PROPOSED CONNECTICUT CODE OF EVIDENCE

ARTICLE I - GENERAL PROVISIONS

Section 101. Short title; application.

(a) Short title. This act shall be known and may be cited as the code of evidence. The code of evidence is referred to as the "code" throughout this act.

(b) Application of the code. This code applies to all proceedings in the superior court in which facts in dispute are found, except as otherwise provided by this code or other sections of the general statutes or the Practice Book.

(c) Rules of privilege. Privileges shall apply at all stages of all proceedings in the superior court.

(d) The code inapplicable. This code, other than with respect to privileges, does not apply in proceedings such as, but not limited to, the following:

(1) Proceedings before investigating grand juries, as provided for in sections 54-47b through 54-47f.

(2) Proceedings involving questions of fact preliminary to admissibility of evidence pursuant to section 103 of this code.

(3) Proceedings involving sentencing.

(4) Proceedings involving probation.

(5) Proceedings involving small claims matters.

(6) Proceedings involving summary contempt.

Commentary ( 101)

(b) Application of the code.

The code of evidence is broadly applicable. The code applies to all civil and criminal bench or jury trials in the Superior Court. The code applies, for example, to the following proceedings:

(1) court-ordered fact-finding proceedings conducted pursuant to General Statutes 52-549n and Practice Book 546D, see General Statutes 52-549r;

(2) probable cause hearings conducted pursuant to General Statutes 54-46a excepting certain matters exempted under General Statutes 54-46a(b), see State v. Conn., 234 Conn. 97, 110, 662 A.2d 68 (1995); In re Ralph M., 211 Conn. 289, 305-06, 559 A.2d 179 (1989);

(3) juvenile transfer hearings conducted pursuant to General Statutes 46b-127 as provided in subsection (b) of that provision, In re Michael B., 36 Conn. App. 364, 381, 650 A.2d 1251 (1994); In re Jose M., 30 Conn. App. 381, 384-85, 620 A.2d 804, cert. denied, 225 Conn. 921, 625 A.2d 821 (1993);

(4) juvenile proceedings; however, adoption of subsection (b) is not intended to abrogate the well-established rule that the court may relax its strict application of the formal rules of evidence to reflect the informal nature of juvenile proceedings provided the fundamental rights of the parties are preserved, In re Juvenile Appeal (85-2), 3 Conn. App. 184, 190, 485 A.2d 1362 (1986); see Anonymous v. Norton, 168 Conn. 421, 425, 362 A.2d 532, cert. denied, 423 U.S. 925, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975); Practice Book 1049.1(1); and

(5) proceedings involving family relations matters enumerated under General Statutes 46b-1.

Because the code is applicable only to proceedings in the Superior Court, the code does not apply to:

(1) matters before probate courts, see Prince v. Sheffield, 158 Conn. 286, 293, 259 A.2d 621 (1968), although the code applies to appeals from probate courts that are before the Superior Court in which a trial de novo is conducted, see Thomas v. Arefeh, 174 Conn. 464, 470, 391 A.2d 133 (1978); and

(2) administrative hearings conducted pursuant to General Statutes 4-176e, see General Statutes 4-178; Jutkowitz v. Department of Health Services, 220 Conn. 86, 108, 596 A.2d 394 (1991); Lawrence v. Kozlowski, 171 Conn. 705, 710, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977); or administrative hearings conducted by agencies that are exempt from the Uniform Administrative Procedure Act, General Statutes 4-166 through 4-189.

An example of a provision within subsection (b)’s "except as otherwise provided" language is Practice Book 525K, which states that the "court shall not be bound by the technical rules of evidence" when trying cases placed on the expedited process track pursuant to General Statutes 52-195b.

The code is not intended to apply to matters to which the technical rules of evidence traditionally have not applied. Thus, for example, the code of evidence would be inapplicable to hearings on the issuance of bench warrants of arrest or search warrants conducted pursuant to General Statutes 54-2a and 54-33a, respectively, see State v. DeNegris, 153 Conn. 5, 9, 212 A.2d 894 (1965); State v. Caponigro, 4 Conn. Cir. Ct. 603, 609, 238 A.2d 434 (1967).

Matters to which the code of evidence is specifically inapplicable are set forth in subsection (d).

(c) Rules of privilege.

Subsection (c) addresses the recognition of evidentiary privileges only with respect to proceedings in the Superior Court. It does not address the recognition of evidentiary privileges in any other proceedings outside the Superior Court, whether legislative, administrative, or quasi-judicial, in which testimony may be compelled.

(d) The code inapplicable.

Subsection (d) specifically states the proceedings to which the code of evidence, other than with respect to evidentiary privileges, is inapplicable. The list is intended to be illustrative rather than exhaustive and subsection (d) should be read in conjunction with subsection (b) in determining the applicability or inapplicability of the code. The removal of these matters from the purview of the code is generally supported by case law, other sections of the general statutes, or the Practice Book. They include:

(1) proceedings before investigatory grand juries, e.g., State v. Avcollie, 188 Conn. 626, 630-31, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983);

(2) preliminary determinations of questions of fact by the court made pursuant to Conn. Code Evid. 103(a), infra;

(3) sentencing proceedings, e.g., State v. Huey, 199 Conn. 121, 126, 505 A.2d 1242 (1986);

(4) hearings involving the violation of probation conducted pursuant to General Statutes 53a-32(a), State v. White, 169 Conn. 223, 239-40, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975); In re Marius M., 34 Conn. App. 535, 536, 642 A.2d 733 (1994) (per curiam);

(5) proceedings involving small claims matters. General Statutes 52-549c(a); see Practice Book 575; and

(6) summary contempt proceedings, see generally Practice Book 988.

Nothing in subdivision (1) abrogates the common law rule that in determining preliminary questions of fact upon which the application of certain exceptions to the hearsay rule depends, the court may not consider the declarant’s out-of-court statements themselves in determining those preliminary questions. E.g., State v. Vessichio, 197 Conn. 644, 655, 500 A.2d 1311 (1985) (court may not consider coconspirator statements in determining preliminary questions of fact relating to the admissibility of those statements under the coconspirator statement exception to the hearsay rule), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986) (see Conn. Code Evid. 803(1)(D), infra); Robles v. Lavin, 176 Conn. 281, 284, 407 A.2d 958 (1978) (in determining whether the authorized admissions against party-opponent exception to the hearsay rule applies, authority to speak must be established before the alleged agent’s declarations can be introduced) (see Conn. Code Evid. 803(1)(C), infra); Ferguson v. Smazer, 151 Conn. 226, 231, 196 A.2d 432 (1963) (in determining whether the hearsay exception for statements of pedigree and family relationships applies, the declarant’s relationship to the person to whom the statement relates must be established without reference to the declarant’s statements) (see Conn. Code Evid. 806(7), infra).

Section 102. Purposes and construction.

(a) Purposes of the code. The purposes of this code are to codify Connecticut case law regarding rules of evidence and to promote the growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

(b) Construction of the code. This code is not intended to change Connecticut case law, or other sections of the general statutes or the Practice Book.

(c) Saving clause. Where this code does not prescribe a rule governing the admissibility of evidence, the court shall be governed by the principles of the common law as they may be interpreted in the light of reason and experience, except as otherwise required by the constitution of this state, or by other sections of the general statutes or the Practice Book. The provisions of this code shall not be construed as precluding any court from recognizing other evidentiary rules not inconsistent with such provisions.

Commentary (102)

(a) Purposes of the code.

Subsection (a) provides a general statement of the purposes of the evidence code. Case-by-case adjudication is integral to the growth and development of evidentiary law, and thus future definition of the code will be effected primarily through the common law process.

Unlike the Federal Rules of Evidence, which govern both the admissibility of evidence at trial and issues concerning the court’s role in administering and controlling the trial process, the code was developed with the intention that it would address issues concerning the admissibility of evidence and competency of witnesses, leaving trial management issues to common law, the Practice Book, and the discretion of the court.

(b) Construction of the code.

One of the goals of drafting the code of evidence was to place common law rules of evidence and certain identified statutory rules of evidence into a readily accessible body of rules to which the legal profession may conveniently refer. The code sometimes states common law evidentiary principles in language different from that of the cases from which these principles were derived. Because the intent of the Drafting Committee was to maintain the status quo, i.e., codify the common law rules of evidence as they existed prior to the code’s enactment, codification of the common law evidentiary rules is not intended to modify any prior common law interpretation of those rules. Nor is it intended to change the common law interpretation of certain incorporated statutory rules of evidence as it existed prior to the code’s enactment.

In some instances, the code embraces rules or principles for which no Connecticut case law presently exists, or for which the case law is indeterminate. In such instances, the Drafting Committee formulated these rules or principles with due consideration of the recognized practice in Connecticut courts and the policies underlying existing common law, statutes, and the Practice Book.

Although the code of evidence follows the general format and sometimes the language of the Federal Rules of Evidence, the code does not adopt the Federal Rules of Evidence or cases interpreting those rules. Cf. State v. Vilaslastra, 207 Conn. 35, 39-40, 540 A.2d 42 (1988) (Federal Rules of Evidence influential in shaping Connecticut evidentiary rules, but not binding).

(c) Saving clause.

Subsection (c) addresses the situation in which courts are faced with evidentiary issues not expressly covered by the code of evidence. Although the code will address most evidentiary matters, it cannot possibly address every evidentiary issue that might arise during trial. Subsection (c) sets forth the standard by which courts are to be guided in such instances.

Precisely because it cannot address every evidentiary issue, the code is not intended to be the exclusive set of rules governing the admissibility of evidence. Thus, subsection (c) makes clear that a court is not precluded from recognizing other evidentiary rules not inconsistent with the code’s provisions.

Section 103. Preliminary Questions.

(a) Questions of admissibility generally. Preliminary questions concerning the qualification and competence of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court.

(b) Admissibility conditioned on fact. When the admissibility of evidence depends upon connecting facts, the court may admit the evidence upon proof of the connecting facts or subject to later proof of the connecting facts.

Commentary (103)

(a) Questions of admissibility generally.

The admissibility of evidence, qualification of a witness, or assertion of a privilege often is conditioned on a disputed fact. Was the declarant’s statement made under the stress of excitement? Is the alleged expert a qualified social worker? Was a third party present during a conversation between husband and wife? In each of these examples, the admissibility of evidence, qualification of the witness, or assertion of a privilege will turn upon the answer to these questions of fact. Subsection (a) makes it the responsibility of the court to determine these types of preliminary questions of fact. E.g., State v. Stange, 212 Conn. 612, 617, 563 A.2d 681 (1989); Manning v. Michael, 188 Conn. 607, 610, 453 A.2d 1157 (1982); DAmato v. Johnston, 140 Conn. 54, 61-62, 97 A.2d 893 (1953).

Pursuant to Conn. Code Evid. 101(d)(1), supra, courts are not bound by the code of evidence in determining preliminary questions of fact under subsection (a), except with respect to evidentiary privileges.

(b) Admissibility conditioned on fact.

Frequently, the admissibility of a particular fact or item of evidence depends upon proof of another fact or other facts (i.e., connecting facts). For example, the relevancy of a witness’ testimony that she observed a truck swerving in and out of the designated lane at a given point depends upon other testimony identifying the truck the witness observed as the defendant’s. Similarly, the probative value of evidence that A warned B that the machine B was using had a tendency to vibrate depends upon other evidence establishing that B actually heard the warning. When the admissibility of evidence depends upon proof of connecting facts, subsection (b) authorizes the court to admit the evidence upon proof of the connecting facts, or admit the evidence subject to later proof of the connecting facts. See, e.g., State v. Anonymous (83-FG), 190 Conn. 715, 724-25, 463 A.2d 533 (1983); Steiber v. Bridgeport, 145 Conn. 363, 366-67, 143 A.2d 434 (1958); see also Finch v. Weiner, 109 Conn. 616, 618, 145 A. 31 (1929) (when the admissibility of evidence depends upon connecting facts, the order of proof is subject to the discretion of the court).

If the proponent fails to introduce evidence sufficient to prove the connecting facts, the court may instruct the jury to disregard the evidence or order the earlier testimony stricken. State v. Ferraro, 160 Conn. 42, 45, 273 A.2d 694 (1970); State v. Johnson, 160 Conn. 28, 32-33, 273 A.2d 702 (1970).

Section 104. Limited admissibility.

Evidence that is admissible as to one party but not as to another, or for one purpose but not for another, is admissible as to that party or for that purpose. The court may, and upon request shall, restrict the evidence to its proper scope.

Commentary ( 104)

Section 104 is consistent with Connecticut law. See Blanchard v. Bridgeport, 190 Conn. 798, 805, 463 A.2d 553 (1983); State v. Tryon, 145 Conn. 304, 309, 142 A.2d 54 (1958).

Absent a party’s request for a limiting instruction, upon the admission of evidence, the court is encouraged to instruct the jury on the proper scope of the evidence or inquire whether counsel desires a limiting instruction to be given. See Rokus v. Bridgeport, 191 Conn. 62, 67, 463 A.2d 252 (1983); cf. State v. Cox, 7 Conn. App. 377, 389, 509 A.2d 36 (1986). Nothing precludes a court from excluding evidence offered for a limited purpose or taking other action it deems appropriate when a limiting instruction will not adequately protect the rights of the parties. See Blanchard v. Bridgeport, supra, 190 Conn. 805.

Section 105. Remainder of statements.

(a) Contemporaneous introduction by proponent. When a statement is introduced by a party, the court may, and upon request shall, require the proponent at that time to introduce any other part of the statement, whether or not otherwise admissible, that the court determines, considering the context of the first part of the statement, ought in fairness to be considered contemporaneously with it.

(b) Introduction by another party. When a statement is introduced by a party, another party may introduce any other part of the statement, whether or not otherwise admissible, that the court, considering the context of the first part of the statement, determines ought in fairness to be considered with it.

Commentary ( 105)

(a) Contemporaneous introduction by proponent.

Subsection (a) recognizes the principle of completeness. Sometimes, one part of a statement may be so related to another that in fairness both should be considered contemporaneously. Subsection (a) details the circumstances under which a court may or shall require a proponent of one part of a statement to contemporaneously introduce the other part. See Clark v. Smith, 10 Conn. 1, 5 (1833); Ives v. Bartholomew, 9 Conn. 309, 312-13 (1832); see also Practice Book 248 (depositions); cf. Walter v. Sperry, 86 Conn. 474, 480, 85 A. 739 (1912).

The basis for the rule is that matters taken out of context can create misleading impressions or inaccuracies, and that waiting until later in the trial to clear them up can be ineffectual. 1 C. McCormick, Evidence (4th Ed. 1992) 56, pp. 225-26; C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. Sup. 1996) 8.1.4, p. 135.

"Statement," as used in this subsection, includes written, recorded, and oral statements. Because the other part of the statement is introduced for the limited purpose of placing the first part into context, the other part need not be independently admissible. See State v. Tropiano, 158 Conn. 412, 420, 262 A.2d 147 (1969), cert. denied, 398 U.S. 949, 90 S. Ct. 1866, 26 L. Ed. 2d 288 (1970).

(b) Introduction by another party.

Unlike subsection (a), subsection (b) does not involve the contemporaneous introduction of evidence. Rather, it recognizes the right of a party to subsequently introduce another part or the remainder of a statement previously introduced in part by the opposing party under the conditions prescribed in the rule. See State v. Paulino, 223 Conn. 461, 468-69, 613 A.2d 720 (1992); State v. Castonguay, 218 Conn. 486, 496-97, 590 A.2d 901 (1991); Rokus v. Bridgeport, 191 Conn. 62, 69, 463 A.2d 252 (1983); see also Practice Book 248 (depositions).

Although the cases upon which subsection (b) is based dealt only with the admissibility of oral conversations or statements, the rule logically extends to written and recorded statements. Thus, like subsection (a), subsection (b)’s use of the word "statement" includes oral, written, and recorded statements. In addition, because the other part of the statement is introduced under subsection (b) for the limited purpose of putting the first part into context, the other part need not be independently admissible. See State v. Paulino, supra, 223 Conn. 468-69; State v. Castonguay, supra, 218 Conn. 496; cf. Starzec v. Kida, 183 Conn. 41, 47 n.6, 438 A.2d 1157 (1981).

ARTICLE II - JUDICIAL NOTICE

Section 201. Judicial notice of adjudicative facts.

(a) Scope of section. This section governs only judicial notice of adjudicative facts.

(b) Kinds of facts. A judicially-noticed fact must be one not subject to reasonable dispute in that it is either (1) within the knowledge of people generally in the ordinary course of human experience, or (2) generally accepted as true and capable of ready and unquestionable demonstration.

(c) Taking of judicial notice. A court may, but is not required to, take notice of matters of fact.

(d) Time of taking judicial notice. Judicial notice may be taken at any stage of the proceeding.

(e) Instructing jury. The court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

Commentary ( 201)

(a) Scope of section.

Section 201 addresses the principle of judicial notice, which relieves a party from producing formal evidence to prove a fact. E.g., Beardsley v. Irving, 81 Conn. 489, 491, 71 A. 580 (1909); Federal Deposit Ins. Corp. v. Napert-Boyer Partnership, 40 Conn. App. 434, 441, 671 A.2d 1303 (1996). Section 201 deals only with judicial notice of "adjudicative" facts. Adjudicative facts are the facts of a particular case or those facts that relate to the activities or events giving rise to the particular controversy. See Moore v. Moore, 173 Conn. 120, 122, 376 A.2d 1085 (1977); K. Davis, "Judicial Notice," 55 Colum. L. Rev. 945, 952 (1955).

This section does not deal with judicial notice of "legislative" facts, i.e., facts that do not necessarily concern the parties in a particular case but that courts consider in determining the constitutionality or interpretation of statutes or issues of public policy upon which the application of a common law rule depends. See Moore v. Moore, supra, 173 Conn. 122; K. Davis, supra, 55 Colum. L. Rev. 952. The code leaves judicial notice of legislative facts to common law.

(b) Kinds of facts.

Subsection (b) is consistent with common law principles of judicial notice. See, e.g., West Hartford v. Freedom of Information Commission, 218 Conn. 256, 264, 588 A.2d 1368 (1991); State v. Tomanelli, 153 Conn. 365, 369, 216 A.2d 625 (1966).

Both the fact that raw pork must be cooked thoroughly to kill parasites, see Silverman v. Swift & Co., 141 Conn. 450, 458, 107 A.2d 277 (1954), and the fact that the normal period of human gestation is nine months, Melanson v. Rogers, 38 Conn. Sup. 484, 490-91, 451 A.2d 825 (1982), constitute examples of facts subject to judicial notice under category (1). Examples of category (2) facts include: scientific tests or principles, State v. Tomanelli, supra, 153 Conn. 370-71, geographical data, e.g., Nesko Corp. v. Fontaine, 19 Conn. Sup. 160, 162, 110 A.2d 631 (1954), historical facts, Gannon v. Gannon, 130 Conn. 449, 452, 35 A.2d 204 (1943), and times and dates, e.g., Patterson v. Dempsey, 152 Conn. 431, 435, 207 A.2d 739 (1965).

(c) Taking of judicial notice.

Subsection (c) expresses the common law view that "[c]ourts are not bound to take judicial notice of matters of fact." DeLuca v. Park Commissioners, 94 Conn. 7, 10, 107 A. 611 (1919).

(d) Time of taking judicial notice.

Subsection (d) adheres to common law principles. Drabik v. East Lyme, 234 Conn. 390, 398, 662 A.2d 118 (1995); State v. Allen, 205 Conn. 370, 382, 533 A.2d 559 (1987). Because the code is intended to govern the admissibility of evidence in the Superior Court, subsection (d) does not govern the taking of judicial notice on appeal.

(e) Instructing jury.

In accordance with common law, whether the case is civil or criminal, the court shall instruct the jury that it may, but need not, accept the judicially-noticed fact as conclusive. See, e.g., State v. Tomanelli, supra, 153 Conn. 369; cf. Fed. R. Evid. 201(g). Because the jury need not accept the fact as conclusive, other parties may offer evidence in disproof of a fact judicially noticed. State v. Tomanelli, supra, 369; Federal Deposit Ins. Corp. v. Napert-Boyer Partnership, supra, 40 Conn. App. 441.

Section 202. Notice and opportunity to be heard.

(a) Request of party. A party requesting the court to take judicial notice of a fact shall give timely notice of the request to all other parties. Before the court determines whether to take the requested judicial notice, any party shall have an opportunity to be heard.

(b) Court's initiative. The court may take judicial notice without a request of a party to do so. Parties are entitled to receive notice and have an opportunity to be heard for matters susceptible of explanation or contradiction, but not for matters of established fact, the accuracy of which cannot be questioned.

Commentary ( 202)

(a) Request of party.

Subsection (a) states what appeared to be the preferred practice at common law. Drabik v. East Lyme, 234 Conn. 390, 398, 662 A.2d 118 (1995); State ex rel. Capurso v. Flis, 144 Conn. 473, 477-78, 133 A.2d 901 (1957); Nichols v. Nichols, 126 Conn. 614, 622, 13 A.2d 591 (1940).

(b) Court’s initiative.

The first sentence is consistent with existing Connecticut law. E.g., Connecticut Bank & Trust Co. v. Rivkin, 150 Conn. 618, 622, 192 A.2d 539 (1963). The dichotomous rule in the second sentence represents the common law view as expressed in Moore v. Moore, 173 Conn. 120, 121-22, 376 A.2d 1085 (1977). Although the Court in Moore suggested that "it may be the better practice to give parties an opportunity to be heard" on the propriety of taking judicial notice of accurate and established facts, id., 122, it did not so require. Accord Guerriero v. Galasso, 144 Conn. 600, 605, 136 A.2d 497 (1957).

ARTICLE III. PRESUMPTIONS [Reserved]

ARTICLE IV - RELEVANCY

Section 401. Definition of relevant evidence.

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.

Commentary ( 401)

Section 401 embodies the two separate components of relevant evidence recognized at common law: (1) probative value; and (2) materiality. State v. Jeffrey, 220 Conn. 698, 709, 601 A.2d 993 (1991); State v. Dabkowski, 199 Conn. 193, 206, 506 A.2d 118 (1986).

Section 401 incorporates the requirement of probative value by providing that the proffered evidence must "tend to make the existence of any fact . . . more probable or less probable than it would be without the evidence." See, e.g., State v. Prioleau, 235 Conn. 274, 305, 664 A.2d 793 (1995); State v. Briggs, 179 Conn. 328, 332, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980). Section 401’s "more probable or less probable than it would be without the evidence" standard of probative worth is consistent with Connecticut law. See, e.g., State v. Rinaldi, 220 Conn. 345, 353, 599 A.2d 1 (1991) ("To be relevant, the evidence need not exclude all other possibilities; it is sufficient if it tends to support the conclusion, even to a slight degree." [emphasis added]); State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987) ("Evidence is not inadmissible because it is not conclusive; it is admissible if it has a tendency to support a fact relevant to the issues if only in a slight degree." [emphasis added]). Thus, it is not necessary that the evidence, by itself, conclusively establish the fact for which it is offered or render the fact more probable than not.

