1 omitted). To demonstrate that counsel’s performance was deficient, the defendant\u003Cbr>\n2 must show that defense “counsel’s representation fell below an objective standard of\u003Cbr>\n3 reasonableness.” Lytlev. Jordan, 2001-NMSC-016, if 26, 130N.M. 198, 22 P.3d 666\u003Cbr>\n4 (internal quotation marks and citation omitted). To demonstrate prejudice, the\u003Cbr>\n5 defendant must show “a reasonable probability that, but for counsel’s unprofessional\u003Cbr>\n6 errors, the result of the proceeding would have been different. A reasonable\u003Cbr>\n7 probability is a probability sufficient to undermine confidence in the outcome.” Id.\u003Cbr>\n8 ,r 27 (internal quotation marks and citation omitted).\u003Cbr>\n9 {79} “When an ineffective assistance claim is first raised on direct appeal, we\u003Cbr>\n10 evaluate the facts that are part of the record.” Statev. Roybal, 2002-NMSC-027, ,r 19,\u003Cbr>\n11 132 N.M. 657, 54 P.3d 61. If the defendant makes a prima facie case of ineffective\u003Cbr>\n12 assistance of counsel, this Court may remand the case to the district court for an\u003Cbr>\n13 evidentiary hearing. Id. But if the appellate record does not provide enough\u003Cbr>\n14 information to evaluate the merits of the claim, this Court generally prefers that the\u003Cbr>\n15 claim “be brought and resolved through habeas corpus proceedings.” State v. Bernal,\u003Cbr>\n16 2006-NMSC-050, ,r 33, 140 N.M. 644, 146 P.3d 289.\u003Cbr>\n1 7 {SO} The record before us reflects that Silva was the only potential witness who was\u003Cbr>\n18 excluded by the district court’s order. Moreover, defense counsel conceded that he\u003Cbr>\n44\u003Cbr>\n1 was unsure whether he would actually call Silva to testify. Based on defense\u003Cbr>\n2 counsel’s proffer, it appears that Silva lacked first-hand knowledge about this case.\u003Cbr>\n3 Therefore, the probative value of Silva’s testimony would have been limited to\u003Cbr>\n4 impeaching Nicole’s credibility. Defense counsel repeatedly challenged Nicole’s\u003Cbr>\n5 credibility during cross-examination and, thus, Silva’s testimony would have been\u003Cbr>\n6 cumulative of other evidence at trial. This conclusion is determinative.\u003Cbr>\n7 {81} Gutierrez has not adequately articulated how Silva’s testimony could have\u003Cbr>\n8 affected the outcome at trial and, therefore, we conclude that Gutierrez has not shown\u003Cbr>\n9 that he was prejudiced by the late filing of the witness list. Accordingly, we hold that\u003Cbr>\n10 Gutierrez has not presented a prima facie case of ineffective assistance of counsel.\u003Cbr>\n11 This conclusion does not preclude him from raising ineffective assistance of counsel\u003Cbr>\n12 in a petition for writ of habeas corpus. See id.\u003Cbr>\n13 III. CONCLUSION\u003Cbr>\n14 {82} We prospectively abolish the spousal communication privilege in New Mexico\u003Cbr>\n15 and withdraw Rule 11-505. This ruling affects all cases filed on or after the date this\u003Cbr>\n16 opinion is filed. Gutierrez’s first-degree murder conviction is affirmed.\u003Cbr>\n45\u003Cbr>\n1 {83} IT IS SO ORDERED.\u003Cbr>\n2\u003Cbr>\n3 TH K. NAKAMURA, Chief Justice\u003Cbr>\n4 WE CONCUR:\u003Cbr>\nS, Justice, Retired\u003Cbr>\n7 Sitting by designation\u003Cbr>\n8 —————\u003Cbr>\n9 GARY L. CLINGMAN, Justice, Retired\u003Cbr>\n10 Sitting by designation\u003Cbr>\n11 BARBARA J. VIGIL, Justice, concurring in part, dissenting in part\u003Cbr>\n12 CHARLES W. DANIELS, Justice, Retired, concurring in part, dissenting in part\u003Cbr>\n13 Sitting by designation\u003Cbr>\n46\u003Cbr>\n1 {83} IT IS SO ORDERED.\u003Cbr>\n2\u003Cbr>\n3\u003Cbr>\n4 WE CONCUR:\u003Cbr>\n5\u003Cbr>\nJUDITH K. NAKAMURA, Chief Justice\u003Cbr>\n————– 6 PETRA JIMENEZ :MAES, Justice, Retired\u003Cbr>\n7 Sitting by designation\u003Cbr>\n8 ~~4= 9 GAY L~CLlNG iii; Justice, Retired\u003Cbr>\n10 Sitting by designation\u003Cbr>\n11 BARBARA J. VIGIL, Justice, concurring in part, dissenting in part\u003Cbr>\n12 CHARLES W. DANIELS, Justice, Retired, concurring in part, dissenting in part\u003Cbr>\n13 Sitting by designation\u003Cbr>\n46\u003Cbr>\n1 VIGIL, Justice (concurring in part, dissenting in part).\u003Cbr>\n2 {84} I concur in the judgment affirming Defendant’s conviction and agree with the\u003Cbr>\n3 Majority’s conclusion on each of the issues Defendant has raised on appeal. I\u003Cbr>\n4 respectfully dissent from the Majority’s decision to abolish the spousal\u003Cbr>\n5 communications privilege and to withdraw Rule 11-505 NMRA for two reasons.