marital communications privilege in Arizona

2018As such, they must be strictly construed." (first alteration in original) (internal quotation marks and citations omitted) ); State v. Drury , 110 Ariz. 447 , 454, 520 P.2d 495 (1974) (stating that the marital communications privilege poses "an obstacle to the pursuit of truth" and "it should be limited rather than expanded"); Indus.

2018As such, they must be strictly construed." (first alteration in original) (internal quotation marks and citations omitted) ); State v. Drury , 110 Ariz. 447 , 454, 520 P.2d 495 (1974) (stating that the marital communications privilege poses "an obstacle to the pursuit of truth" and "it should be limited rather than expanded"); Indus.

2018Section 13-4062(1) also contains a second privilege, referred to as the marital communications privilege, that "protects confidential communications made between spouses while they are married." Blazek , 177 Ariz. at 538 , 869 P.2d 509 .

2018Section 13-4062(1) also contains a second privilege, referred to as the marital communications privilege, that "protects confidential communications made between spouses while they are married." Blazek , 177 Ariz. at 538 , 869 P.2d 509 .

2014Id. ¶3 Shortly before Carver’s trial, Cheryl invoked the marital communications privilege and refused to testify about Carver’s alleged statements to her.

2014Id. ¶6 Addressing the 2009 amendment, we held that “the law in effect at the time the evidence is sought by discovery or trial testimony, not the time the offense was committed or communications made, governs the admission of testimony subject to the marital communications privilege.” Id. at 442, ¶ 14 , 258 P.3d at 260 .

2014“The existence and scope of a privilege are questions of law . . . that we review de novo.” Advanced Cardiac Specialists, Chartered v. Tri- City Cardiology Consultants, P.C., 222 Ariz. 383, 386, ¶ 6 , 214 P.3d 1024, 1027 (App. 2009). ¶12 Arizona has codified a marital communications privilege in criminal matters.

2014“The existence and scope of a privilege are questions of law . . . that we review de novo.” Advanced Cardiac Specialists, Chartered v. Tri- City Cardiology Consultants, P.C., 222 Ariz. 383, 386, ¶ 6 , 214 P.3d 1024, 1027 (App. 2009). ¶12 Arizona has codified a marital communications privilege in criminal matters.

2011“If the language of a statute is clear and unambiguous, we must give it effect without resorting to any rules of statutory construction.” State v. Barnett, 209 Ariz. 352, 354, ¶ 7 , 101 P.3d 646, 648 (App.2004) (quoting State v. Johnson, 171 Ariz. 39, 41 , 827 P.2d 1134, 1136 (App.1992)). ¶ 9 The question before us is the same as in In re Shane B.: “[T]he dispositive issue is whether the ... court’s application of [the statute] was indeed retroactive, and if so, whether such application is permissible.” 198 Ariz. 85, 86, ¶ 4 , 7 P.3d 94, 95 (2000). ¶ 10 We hold that application of the 2009 ame

2011“If the language of a statute is clear and unambiguous, we must give it effect without resorting to any rules of statutory construction.” State v. Barnett, 209 Ariz. 352, 354, ¶ 7 , 101 P.3d 646, 648 (App.2004) (quoting State v. Johnson, 171 Ariz. 39, 41 , 827 P.2d 1134, 1136 (App.1992)). ¶ 9 The question before us is the same as in In re Shane B.: “[T]he dispositive issue is whether the ... court’s application of [the statute] was indeed retroactive, and if so, whether such application is permissible.” 198 Ariz. 85, 86, ¶ 4 , 7 P.3d 94, 95 (2000). ¶ 10 We hold that application of the 2009 ame

2011Dolph-Hostetter, 664 N.W.2d at 260-61 ; Palmer v. Clarke, 408 F.3d 423 , 431 (8th Cir.2005) (upholding the Nebraska Supreme Court’s determination that retroactive application of an amendment to Nebraska’s marital communications privilege was not a violation of federal ex post facto prohibition); State v. Bragan, 920 S.W.2d 227, 241 (Tenn.Cr.App.1995) (holding “laws which change rules of procedure but which do not affect any substantial right of a defendant are not ex post facto laws,” including an amendment to the marital communications privilege); Freeman v. State, 786 S.W.2d 56, 58 (Tex.App.