Section 401 expressly requires materiality as a condition to relevancy in providing that the factual proposition for which the evidence is offered must be "material to the determination of the action." See State v. Marra, 222 Conn. 506, 521, 610 A.2d 1113 (1992); State v. Corchado, 188 Conn. 653, 668, 453 A.2d 427 (1982). The materiality of evidence turns upon what is at issue in the case, which will generally be determined by the pleadings and the applicable substantive law. See Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 570, 657 A.2d 212 (1995); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) 8.1.2, pp. 226-27.

Section 402. Relevant evidence generally admissible; irrelevant evidence inadmissible.

All relevant evidence is admissible, except as otherwise provided by the constitution of this state, by this code or by other sections of the general statutes. Evidence that is not relevant is inadmissible.

Commentary ( 402)

Section 402 recognizes two fundamental common law principles: (1) all relevant evidence is admissible unless otherwise excluded, e.g., Delmore v. Polinsky, 132 Conn. 28, 31, 42 A.2d 349 (1945); see Federated Department Stores, Inc. v. Board of Tax Review, 162 Conn. 77, 82-83, 291 A.2d 715 (1971); and (2) irrelevant evidence is inadmissible, Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 569, 657 A.2d 212 (1995); see State v. Mastropetre, 175 Conn. 512, 521, 400 A.2d 276 (1978).

Reference in section 402 to the state constitution includes, by implication, judicially-created remedies designed to preserve constitutional rights, such as the Fourth Amendment exclusionary rule, see State v. Marsala, 216 Conn. 150, 161, 579 A.2d 58 (1990).

Section 403. Exclusion of evidence on grounds of prejudice, confusion or waste of time.

Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.

Commentary ( 403)

Section 403 establishes a balancing test under which the probative value of proffered evidence is weighed against the harm likely to result from its admission. See, e.g., State v. Rinaldi, 220 Conn. 345, 356, 599 A.2d 1 (1991); Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 563, 525 A.2d 954 (1987); State v. DeMatteo, 186 Conn. 696, 702-03, 443 A.2d 915 (1982). The task of striking this balance is relegated to the court’s discretion. E.g., State v. Paulino, 223 Conn. 461, 477, 613 A.2d 720 (1992).

The discretion of a trial court to exclude relevant evidence on the basis of unfair prejudice is well established. E.g., State v. Higgins, 201 Conn. 462, 469, 518 A.2d 631 (1986). All evidence adverse to an opposing party is inherently prejudicial because it is damaging to that party’s case. Berry v. Loiseau, 223 Conn. 786, 806, 614 A.2d 414 (1992); Chouinard v. Marjani, 21 Conn. App. 572, 576, 575 A.2d 238 (1990). For exclusion, however, the prejudice must be "unfair" in the sense that it "unduly arouse[s] the jury’s emotions of prejudice, hostility or sympathy," State v. Wilson, 180 Conn. 481, 490, 429 A.2d 931 (1980), or "‘tends to have some adverse effect upon [the party against whom the evidence is offered] beyond tending to prove the fact or issue that justified its admission into evidence,’" State v. Graham, 200 Conn. 9, 12, 509 A.2d 493 (1986) (quoting United States v. Figueroa, 618 F.2d 934, 943 (2d Cir. 1980)).

Common law recognized unfair surprise as a factor to be weighed against the probative value of the evidence. See, e.g., State v. Higgins, supra, 201 Conn. 469; State v. DeMatteo, supra, 186 Conn. 703. When dangers of unfair surprise are claimed to outweigh probative value, nothing precludes the court from fashioning a remedy other than exclusion (e.g., continuance) when that remedy will adequately cure the harm suffered by the opposing party.

Section 403 also codifies the court’s authority to exclude relevant evidence when its probative value is outweighed by factors such as confusion of the issues or misleading the jury, Farrell v. St. Vincent’s Hospital, supra, 203 Conn. 563; see State v. Gaynor, 182 Conn. 501, 511, 438 A.2d 749 (1980); State v. Sebastian, 81 Conn. 1, 4, 69 A. 1054 (1908), or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. See, e.g., State v. Parris, 219 Conn. 283, 293, 592 A.2d 943 (1991); State v. DeMatteo, supra, 186 Conn. 702-03; Hydro-Centrifugals, Inc. v. Crawford Laundry Co., 110 Conn. 49, 54-55, 147 A. 31 (1929).

Section 404. Character evidence not admissible to prove conduct; exceptions; methods of proof; cross-examination of a character witness.

(a) Character evidence generally. Evidence of a trait of character of a person is inadmissible for the purpose of proving that the person acted in conformity with the character trait on a particular occasion, except that the following is admissible:

(1) Character of the accused. Evidence of a specific trait of character of the accused relevant to an element of the crime charged offered by an accused, or by the prosecution to rebut such evidence introduced by the accused.

(2) Character of the victim in a homicide or criminal assault case. Evidence offered by an accused in a homicide or criminal assault case, after laying a foundation that the accused acted in self-defense, of the violent character of the victim to prove that the victim was the aggressor, or by the prosecution to rebut such evidence introduced by the accused.

(b) Methods of proof. In all cases in which evidence of a trait of character of a person is admissible to prove that the person acted in conformity with the character trait, proof may be made by testimony as to reputation or in the form of an opinion. In cases in which the accused in a homicide or criminal assault case may introduce evidence of the violent character of the victim, the victim's character may also be proved by evidence of the victim's conviction of a crime of violence.

(c) Specific instances of conduct on cross-examination of a character witness. A character witness may be asked, in good faith, on cross-examination about specific instances of conduct relevant to the trait of character to which the witness testified to test the basis of the witness' opinion.

Commentary ( 404)

(a) Character evidence generally.

Subsection (a) codifies the well-established principle that evidence of a trait of character is generally inadmissible to show conforming conduct. See, e.g., Berry v. Loiseau, 223 Conn. 786, 805, 614 A.2d 414 (1992) (civil cases); State v. Moye, 177 Conn. 487, 500, 418 A.2d 870 (criminal cases, character traits of defendant), vacated on other grounds, 444 U.S. 893, 100 S. Ct. 199, 62 L. Ed. 2d 129 (1979); State v. Miranda, 176 Conn. 107, 109, 405 A.2d 622 (1978) (criminal cases, character traits of victim).

Subsection (a) enumerates two exceptions to the general rule. Subdivision (1) restates the rule from cases such as State v. Martin, 170 Conn. 161, 163, 365 A.2d 104 (1976). The language in subdivision (1), "relevant to an element of the crime charged," reflects a prerequisite to the introduction of character traits evidence recognized at common law. E.g., State v. Blake, 157 Conn. 99, 103-04, 249 A.2d 232 (1968); State v. Campbell, 93 Conn. 3, 10, 104 A. 653 (1918).

Subdivision (2) restates the rule announced in State v. Miranda, supra, 176 Conn. 109-11, and affirmed in its progeny, see, e.g., State v. Smith, 222 Conn. 1, 17, 608 A.2d 63, cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d 293 (1992); State v. Gooch, 186 Conn. 17, 21, 438 A.2d 867 (1982). Subdivision (2) limits the admissibility of evidence of the victim’s violent character to homicide and assault prosecutions in accordance with Connecticut law. E.g., State v. Carter, 228 Conn. 412, 422-23, 636 A.2d 821 (1994) (homicide cases); State v. Webley, 17 Conn. App. 200, 206, 551 A.2d 428 (1988) (criminal assault cases); see also State v. Gooch, supra, 21 (assuming without deciding that evidence of a victim’s violent character is admissible in assault prosecutions to prove the victim was the aggressor).

Subdivision (2) does not address the admissibility of evidence of the victim’s violent character offered to prove the accused’s state of mind. See State v. Smith, supra, 222 Conn. 17; State v. Padula, 106 Conn. 454, 456-57, 138 A. 456 (1927). The admissibility of such evidence is left to common law development.

Another exception to the general rule not covered in section 404 authorizes the court to admit evidence of a witness’ character for untruthfulness or truthfulness to attack or support that witness’ credibility. See, e.g., State v. George, 194 Conn. 361, 368, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985). Conn. Code Evid. 606, infra, addresses the admissibility of such evidence and the appropriate methods of proof.

Subsection (a) does not preclude the admissibility of character evidence when a person’s character is directly in issue as an element to a charge, claim, or defense. See, e.g., Smith v. Hall, 69 Conn. 651, 665, 38 A. 386 (1897). When a person’s character or trait of character constitutes an essential element to a charge, claim, or defense, Conn. Code Evid. 405(c), infra, authorizes proof by evidence of specific instances of conduct.

Character traits evidence admissible under subsection (a) is nevertheless subject to the relevancy standards and balancing test set forth in Conn. Code Evid. 401 and 403, supra, respectively. See State v. Martin, supra, 170 Conn. 165-66.

(b) Methods of proof.

Subsection (b) adopts the recognized methods of proving evidence of a trait of character. E.g., State v. Martin, supra, 170 Conn. 163; State v. Blake, supra, 157 Conn. 104-05.

Generally, neither the accused nor the prosecution may prove a character trait by introducing evidence of specific instances of conduct. State v. Gooch, supra, 186 Conn. 21; State v. Miranda, supra, 176 Conn. 112. However, subsection (b) must be read in conjunction with subsection (c), which authorizes, during cross-examination of a character witness, the introduction of specific instances of conduct relevant to the character trait to which the witness testified in order to test the basis of the witness’ opinion. See State v. McGraw, 204 Conn. 441, 446-47, 528 A.2d 821 (1987); State v. DeAngelis, 200 Conn. 224, 236-37, 511 A.2d 310 (1986).

Notwithstanding the general exclusion of evidence of specific instances of conduct to prove a person’s trait of character, subsection (b) sets forth one narrow exception recognized in State v. Miranda, supra, 176 Conn. 113-14, and its progeny, see State v. Webley, supra, 17 Conn. App. 206 (assault cases). The convictions that form the basis of the evidence introduced under this exception must be convictions for violent acts. State v. Miranda, supra, 114. Evidence of violent acts not having resulted in conviction is not admissible. State v. Smith, supra, 222 Conn. 18.

(c) Specific instances of conduct on cross-examination of a character witness.

Subsection (c) is based on the rule set forth in State v. Martin, supra, 170 Conn. 165, which permits the cross-examiner to ask a character witness about relevant instances of conduct to explore the basis of the character witness’ direct examination testimony. Accord State v. DeAngelis, supra, 200 Conn. 236-37. The conduct inquired into on cross-examination must relate to the trait that formed the subject of the character witness’ testimony on direct. State v. Turcio, 178 Conn. 116, 127, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980); State v. Martin, supra, 165-66. Moreover, inquiries must be undertaken in good faith.

A court, in its discretion, may limit or proscribe such inquiries where the probative value of the specific instance evidence is outweighed by unfair prejudice or other competing concerns. State v. Turcio, supra, 178 Conn. 128; see Conn. Code Evid. 403, supra.

Section 405. Evidence of other crimes, wrongs or acts inadmissible to prove character; admissible for other purposes; specific instances of conduct.

(a) Evidence of other crimes, wrongs or acts inadmissible to prove character. Evidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character or criminal tendencies of that person.

(b) When evidence of other crimes, wrongs or acts is admissible. Evidence of other crimes, wrongs or acts of a person is admissible for purposes other than those specified in subsection (a), such as to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony.

(c) Specific instances of conduct when character an essential element. In cases in which character or a trait of character of a person is an essential element of a charge, claim or defense, proof shall be made by evidence of specific instances of the person's conduct.

Commentary ( 405)

(a) Evidence of other crimes, wrongs or acts inadmissible to prove character.

Subsection (a) codifies Connecticut law. E.g., State v. Santiago, 224 Conn. 325, 338, 618 A.2d 32 (1992); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 332 (1982). Other crimes, wrongs, or acts evidence may be admissible for other purposes as specified in subsection (b). Although the issue typically arises in the context of a criminal proceeding, see State v. McCarthy, 179 Conn. 1, 22, 425 A.2d 924 (1979), subsection (a)’s exclusion applies in both criminal and civil cases. See, e.g., Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 191-92, 510 A.2d 972 (1986).

(b) When evidence of other crimes, wrongs or acts is admissible.

Subsection (a), supra, specifically prohibits the use of other crimes, wrongs, or acts evidence to prove a person’s bad character or criminal tendencies. Subsection (b), however, authorizes the court, in its discretion, to admit other crimes, wrongs, or acts evidence for other purposes, such as to prove:

(1) intent, e.g., State v. Lizzi, 199 Conn. 462, 468-69, 508 A.2d 16 (1986);

(2) identity, e.g., State v. Pollitt, 205 Conn. 61, 69, 530 A.2d 155 (1987);

(3) malice, e.g., State v. Barlow, 177 Conn. 391, 393, 418 A.2d 46 (1979);

(4) motive, e.g., State v. James, 211 Conn. 555, 578, 560 A.2d 426 (1989);

(5) a common plan or scheme, e.g., State v. Morowitz, 200 Conn. 440, 442-44, 512 A.2d 175 (1986);

(6) absence of mistake or accident, e.g., State v. Tucker, 181 Conn. 406, 415-16, 435 A.2d 986 (1980);

(7) knowledge, e.g., State v. Fredericks, 149 Conn. 121, 124, 176 A.2d 581 (1961);

(8) a system of criminal activity, e.g., State v. Vessichio, 197 Conn. 644, 664-65, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986);

(9) an element of the crime [charged], e.g., State v. Jenkins, 158 Conn. 149, 152-53, 256 A.2d 223 (1969); or

(10) to corroborate crucial prosecution testimony, e.g., State v. Mooney, 218 Conn. 85, 126-27, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991).

Admissibility of other crimes, wrongs, or acts evidence is contingent on satisfying the relevancy standards and balancing test set forth in Conn. Code Evid. 401 and 403, supra, respectively. For other crimes, wrongs, or acts evidence to be admissible, the court must determine that the evidence is probative of one or more of the enumerated purposes for which it is offered, and that its probative value is not outweighed by its prejudicial effect. E.g., State v. Figueroa, 235 Conn. 145, 162, 665 A.2d 63 (1995); State v. Cooper, 227 Conn. 417, 425-28, 630 A.2d 1043 (1993).

The purposes enumerated in subsection (b) for which other crimes, wrongs, or acts evidence may be admitted are intended to be illustrative rather than exhaustive. Neither subsection (a) nor subsection (b) precludes a court from recognizing other appropriate purposes for which other crimes, wrongs, or acts evidence may be admitted provided the evidence is not introduced to prove a person’s bad character or criminal tendencies, and the probative value of its admission is not outweighed by any of the section 403 balancing factors.

(c) Specific instances of conduct when character an essential element.

Subsection (c) finds support in Connecticut case law. See State v. Gooch, 186 Conn. 17, 21, 438 A.2d 867 (1982); State v. Miranda, 176 Conn. 107, 112, 365 A.2d 104 (1978).

Section 406. Habit; routine practice.

Evidence of the habit of a person or the routine practice of an organization is admissible to prove that the conduct of the person or the organization on a particular occasion was in conformity with the habit or routine practice.

Commentary ( 406)

While Conn. Code Evid. 404, supra, generally precludes the use of evidence of a trait of character to prove conforming behavior, section 406 admits evidence of a person’s habit or an organization’s routine practice to prove conformity therewith on a particular occasion. See, e.g., Caslowitz v. Roosevelt Mills, Inc., 138 Conn. 121, 125-26, 82 A.2d 808 (1951); State v. Williams, 90 Conn. 126, 130, 96 A. 370 (1916); Moffitt v. Connecticut Co., 86 Conn. 527, 530-31, 86 A. 16 (1913); State v. Hubbard, 32 Conn. App. 178, 185, 628 A.2d 626, cert. denied, 228 Conn. 902, 634 A.2d 296 (1993). The distinction between habit or routine practice and "trait of character" is, therefore, dispositive.

Whereas a "trait of character" entails a generalized description of one’s disposition as to a particular trait, such as honesty, peacefulness, or carelessness, habit is "a person’s regular practice of meeting a particular kind of situation with a specific type of conduct." 1 C. McCormick, Evidence (4th Ed. 1992) 195, p. 826; see also C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) 8.6.1, p. 252 ("Habit . . . refer[s] to a course of conduct that is fixed, invariable, unthinking, and generally pertain[s] to a very specific set of repetitive circumstances."). Routine practice of an organization, sometimes referred to as business custom or customary practice, is equivalent to a habit of an individual for purposes of the foregoing standards.

Section 407. Subsequent remedial measures.

(a) General rule. Except as provided in subsection (b), evidence of measures taken after an event, which if taken before the event would have made injury or damage less likely to result, is inadmissible to prove negligence or culpable conduct in connection with the event. Evidence of those measures is admissible when offered to impeach, or as proof on controverted issues such as ownership, control or feasibility of precautionary measures.

(b) Strict product liability of goods. Where a theory of liability relied on by a party is strict product liability, evidence of such measures taken after an event is admissible.

Commentary ( 407)

(a) General rule.

Subsection (a) codifies the general rule announced in Nalley v. Hartford Carpet Co., 51 Conn. 524, 532 (1884) and its progeny, e.g., Hall v. Burns, 213 Conn. 446, 456-57, 569 A.2d 10 (1990); Rokus v. Bridgeport, 191 Conn. 62, 65, 463 A.2d 252 (1983); Carrington v. Bobb, 121 Conn. 258, 262, 184 A. 591 (1936).

The rationale behind this exclusionary rule is twofold. First, evidence of subsequent remedial measures is of relatively slight probative value on the issue of negligence or culpable conduct at the time of the event. E.g., Hall v. Burns, supra, 213 Conn. 457-59 & n.3; Waterbury v. Waterbury Traction Co., 74 Conn. 152, 169, 50 A. 3 (1901). Second, the rule reflects a social policy of encouraging potential defendants to take corrective measures without fear of having their corrective measures used as evidence against them. Hall v. Burns, supra, 457; see Waterbury v. Waterbury Traction Co., supra, 169.

Evidence of subsequent remedial measures may be admissible for purposes other than proving negligence or culpable conduct. Such evidence is admissible as proof on issues such as ownership, control, or feasibility of precautionary measures. See, e.g., Williams v. Milner Hotels Co., 130 Conn. 507, 509-10, 36 A.2d 20 (1944) (control); Quinn v. New York, N. Haven & Hartford R.R., 56 Conn. 44, 53-54, 12 A. 97 (1887) (feasibility). These issues must be "controverted," however, before evidence of subsequent remedial measures is admissible. See Wright v. Coe & Anderson, Inc., 156 Conn. 145, 155, 239 A.2d 493 (1968); Haffey v. Lemieux, 154 Conn. 185, 193, 224 A.2d 551 (1966). Subsequent remedial measures evidence may also be offered for impeachment purposes. See Baldwin v. Norwalk, 96 Conn. 1, 8, 112 A. 660 (1921).

The list in subsection (a) of other purposes for which evidence of subsequent remedial measures may be offered is meant to be illustrative rather than exhaustive. See Rokus v. Bridgeport, supra, 191 Conn. 66. So long as the evidence is not offered to prove negligence or culpable conduct, it may be admitted subject to the court’s discretion. See id., 66-67 (holding admissible a post-accident photograph of the accident scene where subsequent remedial measures had been implemented when the photograph was offered solely to show the configuration and layout of the streets and sidewalks to acquaint the jury with the accident scene).

(b) Strict product liability of goods.

Subsection (b) codifies the rule announced in Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 148, 491 A.2d 389 (1985). The Sanderson Court stated two reasons for rendering the general exclusionary rule inapplicable in strict product liability cases. First, the Court reasoned that the danger of discouraging subsequent corrective measures is not a chief concern in strict product liability cases:

The contemporary corporate mass producer of goods, the normal products liability defendant, manufactures tens of thousands of units of goods; it is manifestly unrealistic to suggest that such a producer will forego making improvements in its product, and risk innumerable additional lawsuits and the attendant adverse effect upon its public image, simply because evidence of adoption of such improvement may be admitted in an action founded on strict liability . . . .

Id., 146 (quoting Ault v. International Harvester Co., 13 Cal. 3d 113, 120, 528 P.2d 1148, 117 Cal. Rptr. 812 (1974)).

Second, it reasoned that because the product’s defectiveness is at issue in a strict product liability case rather than the producer/defendant’s negligence or culpable conduct, the probative value of the evidence is high. Id., 147. Specifically, subsequent remedial measure evidence in strict product liability cases is probative of the issue of product defectiveness because it gives the factfinder a safer alternative design against which to compare the previous design. Id. Because the evidence is offered for purposes other than to prove negligence or culpable conduct, the policy for exclusion does not exist. See id.

Sanderson leaves open the question whether the rule is limited to cases involving remedial measures taken with respect to mass produced products or whether it extends to all products, regardless of production volume. Because of the uncertainty surrounding the issue, subsection (b) takes no position and leaves the issue for common law development.

Section 408. Offers to compromise.

(a) General rule. Evidence of an offer to compromise or settle a disputed claim is inadmissible on the issues of liability and the amount of the claim.

(b) Exceptions. This rule does not require the exclusion of:

(1) Evidence that is offered for another purpose, such as proving bias or prejudice of a witness, refuting a contention of undue delay or proving an effort to obstruct a criminal investigation or prosecution, or

(2) statements of fact or admissions of liability made by a party.

Commentary ( 408)

(a) General rule.

It is well established that evidence of an offer to compromise or settle a disputed claim is inadmissible to prove the validity or invalidity of the claim or its amount. See, e.g., Jutkowitz v. Department of Health Services, 220 Conn. 86, 97, 596 A.2d 374 (1991); Simone Corp. v. Connecticut Light & Power Co., 187 Conn. 487, 490, 446 A.2d 1071 (1982); Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 517, 391 A.2d 157 (1978); Fowles v. Allen, 64 Conn. 350, 351-52, 30 A. 144 (1894); Stranahan v. East Haddam, 11 Conn. 507, 514 (1836).

The purpose of the rule is twofold. First, an offer to compromise or settle is of slight probative value on the issues of liability or the amount of the claim since a party, by attempting to settle, may be merely buying peace instead of conceding the merits of the disputed claim. Stranahan v. East Haddam, supra, 11 Conn. 514; 29 Am. Jur. 2d 589, Evidence 508 (1994). Second, the rule supports the policy of encouraging parties to pursue settlement negotiations by assuring parties that evidence of settlement offers will not be introduced into evidence to prove liability or a lack thereof if a trial ultimately ensues. See Tomasso Bros., Inc. v. October Twenty-Four, Inc., 221 Conn. 194, 198, 602 A.2d 1011 (1992); Miko v. Commission on Human Rights & Opportunities, 220 Conn. 192, 209, 596 A.2d 396 (1991); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) 11.5.4(b), p. 336.

(b) Exceptions.

Subdivision (1) recognizes the admissibility of evidence of settlement offers when introduced for some purpose other than to prove or disprove liability or damages. See State v. Milum, 197 Conn. 602, 613, 500 A.2d 555 (1986) (to show bias and an effort to obstruct a criminal prosecution). Section 408’s list of purposes for which such evidence may be introduced is intended to be illustrative rather than exhaustive. See Lynch v. Granby Holdings, Inc., 32 Conn. App. 574, 583-84, 630 A.2d 609 (1993) (evidence of an offer to compromise admissible to show that the parties attempted to resolve a problem concerning the placement of a sign when the trial court instructed the jury that the evidence did not indicate an assumption of liability), rev’d on other grounds, 230 Conn. 95, 644 A.2d 325 (1994).