\u003Cbr>\n6 First, because it plays a significant role in protecting the privacy rights of married\u003Cbr>\n7 couples, I do not agree that the spousal communications privilege should be\u003Cbr>\n8 abolished. Second, regardless of my view that the privilege should remain intact, I do\u003Cbr>\n9 not believe the Majority is justified in abolishing the privilege by way of this\u003Cbr>\n10 precedential opinion. If the Majority is indeed concerned that the spousal\u003Cbr>\n11 communications privilege has outlived its utility in our justice system, then it should\u003Cbr>\n12 refer the matter to the Rules of Evidence Committee. The committee rulemaking\u003Cbr>\n13 process allows for a more transparent and comprehensive study of the implications\u003Cbr>\n14 of abolishing this longstanding rule of evidence. By avoiding this process and\u003Cbr>\n15 abolishing the spousal communications privilege by fiat in this opinion, the Majority\u003Cbr>\n16 has unnecessarily exercised its rulemaking authority. Accordingly, I respectfully\u003Cbr>\n17 dissent from the Majority’s decision to abolish the spousal communications privilege\u003Cbr>\n18 in New Mexico.\u003Cbr>\n47\u003Cbr>\n1 I. THE SPOUSAL COMMUNICATIONS PRIVILEGE SHOULD NOT BE\u003Cbr>\n2 ABOLISHED\u003Cbr>\n3 {85} The spousal communications privilege serves to protect the private\u003Cbr>\n4 conversations that occur within a marriage. See Rule 11-505. Marriage bridges\u003Cbr>\n5 several facets of the human experience. It is both a legal contract and a sentimental,\u003Cbr>\n6 and for some, religious, promise of fidelity and love. See NMSA 1978, § 40-1-1\u003Cbr>\n7 (1862-63); NMSA 1978, § 40-1-2 (2013); NMSA 1978, § 40-1-3 (2013). As a legal\u003Cbr>\n8 status, marriage grants a couple myriad benefits and protections offered by the state\u003Cbr>\n9 and federal government. See Griego v. Oliver, 2014-NMSC-003, ,r,r 6-7, 316 P.3d\u003Cbr>\n10 865; Obergefell v. Hodges, 576 U.S._, 135 S.Ct. 2584, 2601 (2015). As a solemn\u003Cbr>\n11 vow of unity, marriage creates for many a sacred space to share oneself with a chosen\u003Cbr>\n12 other. That space should remain free from state intrusion and compulsion that would\u003Cbr>\n13 demand one spouse to reveal the intimate secrets of the other.\u003Cbr>\n14 {86} While the Majority argues that the spousal communications privilege “has\u003Cbr>\n15 outlived its justifications,” Maj. Op. ,r 38, I contend that the privilege retains value\u003Cbr>\n16 in guarding the privacy of the marriage. I am not alone in my belief that the spousal\u003Cbr>\n17 communications privilege should remain a rule of evidence. With the Majority’s\u003Cbr>\n18 decision in this case, New Mexico will be the only state in the nation that does not\u003Cbr>\n48\u003Cbr>\n1 recogmze any form of marital privilege. This gives me pause. The Majority’s\u003Cbr>\n2 argument that the spousal communications privilege cannot be justified on privacy\u003Cbr>\n3 grounds without ignoring the private pain of domestic violence victims, see Maj. Op.\u003Cbr>\n4 ,r 31, itself ignores that New Mexico has abrogated the spousal communications\u003Cbr>\n5 privilege in cases where one spouse is accused of inflicting harm on the other. See\u003Cbr>\n6 Rule 11-505(D)(l). For these reasons, I respectfully disagree with the Majority’·s\u003Cbr>\n7 decision to abolish the spousal communications privilege in New Mexico.\u003Cbr>\n8 A. Marriage Is a Cornerstone of Civil Society\u003Cbr>\n9 {87} “No union is more profound than marriage, for it embodies the highest ideals\u003Cbr>\n10 of love, fidelity, devotion, sacrifice, and family.” Obergefell, 135 S.Ct. at 2608.\u003Cbr>\n11 Marriage “fulfils yearnings for security, safe haven, and connection that express our\u003Cbr>\n12 common humanity.” Id. at2599 (internal quotation marks and citation omitted). Time\u003Cbr>\n13 and again, the United States Supreme Court has expressed its view of marriage as an\u003Cbr>\n14 institution to be held in the highest regard.\u003Cbr>\n15\u003Cbr>\n16\u003Cbr>\n17\u003Cbr>\n18\u003Cbr>\n19\u003Cbr>\nMarriage is a coming together for better or for worse, hopefully\u003Cbr>\nenduring, and intimate to the degree of being sacred. It is an association\u003Cbr>\nthat promotes a way oflife, not causes; a harmony in living, not political\u003Cbr>\nfaiths; a bilateral loyalty, not commercial or social projects …. [I]t is an\u003Cbr>\nassociation for as noble a purpose as any involved in our prior decisions.