dissenting.
Because the majority departs from our established case law and holds that the confidential marital communications privilege is defeated simply because the conversation occurred in the visiting area of a prison, I respectfully dissent.
While I agree with the majority that the physical environment in which a marital conversation takes place may be one factor in determining whether a particular disclosure is confidential, it is neither the sole nor the determinative factor. The circumstances in the present case indicate that the communication at issue was not overheard by any third party and was clearly induced by the marital relationship. I therefore agree with the Court of Appeals that defendant’s communications to his wife are protected by marital privilege. In its analysis, the majority overemphasizes the nature of the general prison setting, instead of focusing on the actual facts presented by this case. In so doing, the majority unnecessarily blurs the line between confidential communications and the “reasonable expectation of privacy” doctrine prevalent in the Fourth Amendment arena.
*242In determining whether a particular statement is privileged as a marital communication, “the question is whether the communication, whatever it contains, was induced by the marital relationship and prompted by the affection, confidence, and loyalty engendered by such relationship.” State v. Freeman, 302 N.C. 591, 598, 276 S.E.2d 450, 454 (1981) (citations omitted); see also State v. Holmes, 330 N.C. 826, 828, 412 S.E.2d 660, 661 (1992) (defining confidential marital communications as “information privately disclosed between a husband and wife in the confidence of the marital relationship” (citations omitted)). There is no question in the present case that defendant’s statements to his wife were induced and prompted by the marital relationship. Tolvi Rollins, defendant’s wife, testified she married defendant in 2001. Mrs. Rollins verified that when she visited defendant at the Franklin Correctional Center, she was affectionate, kissed defendant, and brought him food. Mrs. Rollins also agreed that defendant trusted her and that she encouraged him to confide in her and promised to return and visit regularly. When Mrs. Rollins visited defendant at the Dan River facility, she was again affectionate, brought defendant a pecan pie, told defendant she “would be there when he got out of prison” and promised she “would never tell anybody about what [defendant] confided in [her] about the death of Mrs. Highsmith.” While visiting defendant at the Carteret Correctional Center, Mrs. Rollins again “loved on him” and assured defendant she would “be there for him” and that they would have children together and all “move away.” Mrs. Rollins explicitly agreed that defendant’s statements to her were confidential. There is no evidence in the present case to indicate that defendant’s statements to his wife were prompted by anything other than the affection and confidence of the marital relationship between them..
The only question then becomes whether the communications between defendant and his wife occurred in a confidential and private manner. See Holmes, 330 N.C. at 828, 412 S.E.2d at 661. Such determination necessarily encompasses some consideration of the physical environment at the time of the disclosure, but this Court has never held that actual physical privacy is necessary for a confidential communication, the majority’s assertions to the contrary notwithstanding. Rather, this Court has repeatedly emphasized (1) the intent of the parties and (2) whether the communication was made in the presence of third parties capable of both hearing and comprehending the conversation. For example, in Hicks v. Hicks, 271 N.C. 204, 207, 155 S.E.2d 799, 801-02 (1967), the Court held that the presence of the married couple’s eight-year-old daughter, who was “ ‘singing or play*243ing in the area’ ” at the time of the marital communications, did not remove the marital veil of confidence, because the parties intended their conversations to be private, and because the child was not competent “to comprehend the conversation[s].” The Court did not mention the situs of the marital communications — the basement of the couple’s home — in its analysis. Id. Likewise, in Holmes, the Court focused on the fact that the “defendant’s statements [were] made only in the presence of his wife [and] were induced by the confidence of the marital relationship.” 330 N.C. at 835, 412 S.E.2d at 665 (citing Hicks.). That the statements occurred in the home merited no discussion by the Court in Holmes. See id; see also State v. Freeman, 197 N.C. 376, 378-79, 148 S.E. 450, 451 (1929) (holding that remarks made by the defendant and his wife to each other in the presence of police officers were not confidential communications). Thus, I disagree with the majority’s emphasis upon the public versus private nature of the physical locale in which the communication occurs.
Here, the evidence shows that, although defendant and his wife met in public visiting areas of the various facilities, they took steps to ensure the confidential nature of their communications, and their communications did not occur in the immediate presence of any third party who overheard or comprehended them. Mrs. Rollins repeatedly and explicitly testified that defendant’s statements were made to her in confidence, that nobody else was listening, that no one else could hear them, and that “they were done exclusively so that only [she] and [defendant] could hear the conversation.” Thus, all of the evidence shows that defendant and his wife intended to keep their conversations private and, indeed, as noted by the Court of Appeals, succeeded in keeping their conversations private.
The majority states that “the physical surroundings and intent of the husband and wife in making the communication” are “essential to the question of determining whether the ‘veil of confidentiality has been removed from a marital communication.’ ” Instead of analyzing the intent of defendant and his wife and their physical surroundings, however, the majority inexplicably shifts its focus to require “a reasonable expectation of privacy on the part of the holder” in order to assert the privilege. However, this “reasonable expectation of privacy” is a Fourth Amendment concept that need not be applied here and serves only to muddy the already murky waters of our law of confidential communications. See Holmes, 330 N.C. at 833, 412 S.E.2d at 664 (noting that- the cases and statutes addressing confidential marital communications “have not been models of clarity”). The majority *244spends much of its time citing irrelevant Fourth Amendment cases addressing the reasonable expectation of privacy in prisons, ultimately determining that, because defendant could have no reasonable expectation of privacy in any conversation that took place in the public visiting area of a prison, the communication was not a confidential one entitled to protection. As I have pointed out, however, the evidence in this case shows that the conversations between defendant and his wife were, in fact, private, albeit occurring in a public place. That the public place was a prison should have no bearing on the determination of whether the communication was in fact confidential, except to the extent that actual circumstances show the prison setting prevented confidential communications.
While the majority points to evidence in the record indicating that other persons were present in the prison visiting area, the specific testimony by defendant’s wife irrefutably shows that she and defendant intended and succeeded in keeping their conversations private. Under the majority’s analysis, even a whispered conversation between husband and wife occurring in a DOC public visiting area would not be considered confidential.
As the actual circumstances here indicate that the communications at issue were both induced by the marital relationship and spoken in a confidential manner, and were neither overheard nor comprehended by any third party, the communications are privileged and entitled to protection as confidential marital communications. I would, therefore, affirm the Court of Appeals.
Chief Justice PARKER and Justice HUDSON join in this dissenting opinion.