## Facts

- Ricardo Serrano was charged with multiple counts of aggravated murder for the deaths of Melody Dang and her two young sons.
- Before the killings, Serrano’s wife decided to leave the marriage, told various third parties of her intent to divorce, and moved out with the couple’s children.
- After moving out, Serrano and his wife communicated, including a phone call in which she reiterated she wanted a divorce and he sought reconciliation; a third party was nearby and heard only the wife’s side.
- Serrano’s wife later agreed to testify for the prosecution about certain communications between her and Serrano occurring before and after the murders.
- The State offered the communications as evidence of motive and concealment.
- Serrano moved in limine to exclude the wife’s testimony about those communications under the marital communications privilege in OEC 505.
- The trial court granted the motion and excluded the communications; the State took an interlocutory appeal permitted in aggravated-murder prosecutions.

## Issues

1. Whether the challenged statements were “confidential communications” between spouses within OEC 505(1)(a) and therefore privileged under OEC 505(2).
2. Whether the privilege’s application should be limited based on the asserted purpose of promoting marital harmony when the marriage was deteriorating or effectively ended.
3. Whether any statutory exception or waiver permitted admission of the communications despite the claim of privilege.

## Decision

- The Oregon Supreme Court affirmed the pretrial order excluding the wife’s testimony about the challenged communications.
- The Court held the communications fell within the marital communications privilege under OEC 505.
- The Court rejected the State’s attempt to narrow the privilege based on the condition of the marriage.
- The Court found no applicable statutory exception and no waiver that would allow admission of the privileged communications.

## Legal Principles

- Under OEC 505, a confidential marital communication is one made privately and not intended for disclosure to third persons; if the statutory definition is met, the communication is privileged unless an express exception or waiver applies.
- Courts interpret OEC 505 primarily through statutory text and context; policy arguments cannot create extra-textual exceptions (such as a general “marriage-in-distress” limitation).
- The presence of a third party who can hear only one spouse’s side of a phone conversation does not, without evidence of intended disclosure, remove the other spouse’s statements from the category of confidential marital communications.
- Privilege waiver requires a qualifying disclosure of the privileged communication under the governing waiver rules; surrounding circumstances or marital deterioration alone do not establish waiver.

## Conclusion

The court held that OEC 505 barred the State from eliciting the wife’s testimony about confidential marital communications and declined to recognize a judicially created exception based on the marriage’s breakdown, affirming suppression in the aggravated-murder prosecution.


State v. Serrano, 346 Or. 311, 210 P.3d 892 (Or. 2009)