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State v. Christian3/9/2004
e of third parties not confidential); State v. McMorrow, supra, 314 N.W.2d 288-89 (marital communications not confidential when made while couple in car with third person). Even when no third party actually was present, the presumption of confidentiality may be rebutted by evidence that the communication was intended or expected to be disclosed to a third party or to the public. See, e.g., In re Witness Before the Grand Jury, 791 F.2d 234, 239 (2d Cir. 1986) ( communications concerning defendant's bank accounts, real estate transactions, credit cards, car registration, and payment of insurance premiums not confidential because defendant knew information was or would be disclosed to third parties or public); United States v. McCown, 711 F.2d 1441, 1452-53 (9th Cir. 1983) (check written by wife on husband's behalf overcame presumption that husband's instruction to wife to write check intended as confidential); Grulkey v. United States, 394 F.2d 244, 246 (8th Cir. 1968) (husband's letters to wife not confidential wherein husband knew wife would need help reading them); Yoder v. United States, 80 F.2d 665, 667-68 (10th Cir. 1935) (husband's note to wife not confidential when written on large cardboard and conspicuously posted); see also "Developments in the Law--Privileged Communications," supra, 98 Harv. L. Rev. 1573 ("even if the communications were made in private, the presumption of confidentiality may be rebutted by showing that the communicant intended the statements to be disclosed to specific third parties or to the public").
In the present case, the trial court made no determination as to whether the defendant's communications to his wife were confidential. Rather than resolving the question of confidentiality, the trial court concluded that "the overriding factor" in its decision to admit the testimony was "that at the time the statement was made, but most importantly now, at the time of trial, the marriage relationship exists in name only, de jure, we might say, but not de facto." Thus, the trial court did not conclude that the state had overcome the presumption of confidentiality, nor did it conclude that the communication was not confidential. Similarly, the state has not presented any persuasive reason on appeal that would lead us to conclude that the communication was not confidential, that is, that the defendant did not have a reasonable expectation of confidentiality. Therefore, we do not agree with the state's contention that the trial court's decision to allow Joan Christian's testimony was proper.
Our determination that the trial court improperly allowed Joan Christian to testify, however, does not end our inquiry. We also must decide whether the impropriety was harmful. "When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. As we recently have noted, we have not been fully consistent in our articulation of the standard for establishing harm. . . . One line of cases states that the defendant must establish that it is more probable than not that the erroneous action of the court affected the result.... Asecond line of cases indicates that the defendant must show that the prejudice resulting from the impropriety was so substantial as to undermine confidence in the fairness of the verdict." (Internal quotation marks omitted.) State v. Merriam, 264 Conn. 617, 667, 826 A.2d 1021 (2003). For purposes of the present case, we need not choose between the two formulations or decide whether there is any functional difference between them because we conclude that the defendant has not satisfied his burden of proving harm under either formulation of the standard.
The defendant claims that the
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