Subdivision (2) preserves the common law rule permitting admissibility of statements made by a party in the course of settlement negotiations that constitute statements of fact or admissions of liability. See, e.g., Tomasso Bros., Inc. v. October Twenty-Four, Inc., supra, 221 Conn. 198; Hall v. Sera, 112 Conn. 291, 298, 152 A. 148 (1930); Hartford Bridge Co. v. Granger, 4 Conn. 142, 148 (1822). A statement made in the course of settlement negotiations that contains an admission of fact is admissible "where the statement was intended to state a fact." (Internal quotation marks omitted.) Tomasso Bros., Inc. v. October Twenty-Four, Inc., supra, 198 (quoting Simone Corp. v. Connecticut Light & Power Co., supra, 187 Conn. 490). However, if the party making the statement merely "intended to concede a fact hypothetically for the purpose of effecting a compromise," id. (quoting Evans Products Co. v. Clinton Building Supply, Inc., supra, 174 Conn. 517), the factual admission is inadmissible as an offer to compromise. See id. If, considering the statement and surrounding circumstances, it is unclear whether the statement was intended to further a compromise or as a factual admission, the statement must be excluded. E.g., id., 199; Simone Corp. v. Connecticut Light & Power Co., supra, 187 Conn. 490; C. Tait & J. LaPlante, supra, 11.5.4(b), p. 337.

Section 409. Payment of medical and similar expenses.

Evidence of furnishing or offering or promising to pay medical, hospital or similar expenses occasioned by an injury is inadmissible to prove liability for the injury.

Commentary ( 409)

Section 409 is consistent with Connecticut law. Danahy v. Cuneo, 130 Conn. 213, 216, 33 A.2d 132 (1943); see Prosser v. Richman, 133 Conn. 253, 257, 50 A.2d 85 (1946); Sokolowski v. Medi Mart, Inc., 24 Conn. App. 276, 280, 587 A.2d 1056 (1991).

The two considerations upon which section 409 is premised are similar to those underlying Conn. Code Evid. 407 and 408, supra. First, such evidence is of questionable relevancy on the issue of liability because an offer to pay or actual payment of medical or similar expenses may be intended as an "act of mere benevolence" rather than an admission of liability. Danahy v. Cuneo, supra, 130 Conn. 216; accord Murphy v. Ossola, 124 Conn. 366, 377, 199 A. 648 (1938). Second, the rule fosters the public policy of encouraging assistance to an injured party by eliminating the possibility that evidence of such assistance could be offered as an admission of liability at trial. See Danahy v. Cuneo, supra, 217.

Section 409 covers the situation addressed by General Statutes 52-184b(c), which provides that evidence of any advance payment for medical bills made by a health care provider or by the insurer of such provider is inadmissible on the issue of liability in any action brought against the health care provider for malpractice in connection with the provision of health care or professional services. Section 409’s exclusion goes further by excluding offers or promises to pay in addition to actual payments.

Section 409, by its terms, excludes evidence of a promise or offer to pay or a furnishing of medical, hospital, or similar expenses, but not admissions of fact accompanying the promise, offer, or payment. Furthermore, nothing in section 409 precludes admissibility when such evidence is offered to prove something other than liability for the injury.

Unlike Conn. Code Evid. 408, supra, section 409 does not expressly require the existence of a disputed claim as to liability or damages when the offer or promise to pay, or actual payment, is made for the exclusion to apply.

Section 410. Liability insurance.

(a) General rule. Evidence that a person was or was not insured against liability is inadmissible upon the issue of whether the person acted negligently or otherwise wrongfully.

(b) Exception. This section does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

Commentary ( 410)

(a) General rule.

Section 410 is consistent with Connecticut law. See, e.g., Magnon v. Glickman, 185 Conn. 234, 242, 440 A.2d 909 (1981); Walker v. New Haven Hotel Co., 95 Conn. 231, 235, 111 A. 59 (1920); Nesbitt v. Mulligan, 11 Conn. App. 348, 358-59, 527 A.2d 1195 (1987).

The exclusion of such evidence is premised on two grounds. First, the evidence is of slight probative value on the issue of fault because the fact that a person does or does not carry liability insurance does not imply that person is more or less likely to act negligently. Walker v. New Haven Hotel Co., supra, 95 Conn. 235-36. Second, section 410, by excluding evidence of a person’s liability coverage or lack thereof, prevents the jury from improperly rendering a decision or award based upon the existence or nonexistence of liability coverage rather than upon the merits of the case. See id., 235.

(b) Exception.

In accordance with common law, section 410 permits the admissibility of evidence of liability coverage or lack thereof if offered for a purpose other than to prove negligent or wrongful conduct. Muraszki v. William L. Clifford, Inc., 129 Conn. 123, 128, 26 A.2d 578 (1942) (to show agency or employment relationship); Nesbitt v. Mulligan, supra, 11 Conn. App. 358-60 (to show the motive or bias of a witness); see Holbrook v. Casazza, 204 Conn. 336, 355-56, 528 A.2d 774 (1987) (same), cert. denied, 484 U.S. 1006, 108 S. Ct. 699, 98 L. Ed. 2d 651 (1988). The list of purposes for which evidence of insurance coverage may be offered is meant to be illustrative rather than exhaustive.

Section 411. Admissibility of evidence of sexual conduct.

In any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of the sexual conduct of the victim may be admissible unless such evidence is (1) offered by the defendant on the issue of whether the defendant was, with respect to the victim, the source of semen, disease, pregnancy or injury; or (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her sexual conduct; or (3) any evidence of sexual conduct with the defendant offered by the defendant on the issue of consent by the victim, when consent is raised as a defense by the defendant; or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant's constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. On motion of either party the court may order such hearing held in camera, subject to the provisions of section 51-164x. If the proceeding is a trial with a jury, such hearing shall be held in the absence of the jury. If, after hearing, the court finds that the evidence meets the requirements of this section and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion. The testimony of the defendant during a hearing on a motion to offer evidence under this section may not be used against the defendant during the trial if such motion is denied, except that such testimony may be admissible to impeach the credibility of the defendant if the defendant elects to testify as part of the defense.

Commentary ( 411)

Section 411 embodies former General Statutes 54-86f, which covered the admissibility of evidence of a victim’s sexual conduct in prosecutions for sexual assault, and included a procedural framework for admitting such evidence. Nothing in section 411 changes the common law interpretation of General Statutes 54-86f, e.g., State v. Rinaldi, 220 Conn. 345, 353-58, 599 A.2d 1 (1991), as it existed prior to the enactment of the code.

Although section 411, by its terms, is limited to criminal prosecutions for certain enumerated sexual assault offenses, the Supreme Court has, as a matter of common law, applied the exclusionary principles of former General Statutes 54-86f to prosecutions for risk of injury to a child brought under General Statutes 53-21, at least when the prosecution also presents sexual assault charges under one or more of the statutes enumerated in former General Statutes 54-86f. See State v. Kulmac, 230 Conn. 43, 54, 644 A.2d 887 (1994). The Court reasoned that the policies underlying the rape shield statute were equally applicable when allegations of sexual assault and abuse form the basis of both the risk of injury and sexual assault charges. See id., 53-54. Although the code takes no position on the issue, section 411 does not preclude application of the rape shield statute’s general precepts, as a matter of common law, to other situations in which the policies underlying the rape shield statute apply.

ARTICLE V - PRIVILEGES

Section 501. General Rule.

Except as otherwise required by the constitution of this state or by other sections of the general statutes or the Practice Book, privileges shall be governed by the principles of the common law.

ARTICLE VI - WITNESSES

Section 601. General rule of competency.

Except as otherwise provided by this code, every person is competent to be a witness.

Commentary ( 601)

Section 601 establishes a general presumption of competency subject to exceptions. Cf. State v. Weinberg, 215 Conn. 231, 243-44, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990). Consequently, many statuses or attributes of a person that early common law recognized as per se grounds for disqualification, e.g., Lucas v. State, 23 Conn. 18, 19-20 (1854) (wife of the accused incompetent to testify in criminal proceeding); State v. Gardner, 1 Root 485, 485 (1793) (person convicted of theft incompetent to testify), are now merely factors bearing on that person’s credibility as a witness. C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. Sup. 1996) 7.1, p. 73.

Section 601 is consistent with the development of state statutory law, which has eliminated several automatic grounds for witness incompetency. E.g., General Statutes 52-145 (no person is disqualified as a witness because of his interest in the outcome of the litigation, his disbelief in the existence of a supreme being, or his prior criminal conviction); 54-84a (one spouse is competent to testify for or against the other spouse in a criminal proceeding); 54-86h (no child is automatically incompetent to testify because of age).

Exceptions to the general presumption of competency are set forth in Conn. Code Evid. 603, infra. Section 601, by its terms, limits the source of these exceptions to the code of evidence. Nevertheless, because the code is not intended to change other provisions in the general statutes or Practice Book, and is intended to coexist with common law not carried forward in the code, Conn. Code Evid. 102, supra, the effect is to extend the source of these exceptions to provisions in the general statutes, the Practice Book, and common law existing when the code was enacted, but which were not carried forward in the code.

The determination of a witness’ competency is a preliminary question for the court. E.g., Manning v. Michael, 188 Conn. 607, 610, 452 A.2d 1157 (1982); State v. Brigandi, 186 Conn. 521, 534, 442 A.2d 927 (1982); see Conn. Code Evid. 103(a), supra.

Section 602. Oath or affirmation.

Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so.

Commentary ( 602)

The rule that every witness must declare that she will testify truthfully by oath or affirmation before testifying is well established. Cologne v. Westfarms Associates, 197 Conn. 141, 152-53, 496 A.2d 476 (1985); Curtiss v. Strong, 4 Day (Conn.) 51, 55, 56 (1809); see Practice Book 286. Section 602 recognizes, in accordance with Connecticut law, that a witness may declare that he will testify truthfully by either swearing an oath or affirming that he will testify truthfully. General Statutes 1-23; see also State v. Dudicoff, 109 Conn. 711, 721, 145 A. 655 (1929).

The standard forms of oaths and affirmations for witnesses are set forth in General Statutes 1-25. Section 602 recognizes that there will be exceptional circumstances in which the court may need to deviate from the standard forms set forth in General Statutes 1-25, see General Statutes 1-22. In such circumstances, the oath or affirmation shall conform to the general standards set forth in section 602.

Section 603. Incompetencies.

(a) Incapable of understanding the duty to tell the truth. A person may not testify if the court finds the person incapable of understanding the duty to tell the truth, or if the person refuses to testify truthfully.

(b) Incapable of sensing, remembering or expressing oneself. A person may not testify if the court finds the person incapable of receiving correct sensory impressions, or of remembering his impressions, or of expressing himself concerning the matter so as to be understood by the trier of fact either directly or through interpretation by one who can understand the person.

Commentary ( 603)

Subsections (a) and (b) collectively state the general grounds for witness incompetency recognized at common law. See, e.g., State v. Paolella, 211 Conn. 672, 689, 561 A.2d 111 (1989); State v. Boulay, 189 Conn. 106, 108-09, 454 A.2d 724 (1983); State v. Siberon, 166 Conn. 455, 457-58, 352 A.2d 285 (1974). Although the cases do not expressly mention subsection (a)’s alternative ground for incompetency, i.e., "if the person refuses to testify truthfully," it flows from the requirement found in Conn. Code Evid. 602, supra, that a witness declare by oath or affirmation that he will testify truthfully.

The Supreme Court recently outlined the procedure courts shall follow in determining a witness’ competency when one of the section 603 grounds of incompetency is raised. See generally State v. Weinberg, 215 Conn. 231, 242-44, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990). When a party raises an objection with respect to the competency of a witness, the court, as a threshold matter, shall determine whether the witness is "minimally credible": whether the witness is minimally capable of understanding the duty to tell the truth and sensing, remembering, and communicating the events to which the witness will testify. See id., 243. If the court determines the witness "passes the test of minimum credibility, . . . the [witness’] testimony is admissible and the weight to be accorded it, in light of the witness’ incapacity, is a question for the trier of fact." Id., 243-44. Thus, a witness’ credibility may still be subject to impeachment on those grounds enumerated in section 603 notwithstanding the court’s finding that the witness is competent to testify.

Section 604. Who may impeach.

The credibility of a witness may be impeached by any party, including the party calling the witness, unless the court determines that a party's impeachment of its own witness is primarily for the purpose of introducing otherwise inadmissible evidence.

Commentary ( 604)

Section 604 codifies the rule announced in State v. Graham, 200 Conn. 9, 17-18, 509 A.2d 493 (1986). In Graham, the Supreme Court abandoned the common law "voucher" rule, id., 17, which provided that a party could not impeach its own witness except upon a showing of surprise, hostility or adversity, or when the court permitted impeachment in situations where a witness’ in-court testimony was inconsistent with her prior out-of-court statements. See, e.g., State v. McCarthy, 197 Conn. 166, 177, 496 A.2d 190 (1985); Schmeltz v. Tracy, 119 Conn. 492, 498, 177 A. 520 (1935). The Court, in abandoning the "voucher" rule, stated:

We are persuaded by the weight of authority that there is no longer justification for the common law rule prohibiting a party from impeaching his own witness. Witnesses do not "belong" to the party who called them and a party no longer vouches for the credibility of his own witness. . . . We . . . hold that the credibility of a witness may be impeached by the party calling her without a showing of surprise, hostility, or adversity. A party may impeach his own witness in the same manner as an opposing party’s witness . . . . (Citation omitted).

State v. Graham, supra, 200 Conn. 17.

The Court noted, however, that a trial court, in some instances, will have discretion to prohibit a party’s impeachment of its own witness through the use of prior inconsistent statements. See generally id., 18. The Court cautioned:

By our holding, we do not mean to intimate that a [party] enjoys unfettered discretion in calling a witness and impeaching her credibility by use of inconsistent statements. [A party] may not use a prior inconsistent statement under the guise of impeachment for the primary purpose of placing before the jury evidence which is admissible only for credibility purposes in hope that the jury will use it substantively.

Id. Thus, a court may restrict or proscribe a party’s impeachment of its own witness when the court determines that impeachment is employed as a mere subterfuge for placing before the jury a substantively inadmissible prior inconsistent statement in hopes that the jury will consider the statement for the truth of the facts stated therein.

In Graham and subsequent decisions, e.g., State v. Williams, 204 Conn. 523, 531, 529 A.2d 653 (1987); State v. Jasper, 200 Conn. 30, 34, 508 A.2d 1387 (1986), the Court has supplied a two-pronged test for determining whether impeachment serves as a mere subterfuge for introducing substantively inadmissible evidence. A party’s impeachment of a witness it calls by using the witness’ prior inconsistent statements is improper when: (1) the primary purpose of calling the witness is to impeach him; and (2) the party introduces the statement in hope that the jury will use it substantively. E.g., State v. Graham, supra, 200 Conn. 18. When both prongs are met, the Graham Court instructed trial courts to prohibit impeachment. Id. Note, however, that if the prior inconsistent statement is substantively admissible under State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), see Conn. Code Evid. 805(1), infra, or other exceptions to the hearsay rule, the limitation on impeachment will not apply because impeachment with the prior inconsistent statement cannot result in introducing otherwise inadmissible evidence. Cf. State v. Whelan, supra, 753 n.8.

Section 604 applies to all parties in both criminal and civil cases, and applies to all methods of impeachment authorized by the code.

Section 605. Evidence of bias, prejudice, or interest.

The credibility of a witness may be impeached by evidence showing his bias for, prejudice against, or interest in any person or matter that might cause him to testify falsely.

Commentary ( 605)

Section 605 codifies well-established law. E.g., State v. Alvarez, 216 Conn. 301, 318-19, 579 A.2d 515 (1990); Fordianis Petition for Naturalization, 99 Conn. 551, 560-62, 121 A. 796 (1923); see General Statutes 52-145(b) ("A person’s interest in the outcome of [an] action . . . may be shown for the purpose of affecting his credibility."); see also State v. Bova, 240 Conn. 210, 224-26, 690 A.2d 1370 (1997); State v. Barnes, 232 Conn. 740, 745-47, 657 A.2d 611 (1995).

While a party’s inquiry into facts tending to establish a witness’ bias, prejudice, or interest is generally a matter of right, the scope of examination and extent of proof on these matters are subject to judicial discretion. E.g., State v. Mahmood, 158 Conn. 536, 540, 265 A.2d 83 (1969); see also Conn. Code Evid. 403, supra.

The range of matters potentially giving rise to bias, prejudice, or interest is virtually endless. See State v. Cruz, 212 Conn. 351, 360, 562 A.2d 1071 (1989). A witness may be biased by having a friendly feeling toward a person or by favoring a certain position based upon a familial or employment relationship. E.g., State v. Santiago, 224 Conn. 325, 332, 618 A.2d 32 (1992); State v. Asherman, 193 Conn. 695, 719-20, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). A witness may be prejudiced against a person or position based upon a prior quarrel with the person against whom he testifies, see Beardsley v. Wildman, 41 Conn. 515, 517 (1874), or by virtue of his animus towards a class of persons, Jacek v. Bacote, 135 Conn. 702, 706, 68 A.2d 144 (1949). A witness may have an interest in the outcome of the case independent of any bias or prejudice when, for example, she has a financial stake in its outcome, see State v. Colton, 227 Conn. 231, 250-51, 630 A.2d 577 (1993), or when the witness has filed a civil suit arising out of the same events giving rise to the criminal trial at which she testifies against the defendant, State v. Arline, 223 Conn. 52, 61, 612 A.2d 755 (1992).

Because evidence tending to show a witness’ bias, prejudice, or interest is never collateral, e.g., State v. Chance, 236 Conn. 31, 58, 671 A.2d 323 (1996), impeachment of a witness on these matters may be accomplished through the introduction of extrinsic evidence, in addition to examining the witness directly, see, e.g., State v. Bova, supra, 240 Conn. 219; Fairbanks v. State, 143 Conn. 653, 657, 124 A.2d 893 (1956). The scope and extent of proof through the use of extrinsic evidence is subject to the court’s discretion, however, State v. Colton, supra, 227 Conn. 249; State v. Shipman, 195 Conn. 160, 163, 486 A.2d 1130 (1985), and whether extrinsic evidence may be admitted to show bias, prejudice, or interest without a foundation is also within the court’s discretion, e.g., State v. Townsend, 167 Conn. 539, 560, 356 A.2d 125, cert. denied, 423 U.S. 846, 96 S. Ct. 84, 46 L. Ed. 2d 67 (1975); State v. Crowley, 22 Conn. App. 557, 559, 578 A.2d 157, cert. denied, 216 Conn. 816, 580 A.2d 62 (1990).

Section 606. Evidence of character and conduct of witness.

(a) Opinion and reputation evidence of character. The credibility of a witness may be impeached or supported by evidence of character for truthfulness or untruthfulness in the form of opinion or reputation. Evidence of truthful character is admissible only after the character of the witness for truthfulness has been impeached.

(b) Specific instances of conduct.

(1) General rule. A witness may be asked, in good faith, about specific instances of conduct of the witness, if probative of the witness's character for untruthfulness.

(2) Extrinsic evidence. Specific instances of the conduct of a witness, for the purpose of impeaching the witness' credibility under subdivision (b)(1), may not be proved by extrinsic evidence.

(c) Inquiry of character witness. A witness who has testified about the character of another witness for truthfulness or untruthfulness may be asked on cross-examination, in good faith, about specific instances of conduct of the other witness if probative of the other witness's character for truthfulness or untruthfulness.

Commentary ( 606)

Conn. Code Evid. 404(a), supra, bars the admission of character evidence when offered to prove that a person acted in conformity therewith, but is subject to exceptions. One exception is evidence bearing on a witness’ character for truthfulness or untruthfulness when offered on the issue of credibility. Section 606 regulates the admissibility of such evidence, and the means by which such evidence, if admissible, may be introduced.

(a) Opinion and reputation evidence of character.

The first sentence of subsection (a) codifies common law. See, e.g., State v. Gould, 241 Conn. 1, 19, 695 A.2d 1022 (1997); State v. Gelinas, 160 Conn. 366, 367-68, 279 A.2d 552 (1971); State v. Pettersen, 17 Conn. App. 174, 181, 551 A.2d 763 (1988). Evidence admitted under subsection (a) must relate to the witness’ character for truthfulness and thus general character evidence is inadmissible. C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) 7.23.1, p. 205; see, e.g., Dore v. Babcock, 74 Conn. 425, 429-30, 50 A. 1016 (1902).

The second sentence of subsection (a) codifies existing Connecticut practice. See State v. Ward, 49 Conn. 429, 442 (1881); Rogers v. Moore, 10 Conn. 13, 16-17 (1833); see also State v. Suckley, 26 Conn. App. 65, 72, 597 A.2d 1285 (1991).

A foundation establishing personal contacts with the witness or knowledge of the witness’ reputation in the community is a prerequisite to the introduction of opinion or reputation testimony bearing on a witness’ character for truthfulness. See, e.g., State v. Gould, supra, 241 Conn. 19-20; State v. George, 194 Conn. 361, 368-69, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985). Whether an adequate foundation has been laid is a matter within the discretion of the court. E.g., State v. Gould, supra, 19; State v. George, supra, 368; see Conn. Code Evid. 103(a), supra.

(b) Specific instances of conduct.

Under subdivision (1), a witness may be asked about his specific instances of conduct that, while not resulting in criminal conviction, are probative of the witness’ character for untruthfulness. See, e.g., State v. Chance, 236 Conn. 31, 60, 671 A.2d 323 (1996); State v. Roma, 199 Conn. 110, 116-17, 513 A.2d 116 (1986); Martyn v. Donlin, 151 Conn. 402, 408, 198 A.2d 700 (1964). Such inquiries must be made in good faith. See State v. Chance, supra, 60; Marsh v. Washburn, 11 Conn. App. 447, 452-53, 528 A.2d 382 (1987). The misconduct evidence sought to be admitted must be probative of the witness’ character for untruthfulness, not merely general bad character. E.g., Demers v. State, 209 Conn. 143, 156, 547 A.2d 28 (1988); Vogel v. Sylvester, 148 Conn. 666, 675, 174 A.2d 122 (1961).

Impeachment through the use of specific instance evidence under subdivision (1) is committed to the trial court’s discretionary authority. State v. Vitale, 197 Conn. 396, 401, 497 A.2d 956 (1985). The trial court must, however, exercise its discretionary authority by determining whether the specific instance evidence is probative of the witness’ character for untruthfulness, and whether its probative value is outweighed by any of the section 403 balancing factors. State v. Martin, 201 Conn. 74, 88-89, 513 A.2d 116 (1986); see Conn. Code Evid. 403, supra.

Inquiry into specific instances of conduct bearing on the witness’ character for untruthfulness is not limited to cross-examination; such inquiry may be initiated on direct examination, re-direct, or re-cross. See Vogel v. Sylvester, supra, 148 Conn. 675 (direct examination). Although inquiry will often occur during cross-examination, subsection (b) contemplates inquiry on direct or re-direct examination when, for example, a calling party impeaches its own witness pursuant to Conn. Code Evid. 604, supra, or anticipates impeachment by explaining the witness’ untruthful conduct or portraying it in a favorable light.

