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Brown v. State6/9/2000
ollectively they stand for the proposition that a confidential communication between husband and wife is privileged and that this privilege, even in criminal cases, survives both the North Carolina Rules of Evidence and the amendments to [the relevant statute]." Id. at 833, 412 S.E.2d at 664.
Wyoming has also mixed the two concepts by referring to both as privileges, although, in a case involving the interpretation of the Wyoming statute, the Wyoming Supreme Court clearly distinguished them:
Clarity and consistency demand that we distinguish between the confidential marital communication privilege and the privilege of spousal immunity. The privilege of spousal immunity may be invoked by the spouse who does not wish to be the instrumentality of condemnation directed at his or her partner. The confidential marital communication privilege is the privilege that ensures that private marital communications will remain private.
The confidential marital communication privilege initially belongs to the spouse who communicates the confidential information. The spouse against whom the testimony is offered has the right to invoke the confidential marital communication privilege.
If the party spouse refuses to waive the confidential marital communication privilege, the witness spouse cannot testify [as to the confidential communication] even if he or she waives the spousal immunity privilege. . . .
. . . We also hold that once the party spouse has waived the confidential marital communication privilege, the non-party spouse may then elect to invoke or waive the privilege of spousal immunity. Curran v. Pasek, 886 P.2d 272, 275, 277 (Wyo. 1994) (citations omitted).
It is clear that in Wyoming, even though the Court refers to both concepts as "privileges," the concepts nonetheless retain their separate identities as a "spousal immunity," i.e., incompetency, provision and a "communications privilege."
The West Virginia Supreme Court of Appeals similarly refers to both concepts as privileges, while maintaining the distinction. In State v. Bradshaw, 193 W. Va. 519, 537-38, 457 S.E.2d 456, 474-75, cert. denied, 516 U.S. 872, 116 S. Ct. 196, 133 L. Ed. 2d 131 (1995), the court noted: "There can be no question that W. Va. Code, 57-3-3, absolutely prohibits the spouse of a defendant from testifying against the defendant . . . . Where properly invoked, this statute precludes all adverse testimony by a spouse, not merely disclosure of confidential communications." (Footnote omitted.)
An argument can be sustained that in some jurisdictions both concepts are true "privilege concepts," although even in some of those jurisdictions a distinction is made between the concepts in spite of general descriptions referring to both as "privileges." In the federal courts, the seminal case is Trammel v. United States, 445 U.S. 40, 100 S. Ct. 906, 63 L. Ed. 2d 186 (1980), in which a wife chose to testify against her husband under a grant of immunity. Certiorari was granted by the United States Supreme Court "to consider whether an accused may invoke the privilege against adverse spousal testimony so as to exclude the voluntary testimony of his wife." Id. at 41-42, 100 S. Ct. at 908. At trial she was not permitted to testify as to confidential marital communications, but she was permitted to testify generally against her spouse, over his objection. Thus, the concept involved was clearly what is most often termed, generally, as a "spousal incompetency" issue. After discussing the "ancient rule" relating to the incompetency of a wife to testify against her husband because they were, in the eyes of the law, a single person, the Court noted that the "rule of
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