After I read the opinion, I revised portions of my discussion of the privileges involved. My discussion is more wordy, but covers more ground. I recommend that readers read the opinion first and then, if still interested, readers might read the following which is the revised text without the footnotes (I do not indent the entire cut and paste, since all of it is from my books):
G. Spousal Privileges.
1. General Justification for Spousal Privileges.
The general societal value supported by the spousal privileges is the integrity of the marriage unit. The justification for the particular subset of marital privileges are usually more fine-tuned than that, focusing on the nature of the testimony, its potential adverse effect on the marriage unit or marriage in general, and harm to society that justifies the privilege to deny access to information in dispensing justice. For present purposes, readers should just recall that it is the marital unit and the societal value of fostering the marital unit that justifies these privileges.
2. Spousal Communications Privilege.
The spousal or marital confidential communications privilege covers “information privately disclosed between husband and wife in the confidence of the marital relationship" Trammel v. United States, 445 U.S. 40, 51 (1980). The societal benefit is to ensure that spouses communicate confidentially without fear of exposure in court. Either spouse “may invoke the privilege to avoid testifying or to prevent the other from testifying about the privileged communication.” Either spouse may assert this privilege as to both that spouse’s communications to the other spouse and the other spouse’s communications to that spouse.
What are protected communications? We all know that people – including spouses specifically – communicated by words and actions. So, is everything one spouse learns about the other through words or actions communications? The answer is that general verbal communications are what is protected rather than actions. The following example is in a recent case [the Brock case linked above]:
[T]he protected subject matter includes only what one spouse communicates to the other, not what one spouse learns about the other in other ways, such as by observing the other's actions. In Mr. Brock's trial, the marital communications privilege could have applied to Mrs. Brock's testimony that he told her to take two guns from their home and put them in a car. It would not have applied to her testimony about Mr. Brock handling the guns or shooting possums.