\u003Cbr>\n20 Id. at 2599-2600 (quoting Griswoldv. Connecticut, 381 U.S. 479,486 (1965)).\u003Cbr>\n49\u003Cbr>\n1 {88} Marriage is “the foundation of the family and of society, without which there\u003Cbr>\n2 would be neither civilization nor progress.” Id. at 2601 ( quoting Maynard v. Hill, 125\u003Cbr>\n3 U.S. 190, 211 (1888)). A strong marital relationship supports children and binds\u003Cbr>\n4 families together. See id. at 2594; Griego, 2014-NMSC-003, ,r 15 (describing the\u003Cbr>\n5 parties seeking to be legally married as having “formed stable family units involving\u003Cbr>\n6 mutual protection and support, and [who] together … have raised children … [ and]\u003Cbr>\n7 cared for aging parents”); 25 Charles Alan Wright & Kenneth W. Graham, Jr.,\u003Cbr>\n8 Federal Practice & Procedure: Evidence, § 5572, at 480 (1989) (explaining that\u003Cbr>\n9 strains on the marital relationship strain family relationships but strong marital\u003Cbr>\n10 relationships foster strong familial connections). Families, in tum, connect with\u003Cbr>\n11 numerous other esteemed societal institutions, such as schools, churches, work places,\u003Cbr>\n12 and ethnic groups. See 25 Wright & Graham, supra, § 5572, at 480-81. Our\u003Cbr>\n13 communities are strengthened by steadfast marriages, and marriages are strengthened\u003Cbr>\n14 when spouses are free to communicate with each other without fear of government\u003Cbr>\n15 intrusion into their confidential conversations. See Mark Reutlinger, Policy, Privacy,\u003Cbr>\n16 and Prerogatives: A Critical Examination of the Proposed Federal Rules of Evidence\u003Cbr>\n17 as They Affect Marital Privilege, 61 Calif. L. Rev. 1353, 1371 (1973).\u003Cbr>\n50\u003Cbr>\n1 B.\u003Cbr>\n2\u003Cbr>\n3 {89}\u003Cbr>\nThe Spousal Communications Privilege Protects the Privacy of the\u003Cbr>\nMarriage\u003Cbr>\nThe spousal communications privilege has ancient roots in English common\u003Cbr>\n4 law. See 25 Wright & Graham, supra, § 5572, at 467 (explaining that “the\u003Cbr>\n5 communications privilege was being enforced as early as the late 17th Century, thus\u003Cbr>\n6 making it the second oldest privilege for confidential communications”). Decades\u003Cbr>\n7 before statehood, the Territory ofNew Mexico adopted a privilege against disclosure\u003Cbr>\n8 of marital communications. 1880 N.M. Laws, ch. 12 § 7 (“No husband shall be\u003Cbr>\n9 compelled to disclose any communication made by his wife during the marriage, and\u003Cbr>\n10 no wife shall be compelled to disclose any communication made to her by her\u003Cbr>\n11 husband during the marriage.”). This statutory privilege for marital communications\u003Cbr>\n12 has remained unchanged since 1880. NMSA 1978, § 38-6-6(A) (1973). Our court\u003Cbr>\n13 rules have contained a form of spousal privilege since 1973. NMSA 1953, § 20-4-505\u003Cbr>\n14 (Repl. Vol. 1, 1973 Pocket Supp); Rule 11-505. The 1973 court rule provided that a\u003Cbr>\n15 defendant had the privilege to bar his or her spouse from testifying in any capacity\u003Cbr>\n16 in the defendant’s criminal trial. NMSA 1953, § 20-4-505 (Repl. Vol. 1, 1973 Pocket\u003Cbr>\n17 Supp.). The rule was amended in 1976 to provide a privilege against disclosure of\u003Cbr>\n18 confidential marital communications in court. Rule 11-505 Comm. commentary. In\u003Cbr>\n51\u003Cbr>\n1 1980, the complete testimonial bar was removed from the privilege, Nl\\.1SA 1978,\u003Cbr>\n2 Rule 505 (Vol. 11, 1980 Supp.), leaving the spousal communications privilege as we\u003Cbr>\n3 know it today. Rule 11-505.\u003Cbr>\n4 {90} While the Majority suggests that the long history of the spousal\u003Cbr>\n5 communications privilege “should be a source of scorn rather than admiration” and\u003Cbr>\n6 cites critics who would label the privilege a “sentimental relic … [ that is] patently\u003Cbr>\n7 incompatible with” our modern lives, Maj. Op. ,r 29, other scholars have argued that\u003Cbr>\n8 the privilege’s longevity demonstrates that it “must encapsulate some basic human\u003Cbr>\n9 values[,]” allowing it “to survive despite all of the rationalistic attacks that have been\u003Cbr>\n10 made … and the many changes in the surrounding legal culture that have occurred\u003Cbr>\n11 over the centuries.” 