2011Dolph-Hostetter, 664 N.W.2d at 260-61 ; Palmer v. Clarke, 408 F.3d 423 , 431 (8th Cir.2005) (upholding the Nebraska Supreme Court’s determination that retroactive application of an amendment to Nebraska’s marital communications privilege was not a violation of federal ex post facto prohibition); State v. Bragan, 920 S.W.2d 227, 241 (Tenn.Cr.App.1995) (holding “laws which change rules of procedure but which do not affect any substantial right of a defendant are not ex post facto laws,” including an amendment to the marital communications privilege); Freeman v. State, 786 S.W.2d 56, 58 (Tex.App.

2011Dolph-Hostetter, 664 N.W.2d at 260-61 ; Palmer v. Clarke, 408 F.3d 423 , 431 (8th Cir.2005) (upholding the Nebraska Supreme Court’s determination that retroactive application of an amendment to Nebraska’s marital communications privilege was not a violation of federal ex post facto prohibition); State v. Bragan, 920 S.W.2d 227, 241 (Tenn.Cr.App.1995) (holding “laws which change rules of procedure but which do not affect any substantial right of a defendant are not ex post facto laws,” including an amendment to the marital communications privilege); Freeman v. State, 786 S.W.2d 56, 58 (Tex.App.

2011Dolph-Hostetter, 664 N.W.2d at 260-61 ; Palmer v. Clarke, 408 F.3d 423 , 431 (8th Cir.2005) (upholding the Nebraska Supreme Court’s determination that retroactive application of an amendment to Nebraska’s marital communications privilege was not a violation of federal ex post facto prohibition); State v. Bragan, 920 S.W.2d 227, 241 (Tenn.Cr.App.1995) (holding “laws which change rules of procedure but which do not affect any substantial right of a defendant are not ex post facto laws,” including an amendment to the marital communications privilege); Freeman v. State, 786 S.W.2d 56, 58 (Tex.App.

2011Comm’n of Ariz., 198 Ariz. 467, 470, ¶ 11 , 11 P.3d 1006, 1009 (2000) (stating “litigants have no vested right in a given mode of procedure”)). ¶ 29 While Carver did not argue below or on appeal that the retroactive application of A.R.S. § 13-4062(l)(a) violates the federal and state ex post facto provisions, the cases cited above are analogous to the issue before us and support our conclusion that the amendment to the marital communications privilege can be applied retroactively.

2011Comm’n of Ariz., 198 Ariz. 467, 470, ¶ 11 , 11 P.3d 1006, 1009 (2000) (stating “litigants have no vested right in a given mode of procedure”)). ¶ 29 While Carver did not argue below or on appeal that the retroactive application of A.R.S. § 13-4062(l)(a) violates the federal and state ex post facto provisions, the cases cited above are analogous to the issue before us and support our conclusion that the amendment to the marital communications privilege can be applied retroactively.

2011Credit Ass’n of Mandan v. Olson, 280 N.W.2d 920, 927 (N.D. 1979); John v. Bridgman, 27 Ohio St. 22 , 43 (1875); Dyer v. Blackhawk Leather LLC, 313 Wis.2d 803 , 758 N.W.2d 167, 176 (Wis.App. 2008). 8 ¶ 13 We agree with the reasoning in Cle-venger and Dolphr-Hostetter that the marital communications privilege as applied here does not vest until a person is called as a witness or sought to be deposed.

2011See Ulibarri v. Superior Court, 184 Ariz. 382, 389 , 909 P.2d 449, 456 (App.1995).

2011See Ulibarri v. Superior Court, 184 Ariz. 382, 389 , 909 P.2d 449, 456 (App.1995).

2011People v. Dolph-Hostetter, 256 Mich. App. 587 , 664 N.W.2d 254 , 262 n. 7 (2003) (“The marital-communications privilege is invoked at the time of the pertinent court proceedings and thus is not Vested’ at an earlier date.”); State v. Clevenger, 69 Wash.2d 136 , 417 P.2d 626, 631 (1966) (holding that the marital communications privilege is invoked only at the time testimony is offered and not at the time the communication occurred). ¶ 11 In Clevenger , the Washington Supreme Court found unpersuasive the criminal defendant’s argument that retroactive application of an amendment to the marital co

