Evidence-Marital Communication Privilege

Evidence—Marital Communication Privilege

State v. Carver, 611 Ariz. Adv. Rep. 7 (App. Div. I, June 28, 2011) (J.Kessler)

ARIZONA'S NEWLY AMENDED MARITAL COMMUNICATION PRIVILEGE EXEMPTING COMMUNICATIONS FROM THE PRIVILEGE WHEN SPOUSE GIVES VOLUNTARY STATEMENT TO LAW ENFORCEMENT IS PROCEDURAL (NOT SUBSTANTIVE) AND THEREFORE MAY BE APPLIED RETROACTIVELY

Defendant was charged with first degree murder, first degree burglary, aggravated assault and theft based largely upon incriminating statements his wife told police he had made to her. Just prior to trial the wife refused to testify claiming the marital communication privilege (ARS, sec. 13-4062 (1)). This statutory privilege was amended by the legislature and became law in July 2009. The amendment renders statements made voluntarily to law enforcement during an investigation of a crime non-privileged and allows a spouse wishing to testify the right to do so despite the privilege. Because the statute was enacted after the alleged crime and after his wife's statement to police, the defendant claimed it could not be applied retroactively to his case. The trial court agreed finding the amendment to be substantive and therefore inapplicable to statements made before the statute was amended. The Arizona Court of Appeals reversed and remanded.

The court of appeals first held that because this was a “testimonial” privilege, to apply it at trial long after the enactment of the amendment was not a retroactive application. It matters not when the alleged crime occurred or when the spouse made a voluntary statement to the police. Provided the statute is applied subsequent to its enactment it is not a retroactive application. Secondly, even if the application of the amendment was retroactive, the amendment is purely a procedural change in evidentiary rules and as such is capable of retroactive application.