Subdivision (1) only covers inquiries into specific instances of conduct bearing on a witness’ character for untruthfulness. It does not cover inquiries into conduct relating to a witness’ character for truthfulness, inasmuch as prior cases addressing the issue have been limited to the former situation. See, e.g., State v. Dolphin, 195 Conn. 444, 459, 488 A.2d 812 (1985). Nothing in subsection (b) precludes a court, in its discretion, from allowing inquiries into specific instances of conduct reflecting a witness’ character for truthfulness when the admissibility of such evidence is not precluded under this section or other provisions of the code.

Subdivision (2) codifies well-settled law. E.g., State v. Chance, supra, 236 Conn. 60; State v. Martin, supra, 201 Conn. 86; Shailer v. Bullock, 78 Conn. 65, 69, 70, 61 A. 65 (1905). The effect of subdivision (2) is that the examiner must introduce the witness’ untruthful conduct solely through examination of the witness herself. State v. Chance, supra, 61; State v. Horton, 8 Conn. App. 376, 380, 513 A.2d 168, cert. denied, 201 Conn. 813, 517 A.2d 631 (1986).

(c) Inquiry of character witness.

Subsection (c) provides a means by which the basis of a character witness’ testimony may be explored and is consistent with current Connecticut practice. State v. McGraw, 204 Conn. 441, 446-47, 528 A.2d 821 (1987); see State v. DeAngelis, 200 Conn. 224, 236-37, 511 A.2d 310 (1986); State v. Martin, 170 Conn. 161, 165, 365 A.2d 104 (1976). Subsection (c) is a particularized application of Conn. Code Evid. 404(c), supra, which authorizes a cross-examiner to ask a character witness about specific instances of conduct that relate to a particular character trait of the person about which the witness previously testified. As with subsection (b), subsection (c) requires that inquiries be made in good faith.

The cross-examiner’s function in asking the character witness about the principal witness’ truthful or untruthful conduct is not to prove that the conduct did in fact occur, State v. Turcio, 178 Conn. 116, 126, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980), or to support or attack the principal witness’ character for truthfulness, State v. McGraw, supra, 204 Conn. 447, but to test the soundness of the character witness’ testimony "by ascertaining [the character witness’] good faith, his source and amount of information and his accuracy." State v. Martin, supra, 170 Conn. 165.

Because extrinsic evidence of untruthful or truthful conduct is inadmissible to support or attack a witness’ character for truthfulness, e.g., State v. McGraw, supra, 204 Conn. 446, questions directed to the character witness on cross-examination concerning the principal witness’ conduct should not embrace any details surrounding the conduct. State v. Martin, supra, 170 Conn. 165; accord State v. Turcio, supra, 178 Conn. 126. The accepted practice is to ask the character witness whether she knows or has heard of the principal witness’ truthful or untruthful conduct. See State v. McGraw, supra, 447; C. Tait & J. LaPlante, supra, 8.3.6, p. 240-41.

Section 607. Evidence of conviction of crime.

(a) General rule. For the purpose of impeaching the credibility of a witness, evidence that a witness has been convicted of a crime is admissible if the crime was punishable by imprisonment for more than one year. In determining whether to admit evidence of a conviction, the court shall consider:

(1) The extent of the prejudice likely to arise;

(2) the significance of the particular crime in indicating untruthfulness; and

(3) the remoteness in time of the conviction.

(b) Methods of proof. Evidence that a witness has been convicted of a crime may be introduced by the following methods:

(1) Examination of the witness as to the conviction, or

(2) introduction of a certified copy of the record of conviction into evidence, after the witness has been identified as the person named in the record.

(c) Matters subject to proof. If, for purposes of impeaching the credibility of a witness, evidence is introduced that the witness has been convicted of a crime, the court shall limit the evidence to the name of the crime and when and where the conviction was rendered, except that (1) the court may exclude evidence of the name of the crime and (2) if the witness denies the conviction, the court may permit evidence of the punishment imposed.

(d) Pendency of appeal. The pendency of an appeal from a conviction does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

Commentary ( 607)

(a) General rule.

Subsection (a) recognizes the trial court’s discretionary authority to admit prior crimes evidence, e.g., State v. Sauris, 227 Conn. 389, 409, 631 A.2d 238 (1993); Heating Acceptance Corp. v. Patterson, 152 Conn. 467, 472, 208 A.2d 341 (1965); see General Statutes 52-145(b), subject to consideration of the three factors set forth in the rule. State v. Nardini, 187 Conn. 513, 522, 447 A.2d 396 (1982); accord State v. Carter, 228 Conn. 412, 430, 636 A.2d 821 (1994); State v. Cooper, 227 Conn. 417, 434-35, 630 A.2d 1043 (1993).

A determination of youthful offender status pursuant to chapter 960a of the General Statutes does not constitute a conviction for purposes of subsection (a). State v. Keiser, 196 Conn. 122, 127-28, 491 A.2d 382 (1985); see General Statutes 54-76k.

The trial court must balance the probative value of the conviction evidence against its prejudicial impact. State v. Harrell, 199 Conn. 255, 262, 506 A.2d 1041 (1986); see Conn. Code Evid. 403, supra. The balancing test applies whether the witness against whom the conviction evidence is being offered is the accused or someone other than the accused. See State v. Cooper, supra, 227 Conn. 435; State v. Pinnock, 220 Conn. 765, 780-81, 601 A.2d 521 (1992). The party objecting to the admission of conviction evidence bears the burden of showing the prejudice likely to arise from its admission. E.g., State v. Harrell, supra, 262; State v. Binet, 192 Conn. 618, 624, 473 A.2d 1200 (1984).

The Supreme Court has established no absolute time limit which would bar the admissibility of certain convictions, although it has suggested a ten year limit on admissibility measured from the later of the date of conviction or the date of the witness’ release from the confinement imposed for the conviction. State v. Carter, supra, 228 Conn. 431; State v. Sauris, supra, 227 Conn. 409-10; State v. Nardini, supra, 187 Conn. 526. The Court has noted, however, that those "convictions having . . . special significance upon the issue of veracity [may] surmount the ten year bar . . . ." State v. Nardini, supra, 526; accord State v. Carter, supra, 431. Ultimately, the trial court retains discretion to determine whether the remoteness of a particular conviction will call for its exclusion. See State v. Sauris, supra, 409; State v. Nardini, supra, 526.

A conviction that qualifies under the rule may be admitted to attack credibility, whether the conviction was rendered in this state or another jurisdiction. State v. Perelli, 128 Conn. 172, 180, 21 A.2d 389 (1941); see State v. Grady, 153 Conn. 26, 30, 211 A.2d 674 (1965). When a conviction from a jurisdiction other than Connecticut is used, choice of law principles govern whether, for purposes of the "more than one year" requirement, the source of the time limitation derives from the law of the jurisdiction under which the witness was convicted or from an analogous provision in the general statutes. See State v. Perelli, supra, 180. Thus, the code takes no position on this issue.

(b) Method of proof.

Subsection (b) restates the two common law methods of proving a witness’ criminal conviction. E.g., State v. Sauris, supra, 227 Conn. 411; State v. Denby, 198 Conn. 23, 29-30, 501 A.2d 1206 (1985), cert. denied, 475 U.S. 1097, 106 S.Ct. 1497, 89 L.Ed.2d 898 (1986); State v. English, 132 Conn. 573, 581-82, 46 A.2d 121 (1946). Although these are the traditional methods of proving a witness’ criminal conviction, nothing in subsection (b) precludes other methods of proof when resort to the traditional methods prove to be unavailing.

Use of the disjunctive "or" is not intended to preclude resort to one method of proof merely because the other method of proof has already been attempted.

(c) Matters subject to proof.

Subsection (c) codifies Connecticut practice. State v. Robinson, 227 Conn. 711, 736, 631 A.2d 288 (1993) (name of the crime and the date and place of conviction); State v. Dobson, 221 Conn. 128, 138, 602 A.2d 977 (1992) (date and place of conviction); State v. Pinnock, supra, 220 Conn. 780 (name of the crime and date of conviction). Inquiry into other details and circumstances surrounding the crime for which the witness was convicted is impermissible. See State v. Denby, supra, 198 Conn. 30; State v. Marino, 23 Conn. App. 392, 403, 580 A.2d 990, cert. denied, 216 Conn. 818, 580 A.2d 63 (1990).

The rule preserves the court’s common law discretion to limit the matters subject to proof. See, e.g., State v. Dobson, supra, 221 Conn. 138; State v. Pinnock, supra, 220 Conn. 780. The court’s discretion to exclude the name of the crime has generally been limited to those situations in which the prior conviction does not directly reflect on veracity. See, e.g., State v. Pinnock, supra, 780, 782. When the court orders the name of the crime excluded, the examiner may refer to the fact that the witness was convicted for the commission of an unspecified crime which was punishable by imprisonment for more than one year. See State v. Dobson, supra, 138; State v. Geyer, supra, 194 Conn. 16.

The rule reflects further the holding in State v. Robinson, supra, 227 Conn. 736. If the witness admits the fact of conviction, the punishment or sentence imposed for that conviction is inadmissible. State v. McClain, 23 Conn. App. 83, 87-88, 579 A.2d 564 (1990).

(d) Pendency of appeal.

Subsection (d) restates the rule from cases such as State v. Varszegi, 36 Conn. App. 680, 685-86, 653 A.2d 201 (1995), aff’d on other grounds, 236 Conn. 266, 673 A.2d 90 (1996), and State v. Schroff, 3 Conn. App. 684, 689, 492 A.2d 190 (1985).

Section 608. Scope of cross-examination and subsequent examinations. Leading questions.

(a) Scope of cross-examination and subsequent examinations. Cross-examination and subsequent examinations shall be limited to the subject matter of the preceding examination and matters affecting the credibility of the witness, except in the discretion of the court.

(b) Leading questions. Leading questions shall not be used on the direct or redirect examination of a witness, except that the court may permit leading questions, in its discretion, in circumstances such as, but not limited to, the following:

(1) When a party calls a hostile witness or a witness identified with an adverse party;

(2) when a witness testifies so as to work a surprise or deceit on the examiner;

(3) when necessary to develop a witness's testimony; or

(4) when necessary to establish preliminary matters.

Commentary ( 608)

(a) Scope of cross-examination and subsequent examinations.

Subsection (a) is in accord with Connecticut practice. E.g., State v. Ireland, 218 Conn. 447, 452, 590 A.2d 106 (1991) (scope of cross-examination); Mendez v. Dorman, 151 Conn. 193, 198, 195 A.2d 561 (1963) (same); see State v. Jones, 205 Conn. 638, 666, 534 A.2d 1199 (1987) (scope of redirect examination); Grievance Committee v. Dacey, 154 Conn. 129, 151-52, 222 A.2d 220 (1966) (same), appeal dismissed, 386 U.S. 683, 87 S. Ct. 1325, 18 L. Ed. 2d 404 (1967). The trial court is vested with discretion in determining whether evidence offered on cross-examination or during a subsequent examination relates to subject matter brought out during the preceding examination. See Canton Motorcar Works, Inc. v. DiMartino, 6 Conn. App. 447, 458, 505 A.2d 1255 (1986); Larensen v. Karp, 1 Conn. App. 228, 230, 470 A.2d 715 (1984).

Subsection (a) recognizes the discretion afforded the trial judge in determining the scope of cross-examination and subsequent examinations. E.g., State v. Prioleau, 235 Conn. 274, 302, 664 A.2d 793 (1995) (cross-examination); see State v. Conrod, 198 Conn. 592, 596, 504 A.2d 494 (1986) (redirect examination). Thus, subsection (a) does not preclude a trial judge from permitting a broader scope of inquiry in certain circumstances, such as when a witness could be substantially inconvenienced by having to testify on two different occasions.

(b) Leading questions.

Subsection (b) addresses the use of leading questions on direct or redirect examination. A leading question is a question that suggests the answer desired by the examiner in accord with the examiner’s view of the facts. E.g., Hulk v. Aishberg, 126 Conn. 360, 363, 11 A.2d 380 (1940); State v. McNally, 39 Conn. App. 419, 423, 665 A.2d 137 (1995); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) 7.12.1, p. 159.

Subsection (b) restates the common law rule. See Mendez v. Dorman, supra, 151 Conn. 198; Bradbury v. South Norwalk, 80 Conn. 298, 302-03, 68 A. 321 (1907). The court is vested with discretion in determining whether leading questions should be permitted on direct or redirect examination. E.g., Hulk v. Aishberg, supra, 126 Conn. 363; State v. Russell, 29 Conn. App. 59, 67, 612 A.2d 471, cert. denied, 224 Conn. 908, 615 A.2d 1049 (1992).

Subsection (b) sets forth illustrative exceptions to the general rule that are discretionary with the court. Exceptions (1) and (2) are well established. Mendez v. Dorman, supra, 151 Conn. 197-98; State v. Stevens, 65 Conn. 93, 98-99, 31 A. 496 (1894); Stratford v. Sanford, 9 Conn. 275, 284 (1832). For purposes of exception (1), "a witness identified with an adverse party" also includes the adverse party himself.

Under exception (3), the court may allow the calling party to put leading questions to a young witness who is apprehensive or reticent, e.g., State v. Parsons, 28 Conn. App. 91, 104, 612 A.2d 73, cert. denied, 223 Conn. 920, 614 A.2d 829 (1992), to a witness who has trouble communicating, by virtue of either a disability or language deficiency, C. Tait & J. LaPlante, supra, 7.12.2, p. 161, or to a witness whose recollection is exhausted, see State v. Palm, 123 Conn. 666, 675-76, 197 A.2d 168 (1938).

Under exception (4), the court has discretion to allow a calling party to use leading questions to develop preliminary matters in order to expedite the trial. State v. Russell, supra, 29 Conn. App. 68; see State v. Castelli, 92 Conn. 58, 65-66, 101 A.2d 476 (1917).

It is intended that subsection (b) will co-exist with General Statutes 52-178. That statute allows any party in a civil action to call an adverse party, or certain persons identified with an adverse party, to testify as a witness, and to examine that person "to the same extent as an adverse witness." The statute has been interpreted to allow the calling party to elicit testimony from the witness using leading questions. See Fasanelli v. Terzo, 150 Conn. 349, 359, 189 A.2d 500 (1963). To the extent that the facts in a particular case place the examination of a witness within the ambit of 52-178, the use of leading questions is not discretionary with the court, notwithstanding the provisions of subsection (b). Nothing in subsection (b) is intended to change the interpretation of 52-178 as it existed prior to the enactment of the code.

Section 609. Object or writing used to refresh memory.

(a) While testifying. Any object or writing may be used by a witness to refresh the witness's memory while testifying. If, while a witness is testifying, an object or writing is used by the witness to refresh the witness's memory, any party may inspect the object or writing and cross-examine the witness on it. Any party may introduce the object or writing in evidence if it is otherwise admissible under this code.

(b) Before testifying. If a witness, before testifying, uses an object or writing to refresh the witness's memory for the purpose of testifying, the object or writing need not be produced for inspection unless the court, in its discretion, so orders. Any party may introduce the object or writing in evidence if it is otherwise admissible under this code.

Commentary ( 609)

(a) While testifying.

Subsection (a) recognizes the practice of refreshing a witness’ recollection while testifying. If, while testifying, a witness has difficulty recalling a fact or event he once perceived, the witness may be shown any object or writing, regardless of authorship, time of making, or originality, to refresh his memory. See, e.g., State v. Rado, 172 Conn. 74, 79, 372 A.2d 159 (1976), cert. denied, 430 U.S. 918, 97 S. Ct. 1335, 51 L. Ed. 2d 598 (1977); Henowitz v. Rockville Savings Bank, 118 Conn. 527, 529-30, 173 A. 221 (1934); Neff v. Neff, 96 Conn. 273, 278, 114 A. 126 (1921). The object or writing need not be admissible because the witness will testify from her refreshed recollection, not from the object or writing that was used to refresh her recollection. See Krupp v. Sataline, 151 Conn. 707, 708, 200 A.2d 475 (1964) (per curiam); Neff v. Neff, supra, 279.

The trial court is afforded discretion in controlling the admissibility of refreshed testimony. Specifically, the court is vested with the authority to determine whether the witness’ recollection needs to be refreshed, whether the object or writing will refresh the witness’ recollection, and whether the witness’ recollection has been refreshed. See, e.g., State v. Grimes, 154 Conn. 314, 322, 228 A.2d 141 (1966); see also Conn. Code Evid. 103(a), supra.

Subsection (a) confers on any party the right to inspect the object or writing used to refresh the witness’ recollection while testifying and to cross-examine the witness thereon. E.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 526, 457 A.2d 656 (1983); State v. Grimes, supra, 154 Conn. 323; Neff v. Neff, supra, 96 Conn. 280-81. This protection affords the party the opportunity to verify whether the witness’ recollection is genuinely refreshed and, if applicable, to shed light upon any inconsistencies between the writing and the refreshed testimony. See State v. Masse, 24 Conn. Sup. 45, 56, 186 A.2d 553 (1962); 1 C. McCormick, Evidence (4th Ed. 1992) 9, p. 32.

Any party may introduce into evidence the object or writing used to stimulate the witness’ recollection if the object or writing is otherwise admissible under other provisions of the code. See C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) 7.14.1(b), p. 166; cf. Erie Preserving Co. v. Miller, 52 Conn. 444, 446 (1885). Section 609 does not create an independent exception to the hearsay rule or other exclusionary provisions in the code. Contrast this rule with Conn. Code Evid. 803(7), infra, which recognizes a past recollection recorded exception to the hearsay rule.

(b) Before testifying.

Unlike the situation contemplated in subsection (a), in which the witness uses an object or writing to refresh recollection while testifying, subsection (b) covers the situation in which the witness has used an object or writing before taking the stand to refresh his memory for the purpose of testifying at trial. In accordance with common law, subsection (b) establishes a presumption against production of the object or writing for inspection in this situation, but vests the court with discretion to order production. State v. Cosgrove, 181 Conn. 562, 588-89, 436 A.2d 33 (1980); State v. Watson, 165 Conn. 577, 593, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974).

Assuming the court exercises its discretion in favor of production, subsection (b) does not contemplate production of all objects or writings used by a witness prior to testifying at trial. Rather, it contemplates production of only those objects or writings a witness uses before testifying to refresh her memory of facts or events she previously perceived.

As with subsection (a), subsection (b) authorizes any party to introduce the object or writing in evidence if it is independently admissible under other provisions of the code.

For purposes of section 609, a writing may include, but is not limited to, communications recorded in any tangible form.

Section 610. Prior inconsistent statements of witnesses.

(a) Prior inconsistent statements generally. The credibility of a witness may be impeached by evidence of a prior inconsistent statement made by the witness.

(b) Examining witness concerning prior inconsistent statement. In examining a witness concerning a prior inconsistent statement, whether written or not, made by the witness the statement should be shown to or the contents of the statement disclosed to the witness at that time.

(c) Extrinsic evidence of prior inconsistent statement of witness. If a prior inconsistent statement made by a witness is shown to or if the contents of the statement are disclosed to the witness at the time the witness testifies, and if the witness admits to making the statement, extrinsic evidence of the statement is inadmissible, except in the discretion of the court. If a prior inconsistent statement made by a witness is not shown to or if the contents of the statement are not disclosed to the witness at the time the witness testifies, extrinsic evidence of the statement is inadmissible, except in the discretion of the court.

Commentary ( 610)

(a) Prior inconsistent statements generally.

Subsection (a) embraces a familiar common law principle. State v. Avis, 209 Conn. 290, 302, 551 A.2d 26, cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989); G & R Tire Distributors, Inc. v. Allstate Ins. Co., 177 Conn. 58, 60-61, 411 A.2d 31 (1979); Beardsley v. Wildman, 41 Conn. 515, 516 (1874).

Impeachment of a witness’ in-court testimony with the witness’ prior inconsistent statements is proper only if the prior statements are in fact "inconsistent" with the witness’ testimony. E.g., State v. Richardson, 214 Conn. 752, 763, 574 A.2d 182 (1990); State v. Reed, 174 Conn. 287, 302-03, 386 A.2d 243 (1978). A finding of a statement’s inconsistency "is not limited to cases in which diametrically opposed assertions have been made." State v. Whelan, 200 Conn. 743, 749 n.4, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). Inconsistencies can be found in omissions, changes of position, denials of recollection, or evasive answers. Id., 748-49 n.4. The determination whether an "inconsistency" exists lies within the discretion of the court. State v. Avis, supra, 209 Conn. 302.

(b) Examining witness concerning prior inconsistent statement.

Subsection (b) addresses the necessity of laying a foundation as a precondition to examining the witness about her prior inconsistent statement. It codifies the rule of State v. Saia, 172 Conn. 37, 46, 372 A.2d 144 (1976). Accord State v. Butler, 207 Conn. 619, 626, 543 A.2d 270 (1988); State v. Williams, 204 Conn. 523, 534, 529 A.2d 653 (1987).

Although Connecticut favors the laying of a foundation, see State v. Saia, supra, 172 Conn. 46, it has consistently maintained that there is "no inflexible rule regarding the necessity of calling the attention of a witness on cross-examination to the alleged prior inconsistent statement before . . . questioning him on the subject . . . ." Id.; see Adams v. Herald Publishing Co., 82 Conn. 448, 452-53, 74 A. 755 (1909).

(c) Extrinsic evidence of prior inconsistent statement of witness.

The first sentence is consistent with Connecticut practice. See G & R Tire Distributors, Inc. v. Allstate Ins. Co., supra, 177 Conn. 61; see also Barlow Bros. Co. v. Parsons, 73 Conn. 696, 702-03, 49 A. 205 (1901) (finding extrinsic proof of a prior inconsistent statement unnecessary when the witness admits to making the statement); State v. Graham, 21 Conn. App. 688, 704, 575 A.2d 1057 (same), cert. denied, 216 Conn. 805, 577 A.2d 1063 (1990); cf. State v. Butler, supra, 207 Conn. 626 (where the witness denies or states that she does not recall having made the prior statement, extrinsic evidence establishing the making of that statement may be admitted). Notwithstanding the general rule, subsection (c) recognizes the court’s discretion to admit extrinsic evidence of a witness’ prior inconsistent statement even when the examiner lays a foundation and the witness admits making the statement. See G & R Tire Distributors, Inc. v. Allstate Ins. Co., supra, 61.

The second sentence reconciles two interrelated principles: the preference for laying a foundation when examining a witness concerning prior inconsistent statements, see subsection (b), and the discretion accorded the trial court in determining the admissibility of extrinsic evidence of a witness’ prior inconsistent statements where no foundation has been laid. State v. Saia, supra, 172 Conn. 46.

Case law forbids the introduction of extrinsic evidence of a witness’ prior inconsistent statement if the witness’ statement involves a collateral matter, that is, a matter not directly relevant and material to the merits of the case. E.g., State v. Diaz, 237 Conn. 518, 548, 679 A.2d 902 (1996); Johnson v. Palomba Co., 114 Conn. 108, 115-16, 157 A. 902 (1932). Although section 610 takes no position on the issue, nothing precludes a court from excluding, pursuant to Conn. Code Evid. 403, supra, extrinsic evidence offered to contradict a witness’ testimony as to a collateral matter.