2011People v. Dolph-Hostetter, 256 Mich. App. 587 , 664 N.W.2d 254 , 262 n. 7 (2003) (“The marital-communications privilege is invoked at the time of the pertinent court proceedings and thus is not Vested’ at an earlier date.”); State v. Clevenger, 69 Wash.2d 136 , 417 P.2d 626, 631 (1966) (holding that the marital communications privilege is invoked only at the time testimony is offered and not at the time the communication occurred). ¶ 11 In Clevenger , the Washington Supreme Court found unpersuasive the criminal defendant’s argument that retroactive application of an amendment to the marital co

2011Dolph-Hostetter, 664 N.W.2d at 260-61 ; Palmer v. Clarke, 408 F.3d 423 , 431 (8th Cir.2005) (upholding the Nebraska Supreme Court’s determination that retroactive application of an amendment to Nebraska’s marital communications privilege was not a violation of federal ex post facto prohibition); State v. Bragan, 920 S.W.2d 227, 241 (Tenn.Cr.App.1995) (holding “laws which change rules of procedure but which do not affect any substantial right of a defendant are not ex post facto laws,” including an amendment to the marital communications privilege); Freeman v. State, 786 S.W.2d 56, 58 (Tex.App.

2011Dolph-Hostetter, 664 N.W.2d at 260-61 ; Palmer v. Clarke, 408 F.3d 423 , 431 (8th Cir.2005) (upholding the Nebraska Supreme Court’s determination that retroactive application of an amendment to Nebraska’s marital communications privilege was not a violation of federal ex post facto prohibition); State v. Bragan, 920 S.W.2d 227, 241 (Tenn.Cr.App.1995) (holding “laws which change rules of procedure but which do not affect any substantial right of a defendant are not ex post facto laws,” including an amendment to the marital communications privilege); Freeman v. State, 786 S.W.2d 56, 58 (Tex.App.

2011“If the language of a statute is clear and unambiguous, we must give it effect without resorting to any rules of statutory construction.” State v. Barnett, 209 Ariz. 352, 354, ¶ 7 , 101 P.3d 646, 648 (App.2004) (quoting State v. Johnson, 171 Ariz. 39, 41 , 827 P.2d 1134, 1136 (App.1992)). ¶ 9 The question before us is the same as in In re Shane B.: “[T]he dispositive issue is whether the ... court’s application of [the statute] was indeed retroactive, and if so, whether such application is permissible.” 198 Ariz. 85, 86, ¶ 4 , 7 P.3d 94, 95 (2000). ¶ 10 We hold that application of the 2009 ame

2011“If the language of a statute is clear and unambiguous, we must give it effect without resorting to any rules of statutory construction.” State v. Barnett, 209 Ariz. 352, 354, ¶ 7 , 101 P.3d 646, 648 (App.2004) (quoting State v. Johnson, 171 Ariz. 39, 41 , 827 P.2d 1134, 1136 (App.1992)). ¶ 9 The question before us is the same as in In re Shane B.: “[T]he dispositive issue is whether the ... court’s application of [the statute] was indeed retroactive, and if so, whether such application is permissible.” 198 Ariz. 85, 86, ¶ 4 , 7 P.3d 94, 95 (2000). ¶ 10 We hold that application of the 2009 ame

2011Credit Ass’n of Mandan v. Olson, 280 N.W.2d 920, 927 (N.D. 1979); John v. Bridgman, 27 Ohio St. 22 , 43 (1875); Dyer v. Blackhawk Leather LLC, 313 Wis.2d 803 , 758 N.W.2d 167, 176 (Wis.App. 2008). 8 ¶ 13 We agree with the reasoning in Cle-venger and Dolphr-Hostetter that the marital communications privilege as applied here does not vest until a person is called as a witness or sought to be deposed.

2011Credit Ass’n of Mandan v. Olson, 280 N.W.2d 920, 927 (N.D. 1979); John v. Bridgman, 27 Ohio St. 22 , 43 (1875); Dyer v. Blackhawk Leather LLC, 313 Wis.2d 803 , 758 N.W.2d 167, 176 (Wis.App. 2008). 8 ¶ 13 We agree with the reasoning in Cle-venger and Dolphr-Hostetter that the marital communications privilege as applied here does not vest until a person is called as a witness or sought to be deposed.

