Spousal Privilege Under Rule 504: Testimony Excluded, Communications Admissible
Introduction
State v. Bradley (2025 N.H. 17) is an interlocutory appeal decided by the Supreme Court of New Hampshire on April 16, 2025. The defendant, Deborah Ann Bradley, challenged a Superior Court order that denied her motion to exclude an audio recording of a confidential conversation with her husband, Kenneth Bradley. The recording was seized during a child‐abuse investigation involving their household. Bradley argued that New Hampshire Rule of Evidence 504’s spousal privilege barred not only testimony about the recorded communication but also its admission as evidence. The State contended that the privilege prohibits only testimonial disclosure, not the introduction of the communication itself.
Key issues:
- Does spousal privilege under N.H. R. Ev. 504 preclude the introduction of a recorded marital communication?
- How should Rule 504 be interpreted in light of its historical common‐law origins and statutory text?
Summary of the Judgment
The Supreme Court of New Hampshire affirmed the trial court. It held that Rule 504’s spousal privilege “precludes a spouse’s testimony about confidential marital communications, but it does not mandate that the communications themselves be excluded.” Because the rule by its plain language bars only testimonial disclosures—“neither shall be allowed to testify against the other as to any statement, conversation, letter or other communication”—the recorded conversation was admissible. The court remanded for further proceedings consistent with this interpretation.
Analysis
Precedents Cited
1. Clements v. Marston, 52 N.H. 31 (1872) Established the modern spousal privilege: spouses may testify for or against each other except regarding strictly confidential marital communications.
2. State v. Wilkinson, 136 N.H. 170 (1992) Reaffirmed that N.H. R. Ev. 504 mirrors the privilege recognized in Clements and requires a finding of “marital confidence” to exclude testimony.
3. State v. Paul, 176 N.H. 262 (2023) Clarified de novo review applies to the interpretation of rules of evidence and that statutory privileges must be strictly construed.
4. Comparative cases:
- State v. Livingston, 665 S.W.3d 363 (Mo. Ct. App. 2023) – held a spousal privilege statute barring “testimony” did not extend to recorded communications.
- State v. Perez, 920 N.E.2d 104 (Ohio 2009) – same conclusion under analogous rule.
Legal Reasoning
• Plain‐Language Interpretation: Rule 504 repeatedly uses “testify” to describe prohibited disclosures. The Court refused to add words extending the privilege to non‐testimony evidence.
• Historical Context: At common law, marital communications were privileged to protect marital harmony. New Hampshire codified that rule verbatim in Rule 504, and the legislature has not altered it for over 150 years.
• Scope of the Privilege: It shields only witness testimony. The audio recording, offered through another source, does not constitute a spouse’s testimony and thus falls outside the rule.
• Reliance and Retroactivity: The defendant’s plea for prospective-only application failed because the Court’s interpretation tracked the rule’s original text; it did not represent a change in the law.
Impact
This decision clarifies that New Hampshire’s spousal privilege under Rule 504 is strictly testimonial in nature. Practitioners should note:
- Recorded or documentary marital communications may be introduced if obtained lawfully, even if one spouse refuses to testify.
- To block admission of marital communications entirely, defense counsel must seek to challenge evidence on other grounds (e.g., relevance, hearsay exceptions, constitutional violations), not privilege.
- The decision aligns New Hampshire with several other jurisdictions interpreting analogous statutes.
Complex Concepts Simplified
Interlocutory Appeal: An appeal of a nonfinal order (here, the denial of a motion to exclude evidence) before a trial concludes.
Spousal Privilege (Rule 504): A rule that prevents one spouse from testifying against the other about private marital communications—nothing more.
Strict Construction of Privileges: Courts must interpret evidentiary privileges narrowly; they cannot expand a privilege beyond its text.
Retroactivity vs. Prospective-Only: New rules or interpretations are typically applied to pending cases unless they disrupt established precedent or rely on new legal principles. Here, no disruption occurred since the Court merely enforced the rule’s existing language.
Conclusion
State v. Bradley reaffirms that New Hampshire’s spousal privilege under Rule 504 excludes only testimonial disclosures of confidential marital communications. The audio recording of the Bradley spouses’ conversation—offered by means other than live testimony—falls outside the scope of the privilege and is therefore admissible. This clarification ensures that Rule 504 remains a narrow shield for marital testimony, while leaving open other evidentiary avenues to introduce recorded communications in criminal prosecutions.
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