State v. Christian3/9/2004
our statement in State v. Littlejohn, supra, 199 Conn. 649, that the marital communications privilege "commends itself to judicial acceptance," and we expressly accept that privilege as a fixture of our common law.
Our conclusion, recognizing the existence of a privilege for confidential marital communications, aligns us with every other jurisdiction in the country. Connecticut is unique among its sister states, which each have a statute or a rule of evidence expressly providing for the privilege. Even when the marital communications privilege is a product of legislative fiat, however, courts have continued to recognize the strong common-law roots of the privilege. See, e.g., State v. Gianakos, 644 N.W.2d 409, 415 (Minn. 2002) ("despite the statutory nature of Minnesota's marital privilege, its roots are in the common law"); State v. Holmes, 330 N.C. 826, 828, 412 S.E.2d 660 (1992) (" he common law has long recognized a privilege protecting confidential marital communications, that is, information privately disclosed between a husband and wife in the confidence of the marital relationship"); see also 1 C. McCormick, supra, § 78, p. 325 ("statutes protecting marital communications from disclosure are declaratory of the common law"). The federal courts, moreover, continue to recognize and apply the privilege as a matter of federal common law. See Trammel v. United States, supra, 445 U.S. 45 n.5, 51 (recognizing marital communications privilege); United States v. Westmoreland, 312 F.3d 302, 306 (7th Cir. 2002) (" he marital communications privilege is well-established in the federal courts"), cert. denied, U.S. , 123 S. Ct. 2094, 155 L. Ed. 2d 1077 (2003); see also Fed. R. Evid. 501 (providing that "privileges . . . shall be governed by the principles of the common law").
As we have stated, the marital communications privilege permits an individual to prevent his or her spouse or former spouse from testifying as to any confidential communication made by the individual to the spouse during their marriage. In the present case, it is uncontroverted that the statement made by the defendant to his wife, along with the accompanying gesticulations, were "communications." Accordingly, we must determine: (1) whether the defendant had made those communications to his wife during their marriage; and (2) whether those communications were confidential.
We begin our analysis by determining whether the defendant had made the communications to his wife while the couple were in a valid marital relationship. In the present case, the trial court determined that the marital communications privilege, if it existed, was inapplicable because "at the time the statement was made, but most importantly now, at the time of trial," the defendant's marriage irretrievably had broken down. The state contends that the trial court's decision was proper, because the defendant's marriage was "beyond repair" both at the time the statement was made and at the time of trial. The defendant claims that the trial court improperly refused to apply the privilege. Specifically, he claims that the trial court's focus was imprecise because the privilege attaches at the time that the confidential statement was made, and if made during the marriage, the privilege survives the dissolution of the marriage. We agree with the defendant.
" he scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally
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