General Rule

A person may not be compelled to testify or to produce other evidence that he or she is privileged or obligated by privilege not to divulge by the con- stitution of the United States, the constitution of Connecticut, relevant federal statutes, the Gen- eral Statutes, the common law or any Practice Book rule adopted before June 18, 2014, the date on which the Supreme Court adopted the Code. (Amended Dec. 14, 2017, to take effect Feb. 1, 2018.) COMMENTARY The rules in Article V retain Connecticut law concerning privileges. All constitutional, statutory and common-law privi- leges remain in force, subject to change by due course of law. As the rules of privilege inhibit the fact-finding process, they ‘‘must be applied . . . cautiously and with circumspection . . . .’’ (Internal quotation marks omitted.) State v. Christian, 267 Conn. 710, 727, 841 A.2d 1158 (2004); see also Harring- ton v. Freedom of Information Commission, 323 Conn. 1, 12, 144 A.3d 405 (2016). The person asserting a privilege has the burden of establishing its foundation. State v. Mark R., 300 Conn. 590, 598, 17 A.3d 1 (2011); see PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279, 330, 838 A.2d 135 (2004); State v. Hanna, 150 Conn. 457, 466, 191 A.2d 124 (1963). Whether a claimed privilege covers particular testimony or other evidence as to which it is asserted is a preliminary question to be determined by the court. See Sec- tion 1-3 (a). Privileges shall apply at all stages of all proceed- ings in the court. Section 1-1 (c). Further, evidentiary privileges and confidential matters can have different meanings and legal effects. State v. Kemah, 289 Conn. 411, 417 n.7, 957 A.2d 852 (2008); see also State v. Orr, 291 Conn. 642, 673–74, 969 A.2d 750 (2009) (Palmer, J., concurring in part and in the judgment). ‘‘Evidentiary privi- leges should be sharply distinguished from information that is protected from public disclosure because the information was obtained under a statute or procedure that made it confiden- tial.’’ (Internal quotation marks omitted.) C. Tait & E. Prescott, Connecticut Evidence (5th Ed. 2014) § 5.2, p. 248. Therefore, this rule does not apply to confidential matters. The following is a brief, nonexhaustive description of several privileges that are most commonly invoked and honored in the courts of this state. Health-care provider privileges In Connecticut, there is no common-law physician-patient privilege. Rather, a form of physician-patient privilege has been enacted in General Statutes § 52-146o (a). It should be noted that the provisions of § 52-146o apply to civil actions but not to criminal prosecutions. State v. Anderson, 74 Conn. App. 633, 653–54, 813 A.2d 1039, cert. denied, 263 Conn. 901, 819 A.2d 837 (2003); see also State v. Legrand, 129 Conn. App. 239, 262–63, 20 A.3d 52, cert. denied, 302 Conn. 912, 27 A.3d 371 (2011). The General Assembly has also enacted analogous privi- leges for communications with certain other health-care pro- viders, counselors or social workers. These include privileges for communications between psychiatrist and patient; General Statutes §§ 52-146d and 52-146e; psychologist and patient; General Statutes § 52-146c (b); domestic violence/sexual assault counselor and victim; General Statutes § 52-146k; see In re Robert H., 199 Conn. 693, 706, 509 A.2d 475 (1986); marital/family therapist and individual seeking diagnosis or treatment; General Statutes § 52-146p (b); and licensed pro- fessional counselor and individual seeking diagnosis or treat- ment. General Statutes § 52-146s (b). Each of these statutes has its own provisions governing the assertion or the waiver of the privilege and should be consulted. Privileged communications made to clergy While Connecticut common law does not recognize privi- leged communications to clergy; State v. Mark R., supra, 300 Conn. 597; see Cox v. Miller, 296 F.3d 89, 102 (2d Cir. 2002), cert. denied, 537 U.S. 1192, 123 S. Ct. 1273, 154 L. Ed. 2d 1026 (2003); a related privilege has been codified at General Statutes § 52-146b. That statute protects from disclosure, in any civil or criminal case, or in any administrative or legislative proceeding, confidential communications made to a member of the clergy of any ‘‘religious denomination’’ who is accredited by ‘‘the religious body to which he belongs, who is settled in the work of the ministry . . . .’’ General Statutes § 52-146b. For such a privilege to apply, the person asserting it must establish that there was a communication, the communication was confidential, the communication was made to a member of the clergy within the meaning of § 52-146b, it was made to the clergy member in his or her professional capacity, the disclosure was sought as part of a criminal or civil case, and the privilege was not waived. State v. Mark R., supra, 597–98; State v. Rizzo, 266 Conn. 171, 283, 833 A.2d 363 (2003); cf. State v. Mark R., supra, 598–601 (clergy-penitent privilege was not established when defendant lacked reasonable exp- ectation that inculpatory statements would be held in con- fidence). Privilege against self-incrimination The fifth and fourteenth amendments to the constitution of the United States, article first, § 8, of the constitution of Connecticut and General Statutes §§ 51-35 (b) and 52-199 all protect a person from being compelled to give potentially incriminating evidence against himself or herself that would expose such person to criminal liability. A criminal defendant cannot be forced to testify as a witness in his or her own case to invoke the privilege. U.S. Const., amends. V and XIV; Conn. Const., art. I, § 8; see General Statutes § 46b-137 (b) (juvenile proceedings); see generally C. Tait & E. Prescott, Connecticut Evidence (5th Ed. 2014) § 5.5.2, pp. 251–53. The privilege against self-incrimination ‘‘not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.’’ 16 Connecticut Code of Evidence (Internal quotation marks omitted.) Olin Corp. v. Castells, 180 Conn. 49, 53, 428 A.2d 319 (1980); see Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967) (public employees’ self-incriminating statements obtained during investigation by threat of discharge could not be used against them in subsequent criminal proceedings). The privilege ‘‘extends to answers that would in themselves support a con- viction . . . but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute . . . . [I]f the witness, upon interposing his claim, were required to prove the hazard . . .he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implica- tions of the question, in the setting in which it is . . . asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.’’ (Internal quotation marks omitted.) Malloy v. Hogan, 378 U.S. 1, 11–12, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964). This privilege, however, protects only natural persons and not corporations. Lieberman v. Reliable Refuse Co., 212 Conn. 661, 667, 563 A.2d 1013 (1989). Because the statute embody- ing the privilege, § 52-199, serves only to codify the common law and constitutional limitations, corporations in Connecticut do not enjoy a privilege against self-incrimination. See id. A corporate officer or agent, however, can claim the privilege against self-incrimination on his or her own behalf ‘‘when sum- moned to testify or produce documentary material in connec- tion with a suit in which his [or her] corporation is a party.’’ Id., 674. Additionally, while the privilege against self-incrimination is absolute, unless waived, when it is invoked in a civil proceed- ing, its invocation may have adverse consequences for the person asserting it. See, e.g., Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 147, 470 A.2d 246 (1984) (plaintiff who invokes privilege at deposition in civil action risks dis- missal of complaint); Olin Corp. v. Castells, supra, 180 Conn. 53–54 (adverse inference may be drawn against party in civil action who invokes privilege); cf. In re Samantha C., 268 Conn. 614, 663, 666, 847 A.2d 883 (2004) (when respondent invoked rule of practice instead of constitutional privilege, adverse inference could be drawn in termination of parental rights pro- ceeding if prior notice of adverse inference had been given); Greenan v. Greenan, 150 Conn. App. 289, 298 n.8, 91 A.3d 909 (noting exceptions to drawing adverse inference in Gen- eral Statutes §§ 46b-138a and 52-146k (f)), cert. denied, 314 Conn. 902, 99 A.3d 1167 (2014). This rule extends to the invocation of the privilege by a nonparty if the court determines that ‘‘the probative value of admitting the [evidence] exceeds the prejudice to the party against whom it will be used . . . .’’ Rhode v. Milla, 287 Conn. 731, 738, 949 A.2d 1227 (2008); see Section 4-3. A defendant always may waive this privilege and choose to testify. See, e.g., James v. Commissioner of Correction, 74 Conn. App. 13, 20, 810 A.2d 290 (2002), cert. denied, 262 Conn. 946, 815 A.2d 675 (2003). Settlement, mediation and negotiation privilege Privileges related to specific negotiation and mediation pro- cesses are recognized by statute, elsewhere in this Code, and by the rules of practice. See General Statutes § 31-96 (mediators appointed by Commissioner of Labor); General Statutes § 46a-84 (e) (mediation and settlement efforts involv- ing human rights discrimination claims); General Statutes § 46b-53 (c) (Superior Court family mediation program); Gen- eral Statutes § 52-235d (b) (civil action mediation); see also Practice Book §§ 11-20A (i), 25-59A (g) and 42-49A (h); Sec- tion 4-8; Tomasso Bros., Inc. v. October Twenty-Fourth, Inc., 221 Conn. 194, 198, 602 A.2d 1011 (1992). No evidence of 17