Conn. R. Evid. 5-1
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 constitution of the United States, the constitution of Connecticut, relevant federal statutes, the General Statutes, the common law or any Practice Book rule adopted before June 18, 2014, the date on which the Supreme Court adopted the Code.
Conn. Code. Evid. 5-1
COMMENTARY
The rules in Article V retain Connecticut law concerning privileges. All constitutional, statutory, and common-law privileges 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 Harrington v. Freedom of Information Commission, 323 Conn. 1, 12-13, 144 A.3d 405 (2016). The person asserting a privilege has the burden of establishing its foundation. See State v. Mark R., 300 Conn. 590, 598, 17 A.3d 1 (2011); 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. Section 1-3(a). Privileges shall apply at all stages of all proceedings in the court. Section 1-1(c).
Further, evidentiary privileges and confidential matters can have different meanings and legal effects. See State v. Kemah, 289 Conn. 411, 417 n.7, 957 A.2d 852 (2008); see generally State v. Orr, 291 Conn. 642, 673-74, 969 A.2d 750 (2009) (Palmer, J., concurring). "Evidentiary privileges should be sharply distinguished from information that is protected from public disclosure because the information was obtained under statute or procedure that made it confidential.'' (Internal quotation marks omitted.) C. Tait & E. Prescott, Tait's Handbook of Connecticut Evidence (5th Ed. 2014) § 5.2, p. 248. Therefore, this rule does not apply to confidential matters.
What follows is a brief, nonexhaustive description of several privileges that are most commonly invoked and honored in courts of this state.
Healthcare 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. See 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 521, cert. denied, 302 Conn. 912, 27 A.3d 371 (2011).
The General Assembly has also enacted analogous privileges for communication with certain other health care providers, counselors or social workers. These include privileges for psychiatrist-patient; General Statutes §§ 52-146d and 52-146e; psychologist-patient; General Statutes § 52-146c(b); domestic violence/sexual assault counselor- victim; General Statutes § 52-146k; see In re Robert H., 199 Conn. 693, 706, 509 A.2d 475 (1986); marital/family therapist communications; General Statutes § 52-146p(b); and licensed professional counselor communications. General Statutes § 52-146s(b). Each of these statutes has their 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 privileged communications to clergy; State v. Mark R., 300 Conn. 590, 597, 17 A.3d 1 (2011); see generally 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 in 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, that the communication was confidential, that the communication was made to a member of the clergy within the meaning of § 52-146b, that it was made to the clergy member in his or her professional capacity, that the disclosure was sought as part of a criminal or civil case, and with a showing that the communication was meant to be confidential and that the privilege was not waived. State v. Mark R., supra, 597-98; State v. Rizzo, 266 Conn. 171, 283, 833 A.2d 363 (2003).
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, XIV; Conn. Const., art. I, § 8; see General Statutes § 46-137(b) (juvenile proceedings); see generally C. Tait & E. Prescott, Tait's Handbook of 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.'' (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 cannot be used against them in subsequent criminal proceeding). The privilege "extends to answers that would in themselves support a conviction . . . 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 implications 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, 672-76, 563 A.2d 1013 (1989). Because the statute embodying 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. Id., 672. Corporate officers and agents, however, can claim the privilege against self-incrimination on their own behalf "when summoned to testify or produce documentary material in connection 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 proceeding, its invocation may have adverse consequences for the person asserting it. See, e.g., Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 470 A.2d 246 (1984) (plaintiff who invokes privilege at deposition in civil action risks dismissal of complaint); Olin Corp. v. Castells, supra, 180 Conn. 53-54 (adverse inference may be drawn against party in civil action when such party invokes privilege); cf. In re Samantha C., 268 Conn. 614, 663, 847 A.2d 883 (2004) (when respondent invokes rule of practice instead of constitutional privilege, adverse inference may be drawn in termination of parental rights proceeding, if prior notice of adverse inference is given); see Greenan v. Greenan, 150 Conn. App. 289, 298 n.8, 91 A.3d 909 (noting exceptions to drawing adverse inference in General Statutes §§ 46b-138a and 52-146k [f]), cert. denied, 314 Conn. 902, 99 A.3d 1167 (2014). This rule is extended to the invocation of the privilege by a nonparty, assuming that 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 may always waive this privilege and choose to testify. 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 processes are recognized by statute, elsewhere in this Code, and by the rules of practice. See General Statutes § § 52-235d(b) (civil action mediation); 46b-53(c) (Superior Court family mediation program); 31-96 (mediators appointed by Labor Commission); 46a-84(e) (mediation and settlement efforts involving human rights discrimination claims); Practice Book §§ 11-20A(i), 25-59A(g) and 42-49A(h); see also Section 4-8; Tomasso Bros., Inc. v. October Twenty-Fourth, Inc., 221 Conn. 194, 198, 602 A.2d 1011 (1992). No evidence of guilty pleas, guilty pleas entered under the Alford doctrine, nolo contendere pleas or statements made in proceedings at which a plea was offered but not accepted by the judicial authority can be received at the trial of that case. Section 4-8A; Practice Book § 39-25. With limited exceptions, no statement made during plea discussions of a criminal case can be admitted at the trial of the case. Section 4-8A.