The substantive admissibility of prior inconsistent statements is treated elsewhere in the code. See Conn. Code Evid. 805(1), infra.

Section 611. Prior consistent statements of witnesses. Constancy of accusation by a sexual assault victim.

(a) General rule. Except as provided in this section, the credibility of a witness may not be supported by evidence of a prior consistent statement made by the witness.

(b) Prior consistent statement of a witness. If the credibility of a witness is impeached by (1) a prior inconsistent statement of the witness; (2) a suggestion of bias, interest or improper motive that was not present at the time the witness made the prior consistent statement; or (3) a suggestion of recent contrivance, evidence of a prior consistent statement made by the witness is admissible, in the discretion of the court, to rebut the impeachment.

(c) Constancy of accusation by a sexual assault victim. A person to whom a sexual assault victim has reported the alleged assault may testify that the allegation was made and when it was made, provided the victim has testified to the facts of the alleged assault and to the identity of the person or persons to whom the assault was reported. Any testimony by the witness about details of the assault shall be limited to those details necessary to associate the victim's allegations with the pending charge. The testimony of the witness is admissible only to corroborate the victim's testimony and not for substantive purposes.

Commentary ( 611)

(a) General rule.

Connecticut’s rule on the admissibility of prior consistent statements is phrased in terms of a general prohibition subject to exceptions. E.g., State v. Valentine, 240 Conn. 395, 412-13, 692 A.2d 727 (1997); State v. Dolphin, 178 Conn. 564, 568-69, 424 A.2d 266 (1979). Exceptions to the general prohibition are set forth in subsections (b) and (c).

(b) Prior consistent statement of a witness.

Common law permits the use of a witness’ prior statement consistent with her in-court testimony to rehabilitate her credibility after it has been impeached via one of the three forms of impeachment listed in the rule. E.g., State v. Valentine, supra, 240 Conn. 413; State v. Brown, 187 Conn. 602, 607-08, 447 A.2d 734 (1982). The cases sometimes list a fourth form of impeachment—a claim of inaccurate memory—under which prior consistent statements could be admitted to repair credibility. E.g., State v. Valentine, supra, 413; State v. Anonymous (83-FG), 190 Conn. 715, 729, 463 A.2d 533 (1983). This form of impeachment is not included because it is subsumed under the "impeachment by prior inconsistent statements" category. The only conceivable situation in which a prior consistent statement could be admitted to counter a claim of inaccurate memory involves: (1) impeachment by a prior inconsistent statement made some time after the event when the witness’ memory had faded; and (2) support of the witness’ in-court testimony by showing a prior consistent statement made shortly after the event when the witness’ memory was fresh. Cf., e.g., Brown v. Rahr, 149 Conn. 743, 743-44, 182 A.2d 629 (1962) (per curiam); Thomas v. Ganezer, 137 Conn. 415, 418-21, 78 A.2d 539 (1951).

Connecticut has no per se requirement that the prior consistent statement precede the prior inconsistent statement used to attack the witness’ credibility. See State v. McCarthy, 179 Conn. 1, 18, 425 A.2d 924 (1979).

Prior consistent statements introduced under subsection (b) are admissible for the limited purpose of repairing credibility and are not substantive evidence. E.g., State v. Brown, supra, 187 Conn. 607; Thomas v. Ganezer, supra, 137 Conn. 421.

In stating that evidence of a witness’ prior consistent statement is admissible "in the discretion of the court," section 616 stresses the broad discretion afforded the trial judge in admitting this type of evidence. See Thomas v. Ganezer, supra, 137 Conn. 420; cf. State v. Mitchell, 169 Conn. 161, 168, 362 A.2d 808 (1975).

(c) Constancy of accusation by a sexual assault victim.

Subsection (c) codifies the Connecticut Supreme Court’s recent modification of the constancy of accusation rule found in State v. Troupe, 237 Conn. 284, 304, 677 A.2d 917 (1996).

Evidence introduced under subsection (c) is admissible for corroborative purposes only. Evidence may be introduced substantively only where permitted elsewhere in the code. E.g., Conn. Code Evid. 803(2), infra (spontaneous utterance hearsay exception); see State v. Troupe, supra, 237 Conn. 304 n.19.

Admissibility is contingent on satisfying the relevancy and balancing standards found in Conn. Code Evid. 401 and 403, supra, respectively. See State v. Troupe, supra, 237 Conn. 305 & n.20.

ARTICLE VII - OPINIONS AND EXPERT TESTIMONY

Section 701. Opinion testimony by lay witnesses.

If a witness is not testifying as an expert, the witness may not testify in the form of an opinion, unless the opinion is rationally based on the perception of the witness and are helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue.

Commentary ( 701)

Section 701 sets forth standards for the admissibility of non-expert opinion testimony. Section 701 is based on the traditional rule that witnesses who did not testify as experts were generally required to limit their testimony to an account of the facts, and with but a few exceptions, could not state an opinion or conclusion. E.g., Robinson v. Faulkner, 163 Conn. 365, 371-72, 306 A.2d 857 (1972); Stephanofsky v. Hill, 136 Conn. 379, 382, 71 A.2d 560 (1950); Sydleman v. Beckwith, 43 Conn. 9, 11 (1875). Section 701 attempts to preserve the common law preference for testimony of facts, but recognizes there may be situations in which opinion testimony will be more helpful to the factfinder than a rendition of the observed facts.

In some situations, a witness may not be able to sufficiently convey her sensory impressions to the factfinder by a mere report of the facts upon which those impressions were based. For example, a witness’ testimony that a person appeared to be frightened or nervous would be much more likely to evoke a vivid impression in the factfinder’s mind than a lengthy description of that person’s outward manifestations. See State v. McGinnis, 158 Conn. 124, 130-31, 256 A.2d 241 (1969). As a matter of practical necessity, this type of non-expert opinion testimony may be admitted because the facts upon which the witness’ opinion is based "are so numerous or so complicated as to be incapable of separation, or so evanescent in character [that] they cannot be fully recollected or detailed, or described, or reproduced so as to give the trier the impression they gave the witness." Atwood v. Atwood, 84 Conn. 169, 173, 79 A. 59 (1911); accord State v. Spigarolo, 210 Conn. 359, 371, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989); Stephanofsky v. Hill, supra, 136 Conn. 382; Sydleman v. Beckwith, supra, 43 Conn. 12.

Some of the matters on which non-expert opinion testimony has been held admissible include: the appearance of persons or things, State v. McGinnis, supra, 158 Conn. 130-31; MacLaren v. Bishop, 113 Conn. 312, 313-14, 155 A.2d 210 (1931), sound, Johnson v. Newell, 160 Conn. 269, 277-78, 278 A.2d 776 (1971), the speed of an automobile, Acampora v. Asselin, 179 Conn. 425, 427, 426 A.2d 797 (1980); Stephanofsky v. Hill, supra, 136 Conn. 382-83, and physical or mental condition, Atwood v. Atwood, supra, 84 Conn. 172-74.

Whether non-expert opinion testimony is admissible is a preliminary question for the court. See Conn. Code Evid. 103(a), supra; see also, e.g., Turbert v. Mather Motors, Inc., 165 Conn. 422, 434, 334 A.2d 903 (1973) (admissibility of non-expert opinion testimony in the court’s discretion).

Section 702. Testimony by experts. Scientific evidence.

(a) Testimony by experts. A witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue.

(b) Threshold inquiry into admissibility of scientific evidence. In determining whether scientific evidence will assist the trier of fact, the court shall determine whether the evidence is reliable and relevant. Scientific evidence is reliable if the reasoning or methodology underlying the evidence is scientifically valid. Scientific evidence is relevant if the reasoning or methodology properly can be applied to the facts in issue.

COMMENTARY (' 702)

(a) Testimony by experts.

Subsection (a) imposes two conditions on the admissibility of expert testimony. First, the witness must be qualified as an expert. See, e.g., State v. Wilson, 188 Conn. 715, 722, 453 A.2d 765 (1982); see also, e.g., State v. Girolamo, 197 Conn. 201, 215, 496 A.2d 948 (1985) (bases for qualification). Whether a witness is sufficiently qualified to testify as an expert depends on whether, by virtue of the witness’ knowledge, skill, experience, etc., her testimony will "assist" the trier of fact. See Weinstein v. Weinstein, 18 Conn. App. 622, 631, 561 A.2d 443 (1989); see also, e.g., State v. Douglas, 203 Conn. 445, 453, 525 A.2d 101 (1987) ("[T]o be admissible, the proffered expert’s knowledge must be directly applicable to the matter specifically in issue."). The sufficiency of an expert witness’ qualifications is a preliminary question for the court. E.g., Blanchard v. Bridgeport, 190 Conn. 798, 808, 463 A.2d 553 (1983); see Conn. Code Evid. 103(a).

Second, the expert witness’ testimony must assist the trier of fact in understanding the evidence or determining a fact in issue. See, e.g., State v. Hasan, 205 Conn. 485, 488, 534 A.2d 877 (1987); Schomer v. Shilepsky, 169 Conn. 186, 191-92, 363 A.2d 128 (1975). Crucial to this inquiry is a determination that the scientific, technical, or specialized knowledge upon which the expert’s testimony is based goes beyond the common knowledge and comprehension, i.e., "beyond the ken," of the average juror. See State v. George, 194 Conn. 361, 373, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 105 L. Ed. 2d 968 (1985); State v. Grayton, 163 Conn. 104, 111, 302 A.2d 246, cert. denied, 409 U.S. 1045, 93 S. Ct. 542, 34 L. Ed. 2d 495 (1972); cf. State v. Kemp, 199 Conn. 473, 476-77, 507 A.2d 1387 (1986).

The subject matter upon which expert witnesses may testify is not limited to the scientific or technical fields, but extends to all specialized knowledge. See, e.g., State v. Correa, 241 Conn. 322, 355, 696 A.2d 944 (1997) (FBI agent may testify about local cocaine distribution and its connection with violence); Misisco v. LaMaita, 150 Conn. 680, 684, 192 A.2d 891 (1963) (owner of property may testify about its market value).

(b) Scientific evidence.

Subsection (b) codifies the approach to the admissibility of scientific evidence taken by the Supreme Court in State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), and its companion case, State v. Hunter, 241 Conn. 165, 694 A.2d 1317 (1997). In Porter, the state Supreme Court opted for the same approach taken by the United States Supreme Court in construing the relevant federal rule of evidence in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). State v. Porter, supra, 61, 68. In accordance with Porter, subsection (b) requires the trial judge, in serving a gatekeeper function, to ensure that the proffered scientific evidence is both reliable and relevant. See id., 64.

In Porter, the Court listed several factors a trial judge should consider in deciding whether scientific evidence is reliable, including: (1) whether the scientific theory or principle has gained general acceptance in the relevant field; (2) whether it has been tested and subjected to peer review; (3) the known or potential rate of error; (4) the extent to which the theory or principle relies on the testifying expert’s subjective interpretation and judgment rather than on objectively verifiable criteria; and (5) whether the theory or principle has been developed and implemented solely for in-court use or for nonjudicial purposes as well. Id., 84-86. The foregoing list of factors is not exclusive, id., 84, and the operation of each factor varies depending on the specific context in each case. Id., 86-87.

Section 703. Opinion on ultimate issue.

(a) General rule. Testimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact, except that, other than as provided in subsection (b), an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue.

(b) Mental state or condition of defendant in a criminal case. No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto, except that such expert witness may state his diagnosis of the mental state or condition of the defendant. The ultimate issue as to whether the defendant was criminally responsible for the crime charged is a matter for the trier of fact alone.

Commentary ( 703)

(a) General rule.

The common law rule on the admissibility of a witness’ opinion on the ultimate issue is phrased in terms of a general prohibition subject to exceptions. E.g., State v. Spigarolo, 210 Conn. 353, 372, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989); State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988). Subsection (a) adopts the general bar to the admission of non-expert and expert opinion testimony that embraces an ultimate issue.

Subsection (a), however, recognizes an exception to the general rule for expert witnesses. See, e.g., State v. Rodgers, 207 Conn. 646, 652, 542 A.2d 1136 (1988); State v. Vilalastra, supra, 207 Conn. 41; State v. Johnson, 140 Conn. 560, 562-63, 102 A.2d 359 (1954); cf. Pisel v. Stamford Hospital, 180 Conn. 314, 328-29, 430 A.2d 1 (1980). This exception for expert opinion embracing an ultimate issue is subject to the limitations set forth in subsection (b). Expert opinion on the ultimate issue otherwise admissible under subsection (a) must nevertheless satisfy the general requirements for the admissibility of all expert opinion testimony set forth in Conn. Code Evid. 702, supra, and 704, infra.

The cases have sometimes used the term "ultimate issue" imprecisely. One example is State v. Spigarolo, supra, 210 Conn. 372-74, in which the Court appeared to relax the general restriction on the admissibility of non-expert opinion testimony that embraces an ultimate issue. At issue was whether a non-expert witness could render an opinion on whether the testimony of a child sexual assault victim would be less candid if the victim were required to testify in the presence of the accused. Id., 370-71. The Court identified this issue as an "ultimate issue" for purposes of the case. See generally id., 372-74.

In drafting the code, however, the Committee deemed the issue in Spigarolo an important factual issue, not an ultimate one. Thus, the Committee regarded Spigarolo as a case properly analyzed under Conn. Code Evid. 701, supra. To the extent that Spigarolo recognized an exception to the inadmissibility of non-expert opinion testimony that embraces an ultimate issue, it is rejected in favor of a complete ban on the admissibility of such testimony. See, e.g., LaFrance v. LaFrance, 127 Conn. 149, 155, 14 A.2d 739 (1940).

(b) Mental state or condition of defendant in a criminal case.

The term "opinion or inference" appears in subsection (b) by virtue of the verbatim incorporation of the language of former General Statutes 54-86i. The code draws no distinction between the term "opinion or inference" and the term "opinion" or "opinions" without the accompanying "or inference" language, the latter term appearing in other provisions of Article VII.

Nothing in subsection (b) changes the common law interpretation of General Statutes 54-86i, e.g., State v. Raguseo, 225 Conn. 114, 136-38, 622 A.2d 519 (1993), as it existed prior to the enactment of this code.

Section 704. Opinion testimony by experts. Bases of opinion testimony by experts. Hypothetical questions.

(a) Opinion testimony by experts. An expert may testify in the form of an opinion and give reasons therefor, provided sufficient facts are shown as the foundation for the expert's opinion.

(b) Bases of opinion testimony by experts. The facts in the particular case upon which an expert bases an opinion may be those perceived by or made known to the expert at or before the proceeding. The facts need not be admissible in evidence if of a type customarily relied on by experts in the particular field in forming opinions on the subject. The facts relied on pursuant to this subsection are not substantive evidence, unless otherwise admissible as such evidence.

(c) Hypothetical questions. An expert may give an opinion in response to a hypothetical question provided that the hypothetical question (1) presents the facts in such a manner that they bear a true and fair relationship to each other and to the evidence in the case; (2) is not worded so as to mislead or confuse the jury; and (3) is not so lacking in the essential facts as to be without value in the decision of the case. A hypothetical question need not contain all of the facts in evidence.

Commentary ( 704)

(a) Opinion testimony by experts.

Connecticut case law requires disclosure of the "factual basis" underlying an expert witness’ opinion before the expert witness may render that opinion. See Borkowski v. Borkowski, 228 Conn. 729, 742, 638 A.2d 1060 (1994); State v. John, 210 Conn. 652, 677, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); State v. Asherman, 193 Conn. 695, 716, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); see also Going v. Pagani, 172 Conn. 29, 34, 372 A.2d 516 (1976). Subsection (a) incorporates this principle by requiring that sufficient facts on which the expert’s opinion is based be shown as the foundation for the opinion. This requirement applies whether the expert’s opinion is based on personal knowledge or secondhand facts made known to the expert at or before trial. E.g., State v. John, supra, 676-78 (secondhand data customarily relied on by other experts); Going v. Pagani, supra, 32 (firsthand observation); Floyd v. Fruit Industries, Inc., 144 Conn. 659, 666, 136 A.2d 918 (1957) (secondhand facts made known to the expert through the use of a hypothetical question).

Subsection (a) contemplates that disclosure of the "foundational" facts will in most cases occur during the examination undertaken by the party calling the expert and before the expert states her opinion. Subsection (a)’s requrement of preliminary disclosure, however, is subject to the trial court’s discretionary authority to admit evidence upon proof of connecting facts, or subject to later proof of connecting facts. Conn. Code Evid. 103(b), supra; see Schaefer Jr. & Co. v. Ely, 84 Conn. 501, 509, 80 A. 775 (1911). Nothing in subsection (a) precludes further exploration into the factual basis for the expert’s opinion during cross-examination of the expert.

In articulating standards for determining the sufficiency of the factual basis for an expert’s opinion, the Supreme Court has noted that

[w]here the factual basis of an opinion is challenged the question before the court is whether the uncertainties in the essential facts on which the opinion is predicated are such as to make an opinion based on them without substantial value. The question is not whether the opinion would be more or less persuasive depending on the presence or absence of a given fact but rather whether the missing fact is such an essential part of the factual foundation for the opinion that its absence would rob the opinion of its persuasive force. (Citations omitted.)

State v. Asherman, supra, 193 Conn. 716-17. Whether sufficient facts are shown as the foundation for the expert’s opinion is a preliminary question to be decided by the trial court. Liskiewicz v. LeBlanc, 5 Conn. App. 136, 141, 497 A.2d 86 (1985); see Conn. Code Evid. 103(a), supra.

(b) Bases of opinion testimony by experts.

Subsection (b) allows an expert witness to base her opinion on "facts" derived from one or more of three possible sources. First, the expert’s opinion may be based on facts the expert "perceived" at or before trial, in other words, facts the expert observes firsthand. E.g., State v. Conroy, 194 Conn. 623, 628-29, 484 A.2d 448 (1984); Donch v. Kardos, 149 Conn. 196, 201, 177 A.2d 801 (1962); Wilhelm v. Czuczka, 19 Conn. App. 36, 42, 561 A.2d 146 (1989). For example, a treating physician will often base his expert opinion on observations he made while examining the patient. See generally State v. McClary, 207 Conn. 233, 236-38, 541 A.2d 96 (1988).

Second, the expert’s opinion may be based on facts "made known" to the expert at trial. This second variety includes facts the expert learns of when he attends the trial and listens to the testimony of other witnesses prior to rendering his own opinion. See DiBiase v. Garnsey, 106 Conn. 86, 89, 136 A. 871 (1927). It also includes facts presented to the expert in the form of a hypothetical question. See, e.g., Keeney v. L & S Construction, 226 Conn. 205, 213, 626 A.2d 1299 (1993); State v. Auclair, 33 Conn. Sup. 704, 713, 368 A.2d 235 (1976).

Finally, the expert’s opinion may be based on facts made known to the expert before trial and of which the expert has no firsthand knowledge. See, e.g., State v. Gonzalez, 206 Conn. 391, 408, 538 A.2d 210 (1988) (expert’s opinion based on the autopsy report of another medical examiner); State v. Cosgrove, 181 Conn. 562, 584, 436 A.2d 33 (1981) (expert’s opinion derived from reports which included the observations of other toxicologists).

Although facts derived from the first two sources (i.e., facts gleaned from firsthand observation, facts made known to the expert at trial) will often be admissible and admitted in evidence, facts made known to the expert before trial and of which the expert has no firsthand knowledge are often inadmissible, see, e.g., State v. Cosgrove, supra, 181 Conn. 584, usually based on hearsay or best evidence objections. Nonetheless, subsection (b) adopts the greater weight of authority by providing that the facts upon which an expert bases her opinion need not be admissible if of a type customarily relied on by experts in the particular field in forming their opinions on the subject. State v. Gonzalez, supra, 206 Conn. 408; State v. Cosgrove, supra, 584; State v. Cuvelier, 175 Conn. 100, 107-08, 436 A.2d 33 (1981); State v. Russo, 38 Conn. Sup. 426, 438, 450 A.2d 857 (1982); see In re Barbara J, 215 Conn. 31, 42-43, 574 A.2d 203 (1990); Common Condominium Assns., Inc. v. Common Associates, 192 Conn. 150, 152, 470 A.2d 699 (1984) (per curiam); Vigliotti v. Campano, 104 Conn. 464, 465-66, 133 A.2d 579 (1926). Subsection (b) rejects the pronouncement in Aspiazu v. Orega, 205 Conn. 623, 628, 535 A.2d 338 (1987), and Brown v. Blauvelt, 152 Conn. 272, 274, 205 A.2d 773 (1964), that as "a general rule[,] an expert’s opinion is inadmissible if . . . based on hearsay evidence." Although the Court in those cases recognized an exception for a physician’s expert opinion based on statements made to the physician for the purpose of obtaining medical advice or treatment, recent case law seems to reject Aspiazu’s and Brown’s general rule. See State v. Gonzalez, supra, 408; Common Condominium Assns., Inc. v. Common Associates, supra, 152. In addition, under recent case law, the rule’s purview is not limited to statements made for the purpose of medical advice or treatment. See State v. Russo, supra, 438; see also, e.g., State v. Cosgrove, supra, 584. For purposes of subsection (b), inadmissible "facts" upon which experts customarily rely in forming opinions can be derived from sources such as conversa-tions, informal opinions, written reports, and data compilations. Whether inadmissible facts are of a type customarily relied on by experts in forming opinions is a preliminary question to be decided by the trial court. See Conn. Code Evid. 103(a), supra.

Subsection (b) expressly forbids the facts upon which the expert based her opinion to be admitted for their truth unless otherwise substantively admissible under other provisions of the code. Thus, subsection (b) does not constitute an exception to the hearsay rule or any other exclusionary provision of the code. However, because subsection (a) requires disclosure of the factual basis underlying the expert’s opinion, and because the cross-examiner will often want to further explore the expert’s factual basis, subsection (b) anticipates that the underlying facts relied on by the expert will be admitted for the limited purpose of explaining the factual basis for the expert’s opinion. See State v. Henry, 27 Conn. App. 520, 529-30, 608 A.2d 696 (1992); see also State v. Steiger, 218 Conn. 349, 375 n.24, 590 A.2d 408 (1991).

(c) Hypothetical questions.

Subsection (c) embraces the common law rule concerning the admissibility of a hypothetical question and necessarily, the admissibility of the ensuing expert’s opinion in response to the hypothetical question. Floyd v. Fruit Industries, Inc., supra, 144 Conn. 666; accord Shelnitz v. Greenberg, 200 Conn. 58, 77, 509 A.2d 1023 (1986); Schwartz v. Westport, 170 Conn. 223, 225, 365 A.2d 1151 (1976). In accordance with case law, subsection (c) recognizes that the hypothetical question must contain the essential facts of the case, see State v. Gaynor, 182 Conn. 501, 509-10, 438 A.2d 739 (1980); see also Keeney v. L & S Construction, supra, 226 Conn. 213 ("[T]he stated assumptions on which a hypothetical question is based must be the essential facts established by the evidence . . . "), but need not contain all the facts in evidence, e.g., Donch v. Kardos, supra, 149 Conn. 201; Stephanofsky v. Hill, 136 Conn. 379, 384, 71 A.2d 560 (1950).

