Conn. Code Evid. § 5-3

History

(Adopted Dec. 14, 2017, to take effect Feb. 1, 2018.) COMMENTARY There are two separate, distinct privileges pertaining to one spouse testifying in court against the other spouse: the adverse spousal testimony privilege and the marital communications privilege. Under the adverse spousal testimony privilege, the witness spouse in a criminal prosecution has the privilege to refuse to testify against the other spouse, as long as they are still married at the time of trial. General Statutes § 54-84a; State v. Christian, 267 Conn. 710, 724, 725, 841 A.2d 1158 (2004). The privilege does not apply if the proceeding involves the claims enumerated in § 54-84a (b) (i.e., joint criminal partic- ipation, personal violence against spouse or minor child of either spouse). Cf. General Statutes § 52-146. The spouse still may invoke other applicable privileges available to any witness (e.g., privilege against self-incrimination). The marital communications privilege ‘‘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 omitted; internal quotation marks omitted.) State v. Christian, supra, 267 Conn. 725. Section 54-84b embodies the common- law requirements for recognizing the privilege and adds the requirement that the communication must be ‘‘induced by the affection, confidence, loyalty and integrity of the marital rela- tionship.’’ General Statutes § 54-84b (a); accord State v. Davalloo, 320 Conn. 123, 140, 128 A.3d 492 (2016). As in the case of the adverse spousal testimony privilege, the testi- mony of the witness spouse may be compelled under the marital communications privilege for any of the reasons enu - merated in § 54-84b (c). While § 54-84b (b) codified and amended the common-law spousal privilege as it relates to criminal prosecutions, the privilege, when invoked in a civil matter, is still defined by common law. See State v. Christian, supra, 267 Conn. 728–30; State v. Saia, 172 Conn. 37, 43, 372 A.2d 144 (1976).