Conn. R. Evid. 5-3

As amended through July 1, 2024

Section 5-3 - Marital Privileges

(a) A person in a criminal proceeding may refuse to testify against his or her lawful spouse unless the criminal proceeding involves criminal conduct jointly undertaken by both spouses or a claim of bodily injury, sexual assault or other violence attempted, committed or threatened against the other spouse or minor child of, or in the custody or care of, either spouse, including risk of injury to such minor child. See General Statutes § 54-84a.

(b) A spouse may not be compelled to testify, or be allowed to testify, if the other spouse objects, about confidential communications made during the marriage unless the confidential communication is in a criminal proceeding involving joint participation in criminal conduct or conspiracy to commit a crime at the time of the communication, or a claim of bodily injury, sexual assault or other violence attempted, committed or threatened against the other spouse or any minor child, of or in the custody or care of, either spouse, including risk of injury to such minor child. See General Statutes § 54-84b.

Conn. Code. Evid. 5-3

Adopted Dec. 14, 2017, to take effect 2/1/2018.

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 the action. 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) (e.g., joint criminal participation, personal violence against spouse or child of either spouse). See also General Statutes § 52-146. The spouse still may invoke other applicable privileges available to any witness (e.g., 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.'' State v. Christian, supra, 267 Conn. 725. Section 54-84b of the General Statutes 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 relationship.'' General Statutes § 54-84b(a); (internal quotation marks omitted) State v. Davalloo, 320 Conn. 123, 140, 128 A.3d 492 (2016). Like the adverse spousal testimony privilege, the testimony of the witness spouse may, however, be compelled under the marital communications privilege for any of the reasons enumerated 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 generally State v. Christian, supra, 267 Conn. 728-30; State v. Saia, 172 Conn. 37, 43, 372 A.2d 144 (1976).