2011People v. Dolph-Hostetter, 256 Mich. App. 587 , 664 N.W.2d 254 , 262 n. 7 (2003) (“The marital-communications privilege is invoked at the time of the pertinent court proceedings and thus is not Vested’ at an earlier date.”); State v. Clevenger, 69 Wash.2d 136 , 417 P.2d 626, 631 (1966) (holding that the marital communications privilege is invoked only at the time testimony is offered and not at the time the communication occurred). ¶ 11 In Clevenger , the Washington Supreme Court found unpersuasive the criminal defendant’s argument that retroactive application of an amendment to the marital co

2011People v. Dolph-Hostetter, 256 Mich. App. 587 , 664 N.W.2d 254 , 262 n. 7 (2003) (“The marital-communications privilege is invoked at the time of the pertinent court proceedings and thus is not Vested’ at an earlier date.”); State v. Clevenger, 69 Wash.2d 136 , 417 P.2d 626, 631 (1966) (holding that the marital communications privilege is invoked only at the time testimony is offered and not at the time the communication occurred). ¶ 11 In Clevenger , the Washington Supreme Court found unpersuasive the criminal defendant’s argument that retroactive application of an amendment to the marital co

2011Both questions as applied to an amendment to the marital communications privilege present issues of first impression in Arizona. ¶ 8 “We review de novo issues involving interpretation, application, and retroactivity of statutes.” State v. Williams, 220 Ariz. 331, 335, ¶ 11 , 206 P.3d 780, 784 (App.2008).

2011Both questions as applied to an amendment to the marital communications privilege present issues of first impression in Arizona. ¶ 8 “We review de novo issues involving interpretation, application, and retroactivity of statutes.” State v. Williams, 220 Ariz. 331, 335, ¶ 11 , 206 P.3d 780, 784 (App.2008).

2011Dolph-Hostetter, 664 N.W.2d at 260-61 ; Palmer v. Clarke, 408 F.3d 423 , 431 (8th Cir.2005) (upholding the Nebraska Supreme Court’s determination that retroactive application of an amendment to Nebraska’s marital communications privilege was not a violation of federal ex post facto prohibition); State v. Bragan, 920 S.W.2d 227, 241 (Tenn.Cr.App.1995) (holding “laws which change rules of procedure but which do not affect any substantial right of a defendant are not ex post facto laws,” including an amendment to the marital communications privilege); Freeman v. State, 786 S.W.2d 56, 58 (Tex.App.

2011Dolph-Hostetter, 664 N.W.2d at 260-61 ; Palmer v. Clarke, 408 F.3d 423 , 431 (8th Cir.2005) (upholding the Nebraska Supreme Court’s determination that retroactive application of an amendment to Nebraska’s marital communications privilege was not a violation of federal ex post facto prohibition); State v. Bragan, 920 S.W.2d 227, 241 (Tenn.Cr.App.1995) (holding “laws which change rules of procedure but which do not affect any substantial right of a defendant are not ex post facto laws,” including an amendment to the marital communications privilege); Freeman v. State, 786 S.W.2d 56, 58 (Tex.App.

2011Dolph-Hostetter, 664 N.W.2d at 260-61 ; Palmer v. Clarke, 408 F.3d 423 , 431 (8th Cir.2005) (upholding the Nebraska Supreme Court’s determination that retroactive application of an amendment to Nebraska’s marital communications privilege was not a violation of federal ex post facto prohibition); State v. Bragan, 920 S.W.2d 227, 241 (Tenn.Cr.App.1995) (holding “laws which change rules of procedure but which do not affect any substantial right of a defendant are not ex post facto laws,” including an amendment to the marital communications privilege); Freeman v. State, 786 S.W.2d 56, 58 (Tex.App.

2011Dolph-Hostetter, 664 N.W.2d at 260-61 ; Palmer v. Clarke, 408 F.3d 423 , 431 (8th Cir.2005) (upholding the Nebraska Supreme Court’s determination that retroactive application of an amendment to Nebraska’s marital communications privilege was not a violation of federal ex post facto prohibition); State v. Bragan, 920 S.W.2d 227, 241 (Tenn.Cr.App.1995) (holding “laws which change rules of procedure but which do not affect any substantial right of a defendant are not ex post facto laws,” including an amendment to the marital communications privilege); Freeman v. State, 786 S.W.2d 56, 58 (Tex.App.

