New Hampshire Rule of Evidence 504: The Marital Privilege
April 13, 2012 By Mulvey Professional Association
New Hampshire has long since recognized the privileged nature of communications between husbands and wives. However, with the widespread use of electronic communications, it has become unclear whether such communications remain within the realm of “marital confidences”.
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).
Rule 504 has always included non-spoken communications between husbands and wives including a “letter or other communication”. However, the proliferation of written communications between spouses in an electronic format (which for the purposes of this article includes email, texting, or through social media) warrants consideration as to whether resort to this medium would have the effect of waiving the privilege or otherwise rendering such communication not a “marital confidence” in light of the absence of privacy that New Hampshire’s courts have ascribed to such means of communications.
No reported New Hampshire Supreme Court cases have addressed the issue of whether Rule 504’s marital privilege applies to electronic communications between spouses which would otherwise be regarded as “marital confidences” but for the fact that they were transmitted. electronically. However, recent analysis by the New Hampshire Supreme Court involving both the authentication of the origin of emails (State v Ruggiero, 2010-564 (2011)) and the privacy rights associated with such communications (State v. Lott, 152 N.H. 436, 438, 879 A.2d 1167 (2005) demonstrate that the Court has concluded that such communications entail diminished expectations of privacy on the part of both the sender and the recipient of such communications.
Subsequent consideration of the holdings in Lott has upheld and further illuminated the diminished expectations of privacy in electronic communications. The 2010 case of In re Alex C., 161 N.H. 231, 13 A.3d 347 - a case involving a juvenile accused of violating RSA 644:4-1(b) by sending a series of instant messages determined to have been “repeated communications at extremely inconvenient hours or in offensively coarse language with a purpose to annoy or alarm another” - carried Lott’s findings further. In finding that such electronic communications lacks the intimacy and privacy of a telephone conversation the Court in Alex C. noted:
“…we believe that an instant message is similar, not to a telephone conversation, but to a telephone call that reaches an answering machine instead of the ear of the telephone call’s intended recipient. In both cases, a message has been imparted. Cf. Lott, 152 N.H. at 441, 879 A.2d 1167 (explaining that, like an e-mail message and a message left on an answering machine, the recording of the instant message is necessary for the intended recipient of that message to read it; further, the sending of an e-mail or chat-room communication is analogous to leaving a message on an answering machine).” Alex C. Supra at 238.
The 2011 case of State v Ruggiero similarly acknowledged the means by which electronic communications are distinctive and distinguished from non-electronic communications. Ruggiero involved the case of a defendant convicted of falsifying evidence and issuing a false report. The defendant in that case challenged the admission into evidence over her objection of emails purportedly sent by her which had not been properly authenticated.
In its consideration of the issue of authentication of emails under New Hampshire Rule of Evidence 901(a) - a consideration which the New Hampshire Supreme Court noted was an “issue of first impression in New Hampshire” - the court in Ruggiero cited affirmatively the Second Circuit case of United States v. Gagliardi, 506 F.3d 140 (2nd Cir. 2007) which acknowledged “the potential for unauthorized transmission of e-mail messages” and concluded that “authentication requires testimony from a person with personal knowledge of the transmission or receipt to ensure its trustworthiness.”
It thus remains an issue yet to be considered by the New Hampshire Supreme Court as to whether both implied consent to recording electronic transmissions as well as the “potential for unauthorized transmissions” of such communications would constitute a waiver of the marital privilege under Rule 504. But, to be sure, husbands and wives should be advised that there is a very real possibility that the marital privilege may not extend to electronic communications.
ABOUT THE AUTHOR: Mulvey Law Offices
Mulvey Law Offices is a personal injury firm located in Portsmouth, New Hampshire that has been helping injured clients since 1978. The lawyers at the firm have decades of experience making sure that their clients receive fair and just compensation for the injuries they have sustained. Whether the injuries resulted from a motor vehicle accident, a slip-and-fall incident, a defective product, an animal attack, medical malpractice, or worksite negligence, clients have always been well served by the firm’s knowledgeable New Hampshire personal injury attorneys. The lawyers will travel to meet with their injured clients anywhere in New Hampshire and there is never a fee unless the client obtains a recovery.
