State v. Bradshaw
In State v. Bradshaw, 193 W. Va. 519, 457 S.E.2d 456 (1995), the Court indicated that the two statutes are distinct and must be analyzed separately.
The first statute creates what is referred to as the spousal testimony privilege and indicates that a husband or wife shall not be allowed or compelled to testify in a proceeding against the other except in the case of a prosecution for an offense committed by one against the other or in a case against the child, father, mother, sister, or brother of either of them. The spousal testimony privilege is not the privilege in issue in the present case. The privilege involved in the present case is the second privilege, a privilege created by W. Va. Code 57-3-4. That statute provides that:
Neither husband nor wife shall, without the consent of the other, be examined in any case as to any confidential communication made by one to the other while married, nor shall either be permitted, without such consent, to reveal in testimony after the marriage relation ceases any such communication made while the marriage existed.
This is the so-called marital confidence privilege. See, State v. Bradshaw, id.
In State v. Bradshaw, id., the Court indicated that for this so-called marital confidence privilege to exist, it is necessary that a statement made by one spouse to the other be a confidential communication.
In Bradshaw, the Court further stated that: "The test for determining whether acts or conduct of a spouse constitutes confidential communication for the purposes of the marital confidence privilege is 'whether the act or conduct was induced by or done in reliance on the confidence of the marital relation, i.e., whether there was an expectation of confidentiality.'" Id. at 536, 457 S.E.2d at 473.