State v. Bradley

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack
Case No. 2024-0054
Citation: State v. Bradley, 2025 N.H. 17

THE STATE OF NEW HAMPSHIRE

v.

DEBORAH ANN BRADLEY

Argued: February 13, 2025
Opinion Issued: April 16, 2025

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Mary A. Triick, senior assistant attorney general, on the brief and
orally), for the State.

Lothstein Guerriero, PLLC, of Concord (Theodore M. Lothstein on the
brief and orally), for the defendant.

DONOVAN, J.

¶1 In this interlocutory appeal, the defendant, Deborah Ann Bradley,
challenges an order of the Superior Court (Ignatius, J.) denying her motion to
exclude an audio recording of a conversation between her and her husband,
Kenneth Bradley. She argues that the trial court erred by concluding that New
Hampshire Rule of Evidence 504 does not bar the audio recording from being
introduced at trial. We conclude that the spousal privilege, N.H. R. Ev. 504,
precludes a spouse’s testimony about confidential marital communications,
but it does not mandate that the communications themselves be excluded.
Accordingly, we affirm and remand.

I. Facts

¶2 We accept the statement of the case and facts as presented in the
interlocutory appeal statement and rely upon the record for additional facts as
necessary. See State v. Hess Corp., 159 N.H. 256, 258 (2009). In August
2019, law enforcement began investigating a referral from the New Hampshire
Division for Children, Youth and Families regarding the Bradley family. At the
time, the defendant and Mr. Bradley lived with one of the defendant’s biological
children, four adopted children, and two foster children. During a safety
check, one of the children reported that a second child had shown her a video
recording of Mr. Bradley engaging in inappropriate behavior with a third child.
While executing a search warrant at the Bradleys’ home, law enforcement
seized the second child’s cell phone and iPad.

¶3 A search of the devices revealed that the cell phone’s contents had
been erased but that the iPad contained an audio recording of a conversation
between the defendant and Mr. Bradley from August 15. The recording, which
is approximately 90 minutes in length, documents, among other things, a
meeting between the defendant, Mr. Bradley and his attorney. When the
defendant arrived at the attorney’s office, the attorney asked that the defendant
turn her cell phone “completely off,” informed the defendant and Mr. Bradley
that “if you talk . . . in the marital context, it’s privileged,” and left the room to
allow the Bradleys to speak in private. A substantial portion of the Bradleys’
private conversation was recorded on the iPad. However, the contents of the
recording do not indicate how it was initiated or stopped.

¶4 During an October 2021 interview at the Child Advocacy Center, the
child whose devices were seized by law enforcement disclosed that in 2019, she
witnessed Mr. Bradley behaving inappropriately with another child in the
home. She told the interviewer that she recorded a video of Mr. Bradley’s
conduct on her cell phone and an audio recording of the interaction on her
iPad. The child reported that when she brought the cell phone to the
defendant to discuss Mr. Bradley’s conduct, the defendant said, “I’m going to
talk to your dad about this, and I’ll ask him about it. I think he’ll be very
disappointed to hear that you think this way about him.” The child also stated
that in August 2019, she discovered that the contents of her cell phone had
been erased. She told the interviewer that the defendant explained to her that
Mr. Bradley “was very upset. He didn’t mean it. He just erased it because he
was very frustrated that you think that way about him.”

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 [¶5] In November 2022, the defendant was charged with accomplice to
falsifying physical evidence and conspiracy to commit falsifying physical
evidence. Thereafter, she moved to exclude the August 15 audio recording of
her conversation with Mr. Bradley, arguing, among other things, that “marital
privilege applies to the contents of the recorded conversation” and that “any
testimony about the communication made between [herself and Mr. Bradley]
would violate their marital privilege.”

¶6 Following a hearing, the trial court issued an order denying the
defendant’s motion. The trial court concluded that “the marital
communications privilege does not apply to the Bradleys’ recorded conversation
and thus the recording is admissible at trial.” The trial court reasoned that the
Bradleys’ conversation was, for public policy reasons, “not the type of
communications New Hampshire Rule of Evidence 504 seeks to protect” and
that the rule “does not bar the introduction of the recording or testimony about
it.”

¶7 In June 2023, the defendant was further indicted on one count of
accomplice to falsifying physical evidence, see RSA 641:6, I (2016); RSA 626:8,
III (2016), and three counts of tampering with witnesses and informants, see
RSA 641:5 (2016). After obtaining the June 2023 indictments, the State nolle
prossed the November 2022 charges. This interlocutory appeal followed.

II. Analysis

¶8 The defendant argues on appeal that the trial court erred in
determining that the spousal privilege does not preclude the introduction of the
audio recording of the conversation between herself and Mr. Bradley at trial.
The State asserts, among other arguments, that the spousal privilege in Rule
504 applies only to prevent the introduction of testimony but does not apply to
other types of evidence. We agree with the State.

¶9 New Hampshire courts have long recognized that certain confidential
communications between spouses are privileged. At common law, “wives were
not allowed to testify for or against their husbands” based upon the belief that
“it was not expedient to place husband and wife in a position that might lead to
dissensions and strife between them, or that might encourage perjury.”
Clements v. Marston, 52 N.H. 31, 36 (1872). In Clements, this court departed
from the common law rule and explained the modern policy that spouses
should be permitted to testify against each other, except with regard to
confidential marital communications:

[I]t appears that the present policy of our legislation on this subject
is to make the husband and wife competent witnesses for or
against each other . . . . They are to be allowed or compelled to
testify for and against each other in all cases, just like persons in

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 no way related to each other, with this single exception; and this
violation of marital confidence must be something confided by one
to the other, simply and specially as husband or wife, and not
what would be communicated to any other person under the same
circumstances.

