State v. Christian3/9/2004
are presumed to be confidential, that presumption may be overcome by proof of facts showing that they were not intended to be private." Pereira v. United States, supra, 347 U.S. 6; see also State v. Smith, 384 A.2d 687, 691 (Me. 1978) (following "the near universal rule . . . that all marital communications are presumed to be confidential, and the party seeking to introduce the evidence must overcome the presumption" [citations omitted]). The state, therefore, as the party seeking to introduce the marital communication into evidence, bears the burden of overcoming the presumption of confidentiality by proving that the communication between the defendant and his wife was not confidential. See Blau v. United States, 340 U.S. 332, 333, 71 S. Ct. 301, 95 L. Ed. 170 (1951) (" arital communications are presumptively confidential. . . . The Government made no effort to overcome the presumption." [Citations omitted.]); Commonwealth v. Hancharik, 534 Pa. 435, 442, 633 A.2d 1074 (1993) (" ommunications between husbands and wives are presumed to be confidential, and the party opposing application of the rule disqualifying such testimony bears the burden of overcoming this presumption"); State v. Witchey, 388 N.W.2d 893, 895 (S.D. 1986) (" ith the introduction of evidence of private communications between spouses goes the burden of showing that either the nature of the communication or the circumstances under which it occurred render the communication not privileged").
Werecognize that there is a split of authority concerning the test to be applied in determining whether a communication was confidential. Under the traditional view, a communication is confidential if the communicator, at the time of the communication, subjectively intended that the content of the communication not be disclosed to third parties or the public. See, e.g., Hall v. State, 720 So. 2d 1043, 1047 (Ala. Crim. App. 1998); State v. Levi, 67 Haw. 247, 250, 686 P.2d 9 (1984); see also "Developments in the Law--Privileged Communications," 98 Harv. L. Rev. 1450, 1573 (1985) (" ' onfidentiality' usually requires that the communicator subjectively intend that the communication not be disclosed"). Some jurisdictions, however, apply an objective test, wherein a communication is confidential if, at the time of the communication, the communicator could have had a reasonable expectation of confidentiality. See, e.g., State v. Benner, 284 A.2d 91, 109 (Me. 1971); State v. McMorrow, 314 N.W.2d 287, 289 (N.D. 1982); Commonwealth v. May, 540 Pa. 237, 250, 656 A.2d 1335 (1995). We think that the latter standard is the better approach, because it is consistent with our prior case law construing the distinct, but analogous, privilege for attorney-client communications. See Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 157, 757 A.2d 14 (2000) ("statements made in the presence of a third party are usually not privileged because there is then no reasonable expectation of confidentiality" [internal quotation marks omitted]). Accordingly, a marital communication is considered confidential if, at the time of the communication, the holder of the privilege had a reasonable expectation of confidentiality.
Under either test, however, the party offering the marital communication usually can overcome the presumption of confidentiality through evidence that the communication had been made in the presence of a third party. See, e.g., United States v. Taylor, 92 F.3d 1313, 1331-32 (2d Cir. 1996) (evidence that third person had been in room with defendant and spouse overcame presumption of confidentiality), cert. denied, 519 U.S. 1093, 117 S. Ct. 771, 136 L. Ed. 2d 717 (1997); State v. Levi, supra, 67 Haw. 250 (defendant's statements to wife in presenc
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