25 Wright & Graham, supra, § 5572, at 466.\u003Cbr>\n12 {91} I am convinced that the durability of the spousal communications privilege is\u003Cbr>\n13 tied to our society’s view that marriage is sacrosanct and should be guarded from\u003Cbr>\n14 excessive state intrusion. “In a liberal democracy, the spousal relationship is deemed\u003Cbr>\n15 one of the most sacred. In a democratic society, it is particularly abhorrent and\u003Cbr>\n16 repugnant for government to intrude upon the privacy of that relationship.” 1 Edward\u003Cbr>\n17 J. Imwinkelried, The New Wigmore: A Treatise on Evidence,§ 6.2.1, at 509 (2d ed.\u003Cbr>\n18 2010). The Majority acknowledges the moral repugnance in forcing one spouse to\u003Cbr>\n52\u003Cbr>\n1 divulge the secrets of the other, yet casts aside the humanistic and privacy rationales\u003Cbr>\n2 for the privilege as “soaring rhetoric and legally irrelevant sentimentality.” Maj. Op.\u003Cbr>\n3 ,r,r 17, 32. I respectfully disagree. The want to safeguard marital privacy is not a\u003Cbr>\n4 legally insignificant appeal to sentimentality.\u003Cbr>\n5 {92} As noted, marriage has a substantial impact on our society and is widely\u003Cbr>\n6 considered to create one of the most important relationships in life. See Section IA,\u003Cbr>\n7 supra. According to the 2010 census data, husband and wife families comprised\u003Cbr>\n8 roughly 45% of total households in New Mexico. U.S. Census Bureau, U.S. Dep’t of\u003Cbr>\n9 Commerce, 2010 Census of Population and Housing: Summary Population and\u003Cbr>\n10 Housing Characteristics, 7 t b 1 . 4 (2013),\u003Cbr>\n11 https://www.census.gov/prod/cen201 0/cph-1-1.pdf. Presumably, this wide swath of\u003Cbr>\n12 the state’s population has strong feelings about the private matters they share with\u003Cbr>\n13 their spouses. In a democracy, far-reaching public sentiment deserves substantial\u003Cbr>\n14 consideration in the imposition of public laws and rules. See The Federalist No. 57,\u003Cbr>\n15 at 350 (James Madison) (Clinton Rossiter ed., 2003) ( explaining that “human policy”\u003Cbr>\n16 is best guided by a “sympathy of sentiments” between lawmakers and their\u003Cbr>\n17 constituents). We cannot ignore the humanistic rationale for the spousal\u003Cbr>\n18 communications privilege simply because the marital relationship takes root in\u003Cbr>\n53\u003Cbr>\n1 notions of love and commitment. There is inherent value in protecting the private\u003Cbr>\n2 conversations between spouses from compulsory disclosure in our courts.\u003Cbr>\nn\u003Cbr>\n3 {93} It is the “intrinsically private character” of a marriage and the “reciprocal\u003Cbr>\n4 indecency of invading that privacy” that justifies the spousal communications\u003Cbr>\n5 privilege under a humanistic rationale. See Charles L. Black, Jr., The Marital and\u003Cbr>\n6 Physician Privileges-A Reprint of a Letter to a Congressman, 1975 Duke L.J. 45, 49.\u003Cbr>\n7 The marital promise-both legal and emotional-to support and love one another\u003Cbr>\n8 creates a relationship “as impervious to state control as we suppose our innermost\u003Cbr>\n9 thoughts are.” See 25 Wright & Graham, supra, §5572, at 479. Eliminating the\u003Cbr>\n10 spousal communications privilege spells “nearly complete destruction of the privacy\u003Cbr>\n11 of marriage, in the interest of the conduct of·ordinary litigation.” See Black, supra,\u003Cbr>\n12 at 48. Absent the spousal communications privilege, a testifying spouse must either\u003Cbr>\n13 disclose the intimate, private, and perhaps embarrassing secrets of the other spouse\u003Cbr>\n14 or risk being held in contempt of court. See id. ( explaining that forcing a testifying\u003Cbr>\n15 spouse into this quandary may easily lead “any decent person … either to lie or to go\u003Cbr>\n16 to jail.”). In weighing the equities of the judicial pursuit of truth and the freedom of\u003Cbr>\n17 married couples to share confidences absent government interference, I must\u003Cbr>\n54\u003Cbr>\n1 conclude that marital privacy is more valuable than the collection of evidence in a\u003Cbr>\n2 given case.\u003Cbr>\n3 C. Marital Privileges Are Universally Recognized Across the United States\u003Cbr>\n4 {94} Following the Majority’s opinion today, New Mexico will be the only state in\u003Cbr>\n5 the United States without some form of marital privilege. 1 Marital privileges are also\u003Cbr>\n6 recognized by the Navajo Nation, Guam, Puerto Rico, and the U.S. Virgin Islands.