Subsection (c) states the rule concerning the framing of hypothetical questions on direct examination. See, e.g., Schwartz v. Westport, supra, 170 Conn. 224-25. The rules governing the framing of hypothetical questions on direct examination and for the purpose of introducing substantive evidence are applied with increased liberality when the hypothetical question is framed on cross-examination and for the purpose of impeaching and testing the accuracy of the expert’s opinion testimony given on direct examination. See, e.g., State v. Gaynor, supra, 182 Conn. 510-11; Kirchner v. Yale University, 150 Conn. 623, 629, 192 A.2d 641 (1963); Livingstone v. New Haven, 125 Conn. 123, 127-28, 3 A.2d 836 (1939); Rice v. Dowling, 23 Conn. App. 460, 465, 581 A.2d 1061 (1990), cert. denied, 217 Conn. 805, 584 A.2d 1190 (1991). Common law shall continue to govern the use of hypothetical questions on cross-examination.

ARTICLE VIII - HEARSAY

Section 801. Definitions.

As used in this Article:

(1) "Statement" means (A) an oral or written assertion or (B) nonverbal conduct of a person, if it is intended by the person as an assertion.

(2) "Declarant" means a person who makes a statement.

(3) "Hearsay" means a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted.

Commentary ( 801)

(1) "Statement"

The definition of "statement" takes on significance when read in conjunction with the definition of "hearsay" in subdivision (3). The definition of "statement" includes both oral and written assertions, see Rompe v. King, 185 Conn. 426, 428, 441 A.2d 114 (1981); Cherniske v. Jajer, 171 Conn. 372, 376, 370 A.2d 981 (1976), and nonverbal conduct of a person intended as an assertion, State v. Blades, 225 Conn. 609, 632, 626 A.2d 273 (1993); Heritage Village Master Assn., Inc. v. Heritage Village Water Co., 30 Conn. App. 693, 702, 622 A.2d 578 (1993); see also C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) 11.2, p. 319 (a person nodding or shaking his head in response to a question is a form of nonverbal conduct intended as an assertion). The effect of this definition is to exclude from the hearsay rule’s purview nonassertive verbalizations and nonassertive, nonverbal conduct. See State v. Hull, 210 Conn. 481, 498-99, 556 A.2d 154 (1989) ("If the statement is not an assertion . . . , it is not hearsay"(quoting C. McCormick, Evidence (3d Ed. 1984) 249, p. 732)); State v. Thomas, 205 Conn. 279, 285, 533 A.2d 553 (1987) ("Nonassertive conduct such as running to hide, or shaking and trembling, is not hearsay.").

The definition of "statement" in section 801 is used solely in conjunction with the definition of hearsay and the operation of the hearsay rule and its exceptions. See generally Conn. Code Evid. art. VIII. The definition does not apply in other contexts or affect definitions of "statement" in other provisions of the general statutes or Practice Book. See, e.g., General Statutes 53-441(a); Practice Book 216, 749.

(2) "Declarant"

The definition of "declarant" is consistent with the longstanding common law recognition of that term. See, e.g., State v. Jarzbek, 204 Conn. 683, 696 n.7, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988); State v. Barlow, 177 Conn. 391, 396, 418 A.2d 46 (1979).

(3) "Hearsay"

Subdivision (3)’s definition of "hearsay" finds support in the cases. E.g., State v. Crafts, 226 Conn. 237, 253, 627 A.2d 877 (1993); State v. Esposito, 223 Conn. 299, 315, 613 A.2d 242 (1992); Obermeier v. Nielsen, 158 Conn. 8, 11, 255 A.2d 819 (1969). The purpose for which the statement is offered is crucial; if it is offered for a purpose other than to establish the truth of the matter asserted, the statement is not hearsay. E.g., State v. Esposito, supra, 315; State v. Hull, supra, 210 Conn. 498-99; State v. Ober, 24 Conn. App. 347, 357, 588 A.2d 1080, cert. denied, 219 Conn. 909, 593 A.2d 134, cert. denied, 502 U.S. 915, 112 S. Ct. 319, 116 L. Ed. 2d 26 (1991).

Section 802. Hearsay rule.

Hearsay is inadmissible, except as provided in this code.

Commentary ( 802)

Section 802, by its terms, limits the source of a hearsay exception to the code of evidence. Nevertheless, the code’s hearsay rule is subject to existing hearsay exceptions under common law, the general statutes, and the Practice Book. See Conn. Code Evid. 102, supra. Thus, the practical effect is that evidence deemed hearsay under Conn. Code Evid. 801, supra, is not admissible unless it falls within a hearsay exception: (1) enumerated in the code; (2) recognized under common law existing at the time of the code’s enactment, but which was not carried forward in the code; (3) enumerated in other provisions of the general statutes; or (4) enumerated in the Practice Book. See State v. Oquendo, 223 Conn. 635, 664, 613 A.2d 1300 (1992) ("As a general rule, hearsay evidence is not admissible unless it falls under one of several well-established exceptions."); State v. Acquin, 187 Conn. 647, 680, 448 A.2d 163 (1982) (same), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983); General Motors Acceptance Corp. v. Capitol Garage Inc., 154 Conn. 593, 597, 227 A.2d 548 (1967) (same).

Notwithstanding section 802’s bar against the admission of hearsay except as provided, the trier of fact may still consider otherwise inadmissible hearsay evidence for whatever it’s worth when the party opposing its introduction fails to properly object to its admission. E.g., State v. Carey, 228 Conn. 487, 495-96, 636 A.2d 840 (1994); State v. Boyd, 178 Conn. 600, 604, 424 A.2d 279 (1979); Sears v. Curtis, 147 Conn. 311, 317, 160 A.2d 742 (1960).

Section 803. Hearsay exceptions: Availability of the declarant immaterial.

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) Statement by a party-opponent. A statement that is being offered against a party and is (A) the party's own statement; in either an individual or a representative capacity; (B) a statement that the party has adopted or approved; (C) a statement by a person authorized by the party to make a statement concerning the subject; (D) a statement by a coconspirator of a party while the conspiracy is ongoing and in furtherance of the conspiracy; (E), in an action for a debt for which the party was surety, a statement by the party's principal relating to the principal's obligations; or (F) a statement made by a predecessor in title of the party, provided the declarant and the party are sufficiently in privity that the statement of the declarant would affect the party's interest in the property in question.

(2) Spontaneous utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

(3) Statement of then-existing physical condition. A statement of the declarant's then-existing physical condition; provided that the statement is a natural expression of the condition, and is not a statement of memory or belief to prove the fact remembered or believed.

(4) Statement of then-existing mental or emotional condition. A statement of the declarant's then-existing mental or emotional condition, including a statement indicating a present intention to do a particular act in the immediate future; provided that the statement is a natural expression of the condition, and is not a statement of memory or belief to prove the fact remembered or believed.

(5) Statement for purposes of obtaining medical treatment or advice pertaining thereto. A statement made for purposes of obtaining medical treatment or advice pertaining thereto and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to the medical treatment or advice.

(6) Recorded recollection. A memorandum or record concerning an event about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness at or about the time of the event recorded and to reflect that knowledge correctly.

(7) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, provided (A) the record, report, statement, or data compilation was made by a public official under a duty to make it; (B) the record, report, statement, or data compilation was made in the course of his official duties; and (C) the official or someone with a duty to transmit information to the official had personal knowledge of the matters contained in the record, report, statement, or data compilation.

(8) Statement in learned treatises. To the extent called to the attention of an expert witness on cross examination or relied on by the expert witness in direct examination, a statement contained in a published treatise, periodical, or pamphlet on a subject of history, medicine, or other science or art, recognized as a standard authority in the field by the witness, other expert witness or judicial notice.

(9) Statement in ancient documents. A statement in a document in existence for more than 30 years if it is produced from proper custody and otherwise free from suspicion.

(10) Published compilations. Market quotations, tabulations, lists, directories, or other published compilations, that are a recognized authority on the subject, or otherwise trustworthy.

(11) Statement in family bible. A statement of fact concerning personal or family history contained in family bibles.

(12) Personal identification. Testimony by a witness of his own name or age.

Commentary ( 803)

(1) Statement by party-opponent.

Section 803(1) sets forth six categories of party-opponent admissions that were excepted from the hearsay rule at common law:

(A) The first category excepts from the hearsay rule a party’s own statement when offered against her. E.g., In re Zoarski, 227 Conn. 784, 796, 632 A.2d 1114 (1993); State v. Woodson, 227 Conn. 1, 15, 629 A.2d 386 (1993). Under section 803(1)(A), a statement is admissible against its maker, whether he was acting in an individual or representative capacity when he made the statement. Although there apparently are no Connecticut cases that support extending the exception to statements made by and offered against those serving in a representative capacity, the rule is in accord with the modern trend. E.g., Fed. R. Evid. 801(d)(2)(A). Connecticut excepts party admissions from the usual requirement that the person making the statement have personal knowledge of the facts stated therein. Dreir v. Upjohn Co., 196 Conn. 242, 249, 492 A.2d 164 (1985).

(B) The second category codifies the common law hearsay exception for "adoptive admissions." See, e.g., State v. John, 210 Conn. 652, 682-83, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); Falker v. Samperi, 190 Conn. 412, 426, 461 A.2d 681 (1983). Because adoption or approval may be implicit, see, e.g., State v. Moye, 199 Conn. 389, 393-94, 507 A.2d 1001 (1986), the common law hearsay exception for tacit admissions, under which silence or a failure to respond to another person’s statement may constitute an admission, e.g., State v. Morrill, 197 Conn. 507, 535, 498 A.2d 76 (1985); Obermeier v. Nielsen, 158 Conn. 8, 11-12, 255 A.2d 819 (1969), is carried forward in section 803(1)(B). The admissibility of tacit admissions in criminal cases is subject to the limitations on the use of an accused’s post-arrest silence, see State v. Ferrone, 97 Conn. 258, 266, 116 A. 336 (1922), or post-Miranda warning silence, Doyle v. Ohio, 426 U.S. 610, 617-19, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976); see, e.g., State v. Zeko, 177 Conn. 545, 554, 418 A.2d 917 (1977).

(C) The third category restates the common law hearsay exception for "authorized admissions." See, e.g., Presta v. Monnier, 145 Conn. 694, 699, 146 A.2d 404 (1958); Collins v. Lewis, 111 Conn. 299, 305-06, 149 A. 668 (1930). The speaker must have speaking authority concerning the subject upon which he speaks; a mere agency relationship—e.g., employer-employee—without more, is not enough to confer speaking authority. E.g., Liebman v. Society of Our Lady of Mount St. Carmel, Inc., 151 Conn. 582, 586, 200 A.2d 721 (1964); Munson v. United Technologies Corp., 28 Conn. App. 184, 188, 609 A.2d 1066, cert. denied, 200 Conn. 805, 510 A.2d 192 (1992); cf. Graham v. Wilkins, 145 Conn. 34, 40-41, 138 A.2d 705 (1958); Haywood v. Hamm, 77 Conn. 158, 159, 58 A. 695 (1904). The proponent need not, however, show that the speaker was authorized to make the particular statement sought to be introduced. The existence of speaking authority is to be determined by reference to the substantive law of agency. Although not expressly mentioned in the exception, the code in no way abrogates the common law rule that speaking authority must be established without reference to the purported agent’s out-of-court statements, save when those statements are independently admissible. See Conn. Code Evid. 101(d)(1) commentary at —, supra. See generally Robles v. Lavin, 176 Conn. 281, 284, 407 A.2d 957 (1978) (per curiam). Because partners are considered agents of the partnership for the purpose of its business, General Statutes 34-47, a partner’s declarations in furtherance of partnership business are ordinarily admissible against the partnership under section 803(1)(C) principles. See 2 C. McCormick, Evidence, (4th Ed. 1992) 259, p. 164; cf. Munson v. Wickwire, 21 Conn. 513, 517 (1852).

(D) The fourth category encompasses the hearsay exception for statements of coconspirators. E.g., State v. Couture, 218 Conn. 309, 322, 589 A.2d 343 (1991); State v. Pelletier, 209 Conn. 564, 577, 552 A.2d 805 (1989); see also State v. Vessichio, 197 Conn. 644, 654-55, 500 A.2d 1311 (1985) (addition-al foundational elements include existence of the conspiracy and participation therein by both the declarant and the party against whom the statement is offered), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986). The exception is applicable in civil and criminal cases alike. See Cooke v. Weed, 90 Conn. 544, 548, 97 A. 765 (1916). The proponent must prove the foundational elements by a preponderance of the evidence and independently of the hearsay statements sought to be introduced. State v. Vessichio, supra, 655; State v. Haggood, 36 Conn. App. 753, 767, 653 A.2d 216, cert. denied, 233 Conn. 904, 657 A.2d 644 (1995).

(E) The fifth category of party-opponent admissions is derived from Agricultural Ins. Co. v. Keeler, 44 Conn. 161, 162-64 (1876). See generally C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) 11.5.6(d), p. 347; 4 J. Wigmore, Evidence (3d Ed. Rev. 1972) 1077.

(F) The final category incorporates the common law hearsay exception applied in Pierce v. Roberts, 57 Conn. 31, 40-41, 17 A. 275 (1889) and Ramsbottom v. Phelps, 18 Conn. 278, 285 (1847).

(2) Spontaneous utterance.

The hearsay exception for spontaneous utterances is well established. See, e.g., State v. Stange, 212 Conn. 612, 616-17, 563 A.2d 681 (1989); Cascella v. Jay James Camera Shop, Inc., 147 Conn. 337, 341-42, 160 A.2d 899 (1960); Perry v. Haritos, 100 Conn. 476, 483-84, 124 A. 44 (1924). Although section 803(2) states the exception in terms different from that of the case law on which the exception is based, cf. State v. Stange, supra, 616-17; Rockhill v. White Line Bus Co., 109 Conn. 706, 709, 145 A. 504 (1929); Perry v. Haritos, supra, 484; State v. Guess, 44 Conn. App. 790, 803, 692 A.2d 849 (1997), the rule assumes incorporation of the case law principles underlying the exception.

The event or condition must be sufficiently startling, so "as to produce nervous excitement in the declarant and render his utterances spontaneous and unreflective." State v. Rinaldi, 220 Conn. 345, 359, 599 A.2d 1 (1991) (quoting C. Tait & J. LaPlante, supra, 11.11.2, pp. 373-74); accord 2 C. McCormick, supra, 272, p. 216.

(3) Statement of then-existing physical condition.

Section 803(3) embraces the hearsay exception for statements of then-existing physical condition. Martin v. Sherwood, 74 Conn. 475, 481-82, 51 A. 526 (1902); State v. Dart, 29 Conn. 153, 155 (1860); see McCarrick v. Kealy, 70 Conn. 642, 645, 40 A. 603 (1898).

The exception is limited to statements of then-existing physical condition, whereby the declarant describes how he feels as he speaks. Statements concerning past physical condition, Martin v. Sherwood, supra, 74 Conn. 482; State v. Dart, supra, 29 Conn. 155, or the events leading up to or the cause of a present condition, McCarrick v. Kealy, supra, 70 Conn. 645, are not admissible. Cf. Conn. Code Evid. 803(5), infra (exception for statements made to a physician for the purpose of obtaining medical treatment or advice and describing past or present bodily condition or the cause thereof).

(4) Statement of then-existing mental or emotional condition.

Section 803(4) embodies what is frequently referred to as the "state-of-mind" exception to the hearsay rule. See, e.g., State v. Periere, 186 Conn. 599, 605-06, 442 A.2d 1345 (1982).

The exception admits a declarant’s statement describing his then-existing mental or emotional condition when the declarant’s mental or emotional condition is a factual issue in the case. E.g., State v. Periere, supra, 186 Conn. 606-07 (to show the declarant’s fear); Kearney v. Farrell, 28 Conn. 317, 320-21 (1859) (to show declarant’s "mental feeling"). Only statements describing then-existing mental or emotional condition, i.e., that existing when the statement is made, are admissible.

The exception also admits a declarant’s statement of present intention to perform a subsequent act as an inference that the subsequent act actually occurred. E.g., State v. Rinaldi, 220 Conn. 345, 358 n.7, 599 A.2d 1 (1991); State v. Santangelo, 205 Conn. 578, 592, 534 A.2d 1175 (1987); State v. Journey, 115 Conn. 344, 351, 161 A.2d 515 (1932). The inference drawn from the statement of present intention that the act actually occurred is a matter of relevancy rather than a hearsay concern.

When a statement describes the declarant’s intention to do a future act in concert with another person (e.g., "I am going to meet Ralph at the store at ten"), the case law does not prohibit admissibility. See State v. Santangelo, supra, 205 Conn. 592. But the declaration can be admitted only to prove the declarant’s subsequent conduct, not to show what the other person ultimately did. State v. Perelli, 125 Conn. 321, 325, 5 A.2d 705 (1939). Thus, in the example above, the declarant’s statement could be used to infer that the declarant actually did go to meet Ralph at the store at ten, but not to show that Ralph went to the store at ten to meet the declarant.

Placement of section 803(4) in the "availability of the declarant immaterial" category of hearsay exceptions confirms that the admissibility of statements of present intention to show future acts is not conditioned on any requirement that the declarant be unavailable. See State v. Santangelo, supra, 205 Conn. 592 (dictum suggesting that the declarant’s unavailability is a precondition to admissibility).

While statements of present intention looking forward to the doing of some future act are admissible under the exception, backward-looking statements of memory or belief offered to prove the act or event remembered or believed are inadmissible. See Wade v. Yale University, 129 Conn. 615, 618-19, 30 A.2d 545 (1943). But see State v. Santangelo, supra, 205 Conn. 592-93. As the advisory committee’s note to the corresponding federal rule suggests,

[t]he exclusion of "statements of memory or belief to prove the fact remembered or believed" is necessary to avoid the virtual destruction of the hearsay rule which would otherwise result from allowing state of mind, provable by a hearsay statement, to serve as the basis for an inference of the happening of the event which produced the state of mind.

Fed. R. Evid. 803(3) advisory committee’s note (citing Shepard v. United States, 290 U.S. 96, 54 S. Ct. 22, 78 L. Ed. 196 (1933)). For cases dealing with the admissibility of statements of memory or belief in will cases, see Spencer’s Appeal, 77 Conn. 638, 643, 60 A. 289 (1905); Vivian Appeal, 74 Conn. 257, 260-62, 50 A. 797 (1901); Comstock v. Hadlyme Ecclesiastical Society, 8 Conn. 254, 263-64 (1830). Cf. Babcock v. Johnson, 127 Conn. 643, 644, 19 A.2d 416 (1941) (statements admissible only as circumstantial evidence of state of mind and not for the truth of the matter asserted); In re Johnson’s Will, 40 Conn. 587, 588 (1873) (same).

(5) Statement for purposes of obtaining medical advice or treatment.

Statements made in furtherance of obtaining medical treatment or advice pertaining thereto are excepted from the hearsay rule. E.g., State v. DePastino, 228 Conn. 552, 565, 638 A.2d 578 (1994); Brown v. Blauvelt, 152 Conn. 272, 274, 205 A.2d 773 (1964); Gilmore v. American Tube & Stamping Co., 79 Conn. 498, 504, 66 A. 4 (1907).

It is intended that the term "medical" be read broadly so that the exception would cover statements made for the purpose of obtaining treatment or advice for both somatic and psychological maladies and conditions. See State v. Wood, 208 Conn. 125, 133-34, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988); Main v. Main, 17 Conn. App. 670, 674, 555 A.2d 997 (1989).

Statements concerning the cause of an injury or condition were traditionally inadmissible under the exception. See Smith v. Hausdorf, 92 Conn. 579, 582, 103 A. 939 (1918). Recent cases recognize that, in some instances, causation may be pertinent to medical treatment or advice. See State v. Daniels, 13 Conn. App. 133, 135, 534 A.2d 1253 (1987); cf. State v. DePastino, supra, 228 Conn. 565. Section 803(5) thus excepts from the hearsay rule statements describing "the inception or general character of the cause or external source" of an injury or condition when reasonably pertinent to medical treatment or advice.

Statements as to causation that include the identity of the person responsible for the injury or condition ordinarily are neither relevant to nor in furtherance of the patient’s medical treatment. State v. DePastino, supra, 228 Conn. 565; State v. Dollinger, 20 Conn. App. 530, 534, 568 A.2d 1058, cert. denied, 215 Conn. 805, 574 A.2d 220 (1990). Both the Supreme and Appellate courts have recognized an exception to this principle in cases of domestic child abuse. State v. DePastino, supra, 565; State v. Dollinger, supra, 534-35; State v. Maldonado, 13 Conn. App. 368, 372-74, 536 A.2d 600, cert. denied, 207 Conn. 808, 541 A.2d 1239 (1988); see C. Tait & J. LaPlante, supra, (Sup. 1996) 11.12.3, p. 203. The courts reason that

[i]n cases of sexual abuse in the home, hearsay statements made in the course of medical treatment which reveal the identity of the abuser, are reasonably pertinent to treatment and are admissible. If the sexual abuser is a member of the child victim’s immediate household, it is reasonable for a physician to ascertain the identity of the abuser to prevent recurrences and to facilitate the treatment of psychological and physical injuries. (Citations omitted; internal quotation marks omitted.)

State v. Dollinger, supra, 535 (quoting State v. Maldonado, supra, 374); accord State v. DePastino, supra, 565.

Traditionally, the exception seemingly required that the statement be made to a physician. See, e.g., Wilson v. Granby, 47 Conn. 59, 76 (1879). Statements qualifying under section 803(5), however, may be those made not only to a physician, but to other persons involved in the treatment of the patient, such as a nurse, a paramedic, an interpreter, or even a family member. This approach is in accord with the modern trend. See State v. Maldonado, supra, 13 Conn. App. 369, 374 n.3 (statement by a child abuse victim who spoke only Spanish made to a Spanish-speaking hospital security guard enlisted by the treating physician as a translator).

Common law cases address the admissibility of statements made only by the patient. E.g., Gilmore v. American Tube & Stamping Co., supra, 79 Conn. 504. Section 803(5) does not, by its terms, restrict statements admissible under the exception to those made by the patient. For example, if a parent were to bring his unconscious child into an emergency room, statements made by the parent to a physician for the purpose of obtaining treatment and pertinent to that treatment fall within the scope of the exception.

The common law distinguished between statements made to physicians consulted for the purpose of treatment and statements made to physicians consulted solely for the purpose of qualifying as an expert witness to testify at trial. Statements made to these so-called "non-treating" physicians were not accorded substantive effect. See, e.g., Zawisza v. Quality Name Plate, Inc., 149 Conn. 115, 119, 176 A.2d 578 (1961); Rowland v. Phila., Wilm. & Baltimore R.R., 63 Conn. 415, 418-19, 28 A. 102 (1893). By use of the phrase "medical treatment or advice pertaining thereto," section 803(5) retains this common law distinction.

(6) Recorded recollection.