....

Allowing the wife to testify for or against her husband, in any case
where a stranger would have been a competent witness, seems to
be the rule now; and, in that view of the case, nothing should be
excluded except something that is strictly confidential, and not
only so but communicated in strict marital confidence.

Id. at 38.

¶10 Our pronouncement of the spousal privilege in Clements has
remained essentially unaltered. The New Hampshire legislature has had more
than 150 years to overturn Clements, but it has not done so. See State v.
Wilkinson, 136 N.H. 170, 178 (1992). “New Hampshire Rule of Evidence 504 is
identical in all material respects to the statute construed in Clements.” Id.1
Rule 504 provides:

Individuals who are married 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.

N.H. R. Ev. 504.

¶11 The question in this case is not whether the Rule 504 spousal
privilege precludes either of the Bradleys from testifying about their recorded
conversation at trial. Rather, it is whether the spousal privilege applies to
preclude the introduction of the audio recording itself.

¶12 Generally, the determination of whether the spousal privilege
applies is “intensely factual and rests within the sound discretion of the trial
court.” State v. Pelletier, 149 N.H. 243, 247 (2003). However, we review the

1 The name of the privilege found in New Hampshire Rule of Evidence 504 was changed from

“Husband and Wife Privilege” to “Spousal Privilege” in 2023. See N.H. R. Ev. 504. The text of the
rule is otherwise substantially the same.

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trial court’s interpretation of the rules of evidence de novo. State v. Paul, 176
N.H. 262, 265 (2023). “It is well settled that statutory privileges should be
strictly construed.” State v. Willis, 165 N.H. 206, 212 (2013). When
interpreting a rule of evidence or a statute, we will first look to the plain
meaning of the words used and ascribe those meanings to them where
possible. Paul, 176 N.H. at 265. We will not add words to the plain language
of a rule. Id.

¶13 By its plain language, the spousal privilege in Rule 504 precludes
only testimony about confidential marital communications. See State v.
Kiewert, 135 N.H. 338, 344 (1992) (spousal privilege “only operates to exclude
testimony at trial”). Rule 504 plainly states that neither spouse may “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 . . . to testify as to any matter which in the opinion of the Court would
lead to a violation of marital confidence.” N.H. R. Ev. 504 (emphases added).
Rule 504’s repeated use of the words “to testify” narrows the spousal privilege’s
scope to preclude only testimony by one spouse about confidential marital
communications. The rule does not preclude the introduction of marital
communications by other means. See id. To interpret Rule 504 as prohibiting
the introduction of all evidence relating to the confidential marital
communications would expand the privilege’s scope and add words to the plain
language of the rule. See id.

¶14 Although the defendant concedes that, read literally, the Rule 504
spousal privilege applies only to testimony, she maintains that this court has
never “taken the terms of the rule literally.” She argues that the language used
in Clements, mirrored by Rule 504, is a “vestige of the historical origin of this
privilege.” In her view, Rule 504 should be broadly construed, applying to
communications the disclosure of which would violate the “marital confidence”
as well as to all evidence regarding those communications. We are not
persuaded.

¶15 In Wilkinson, we explained that the spousal privilege “is a privilege
protecting marital confidences” and that Clements stands for the proposition
that a court must find “a violation of marital confidence before [it] can exclude
a spouse’s testimony.” Wilkinson, 136 N.H. at 177-78. However, the issue in
that case was whether the trial court erred by admitting the defendant’s wife’s
testimony at trial based upon the finding that the privilege was waived. See id.
at 175-78. We do not read Wilkinson as expanding the Rule 504 spousal
privilege to exclude marital communications separate from a spouse’s
testimony.

¶16 We agree with the State that the plain language and historical
background of Rule 504 demonstrate that the spousal privilege “does not apply
to prevent the introduction of evidence other than testimony.” Here, the trial

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court correctly determined that “the marital communications privilege does not
apply to the Bradleys’ recorded conversation and thus the recording is
admissible at trial against Ms. Bradley.”

¶17 Our conclusion is supported by the reasoning of other state courts
that have interpreted analogous spousal privilege rules. See, e.g., State v.
Livingston, 665 S.W.3d 363, 371 (Mo. Ct. App. 2023) (“[T]he recording was not
offered as Wife’s testimony, and therefore was not testimonial, and did not
implicate § 546.260 (prohibiting spouse from ‘testifying’).”); State v. Perez, 920
N.E.2d 104, 125, 127 (Ohio 2009) (“Because the jailhouse conversations were
not introduced by way of [the defendant’s wife’s] testimony, we hold that their
admission did not violate R.C. 2945.42.”). Nonetheless, the defendant argues
that “if this Court agree[s] that the circumstances present in this case should
not fall under the marital privilege, it should make its ruling prospective only.”
She contends that “claims of privilege invoke a very weighty reliance interest
that would render it fundamentally unfair if judicial changes in the scope of a
privilege were applied retroactively.” However, our decision, which is based
upon the plain language of Rule 504, does not, as the defendant claims, alter
the scope of the privilege. We therefore decline to make our decision apply
prospectively only.

¶18 Based upon the foregoing conclusion, we need not address the
State’s remaining arguments regarding whether the audio recording falls within
an exception to the spousal privilege for public policy reasons or because the
Bradleys’ conversation allegedly constitutes the discussion of ongoing criminal
conduct. See Antosz v. Allain, 163 N.H. 298, 302 (2012) (declining to address
parties’ other arguments when holding on one issue was dispositive). We
affirm the trial court’s order denying the defendant’s motion to exclude the
August 15 audio recording and remand.

Affirmed and remanded.

MACDONALD, C.J., and BASSETT and COUNTWAY, JJ., concurred.

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