\u003Cbr>\n7 1See Ala. R. Evid. 504; Alaska R. Evid. 505(b); Ariz. Rev. Stat. Ann. § 12-\u003Cbr>\n8 2232 (2010); Ark. R. Evid. 504; Cal. Evid. Code §§ 970-971 (1965); Colo. Rev.\u003Cbr>\n9 Stat. § 13-90-107(1)(a)(I) (2017); Conn. Gen. Stat. §§ 54-84a, -846 (2011); Del.\u003Cbr>\n10 R. Evid. 504; D.C. Code § 14-306 (2009); Fla. Stat. § 90.504 (1978); Ga. Code\u003Cbr>\n11 Ann.§§ 24-5-501(a)(l), -503 (2011, as amended through 2014); Haw. Rev. Stat.§\u003Cbr>\n12 626-1, Rule 505 (1980); Idaho R. Evid. 504; 725 Ill. Comp. Stat. 5/115-16 (2013);\u003Cbr>\n13 Ind. Code§ 34-46-3-1(4) (1998); Iowa Code. § 622.9 (2019); Kan. Stat. Ann.§ 60-\u003Cbr>\n14 428 (1965); Ky. R. Evid. 504; La. Code Evid. Ann. art. 504 (1992); Me. Stat. tit.\u003Cbr>\n15 15, § 1315 (1969); Md. Code Ann. Cts. & Jud. Proc. § 9-105 (1973); Mass. R.\u003Cbr>\n16 Evid. 504; Mich. Comp. Laws § 600.2162 (2001); Minn. Stat. § 595.02(l)(a)\u003Cbr>\n17 (2013); Miss. R. Evid. 504; Mo. Rev. Stat. § 546.260 (1985); Mont. Code Ann. §\u003Cbr>\n18 26-1-802 (2005); Neb. Rev. Stat. § 27-505 (1984); Nev. Rev. Stat. § 49.295\u003Cbr>\n19 (2017); N.H. R. Evid. 504; N.J. Stat. Ann. § 2A:84A-17(2) (2007); N.Y. Evid.\u003Cbr>\n20 Law § 4502 (McKinney 1962); N.C. Gen. Stat. § 8-57(c) (2013); N.D. R. Evid.\u003Cbr>\n21 504; Ohio Evid. R. 60l(B); Okla. Stat. tit. 12, § 2504 (2002); Or. Rev. Stat. §\u003Cbr>\n22 40.255 (2016); 42 Pa. Cons. Stat.§§ 5914, -5923 (1978); 9 R.I. Gen. Laws§ 9-17-\u003Cbr>\n23 13 (2010); S.C. Code Ann. § 19-11-30 (2012); S.D. Codified Laws § 19-19-504\u003Cbr>\n24 (1979); Tenn. Code Ann. § 24-1-201 (2000); Tex. R. Evid. 504; Utah Const. Art.\u003Cbr>\n25 I, § 12, Utah Code Ann. § 77-1-6(2)(d) (1980), Utah R. Evid. 502; Vt. R. Evid.\u003Cbr>\n26 504, Vt. Stat. Ann. tit. 12, § 1605 (1947); Va. Code. Ann.§§ 8.01-398, 19.2-271.2\u003Cbr>\n27 (2005); Wash. Rev. Code§ 5.60.060 (2019); W. Va. Code§§ 57-3-3 to -4 (1919);\u003Cbr>\n28 Wis. Stat.§ 905.05 (2009); Wyo. Stat. Ann.§ 1-12-104 (1977).\u003Cbr>\n55\u003Cbr>\n1 Navajo R. Evid. 13(3); Guam R. Evid. 504(d), (e); 32A L.P.R.A. App. IV, Rule 27\u003Cbr>\n2 (1979); V.I. Code Ann. tit. 5, § 854 (2012). Lastly, federal common law recognizes\u003Cbr>\n3 the spousal communications privilege. See Trammel v. United States, 445 U.S. 40, 51\u003Cbr>\n4 (1980); Blau v. United States, 340 U.S. 332,333 (1951); Wolfie v. United States, 291\u003Cbr>\n5 U.S. 7, 14 (1934); United States v. Breton, 740 F.3d 1, 9-10 (1st Cir. 2014); United\u003Cbr>\n6 States v. 281 Syosset Woodbury Road, 71 F.3d 1067, 1070 (2d Cir. 1995); United\u003Cbr>\n7 States v. Hill, 967 F.2d 902, 911 (3d Cir. 1992); United States v. Parker, 834 F.2d\u003Cbr>\n8 408, 411 (4th Cir. 1987); United States v. Entrekin, 624 F.2d 597, 598 (5th Cir.\u003Cbr>\n9 1980); United States v. Sims, 755 F.2d 1239, 1241 (6th Cir. 1985); United States v.\u003Cbr>\n10 Lea, 249 F.3d 632, 641 (7th Cir. 2001); United States v. Jackson, 939 F.2d 625, 627\u003Cbr>\n11 (8th Cir. 1991 ); United States v. Fomichev, 899 F .3d 766, 771 (9th Cir.2018); United\u003Cbr>\n12 States v. Bahe, 128 F.3d 1440, 1441-42 (10th Cir. 1997); United States v. Singleton,\u003Cbr>\n13 260 F.3d 1295, 1297-98 (11th Cir. 2001); S.E.C. v. Lavin, 111 F.3d 921,925 (D.C.\u003Cbr>\n14 Cir. 1997). The Majority’s decision to abolish the spousal communications privilege\u003Cbr>\n15 represents a drastic departure from the practice in other jurisdictions. Following this\u003Cbr>\n16 decision, New Mexico will stand alone in its refusal to offer protection for\u003Cbr>\n17 confidential marital communications in its courts. The broad support across the\u003Cbr>\n56\u003Cbr>\n1 country for the spousal privileges emphasizes the importance of protecting a basic\u003Cbr>\n2 privacy right of married couples, one that should not be abandoned by the Majority.\u003Cbr>\n3 D.\u003Cbr>\n4\u003Cbr>\n5 {95}\u003Cbr>\nNew Mexico’s Spousal Communications Privilege Does Not Apply in\u003Cbr>\nDomestic Violence Cases\u003Cbr>\nThe Majority argues that the spousal communications privilege shields the\u003Cbr>\n6 family from state interference, allowing the justice system to turn a blind eye to\u003Cbr>\n7 private violence against women because the victims are unable to testify against their\u003Cbr>\n8 abusive spouses. Maj. Op. ,r 31. I am sensitive to this concern but am confident that\u003Cbr>\n9 New Mexico’s spousal communications privilege adequately protects victims of\u003Cbr>\n10 domestic violence. The Majority’s argument conflates the spousal communications\u003Cbr>\n11 privilege with spousal immunity.