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State v. Christian3/9/2004
the defendant previously had made similar communications to Vorih, Ruggiero and Ford while riding in the ambulance to the hospital. The state further argued that application of the privilege would be inappropriate because the marriage between the defendant and his wife was "rocky" at the time of the communication, and that they were separated at the time of trial and in the process of getting divorced. The state argued, therefore, that any harm that disclosure might cause to the defendant's marital relationship was outweighed by the interest of the court and of society in "this judicial investigation of the truth."
The trial court denied the defendant's motion in limine. Although the court concluded that the marital communications privilege "may exist in certain circumstances," it determined that the privilege did not apply in the present case because the marriage irretrievably had broken down. Specifically, the court stated: " ased on the dictum in Littlejohn, certainly this court will not say that no such privilege exists in Connecticut even though it is not set forth in a statute. I think our Supreme Court strongly indicates that the privilege does exist under some circumstances. Certainly there must be a marriage in effect; certainly the communication must be confidential, must have been made confidentially so that other people were not privy to it. And those circumstances seem to be present here. Although, with respect to the confidential nature of the communication, I think that may be questioned in view of the evidence that we have heard, that the defendant essentially made the same inculpatory statement to other people before he made the statement to his wife. But I think the overriding factor in the circumstances of this case is 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. In my opinion, the marriage relationship has so broken down that at present the marital privilege, if it existed, has lost its purpose and must, therefore, give way to the competing strong interest of justice; namely, that relevant and material evidence be presented to a jury so that the jury can make a correct decision based on the facts." Consequently, Joan Christian testified concerning the communication.
On appeal, the defendant revives his argument to the trial court that the marital communications privilege is alive and well in Connecticut. Specifically, the defendant claims that, although neither the courts nor the legislature explicitly have recognized such a privilege, "the case law and the statutory history . . . show that this privilege is well recognized." The defendant therefore contends that the trial court improperly precluded the defendant from asserting the privilege concerning the communication, which had been made in confidence and while the couple was living together and in a legally valid marital relationship. In response, the state urges us not to recognize the marital communications privilege because "the cost of recognizing the common law . . . privilege exceeds its dubious benefits." Rather, the state contends, the legislature has enacted "a reasonable compromise" by codifying the separate and distinct adverse marital testimonial privilege in General Statutes § 54-84a. The state further argues that, even if we recognize the marital communications privilege, it is inapplicable in the present case because the defendant's previous statements to Vorih, Ruggiero and Ford rendered his communication to his wife not confidential. We agree with the defendant.
We note at the outset that evidentiary privileges are governed by § 5-1 of the Connecticut Code of Eviden
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