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 communica- tion is in a criminal proceeding involving joint par- ticipation 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. (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). 18 Connecticut Code of Evidence ARTICLE VI—WITNESSES