State v. Christian3/9/2004
ce, which provides: "Except as otherwise required by the constitution of the United States, the constitution of this state, the General Statutes or the Practice Book, privileges shall be governed by the principles of the common law." The adverse spousal testimony privilege, which is codified at § 54-84a, belongs to the "witness spouse." State v. Saia, 172 Conn. 37, 43, 372 A.2d 144 (1976). Under that privilege, the husband or wife of a criminal defendant has a privilege not to testify against his or her spouse in a criminal proceeding, provided that the couple is married at the time of trial. See id.; State v. Volpe, 113 Conn. 288, 290, 155 A. 223 (1931); see also C. Tait, Connecticut Evidence (3d Ed. 2001) § 5.34.1, pp. 325-26. The marital communications privilege, on the other hand, "permits an individual to refuse to testify, and to prevent a spouse or former spouse from testifying, as to any confidential communication made by the individual to the spouse during their marriage." (Emphasis added.) United States v. Rakes, 136 F.3d 1, 3 (1st Cir. 1998); see also Trammel v. United States, 445 U.S. 40, 51, 100 S. Ct. 906, 63 L. Ed. 2d 186 (1980) (marital communications privilege "protect information privately disclosed between husband and wife in the confidence of the marital relationship"); 1 C. McCormick, Evidence (5th Ed. 1999) §§ 78 through 86, pp. 323-42; C. Tait, supra, §§ 5.35.1 through 5.35.5, pp. 328-31. Because the marital communications privilege is not addressed squarely by either the federal constitution, state constitution, General Statutes or Practice Book, it is governed by the principles of the common law. See Conn. Code Evid. § 5-1.
In State v. Littlejohn, supra, 199 Conn. 649, this court stated: "We have never explicitly held that confidential communications between husband and wife are privileged under the common law of this jurisdiction. Our early case of State v. Hoyt, 47 Conn. 518 (1880), strongly suggests that the Hoyt court felt that there was such a privilege. See [id.], 540. The later case of Spitz's Appeal from Commissioners, 56 Conn. 184, 14 A. 776 (1887), clearly hypothesizes such a privilege." In Littlejohn, the defendant sought to assert the marital communications privilege to prevent his wife from testifying as to some twenty-five or thirty confidential communications. State v. Littlejohn, supra, 648-49. This court concluded that, " lthough the confidential communications involved may have been admitted in error, any error was harmless." Id., 650. Accordingly, we did not answer the question of whether the marital communications privilege existed under our common law. We remarked, nonetheless, that the privilege for confidential marital communications "commends itself to judicial acceptance." Id., 649.
" he rules of privilege, of which the most familiar are the rule protecting against self-incrimination and those shielding the confidentiality of communications between husband and wife, attorney and client, and physician and patient, are not designed or intended to facilitate the fact-finding process or to safeguard its integrity. Their effect instead is clearly inhibitive; rather than facilitating the illumination of truth, they shut out the light." 1 C. McCormick, supra, § 72, p. 299. Privileges have "the effect of withholding relevant information from the factfinder . . . . Accordingly, although a . . . privilege must be applied so as to effectuate its purpose, it is to be applied cautiously and with circumspection because it impedes the truth-seeking function of the adjudicative process." (Internal quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 724, 759 A.2d 995 (2000). A privilege should be recognized, therefore, only if four essential conditions hav
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