Whether the marital communications privilege can be defeated by the 'reasonable expectation of privacy' doctrine

QUESTIONS PRESENTED Before police ever formally questioned Lisa Graham, officers sent her husband into the interview room after he claimed that he could get his wife to “tell the truth” about their daughter’s death on tape, without advising Ms. Graham of her constitutional rights or notifying her that she was being recorded. At Ms. Graham’s first capital murder trial, the judge ruled the recorded conversation with her husband was inadmissible, because it was protected by the martial communications privilege, before declaring a mistrial. At Ms. Graham’s second capital murder trial, a different judge reopened the suppression hearing, concluded that the conversation with her husband was not confidential, and admitted it. In affirming the trial court’s decision that the marital communications privilege had been waived, the Alabama Court of Criminal Appeals held that the question was “whether Graham had any expectation of privacy in the conversation she had with her husband,” Graham v. State, No. CR-15-0201, 2019 WL 3070058, at *18 (Ala. Crim. App. July 12, 2019), thereby disregarding the standard established by Wolfle v. United States, 291 U.S. 7 (1934), and Pereira v. United States, 347 U.S. 1 (1954), which requires the State to prove that Ms. Graham had not intended the conversation to be private, regardless of any objective reasonable expectation of privacy. Further, the lower court also held that the conversation between Ms. Graham and her husband was not the “functional equivalent” of an un-warned police interrogation based solely on the fact that Ms. Graham’s husband initially requested to speak to his wife and was not asked to do so by police. The lower court’s holdings give rise to the following important questions: 1. Can a court, consistent with Wolfle and its progeny, utilize the “reasonable expectation of privacy” doctrine to defeat the marital communications privilege where the conversation between a party and her spouse was “intended to be confidential”? 2. Does self-initiated third-party questioning aimed at getting a suspect “to tell the truth,” surreptitiously recorded by the police, constitute the “functional equivalent” of an un-Mirandized interrogation, as set forth in Arizona v. Mauro, 481 U.S. 520 (1987), and Rhode Island v. Innis, 446 U.S. 291 (1980), in violation of the Fifth and Fourteenth Amendments? i