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State v. Christian3/9/2004
e been met: "(1) The communications must originate in a confidence that they will not be disclosed. (2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. (3) The relation must be one which in the opinion of the community ought to be sedulously fostered. (4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation." 8 J. Wigmore, Evidence (1961) § 2285, p. 527.
The principles underlying the marital communications privilege are well recognized. "The basis of the immunity given to communications between husband and wife is the protection of marital confidences, regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails. . . . Hence it is that the privilege with respect to communications extends to the testimony of husband or wife even though the different privilege, excluding the testimony of one against the other, is not involved." (Citations omitted.) Wolfle v. United States, 291 U.S. 7, 14, 54 S. Ct. 279, 78 L. Ed. 617 (1934). The marital communications privilege protects "information privately disclosed between husband and wife in the confidence of the marital relationship--once described . . . as 'the best solace of human existence.' " Trammel v. United States, supra, 445 U.S. 51, quoting Stein v. Bowman, 38 U.S. (13 Pet.) 209, 223 (1839). The privilege has been described as "almost sacrosanct . . . ." Johnson v. United States, 616 A.2d 1216, 1224 (D.C. App. 1992), cert. denied, 507 U.S. 996, 113 S. Ct. 1611, 123 L. Ed. 2d 172 (1993). " he primary purpose of the confidential marital communication privilege is to foster marital relationships by encouraging confidential communication between spouses . . . ." Curran v. Pasek, 886 P.2d 272, 276 (Wyo. 1994). The privilege "permit a husband and wife to communicate freely with one another without fear that their communications will be used against them at some future date." G. Sodaro & P. Wilson, "Spousal Privileges," in 2 Testimonial Privileges (S. Stone & R. Taylor eds., 2d Ed. 1995) § 5.07, p. 5-11. "We encourage married people to confide in each other by protecting their statements from later scrutiny in court." United States v. Lea, 249 F.3d 632, 641 (7th Cir. 2001).
It therefore is apparent that the purposes underlying the marital communications privilege asserted by the defendant are quite different from those supporting the separate and distinct privilege against adverse spousal testimony relied upon by the state. "The [adverse spousal testimony] privilege looks forward with reference to the particular marriage at hand: the privilege is meant to protect against the impact of the testimony on the marriage. The marital communications privilege in a sense, is broader and more abstract: it exists to insure that spouses generally, prior to any involvement in criminal activity or a trial, feel free to communicate their deepest feelings to each other without fear of eventual exposure in a court of law." United States v. Byrd, 750 F.2d 585, 590 (7th Cir. 1984); see also State v. Adamson, 72 Ohio St. 3d 431, 433, 650 N.E.2d 875 (1995) (" pousal privilege and spousal competency are distinct legal concepts which interrelate and provide two different levels of protection for communications between spouses"). We therefore are not persuaded by the state's assertion that the privilege against adverse spousal testimony, codified at § 54-84a, alone is sufficient to protect the interests of open communication in the marital relationship. Accordingly, we reaffirm
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