2011“If the language of a statute is clear and unambiguous, we must give it effect without resorting to any rules of statutory construction.” State v. Barnett, 209 Ariz. 352, 354, ¶ 7 , 101 P.3d 646, 648 (App.2004) (quoting State v. Johnson, 171 Ariz. 39, 41 , 827 P.2d 1134, 1136 (App.1992)). ¶ 9 The question before us is the same as in In re Shane B.: “[T]he dispositive issue is whether the ... court’s application of [the statute] was indeed retroactive, and if so, whether such application is permissible.” 198 Ariz. 85, 86, ¶ 4 , 7 P.3d 94, 95 (2000). ¶ 10 We hold that application of the 2009 ame

2011“If the language of a statute is clear and unambiguous, we must give it effect without resorting to any rules of statutory construction.” State v. Barnett, 209 Ariz. 352, 354, ¶ 7 , 101 P.3d 646, 648 (App.2004) (quoting State v. Johnson, 171 Ariz. 39, 41 , 827 P.2d 1134, 1136 (App.1992)). ¶ 9 The question before us is the same as in In re Shane B.: “[T]he dispositive issue is whether the ... court’s application of [the statute] was indeed retroactive, and if so, whether such application is permissible.” 198 Ariz. 85, 86, ¶ 4 , 7 P.3d 94, 95 (2000). ¶ 10 We hold that application of the 2009 ame

2008Taylor v. Cruikshank, 214 Ariz. 40, 43, ¶ 10 , 148 P.3d 84, 87 (App.2006). ¶ 7 Arizona recognizes two marital privileges: the anti-marital fact privilege and the marital communications privilege.

2008Taylor v. Cruikshank, 214 Ariz. 40, 43, ¶ 10 , 148 P.3d 84, 87 (App.2006). ¶ 7 Arizona recognizes two marital privileges: the anti-marital fact privilege and the marital communications privilege.

2008Moreover, this Court has previously held that “once the privilege is waived, the confidentiality sought to be protected is merely a legal fiction____ [Therefore], once waived, whether at a former trial or otherwise, [the defendant] cannot reassert his or her privilege.” State v. Mincey, 141 Ariz. 425, 439 , 687 P.2d 1180, 1194 (1984) (physician-patient privilege); see also 1 Joseph M.

2008Moreover, this Court has previously held that “once the privilege is waived, the confidentiality sought to be protected is merely a legal fiction____ [Therefore], once waived, whether at a former trial or otherwise, [the defendant] cannot reassert his or her privilege.” State v. Mincey, 141 Ariz. 425, 439 , 687 P.2d 1180, 1194 (1984) (physician-patient privilege); see also 1 Joseph M.

1995See Wright & Graham, supra, § 5572, at 537; In re Grand Jury Investigation, 603 F.2d 786, 789 (9th Cir.1979) (witness "should not be compelled to choose among perjury, contempt, or disloyalty to a spouse.").

1995See Wright & Graham, supra, § 5572, at 537; In re Grand Jury Investigation, 603 F.2d 786, 789 (9th Cir.1979) (witness “should not be compelled to choose among perjury, contempt, or disloyalty to a spouse.”).

1995In Blazek , we held that the marital communications privilege applies to communications made while a couple is separated pending divorce. 177 Ariz. at 540 , 869 P.2d at 514 ; see also In re Grand Jury Investigation of Hugle, 754 F.2d 863, 865 (9th Cir.1985) (upholding marital communications privilege in estranged marriage).

1995In Blazek , we held that the marital communications privilege applies to communications made while a couple is separated pending divorce. 177 Ariz. at 540 , 869 P.2d at 514 ; see also In re Grand Jury Investigation of Hugle, 754 F.2d 863, 865 (9th Cir.1985) (upholding marital communications privilege in estranged marriage).

1995See United States v. Premises Known as 281 Syosset Woodbury Rd., 862 F. Supp. 847 (E.D.N.Y. 1994); Prink v. Rockefeller Ctr., Inc., 48 N.Y.2d 309 , 422 N.Y.S.2d 911 , 398 N.E.2d 517 (1979); Credit Bureau v. Smallen, 114 Cal. App.2d Supp. 834, 249 P.2d 619 (1952).

1995The court found waiver on a number of grounds, including the fact that the wife's assertion of the innocent-owner defense put in issue all conversations with her husband relevant to his drug dealing. 862 F. Supp. at 855 .