Nh Rule of Evidence No. 504 the Marital Privilege in the Age of Email, Texting and Social Media
| Jurisdiction | New Hampshire,United States |
| Citation | Vol. 52 No. 4 Pg. 0012 |
| Pages | 0012 |
| Publication year | 2012 |
2012 Winter, Pg. 12. NH RULE OF EVIDENCE NO. 504 The Marital Privilege in the Age of Email, Texting and Social Media
Volume 52, No. 4
Winter 2012
Few holdovers from New Hampshire's common law past have undergone as much of the subtle evisceration as the Husband and Wife Privilege (the "Privilege"). Born of common law heritage and codified in the state's statutory history reaching back to the mid-nineteenth century(fn1), the Privilege is now found in New Hampshire's Rules of Evidence at Rule 504 (the "Husband and Wife Privilege").
Despite its 150+ year heritage Rule 504 today - in content - is remarkably similar to its statutory forefathers:
Husband and wife are competent witnesses for or against each other in all cases, civil and criminal, except that unless otherwise specifically provided, neither shall be allowed to testify against the other as to any statement, conversation, letter or other communication made to the other or to another person, nor shall either be allowed in any case to testify as to any matter which in the opinion of the Court would lead to a violation of marital confidence.
Presently, the "marital confidence" between husband and wife is as likely (if not more likely) to be exchanged not across the pillow, however, but via electronic means through email, text message, or social media postings. See State v. Mello, 162 N.H. 115, 27 A.3d 771 (2011) ("We recognize how intertwined and essential computers and the Internet have become to everyday, modern life."). Is the privacy enshrined in Rule 504 likely to survive in a digital medium whose attention to privacy has been recently described by the New Hampshire Supreme Court as "analogous to leaving a message on an answering machine."? In re Alex C., 161 N.H. 231 at 238 13 A.3d 347 at 352 (2010) citing In reLott, 152 N.H. at 441, 879 A.2d 1167 (2005). If not, is this an area which warrants legislative action?
A. History of the Husband and Wife Privilege in
New Hampshire Case Law One of the earliest New Hampshire cases which underscored the polar tug between preserving the sanctity of private, marital communications while at the same time ensuring that judicial tribunals had the greatest possible access to the testimony of persons appearing before it was the nineteenth century case of Clements v. Marston, 52 N.H. 31 (1872). In that case involving a suit on an account for labor and boarding, plaintiff's wife testified at trial (over the objection of the defendant's administrator) "... to conversations of the deceased with and in the presence of her husband." Id at_.
In upholding the invocation of the marital privilege the court simultaneously sought to describe both the purpose of the privilege and the scope of its application.
The wife was here permitted to testify to "conversations of the deceased with and in the presence of her husband," which fall within the exact letter of the statute proviso. And, moreover, such conversations and communications were matters of marital confidence; that is, they were conversations which she heard and secrets which she obtained through her peculiar relation as the wife of the plaintiff, and were not admissible. The testimony as to keeping her husband's money, its amount, how it was expended, and so forth, was clearly a violation of marital confidence, such as is intended by the statute. She could not have gained a knowledge of how much money the plaintiff had, and how it was expended, except through her intimate relation as his wife. It was an exposure of the plaintiff's domestic affairs which none but his wife could know. Her knowledge as to how it was expended by him must, from the nature of things, have been derived through communications from him, and her answers in this particular might well have been injurious to the plaintiff, and distrust created, and dissensions sown between them-the very thing which this statute, forbidding the violation of "marital confidence," is designed to remedy. Id at 38.
Affirming that the holding of Clements is still good law 120 years later, the New Hampshire Supreme Court noted that "[t]he marital privilege is not a blanket immunity, Corson v. Murinane, 51 N.H. 92 (1871) (note); rather, it is a privilege protecting marital confidences, Clements v. Marston, 52 N.H. 31, 38 (1872). State v. Wilkinson, 136 N.H. 170 at 177, 612 A.2d 926 (1992). The Wilkinson court went on to note that the Clements case continues to...
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