\u003Cbr>\n12 {96} Spousal immunity bars spouses from testifying against each other and is not\u003Cbr>\n13 recognized in New Mexico. See Malinda L. Seymore, lsn ‘tit a Crime: Feminist\u003Cbr>\n14 Perspectives on Spousal Immunity and Spousal Violence, 90 Nw. U. L. Rev. I 032,\u003Cbr>\n15 1045 ( 1995-96) (“Spousal immunity works as a complete bar to testimony, regardless\u003Cbr>\n16 of the subject matter of the testimony.”). In contrast, the spousal communications\u003Cbr>\n1 7 privilege allows one spouse to take the stand but prevents him or her from disclosing\u003Cbr>\n18 what the other spouse said in confidence. Rule 11-505; see Seymore, supra, at 1046.\u003Cbr>\n57\u003Cbr>\n1 In New Mexico, the privilege does not apply when one spouse is charged with a\u003Cbr>\n2 crime against the other spouse or the children of either spouse. Rule 11-505(D)(l)(a).\u003Cbr>\n3 Thus, the spousal communications privilege would not block the testimony of an\u003Cbr>\n4 abused spouse in a domestic violence case, even if that testimony disclosed\u003Cbr>\n5 confidential marital communications. I share the Majority’s concern for victims of\u003Cbr>\n6 domestic violence but find that this concern is adequately addressed in the exceptions\u003Cbr>\n7 to the privilege articulated in Rule 11-505(D) and therefore cannot support abolishing\u003Cbr>\n8 the spousal communications privilege in its entirety.\u003Cbr>\n9 II. THE SPOUSAL COMMUNICATIONS PRIVILEGE SHOULD NOT BE\u003Cbr>\n10 ABOLISHED BY FIAT IN THIS OPINION\u003Cbr>\n11 {97} To abolish the spousal communications privilege in this opinion is imprudent\u003Cbr>\n12 for three reasons. First, the parties did not raise the issue for our review. Second, the\u003Cbr>\n13 continued viability of the spousal communications privilege is not determinative of\u003Cbr>\n14 the Court’s conclusion affirming Defendant’s convictions. Finally, the more sensible\u003Cbr>\n15 method to determine whether to abolish the spousal communications privilege is to\u003Cbr>\n16 refer the matter to the Rules of Evidence Committee for further study and\u003Cbr>\n1 7 recommendation to this Court.\u003Cbr>\n18 A. Issue Not Raised by the Parties\u003Cbr>\n58\u003Cbr>\n1 {98} The issue of whether to abolish the spousal communications privilege is not\u003Cbr>\n2 before the Court. Neither party to this case asked the Court to assess whether the\u003Cbr>\n3 spousal communications privilege should be abolished in New Mexico. The question\u003Cbr>\n4 on appeal was whether the district court erred in concluding that Defendant had\u003Cbr>\n5 waived the spousal communications privilege. Maj. Op. ,r 40. The parties briefed the\u003Cbr>\n6 issue of waiver. [BIC 16-19; AB 17-19] Then, the Court ordered the parties to\u003Cbr>\n7 provide supplemental briefing on the question of whether the spousal\u003Cbr>\n8 communications privilege should be modified or abolished. [Sup. Ct. Order, filed\u003Cbr>\n9 02-20-19] The Court also accepted an amicus brief on this issue from the New\u003Cbr>\n10 Mexico Criminal Defense Lawyers Association. [Amicus Brief] In none of the\u003Cbr>\n11 supplemental briefing did the parties or amicus request that the spousal\u003Cbr>\n12 communications privilege be abandoned in its entirety. Given that no party has\u003Cbr>\n13 advocated the abolishment of the spousal communications privilege, the Majority\u003Cbr>\n14 fails to justify its basis for proceeding to do so here.\u003Cbr>\n15 {99} The Court has the power to decide matters of law that were not raised by the\u003Cbr>\n16 parties in three discrete circumstances: (1) to resolve questions of jurisdiction, (2) to\u003Cbr>\n1 7 answer “questions of a general public nature affecting the interest of the state at\u003Cbr>\n18 large[,]” and (3) “to protect the fundamental rights of the parties.” State v. Jade G.,\u003Cbr>\n59\u003Cbr>\n1 2007-NMSC-010, ,I24, 141 N.M. 284, 154P.3d 659. None of these are present in this\u003Cbr>\n2 case. The first and third circumstances are clearly not met. There are no questions of\u003Cbr>\n3 jurisdiction, and Defendant’s fundamental rights are not implicated by the Majority’s\u003Cbr>\n4 prospective abolishment of the spousal communications privilege.