The hearsay exception for past recollection recorded requires four foundational requirements:

(1) the witness must have had personal knowledge of the event recorded in the memorandum or record. Papas v. Aetna Insurance Co., 111 Conn. 415, 420, 150 A. 310 (1930); Jackiewicz v. United Illuminating Co., 106 Conn. 302, 309, 138 A. 147 (1927); Neff v. Neff, 96 Conn. 273, 278, 114 A. 126 (1921);

(2) the witness’ present recollection must be insufficient to enable him to testify fully and accurately about the event recorded. State v. Boucino, 199 Conn. 207, 230, 506 A.2d 125 (1986). The rule thus does not require the witness’ memory to be totally exhausted. See id. Earlier cases to the contrary, such as Katsonas v. W.M. Sutherland Building & Contracting Co., 104 Conn. 54, 69, 132 A. 553 (1926), have apparently been rejected. See State v. Boucino, supra, 230. "Insufficient recollection" may be established by demonstrating that an attempt to refresh the witness’ recollection pursuant to Conn. Code Evid. 609(a), supra, was unsuccessful. See Katsonas v. W.M. Sutherland Building & Contracting Co., supra, 69;

(3) the memorandum or record must have been made or adopted by the witness "at or about the time" the event was recorded. Gigliotti v. United Illuminating Co., 151 Conn. 114, 124, 193 A.2d 718 (1963); Neff v. Neff, supra, 96 Conn. 278; State v. Day, 12 Conn. App. 129, 134, 529 A.2d 1333 (1987); and

(4) the memorandum or record must correctly reflect the witness’ knowledge of the event as it existed at the time of the memorandum’s or record’s making or adoption. See State v. Vennard, 159 Conn. 385, 397, 270 A.2d 837 (1970), cert. denied, 400 U.S. 1011, 91 S. Ct. 576, 27 L. Ed. 2d 625 (1971); Capone v. Sloan, 149 Conn. 538, 543, 182 A.2d 414 (1962); Hawken v. Dailey, 85 Conn. 16, 19, 81 A. 1053 (1911).

A memorandum or record admissible under the exception may be read into evidence and received as an exhibit. Katsonas v. W.M. Sutherland Building & Contracting Co., supra, 104 Conn. 69; see Neff v. Neff, supra, 96 Conn. 278-79. Because a memorandum or record introduced under the exception is being offered to prove its contents, the original must be produced pursuant to Conn. Code Evid. 1001, infra, unless its production is excused. See Conn. Code Evid. 1003-1006, infra; cf. Neff v. Neff, supra, 96 Conn. 278.

Multiple person involvement in recordation and observation of the event recorded is contemplated by the exception. For example, A reports to B an event A has just observed. B immediately writes down what A reported to him. A then examines the writing and adopts it as accurate close to the time of its making. A is now testifying and has forgotten the event. A may independently establish the foundational requirements for the admission of the writing under section 803(6). Cf. C. Tait & J. LaPlante, supra, 11.21, p. 408 (citing Curtis v. Bradley, 65 Conn. 99, 31 A. 591 (1894)).

The past recollection recorded exception to the hearsay rule is to be distinguished from the procedure for refreshing recollection, which is covered in Conn. Code Evid. 609, supra.

(7) Public records and reports.

Section 803(7) sets forth a hearsay exception for certain public records and reports. The exception is derived primarily from common law although public records and reports remain the subject of numerous statutes. See, e.g., General Statutes 12-39bb, 19a-412.

Although Connecticut has neither precisely nor consistently defined the elements comprising the common law public records exception to the hearsay rule, cf. Hing Wan Wong v. Liquor Control Commission, 160 Conn. 1, 9, 273 A.2d 709 (1970), cert. denied, 401 U.S. 938, 91 S. Ct. 931, 28 L. Ed. 2d 218 (1971), section 803(7) gleans from the case law three distinct requirements for substantive admissibility. Proviso (A) is found in cases such as Hing Wan Wong v. Liquor Control Commission, supra, 9, Russo v. Metropolitan Life Insurance Co., 125 Conn. 132, 139, 3 A.2d 844 (1939), and Ezzo v. Geremiah, 107 Conn. 670, 679-80, 142 A. 461 (1928). Proviso (B) comes from cases such as Gett v. Isaacson, 98 Conn. 539, 543-44, 120 A. 156 (1923), and Enfield v. Ellington, 67 Conn. 459, 462, 34 A. 818 (1896). Proviso (C) is derived from Heritage Village Master Assn., Inc. v. Heritage Village Water Co., 30 Conn. App. 693, 701, 622 A.2d 578 (1993), and from cases in which public records were admitted under the business records exception, see, e.g., State v. Palozie, 165 Conn. 288, 294-95, 334 A.2d 458 (1973); Mucci v. LeMonte, 157 Conn. 566, 569, 254 A.2d 879 (1969).

The "duty" under which public officials act, as contemplated by proviso (a), is often one imposed by statute. See, e.g., Lawrence v. Kozlowski, 171 Conn. 705, 717-18, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977); Hing Wan Wong v. Liquor Control Commission, supra, 160 Conn. 8-10. Nevertheless, section 803(7) does not preclude the recognition of other sources of duties.

Proviso (C) anticipates the likelihood that more than one individual may be involved in the making of the public record. By analogy to the personal knowledge requirement imposed in the business records context, e.g., In re Barbara J, 215 Conn. 31, 40, 574 A.2d 203 (1990), proviso (C) demands that the public record be made upon the personal knowledge of either the public official who made the record, or someone, such as a subordinate, whose duty it was to relay that information to the public official. See, e.g., State v. Palozie, supra, 165 Conn. 294-95 (public record introduced under former General Statutes 52-180).

(8) Statement in learned treatises.

Exception (8) explicitly permits the substantive use of statements contained in published treatises, periodicals, or pamphlets on direct examination or cross-examination under the circumstances prescribed in the rule.

Although most of the earlier decisions concerned the use of medical treatises, e.g., Cross v. Huttenlocher, 185 Conn. 390, 395, 440 A.2d 952 (1981); Perez v. Mount Sinai Hospital, 7 Conn. App. 514, 520, 509 A.2d 552 (1986), section 803(8), by its terms, is not limited to that one subject matter or format. Ames v. Sears, Roebuck & Co., 8 Conn. App. 642, 650-51, 514 A.2d 352 (published technical papers on the design and operation of riding lawnmowers), cert. denied, 201 Conn. 809, 515 A.2d 378 (1986).

Connecticut allows the jury to receive the treatise, or portion thereof, as a full exhibit. Cross v. Huttenlocher, supra, 185 Conn. 395-96. If admitted, the excerpts from the published work may be read into evidence or received as an exhibit, as the court permits. See id.

(9) Statement in ancient documents.

The hearsay exception for statements in ancient documents is well established. Jarboe v. Home Bank & Trust Co., 91 Conn. 265, 270-71, 99 A. 563 (1917); New York, N.H. & H.R.R. v. Cella, 88 Conn. 515, 520, 91 A. 972 (1914); see Clark v. Drska, 1 Conn. App. 481, 489, 473 A.2d 325 (1984).

The exception, by its terms, applies to all kinds of documents, including documents produced by electronic means, and is not limited to documents affecting an interest in property. See Petroman v. Anderson, 105 Conn. 366, 369-70, 135 A. 391 (1926) (ancient map introduced under the exception); C. Tait & J. LaPlante, supra, 11.18, p. 405.

"More than thirty years" means any instant of time beyond the point in time at which the document has been in existence for thirty years.

(10) Published compilations.

Connecticut cases have recognized an exception to the hearsay rule—or at least have assumed an exception exists—for these items. Henry v. Kopf, 104 Conn. 73, 80-81, 131 A. 412 (1925) (market reports); see State v. Pambianchi, 139 Conn. 543, 548, 95 A.2d 695 (1953) (compilation of used automobile prices); Donoghue v. Smith, 114 Conn. 64, 66, 157 A. 415 (1931) (mortality tables).

(11) Statement in family bible.

Connecticut has recognized, at least in dictum, an exception to the hearsay rule for factual statements concerning personal or family history contained in family bibles. See Eva v. Gough, 93 Conn. 38, 46, 104 A. 238 (1918).

(12) Personal identification.

A witness’ in-court statement of her own name or age is admissible, even though knowledge of this information is often based on hearsay. Blanchard v. Bridgeport, 190 Conn. 798, 806, 463 A.2d 553 (1983) (name); Toletti v. Bidizcki, 118 Conn. 531, 534, 173 A. 223 (1934) (name); State v. Hyatt, 9 Conn. App. 426, 429, 519 A.2d 612 (1987) (age); see Creer v. Active Auto Exchange, Inc., 99 Conn. 266, 276, 121 A. 888 (1923) (age). It is unclear whether case law supports the admissibility of a declarant’s out-of-court statement concerning his own name or age when offered independently of existing hearsay exceptions, such as the exception for statements made by a party-opponent. See, e.g., Toletti v. Bidizcki, supra, 533-35 (party opponent’s out-of-court statement of his name admissible to establish identity).

Section 804. Admissibility of business entries and photographic copies: Availability of the declarant immaterial.

(a) Definition. The term "business" shall include business, profession, occupation and calling of every kind.

(b) Business records admissible. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.

(c) Witness need not be available. The writing or record shall not be rendered inadmissible by (1) a party's failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party's failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility.

(d) Reproductions admissible. Except as provided in chapter 3, if any person in the regular course of business has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence or event, and in the regular course of business has caused any or all of them to be recorded, copied or reproduced by any photographic, photostatic, microfilm, microcard, miniature photographic or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is otherwise required by statute. The reproduction, when satisfactorily identified, shall be as admissible in evidence as the original in any judicial or administrative proceeding, whether the original is in existence or not, and an enlargement or facsimile of the reproduction shall be likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court. The introduction of a reproduced record, enlargement or facsimile shall not preclude admission of the original.

Commentary ( 804)

Section 804 sets forth what is commonly known as the business records or business entries exception to the hearsay rule. Section 804 is derived from former General Statutes 52-180, which embraced modified versions of the 1927 Model Act for Proof of Business Transactions and the Photographic Copies of Business and Public Records as Evidence Act.

Subsection (b) describes the foundational elements a court must find for a business record to qualify under the exception. E.g., River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 793-94, 595 A.2d 839 (1991); Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 383-84, 461 A.2d 442 (1983). The Supreme Court has interpreted former 52-180 to embrace an additional foundational requirement not found in the express terms of the exception: that the source of the information recorded be the entrant’s own observations or the observations of an informant who had a business duty to furnish the information to the entrant. E.g., In re Barbara J, 215 Conn. 31, 40, 574 A.2d 203 (1990); State v. Milner, 206 Conn. 512, 521, 539 A.2d 80 (1988); Mucci v. LeMonte, 157 Conn. 566, 569, 254 A.2d 879 (1969). Because it is considered to be an integral part of the exception, it is intended that this foundational requirement, despite its absence from the express terms of subsection (b), survive the enactment of section 804.

Subsection (d) is subject to the provisions of chapter 3 of the General Statutes, 1-7 through 1-21l, which consist of the public records and meetings and freedom of information laws.

Section 805. Hearsay exceptions: Declarant must be available.

The following are not excluded by the hearsay rule, provided the declarant is available for cross-examination at trial:

(1) Prior inconsistent statement. A prior inconsistent statement of a witness, provided (A) the statement is in writing; (B) the statement is signed by the witness; and (C) the witness has personal knowledge of the contents of the statement.

(2) Identification of a person. The identification of a person made by a declarant prior to trial where the identification is reliable.

Commentary ( 805)

(1) Prior inconsistent statement.

Section 805(1) incorporates the rule of State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). The Whelan rule has been subject to further development and clarification. E.g., State v. Hopkins, 222 Conn. 117, 126, 609 A.2d 236 (1992) (prior inconsistent statement must be made under circumstances assuring reliability, which is to be determined on a case-by-case basis); State v. Holloway, 209 Conn. 636, 649, 553 A.2d 166 (tape-recorded statement admissible under Whelan), cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989); see also State v. Woodson, 227 Conn. 1, 21, 629 A.2d 386 (1993) (signature of witness unnecessary when tape-recorded statement offered under Whelan). These post-Whelan developments were not expressly incorporated into the language of section 805(1), with one exception noted below. These and other post-Whelan developments are nevertheless considered to be an integral part of this rule.

The one post-Whelan development incorporated into section 805(1) is set forth in proviso (C). Proviso (C) is based on the Court’s holding in State v. Grant, 221 Conn. 93, 99-102, 602 A.2d 581 (1992). See also State v. Buster, 224 Conn. 546, 558-59, 620 A.2d 110 (1993).

Use of the word "witness" in section 805(1) assumes the declarant has testified at the proceeding in question, as required by the Whelan rule.

(2) Identification of a person.

Section 805(2) incorporates the hearsay exception recognized in State v. McClendon, 199 Conn. 5, 11, 505 A.2d 685 (1986), and reaffirmed in subsequent cases, State v. Outlaw, 216 Conn. 492, 497-98, 582 A.2d 751 (1990); State v. Townsend, 206 Conn. 621, 624, 539 A.2d 114 (1988) (per curiam); State v. Weidenhof, 205 Conn. 262, 274, 533 A.2d 545 (1987). Although the hearsay exception appears to have been the subject of criminal cases exclusively, section 805(2) is not so limited, and applies in civil cases as well.

Either the declarant or another witness present when the declarant makes the identification, such as a police officer, can testify at trial as to the identification. Compare State v. McClendon, supra, 199 Conn. 8 (declarants testified at trial about their prior out-of-court identifications) with State v. Weidenhof, supra, 205 Conn. 274 (police officer who showed the declarant a photo array was called as a witness at trial to testify concerning the declarant’s prior out-of-court identification). Even when it is another witness who testifies as to the declarant’s identification, the declarant must be available for cross-examination at trial for the identification to be admissible. But cf. State v. Outlaw, supra, 216 Conn. 498 (dictum suggesting that the declarant must be available for cross-examination either at trial or at a prior proceeding in which the out-of-court identification is offered).

Constitutional infirmities in the admission of pretrial identifications are the subject of separate inquiries and constitute independent grounds for exclusion. See, e.g., State v. White, 229 Conn. 125, 161, 640 A.2d 572 (1994); State v. Lee, 177 Conn. 335, 339, 417 A.2d 354 (1979).

Section 806. Hearsay exceptions; declarant must be unavailable.

The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, provided (A) the issues in the former hearing are the same or substantially similar to those in the hearing in which the testimony is being offered, and (B) the party against whom the testimony is now offered had an opportunity to develop the testimony in the former hearing.

(2) Dying declaration. In a prosecution in which the death of the declarant is the subject of the charge, a statement made by the declarant, while the declarant was conscious of his impending death, concerning the cause of or the circumstances surrounding the death.

(3) Statement against civil interest. A trustworthy statement which at the time of its making was against the declarant's pecuniary or proprietary interest, or which so far tended to subject the declarant to civil liability that a reasonable person in the declarant's position would not have made the statement unless he believed it to be true. In determining the trustworthiness of such a statement the court shall consider whether safeguards reasonably equivalent to the oath taken by a witness and the test of cross-examination exist.

(4) Statement against penal interest. A trustworthy statement against penal interest which at the time of its making so far tended to subject the declarant to criminal liability that a reasonable person in the declarant's position would not have made the statement unless he believed it to be true. In determining the trustworthiness of a statement against penal interest, the court shall consider (A) the time the statement was made and the person to whom the statement was made; (B) the existence of corroborating evidence in the case; and (C) the extent to which the statement was against the declarant's penal interest.

(5) Statement concerning ancient private boundaries. A statement, made before the controversy arose, as to the location of ancient private boundaries if the declarant had peculiar means of knowing the boundary and had no interest to misrepresent the truth in making the statement.

(6) Reputation of a past generation. Reputation of a past generation concerning facts of public or general interest or affecting public or private rights as to ancient rights of which the declarant is presumed or shown to have had competent knowledge and which matters are incapable of proof in the ordinary way by available witnesses.

(7) Statement of pedigree and family relationships. A statement concerning pedigree and family relationships, provided (A) the statement was made before the controversy arose, (B) the declarant had no interest to misrepresent in making the statement, and (C) the declarant, because of a close relationship with the family to which the statement relates, had special knowledge of the subject matter of the statement.

Commentary ( 806)

The common thread running through all section 806 hearsay exceptions is the requirement that the declarant be unavailable as a witness. At common law, the definition of unavailability varied with the individual hearsay exception. For example, the Supreme Court recognized death as the only form of unavailability for the dying declaration and ancient private boundary hearsay exceptions. See, e.g., Rompe v. King, 185 Conn. 426, 429, 441 A.2d 114 (1981) (boundaries); State v. Manganella, 113 Conn. 209, 215-16, 155 A. 74 (1931) (dying declarations). But in State v. Frye, 182 Conn. 476, 438 A.2d 735 (1980), the Court adopted the federal rule’s definition of unavailability for the statement against penal interest exception, id., 481-82, thereby recognizing other forms of unavailability such as testimonial privilege and lack of memory. See Fed. R. Evid. 804(a). The Court has yet to determine whether the definition of unavailability recognized in Frye applies to other hearsay exceptions requiring the unavailability of the declarant.

In keeping with the common law, section 806 eschews a uniform definition of unavailability. Reference should be made to common law cases addressing the particular hearsay exception.

(1) Former testimony.

Connecticut cases recognize the admissibility of a witness’ former testimony as an exception to the hearsay rule when the witness subsequently becomes unavailable. E.g., State v. Parker, 161 Conn. 500, 504, 289 A.2d 894 (1971); Atwood v. Atwood, 86 Conn. 579, 584, 86 A. 29 (1913); State v. Malone, 40 Conn. App. 470, 475-78, 671 A.2d 1321, cert. denied, 237 Conn. 904, 674 A.2d 1332 (1996).

In addition to showing unavailability, e.g., Crochiere v. Board of Education, 227 Conn. 333, 356, 630 A.2d 1027 (1993); State v. Aillon, 202 Conn. 385, 391, 521 A.2d 555 (1991), the proponent must establish two foundational elements. First, she must show that the issues in the proceeding in which the witness testified and the proceeding in which the witness’ former testimony is offered are the same or substantially similar. E.g., State v. Parker, supra, 161 Conn. 504; In re Durant, 80 Conn. 140, 152, 67 A. 497 (1907). The similarity of issues is required primarily as a means of ensuring that the party against whom the former testimony is offered had a motive and interest to adequately examine the witness in the former proceeding. See Atwood v. Atwood, supra, 86 Conn. 584.

Second, the proponent must show that the party against whom the former testimony is offered had an opportunity to develop the testimony in the former proceeding. E.g., State v. Parker, supra, 161 Conn. 504; Lane v. Brainerd, 30 Conn. 565, 579 (1862). This second foundational element simply requires the opportunity to develop the witness’ testimony; the use made of that opportunity is irrelevant to a determination of admissibility. See State v. Parker, supra, 161 Conn. 504; accord State v. Crump, 43 Conn. App. 252, 264, 683 A.2d 402, cert. denied, 239 Conn. 941, 684 A.2d 712 (1996).

The common law generally stated this second foundational element in terms of an opportunity for cross-examination, e.g., State v. Weinrib, 140 Conn. 247, 252, 99 A.2d 145 (1953), probably because the cases involved the introduction of former testimony against the party against whom it was previously offered. Section 806(1), however, supposes development of a witness’ testimony through direct or re-direct examination, in addition to cross-examination, cf. Lane v. Brainerd, supra, 30 Conn. 579, thus recognizing the possibility of former testimony being offered against its original proponent. The rules allowing a party to impeach its own witness, Conn. Code Evid. 604, supra, and authorizing leading questions during direct or re-direct examination of hostile or forgetful witnesses, for example, Conn. Code Evid. 608(b), supra, provide added justification for this approach.

Section 806(1), in harmony with the modern trend, abandons the traditional requirement of mutuality, i.e., that the identity of the parties in the former and current proceedings be the same, see Atwood v. Atwood, supra, 86 Conn. 584; Lane v. Brainerd, supra, 30 Conn. 579, in favor of requiring merely that the party against whom the former testimony is offered have had an opportunity to develop the witness’ testimony in the former proceeding. See 5 J. Wigmore, Evidence (3d Ed. Rev. 1974) 1388, p. 111; cf. In re Durant, supra, 80 Conn. 152.

(2) Dying declaration.

Section 806(2) codifies Connecticut’s common law dying declaration hearsay exception. E.g., State v. Onofrio, 179 Conn. 23, 43-44, 425 A.2d 560 (1979); State v. Manganella, 113 Conn. 209, 215-16, 155 A. 74 (1931); State v. Smith, 49 Conn. 376, 379 (1881). The exception is limited to criminal prosecutions for homicide. See, e.g., State v. Yochelman, 107 Conn. 148, 154-55, 139 A. 632 (1927); Daily v. New York & New Haven R.R., 32 Conn. 356, 358 (1865). Furthermore, by demanding that "the death of the declarant [be] the subject of the charge," section 806(2) retains the requirement that the declarant be the victim of the homicide that serves as the basis for the prosecution in which the statement is offered. See, e.g., State v. Yochelman, supra, 155; Daily v. New York & New Haven R.R., supra, 358; see also C. Tait & J. LaPlante, supra, 11.7.2, p. 353.

Section 806(2), in accordance with common law, limits the exception to statements concerning the cause of or circumstances surrounding what the declarant considered to be her impending death. State v. Onofrio, supra, 179 Conn. 43-44; see State v. Smith, supra, 49 Conn. 379. A declarant is "conscious of his impending death" within the meaning of the rule when he believes his death is imminent and abandons all hope of recovery. See State v. Onofrio, supra, 44; State v. Cronin, 64 Conn. 293, 304, 29 A. 536 (1894). This belief may be established by reference to the declarant’s own statements or circumstantial evidence such as the administration of last rites, a physician’s prognosis made known to the declarant, or the severity of the declarant’s wounds. State v. Onofrio, supra, 44-45; State v. Swift, 57 Conn. 496, 505-06, 18 A. 664 (1888); In re Jose M., 30 Conn. App. 381, 393, 620 A.2d 804, cert. denied, 225 Conn. 921, 625 A.2d 821 (1993).

Dying declarations in the form of an opinion are subject to the limitations on lay opinion testimony set forth in Conn. Code Evid. 701, supra. See State v. Manganella, supra, 113 Conn. 216. Furthermore, the requirement of the declarant’s firsthand knowledge continues under the rule. See id.

(3) Statement against civil interest.

Section 806(3) restates the rule from Ferguson v. Smazer, 151 Conn. 226, 232-34, 196 A.2d 432 (1963).

(4) Statement against penal interest.

In State v. DeFreitas, 179 Conn. 431, 449-52, 426 A.2d 799 (1980), the Supreme Court recognized a hearsay exception for statements against penal interest, abandoning the traditional rule rendering such statements inadmissible. See, e.g., State v. Stallings, 154 Conn. 272, 287, 224 A.2d 718 (1966). Section 806(4) embodies the hearsay exception recognized in DeFrietas and affirmed in its progeny, e.g., State v. Lopez, 239 Conn. 56, 70-71, 681 A.2d 950 (1996); State v. Mayette, 204 Conn. 571, 576-77, 529 A.2d 673 (1987). The exception applies in both criminal and civil cases. See Reilly v. DiBianco, 6 Conn. App. 556, 563-64, 507 A.2d 106, cert. denied, 200 Conn. 804, 510 A.2d 193 (1986).

