Does the marital communications privilege apply to communications between spouses?

"[T]he applicability of a privilege is a factual question, [but] determining the scope of a privilege is a question of law." United States v. Mejia , 655 F.3d 126, 131 (2d Cir. 2011) (internal quotation marks omitted). The distinction, then, is "whether the district court based its decision on a consideration of the application of the privilege to the communication or on an understanding of the privileges scope." Id . A determination is factual when it "involves the application of the ... privilege as our case law has already developed it to the novel set of facts before us ... [rather than] address[ing] the scope of the privilege itself in a novel way." Id . (question of whether communicating through clients sister waived attorney-client privilege was factual).

"The confidential communications privilege ... [shields] communications made in confidence during a valid marriage. ..." In re Witness Before Grand Jury , 791 F.2d 234, 237 (2d Cir. 1986). The purpose of the privilege is to provide "assurance that all private statements between spousesaptly called the best solace of human existencewill be forever free from public exposure." Id. (internal citations and quotation marks omitted). Courts have noted, however, that "privileges contravene the fundamental principle that the public ... has a right to every mans evidence. ... As such, they must be strictly construed and accepted only to the very limited extent that ... excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth." Trammel v. United States , 445 U.S. 40, 49, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) (internal citation and quotation marks omitted).

The marital communications privilege applies when (1) the parties were in a valid marriage at the time of the communication³ ; (2) the "utterances or expressions" were "intended to convey information between spouses" (communication prong); and (3) the communications were intended to be confidential (confidentiality prong). In re Witness Before Grand Jury , 791 F.3d at 237-39. "[T]he party invoking a privilege bears the burden of establishing its applicability to the case at hand." In re Grand Jury Subpoenas , 318 F.3d 379, 384 (2d Cir. 2003). However, confidentiality is presumed, and, therefore, the party challenging the applicability of the privilege "[bears] the burden of defeating this presumption by showing that the communication was not made privately." United States v. Taylor , 92 F.3d 1313, 1332 (2d Cir. 1996).