\u003Cbr>\n5 {100} In regard to the second circumstance, whether to abolish the spousal\u003Cbr>\n6 communications privilege is not a question of a general public nature that requires the\u003Cbr>\n7 Court to reach out and give an answer without having been asked to do so by the\u003Cbr>\n8 parties. Recently, the Court has addressed a number of criminal justice questions not\u003Cbr>\n9 raised by the parties in an effort to clarify confusion on legal matters of general\u003Cbr>\n10 interest to the state. See Fry v. Lopez, 2019-NMSC-_, ,r,r 79-81, _ P .3 d _(No.\u003Cbr>\n11 34386, June 28, 2019) (modifying precedent to clarify the comparative\u003Cbr>\n12 proportionality analysis for death sentences under NMSA 1978, § 31-20A-4(C)(4)),\u003Cbr>\n13 State v. Lewis, 2019-NMSC-001; ,I 21, 433 P.3d 276 (explaining that the Court\u003Cbr>\n14 addressed sua sponte the order in which the jury returns its verdicts because the\u003Cbr>\n15 pertinent uniform jury instructions were ambiguous and inconsistent); State v.\u003Cbr>\n16 Consaul, 2014-NMSC-030, ,I 28,332 P.3d 850 (admitting that this Court’s case law\u003Cbr>\n1 7 “has not been a model of clarity” in defining criminal negligence and using the\u003Cbr>\n18 “potential for jury confusion” as partial justification for addressing the issue sua\u003Cbr>\n60\u003Cbr>\n1 sponte ). Unlike the case before us, these cases presented questions arising from\u003Cbr>\n2 preexisting legal ambiguity and admittedly opaque precedent, none of which exists\u003Cbr>\n3 here. There is no evidence demonstrating that the spousal communications privilege\u003Cbr>\n4 has been consistently misunderstood or misapplied in our state. Whether New Mexico\u003Cbr>\n5 courts should continue to recognize the spousal communications privilege does not\u003Cbr>\n6 pose a question we must answer here in order to dispel widespread confusion or\u003Cbr>\n7 clarify precedent. Because the circumstances of this appeal do not support\u003Cbr>\n8 consideration of a question not raised by the parties, it is imprudent for the Majority\u003Cbr>\n9 to abolish the spousal communications privilege sua sponte.\u003Cbr>\n10 B.\u003Cbr>\n11\u003Cbr>\nAbolishing the Spousal Communications Privilege Is Not Determinative\u003Cbr>\nof the Court’s Conclusion in this Case\u003Cbr>\n12 {IOI} Affirmance of Defendant’s convictions is not dependent upon elimination of\u003Cbr>\n13 the spousal communications privilege. Application of the privilege to Defendant’s\u003Cbr>\n14 case still results in his proper conviction, a result in which I concur. As the Majority\u003Cbr>\n15 explains, portions of Nicole’s testimony violated the spousal communications\u003Cbr>\n16 privilege, but the admission of those statements was harmless error. Maj. Op.~~ 52-\u003Cbr>\n17 53. Because Defendant failed to prove that Evelyn was his wife at the time he made\u003Cbr>\n61\u003Cbr>\n1 statements to her about the murder, Evelyn’s testimony did not implicate the spousal\u003Cbr>\n2 communications privilege and was properly admitted. Maj. Op. ,r 56.\u003Cbr>\n3 {102} In weighing the justifications and criticisms of the spousal communications\u003Cbr>\n4 privilege, the Majority points to Defendant’s invocation of the privilege to support\u003Cbr>\n5 its conclusion that it should be abolished. Maj. Op. ,r,r 33-37. The Majority uses\u003Cbr>\n6 Defendant’s relationships with his wives to illustrate that the spousal communications\u003Cbr>\n7 privilege does not advance marital harmony. Maj. Op. ,r 37. Defendant’s fraught\u003Cbr>\n8 marriages should not serve as proxies for every marriage in New Mexico. The old\u003Cbr>\n9 adage that “bad facts make bad law” springs to mind. But in this case, the facts do not\u003Cbr>\n10 necessitate any conclusion of law on the viability of the spousal communications\u003Cbr>\n11 privilege. These bad facts do not have to make bad law. In my opinion, the Majority\u003Cbr>\n12 has needlessly overreached in abolishing the spousal communications privilege in this\u003Cbr>\n13 case when Defendant’s convictions are affirmed under proper application of the\u003Cbr>\n14 privilege.\u003Cbr>\n15 C. Referral to the Rules of Evidence Committee\u003Cbr>\n16 {103} The Majority correctly notes that the Court has ultimate authority over\u003Cbr>\n1 7 questions of practice and procedure. Maj. Op. ,r 9. While that is true, we must be\u003Cbr>\n18 prudent in exercising our authority. This is why we have a rulemaking process and\u003Cbr>\n62\u003Cbr>\n1 a system of committees to advise the Court. See Rules 23-106 to -106.1 Nl\\1RA.