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More information about Mulvey Professional Association
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
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).
Rule 504 has always included non-spoken communications between husbands and wives including a “letter or other communication”. However, the proliferation of written communications between spouses in an electronic format (which for the purposes of this article includes email, texting, or through social media) warrants consideration as to whether resort to this medium would have the effect of waiving the privilege or otherwise rendering such communication not a “marital confidence” in light of the absence of privacy that New Hampshire’s courts have ascribed to such means of communications.
No reported New Hampshire Supreme Court cases have addressed the issue of whether Rule 504’s marital privilege applies to electronic communications between spouses which would otherwise be regarded as “marital confidences” but for the fact that they were transmitted. electronically. However, recent analysis by the New Hampshire Supreme Court involving both the authentication of the origin of emails (State v Ruggiero, 2010-564 (2011)) and the privacy rights associated with such communications (State v. Lott, 152 N.H. 436, 438, 879 A.2d 1167 (2005) demonstrate that the Court has concluded that such communications entail diminished expectations of privacy on the part of both the sender and the recipient of such communications.
Subsequent consideration of the holdings in Lott has upheld and further illuminated the diminished expectations of privacy in electronic communications. The 2010 case of In re Alex C., 161 N.H. 231, 13 A.3d 347 - a case involving a juvenile accused of violating RSA 644:4-1(b) by sending a series of instant messages determined to have been “repeated communications at extremely inconvenient hours or in offensively coarse language with a purpose to annoy or alarm another” - carried Lott’s findings further. In finding that such electronic communications lacks the intimacy and privacy of a telephone conversation the Court in Alex C. noted:
“…we believe that an instant message is similar, not to a telephone conversation, but to a telephone call that reaches an answering machine instead of the ear of the telephone call’s intended recipient. In both cases, a message has been imparted. Cf. Lott, 152 N.H. at 441, 879 A.2d 1167 (explaining that, like an e-mail message and a message left on an answering machine, the recording of the instant message is necessary for the intended recipient of that message to read it; further, the sending of an e-mail or chat-room communication is analogous to leaving a message on an answering machine).” Alex C. Supra at 238.
The 2011 case of State v Ruggiero similarly acknowledged the means by which electronic communications are distinctive and distinguished from non-electronic communications. Ruggiero involved the case of a defendant convicted of falsifying evidence and issuing a false report. The defendant in that case challenged the admission into evidence over her objection of emails purportedly sent by her which had not been properly authenticated.
In its consideration of the issue of authentication of emails under New Hampshire Rule of Evidence 901(a) - a consideration which the New Hampshire Supreme Court noted was an “issue of first impression in New Hampshire” - the court in Ruggiero cited affirmatively the Second Circuit case of United States v. Gagliardi, 506 F.3d 140 (2nd Cir. 2007) which acknowledged “the potential for unauthorized transmission of e-mail messages” and concluded that “authentication requires testimony from a person with personal knowledge of the transmission or receipt to ensure its trustworthiness.”
It thus remains an issue yet to be considered by the New Hampshire Supreme Court as to whether both implied consent to recording electronic transmissions as well as the “potential for unauthorized transmissions” of such communications would constitute a waiver of the marital privilege under Rule 504. But, to be sure, husbands and wives should be advised that there is a very real possibility that the marital privilege may not extend to electronic communications.
ABOUT THE AUTHOR: Mulvey Law Offices
Mulvey Law Offices is a personal injury firm located in Portsmouth, New Hampshire that has been helping injured clients since 1978. The lawyers at the firm have decades of experience making sure that their clients receive fair and just compensation for the injuries they have sustained. Whether the injuries resulted from a motor vehicle accident, a slip-and-fall incident, a defective product, an animal attack, medical malpractice, or worksite negligence, clients have always been well served by the firm’s knowledgeable New Hampshire personal injury attorneys. The lawyers will travel to meet with their injured clients anywhere in New Hampshire and there is never a fee unless the client obtains a recovery.
Copyright Mulvey Professional Association
More information about Mulvey Professional Association
View all articles published by Mulvey Professional Association
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