\u003Cbr>\n2 There is no reason not to refer this matter to the Rules of Evidence Committee to\u003Cbr>\n3 address the Majority’s concerns, study the issue, and make a recommendation to the\u003Cbr>\n4 Court. Following public comment and input from members of the bar, the\u003Cbr>\n5 committee’s recommendation would have aided the Court in considering the broad\u003Cbr>\n6 implications of abolishing the privilege on our system of justice. This is especially so\u003Cbr>\n7 considering that New Mexico is the first and only state in the nation to eradicate the\u003Cbr>\n8 spousal communications privilege. I am concerned that the Majority reached this\u003Cbr>\n9 significant decision without employing the system in place to aid the Court in\u003Cbr>\n10 exercising its rulemaking authority.\u003Cbr>\n11 III. CONCLUSION\u003Cbr>\n12 {104} Respectfully, I cannot in good faith join the Majority in abolishing the spousal\u003Cbr>\n13 communications privilege. The sacred bond of marriage forms the foundation for\u003Cbr>\n14 personal happiness and is the bedrock of our civilized society. The spousal\u003Cbr>\n15 communications privilege protects that bond. Given the historical significance of\u003Cbr>\n16 marriage and the indecency of forcing one spouse to reveal the confidences of the\u003Cbr>\n17 other, I am not convinced that the privilege must be abolished in toto. Perhaps more\u003Cbr>\n18 troubling to my mind is the Majority’s decision to do so in this manner. We must be\u003Cbr>\n63\u003Cbr>\n1 mindful of the process by which we pronounce significant changes in the law. I\u003Cbr>\n2 cannot agree to eradicating such an important rule of evidence without, at a minimum,\u003Cbr>\n3 subjecting that decision to the rigorous review of our invaluable rulemaking process.\u003Cbr>\n4 Such review would result in a more robust and transparent examination of the merits\u003Cbr>\n5 of the spousal communications privilege in the administration of justice. For these\u003Cbr>\n6 reasons, while I concur in the part of the Majority opinion affirming Defendant’s\u003Cbr>\n7 convictions on the issues raised on appeal, I must respectfully dissent from the\u003Cbr>\n8 Majority’s decision to abolish the spousal communications privilege and to do so by\u003Cbr>\n9 way of this precedential opinion.\u003Cbr>\n10\u003Cbr>\n11\u003Cbr>\n64\u003Cbr>\nBARBARA J. VIGIL, Justice\u003Cbr>\n1 DANIELS, Justice (concurring in part, dissenting in part).\u003Cbr>\n2 {105} I write in brevity for two reasons. One is that few additional words are needed.\u003Cbr>\n3 The other is that I have few words left for my beloved Court and beloved colleagues.\u003Cbr>\n4 {106} I concur fully with the views expressed in the opinions of my colleagues\u003Cbr>\n5 affirming Defendant’s convictions. I share the views of the majority, views that! have\u003Cbr>\n6 held for a long time as a courtroom lawyer, as an evidence professor, and as a jurist,\u003Cbr>\n7 with regard to considering abolition or severe evisceration of the husband-wife\u003Cbr>\n8 communication privilege. That privilege obstructs the truth-seeking mission of our\u003Cbr>\n9 courts in order to protect criminals and other law-evaders and tort-feasors from being\u003Cbr>\n10 held responsible for their unlawful actions. And all this to hold sacred the marriage\u003Cbr>\n11 of Bonnie and Clyde?\u003Cbr>\n12 {107} But I must agree with Justice Vigil one last time. Her preference is that a\u003Cbr>\n13 change to an evidence rule, particularly a significant change unnecessary to a\u003Cbr>\n14 dispositive outcome in litigation before us, should be handled through our established\u003Cbr>\n15 rules process, with input from the rules committee, with input from the larger legal\u003Cbr>\n16 community, and with input from the state we serve.\u003Cbr>\n65\u003Cbr>\n1 {108} With my profound respect for my colleagues who view the issue otherwise, I\u003Cbr>\n2 therefore dissent solely from using this appellate opinion to lay aside the regrettable\u003Cbr>\n3 marital communication privilege.\u003Cbr>\n4\u003Cbr>\n5\u003Cbr>\n6\u003Cbr>\nCHARLES W. DANIELS, Justice, Retired\u003Cbr>\nSitting by designation\u003Cbr>\n66\u003C/p>","https://old.aarons.law/news/gutierrez-30-aug-2019/","View original old.aarons.law post"]