Recognizing the possible unreliability of this type of evidence, admissibility is conditioned on the statement’s trustworthiness. E.g., State v. Hernandez, 204 Conn. 377, 390, 528 A.2d 794 (1987). Section 806(4) sets forth three factors a court shall consider in determining a statement’s trustworthiness, factors well entrenched in the common law analysis. E.g., State v. Rivera, 221 Conn. 58, 69, 602 A.2d 571 (1992). Although the cases often cite a fourth factor, "the availability of the declarant as a witness," e.g., State v. Lopez, supra, 239 Conn. 71; State v. Rosado, 218 Conn. 239, 244, 588 A.2d 1066 (1991), the Drafting Committee eliminated it because the unavailability of the declarant is always required, and thus the factor does nothing to change the equation from case to case. Cf. State v. Gold, 180 Conn. 619, 637, 431 A.2d 501 ("[A]pplication of the fourth factor, availability of the declarant as a witness, does not bolster the reliability of the [statement] inasmuch as [the declarant] was unavailable at the time of trial . . . ."), cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980).

Section 806(4) preserves the common law definition of "against penal interest" in providing that the statement must "so far tend to subject the declarant to criminal liability." State v. Gold, supra, 180 Conn. 643. Thus, statements other than outright confessions of guilt may qualify under the exception as well. State v. Bryant, 202 Conn. 676, 695, 523 A.2d 451 (1987); State v. Savage, 34 Conn. App. 166, 172, 640 A.2d 637, cert. denied, 229 Conn. 922, 642 A.2d 1216 (1994).

The usual scenario involves the defendant’s use of a statement that implicates the declarant, but exculpates the defendant. See State v. Lynch, 21 Conn. App. 386, 394-95, 574 A.2d 230, cert. denied, 216 Conn. 806, 580 A.2d 63 (1990). Connecticut has restricted the admissibility of statements against penal interest that inculpate both the declarant and defendant, at least when made by a co-defendant in police custody. State v. Boyd, 214 Conn. 132, 138-40, 570 A.2d 1125 (1990). But cf. State v. Lynch, 21 Conn. App. 395-96 (trustworthy, dual-inculpatory statement may be admitted when made during the commission of a crime and outside the confines of police custody). Although section 806(4) makes no distinction between statements that exculpate as opposed to inculpate a defendant, the principles enunciated in Boyd and Lynch should continue under the rule.

Connecticut has adopted the federal rule’s definition of unavailability, as set forth in Fed. R. Evid. 804(a), for determining a declarant’s unavailability under this exception. State v. Frye, 182 Conn. 476, 481-82 & n.3, 438 A.2d 735 (1980).

When a narrative contains both disserving statements and collateral, self-serving or neutral statements, the Connecticut rule admits the entire narrative, letting the "trier of fact assess its evidentiary quality in the complete context." State v. Bryant, supra, 202 Conn. 697; accord State v. Savage, supra, 34 Conn. App. 173-74.

(5) Statement concerning ancient private boundaries.

One of Connecticut’s longest standing hearsay exceptions is that for statements concerning private boundaries. See Porter v. Warner, 2 Root (Conn.) 22, 23 (1793). Section 806(5) captures the exception in its current form. Wildwood Associates, Ltd. v. Esposito, 211 Conn. 36, 44, 557 A.2d 1241 (1989); DiMaggio v. Cannon, 165 Conn. 19, 22-23, 327 A.2d 561 (1973); Koennicke v. Maiorano, 43 Conn. App. 1, 13, 682 A.2d 1046 (1996).

"Unavailability," for purposes of this hearsay exception, is limited to the declarant’s death. See Wildwood Associates, Ltd. v. Esposito, supra, 211 Conn. 44; Rompe v. King, 185 Conn. 426, 429, 441 A.2d 114 (1981); C. Tait & J. LaPlante, supra, 11.10.2, p. 371.

The requirement that the declarant have "peculiar means of knowing the boundary" is part of the broader common law requirement that the declarant qualify as a witness as if he were testifying at trial. E.g., Wildwood Associates, Ltd. v. Esposito, supra, 211 Conn. 44; Putnam, Coffin & Burr, Inc. v. Halpern, 154 Conn. 507, 514, 227 A.2d 83 (1967). It is intended that this general requirement remain in effect, even though not expressed in the text of the exception. Thus, statements otherwise qualifying for admission under the text of section 806(5) may nevertheless be excluded if the court finds that the declarant would not qualify as a witness had he testified in court.

Although the cases generally speak of "ancient" private boundaries, e.g., Wildwood Associates, Ltd. v. Esposito, supra, 211 Conn. 44; Putnam, Coffin & Burr, Inc. v. Halpern, supra, 154 Conn. 514; but see, e.g., DiMaggio v. Cannon, supra, 165 Conn. 22-23, no case actually defines "ancient" or decides what limitation that term places, if any, on the admission of evidence under this exception.

(6) Reputation of a past generation.

Section 806(6) codifies the common law hearsay exception for reputation, or what was commonly referred to as "traditionary" evidence, to prove public and private boundaries or facts of public or general interest. E.g., Hartford v. Maslen, 76 Conn. 599, 615, 57 A. 740 (1904); Wooster v. Butler, 13 Conn. 309, 316 (1839). See generally C. Tait & J. LaPlante, supra, 11.17.

Section 806(6) retains both the common law requirement that the reputation be that of a past generation, Kempf v. Wooster, 99 Conn. 418, 422, 121 A. 881 (1923); Dawson v. Orange, 78 Conn. 96, 108, 61 A. 101 (1905), and the common law requirement of antiquity, see Hartford v. Maslen, supra, 76 Conn. 616.

Because the hearsay exception for reputation or traditionary evidence was disfavored at common law, id., 615, section 806(6) is not intended to expand the common law exception’s limited application.

(7) Statement of pedigree and family relationships.

Out-of-court declarations describing pedigree and family relationships have long been excepted from the hearsay rule. Ferguson v. Smazer, 151 Conn. 226, 230-31, 196 A.2d 432 (1963); Shea v. Hyde, 107 Conn. 287, 289, 140 A. 486 (1928); Chapman v. Chapman, 2 Conn. 347, 349 (1817). Statements admissible under the exception include not only those concerning genealogy, but those revealing facts about birth, death, marriage, and the like. See Chapman v. Chapman, supra, 349.

Dicta in cases suggest that forms of unavailability besides death may qualify a declarant’s statement for admission under this exception. See Carter v. Girasuolo, 34 Conn. Sup. 507, 511, 373 A.2d 560 (1976); cf. Ferguson v. Smazer, supra, 151 Conn. 230 n.2.

The declarant’s relationship to the family or person to whom the hearsay statement refers must be established independently of the statement. Ferguson v. Smazer, supra, 151 Conn. 231.

Section 807. Hearsay within hearsay.

Hearsay within hearsay is admissible only if each part of the combined statements is independently admissible under a hearsay exception.

Commentary ( 807)

Section 807 applies to situations in which a hearsay statement contains within it another level of hearsay, forming what is frequently referred to as "hearsay within hearsay." The rule finds support in the case law. See State v. Williams, 231 Conn. 235, 249, 645 A.2d 999 (1994); State v. Buster, 224 Conn. 546, 560 n.8, 620 A.2d 110 (1993).

Section 807 in no way abrogates the court’s discretion to exclude hearsay within hearsay otherwise admissible under section 807 when its probative value is outweighed by its prejudicial effect arising from the unreliability sometimes found in multiple levels of hearsay. See Conn. Code Evid. 403, supra; cf. State v. Green, 16 Conn. App. 390, 399-400, 547 A.2d 916, cert. denied, 210 Conn. 802, 553 A.2d 616 (1988). As the levels of hearsay increase, so should the potential for exclusion.

A familiar example of hearsay within hearsay is the writing, which qualifies under the business records exception, Conn. Code Evid. 804, supra, and which contains information derived from individuals under no business duty to provide information. See, e.g., O’Shea v. Mignone, 35 Conn. App. 828, 831-32, 647 A.2d 37 (1994) (police officer’s report containing the hearsay statement of a bystander). The informant’s statements must independently fall within another hearsay exception for the writing to be admissible. See State v. Sharpe, 195 Conn. 651, 663-64, 491 A.2d 345 (1985); State v. Palozie, 165 Conn. 288, 294-95, 334 A.2d 468 (1973).

Section 808. Impeaching and supporting credibility of declarant.

When hearsay has been admitted in evidence, the credibility of the declarant may be impeached, and if impeached may be supported, by any evidence which would be admissible for those purposes if the declarant had testified as a witness. Evidence of a statement of the declarant made at any time, inconsistent with the declarant's hearsay statement need not be shown to or the contents of the statement disclosed to the declarant.

Commentary ( 808)

The weight a factfinder gives a witness’ in-court testimony often depends on the witness’ credibility. So too can a declarant’s credibility affect the weight accorded that declarant’s hearsay statement admitted at trial. Consequently, section 808 permits the credibility of a declarant, whose hearsay statement has been admitted in evidence, to be attacked or supported as if the declarant had taken the stand and testified. No Connecticut case law that would directly support this rule has been found. But see State v. Torres, 210 Conn. 631, 640, 556 A.2d 1013 (1989) (impeachment of a hearsay declarant’s probable cause hearing testimony, which was admitted at trial, achieved through the introduction of the declarant’s inconsistent statements); cf. State v. Onofrio, 179 Conn. 23, 35, 425 A.2d 560 (1979); State v. Segar, 96 Conn. 428, 440-43, 114 A. 389 (1921). Nevertheless, given the breadth of hearsay exceptions available to litigants, Conn. Code Evid. 803-806, supra, and the corresponding amount of hearsay evidence ultimately admitted at trial, section 808 is seen as a logical and fair extension of the evidentiary rules governing the impeachment and rehabilitation of in-court witnesses.

Treating the hearsay declarant the same as the in-court witness would seem to pose a problem when impeachment by inconsistent statements is employed. Conn. Code Evid. 610(b), supra, provides that when examining a witness about a prior inconsistent statement, "the statement should be shown . . . or [its] contents . . . disclosed to the witness at that time." The hearsay declarant often will not be a witness, or at least, on the stand when the hearsay statement is offered and thus showing or disclosing the contents of the inconsistent statement to the declarant will be infeasible, if not impossible. Thus, the second sentence in section 808 relieves the examiner from complying with the common law rule (see Section 610) that gives the court discretion to exclude the inconsistent statement when the examiner fails to lay a foundation by not showing the statement or disclosing its contents to the witness. E.g., State v. Butler, 207 Conn. 619, 626, 543 A.2d 270 (1988). The effect is to remove that discretion in the section 808 context.

By using the terminology "[e]vidence of a statement . . . made at any time," (emphasis added), section 808 recognizes the possibility that impeachment of a hearsay declarant may involve the use of subsequent inconsistent statements—when the inconsistent statement is made after the hearsay declaration—rather than the more common use of prior inconsistent statements. See generally State v. Torres, supra, 210 Conn. 635-40 (statements made subsequent to and inconsistent with probable cause hearing testimony, which was admitted at trial, were used to impeach the hearsay declarant).

Section 809. Residual exception.

A statement that is not admissible under any of the foregoing exceptions is admissible if the court determines that (A) there is a reasonable necessity for the admission of the statement, and (B) the statement is supported by equivalent guarantees of trustworthiness and reliability that are essential to other evidence admitted under traditional exceptions to the hearsay rule.

Commentary ( 809)

In recognition of the fact that the code’s enumerated hearsay exceptions will not cover every situation in which an extrajudicial statement’s reliability and essentiality justify the statement’s admissibility, and in the spirit of the code’s purpose, as stated in Conn. Code Evid. 102(a), supra, of promoting "the growth and development of the law of evidence," section 809 provides the court with discretion to admit, under limited circumstances, see State v. Dollinger, 20 Conn. App. 530, 540, 568 A.2d 1058, cert. denied, 215 Conn. 805, 574 A.2d 220 (1990), a hearsay statement not admissible under other exceptions enumerated in the code. Section 809 sets forth what is commonly known as the residual or catch-all exception to the hearsay rule. The exception traces its roots to cases such as State v. Sharpe, 195 Conn. 651, 664, 491 A.2d 345 (1985), and of more recent vintage, State v. Oquendo, 223 Conn. 635, 664, 613 A.2d 1300 (1992). See also Goodno v. Hotchkiss, 88 Conn. 655, 669, 92 A. 419 (1914) (necessity and trustworthiness are the hallmarks underlying the exceptions to the hearsay rule).

"Reasonable necessity" is established by showing that "unless the hearsay statement is admitted, the facts it contains may be lost, either because the declarant is dead or otherwise unavailable, or because the assertion is of such a nature that evidence of the same value cannot be obtained from the same or other sources." State v. Sharpe, supra, 195 Conn. 665; accord State v. Alvarez, 216 Conn. 301, 307 n.3, 579 A.2d 515 (1990); In re Jason S., 9 Conn. App. 98, 106, 516 A.2d 1352 (1986).

In determining whether the statement is supported by guarantees of trustworthiness and reliability, Connecticut courts have considered factors such as the length of time between the event to which the statement relates and the making of the statement, e.g., State v. Outlaw, 216 Conn. 492, 499, 582 A.2d 751 (1990), the declarant’s motive to tell the truth or falsify, e.g., State v. Oquendo, supra, 223 Conn. 667, and the declarant’s availability for cross-examination at trial, e.g., id., 668; O’Shea v. Mignone, 35 Conn. App. 828, 838, 647 A.2d 37, cert. denied, 231 Conn. 938, 651 A.2d 263 (1994).

Section 809 takes no position on whether a statement that comes close but fails to satisfy a hearsay exception enumerated in the code can nevertheless be admitted under the residual exception. Connecticut courts have failed to definitively address the "near miss" problem although some cases would seem to sanction the practice of applying the residual exception to near misses. See State v. Dollinger, supra, 20 Conn. App. 537-42 (admissibility of statement rejected under spontaneous utterance exception, Conn. Code Evid. 803(2), supra, but upheld under residual exception); cf., e.g., State v. Outlaw, 216 Conn. 492, 497-500, 582 A.2d 751 (1990) (admissibility of statement rejected under hearsay exception for extrajudicial identifications, Conn. Code Evid. 805(2), supra, then analyzed and rejected under the residual exception).

ARTICLE IX -- AUTHENTICATION

Section 901. Requirement of authentication.

(a) Requirement of authentication. The requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the offered evidence is what its proponent claims it to be.

(b) Self-authentication. Extrinsic evidence of authenticity as a condition precedent to admissibility is not required if the offered evidence is self-authenticating in accordance with applicable law.

Commentary ( 901)

(a) Requirement of authentication.

Before an item of evidence may be admitted, there must be a preliminary showing of its genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings, sound recordings, real evidence such as a weapon used in the commission of a crime, demonstrative evidence such as a photograph depicting an accident scene, and the like. E.g., State v. Bruno, 236 Conn. 514, 551, 673 A.2d 1117 (1996) (real evidence); Shulman v. Shulman, 150 Conn. 651, 657, 193 A.2d 525 (1963) (documentary evidence); State v. Lorain, 141 Conn. 694, 700-01, 109 A.2d 504 (1954) (sound recordings); Hurlburt v. Bussemey, 101 Conn. 406, 414, 126 A. 273 (1924) (demonstrative evidence).

The proponent need only advance "evidence sufficient to support a finding" that the proffered evidence is what it is claimed to be. Once this prima facie showing is made, the evidence may be admitted and the ultimate determination of authenticity rests with the factfinder. See, e.g., State v. Bruno, supra, 236 Conn. 551-53; Neil v. Miller, 2 Root (Conn.) 117, 118 (1794); see also Shulman v. Shulman, supra, 150 Conn. 657. Consequently, compliance with section 901(a) does not automatically guarantee that the factfinder will accept the proffered evidence as genuine. The opposing party may still offer evidence to discredit the proponent’s prima facie showing. Shulman v. Shulman, supra, 659-60.

Evidence may be authenticated in a variety of ways. They include, but are not limited to, the following:

(1) A witness with personal knowledge may testify that the offered evidence is what its proponent claims it to be. See, e.g., State v. Conroy, 194 Conn. 623, 625-26, 484 A.2d 448 (1984) (establishing a chain of custody); Pepe v. Aceto, 119 Conn. 282, 287-88, 175 A. 775 (1934) (authenticating documents); Booker v. Stern, 19 Conn. App. 322, 333, 563 A.2d 305 (1989) (authenticating photographs);

(2) A person with sufficient familiarity with the handwriting of another person may give an opinion concerning the genuineness of that other person’s purported writing or signature. E.g., Lyon v. Lyman, 9 Conn. 55, 59 (1831);

(3) The trier of fact or an expert witness can authenticate a contested item of evidence by comparing it with pre-authenticated specimens. See, e.g., State v. Ralls, 167 Conn. 408, 417, 356 A.2d 147 (1974) (fingerprints, experts); Tyler v. Todd, 36 Conn. 218, 222 (1869) (handwriting, experts or triers of fact);

(4) The distinctive characteristics of an object, writing, or other communication, when considered in conjunction with the surrounding circumstances, may provide sufficient circumstantial evidence of authenticity. See International Brotherhood v. Commission on Civil Rights, 140 Conn. 537, 547, 102 A.2d 366 (1953) (telephone conversations); 2 C. McCormick, Evidence (4th Ed. 1992) 225, p. 49-50 ("reply letter" doctrine, under which letter B is authenticated merely by reference to its content and circumstances suggesting it was in reply to earlier letter A and sent by the addressee of letter A);

(5) Any person having sufficient familiarity with another person’s voice, whether acquired from hearing the person’s voice firsthand or through mechanical or electronic means, can identify that person’s voice or authenticate a conversation in which the person participated. See State v. Jonas, 169 Conn. 566, 576-77, 363 A.2d 1378 (1975), cert. denied, 424 U.S. 923, 96 S. Ct. 1132, 47 L. Ed. 2d 331 (1976); State v. Marsala, 43 Conn. App. 527, 531, 684 A.2d 1199 (1996), cert. denied, 239 Conn. 957, 688 A.2d 329 (1997);

(6) Outgoing telephone calls may be authenticated by proof that: (1) the caller properly placed the telephone call; and (2) the answering party identified herself as the person to which the conversation is to be linked. Hartford National Bank & Trust Co. v. DiFazio, 6 Conn. App. 576, 585, 506 A.2d 1069 (1986);

(7) Stipulations or admissions prior to or during trial provide two other means of authentication. See Stanton v. Grigley, 177 Conn. 558, 559, 418 A.2d 923 (1979); see also Practice Book 238-240 (in requests for admission); 265(d) (at pretrial session);

(8) Other provisions of this code, Conn. Code Evid. 902, 903, infra (authentication of ancient documents and public records, respectively), provide additional methods of authentication.

The examples set forth above are not exclusive and will not always independently result in a sufficient foundation. Moreover, the requirement of authentication is merely a condition precedent to admissibility and does not ensure that the proffered evidence will ultimately be admitted. The evidence remains subject to other exclusionary rules such as the hearsay and best evidence rules. See State v. Cooke, 42 Conn. App. 790, 798, 682 A.2d 513 (1996) (relevancy); Hartford National Bank & Trust Co. v. DiFazio, supra, 6 Conn. App. 585 (hearsay rule).

(b) Self-authentication.

Both case law and statutes identify certain kinds of writings or documents as self-authenticating. A self-authenticating document’s genuineness is taken as sufficiently established without resort to extrinsic evidence, such as a witness’ foundational testimony. See 2 C. McCormick, supra, 228, p. 55. Subsection (b) continues the principle of self-authentication, but leaves the particular instances under which self-authentication is permitted to the dictates of common law and other provisions of the general statutes.

Self-authentication in no way precludes the opponent from coming forward with evidence contesting authenticity, see Atlantic Industrial Bank v. Centonze, 130 Conn. 18, 19, 31 A.2d 392 (1943); Griswold v. Pitcairn, 2 Conn. 85, 91 (1816), as the factfinder ultimately decides whether a writing or document is authentic. In addition, self-authenticating evidence remains vulnerable to exclusion or admissibility for limited purposes under other provisions of the code or the general statutes.

Common law examples of self-authenticating writings or documents include:

(1) writings or documents carrying the impression of certain official seals. E.g., Atlantic Industrial Bank v. Centonze, supra, 130 Conn. 19-20; Barber v. International Co. of Mexico, 73 Conn. 587, 602, 603, 48 A. 758 (1901); Griswold v. Pitcairn, supra, 2 Conn. 90-91; and

(2) marriage certificates signed by the person officiating the ceremony. E.g., Northrop v. Knowles, 52 Conn. 522, 525-26, 2 A. 395 (1885).

Familiar statutory examples of self-authenticating writings or documents include:

(1) acknowledgments made or taken in accordance with the Uniform Acknowledgment Act, General Statutes 1-28 through 1-41, see 1-36, and the Uniform Recognition of Acknowledgments Act, General Statutes 1-57 through 1-65, see 1-58;

(2) copies of records or documents required by law to be filed with the Secretary of State and certified in accordance with General Statutes 3-98;

(3) birth certificates certified in accordance with General Statutes 7-55;

(4) certain third-party documents authorized or required by an existing contract and subject to the Uniform Commercial Code, General Statutes 42a-1-202; see also 42a-8-105(3)(b) (signatures on certain negotiable instruments);

(5) marriage certificates issued pursuant to General Statutes 46b-34, see 46b-35; and

(6) copies of certificates filed by a corporation with the Secretary of State in accordance with law and certified in accordance with General Statutes 52-167.

It should be noted that the foregoing examples do not constitute an exhaustive list of self-authenticating writings or documents. Of course,writings or documents that do not qualify under subsection (b) may be authenticated under the principles announced in subsection (a) or elsewhere in Article IX.

Section 902. Authentication of ancient documents.

The requirement of authentication as a condition precedent to admitting a document in any form into evidence shall be satisfied upon proof that the document (A) has been in existence more than thirty years; (B) was produced from proper custody; and (C) is otherwise free from suspicion.

Commentary ( 902)

Section 902 embraces the common law ancient document rule. See, e.g., Jarboe v. Home Bank & Trust Co., 91 Conn. 265, 269, 99 A. 563 (1917). Documents that satisfy the foundational requirements are authenticated without more. See id., 270. Thus, section 902 dispenses with any requirement that the document’s proponent produce attesting witnesses. Borden v. Westport, 112 Conn. 152, 161, 151 A. 512 (1930); Jarboe v. Home Bank & Trust Co., supra, 269, 270.

Although common law application of the rule mainly involved dispositive instruments, such as wills and deeds, e.g., Jarboe v. Home Bank & Trust Co., supra, 91 Conn. 269 (will); Borden v. Westport, supra, 112 Conn. 161 (deed); but see, e.g., Petroman v. Anderson, 105 Conn. 366, 369-70, 135 A. 391 (1926) (ancient map), the current rule applies to all documents, in any form, including those stored electronically.

As a mere rule of authentication, admissibility is not guaranteed upon satisfaction of the foundational requirements. 2 C. McCormick, Evidence (4th Ed. 1992) 223, p. 46. Other exclusionary rules, such as the hearsay and best evidence rules, provide additional hurdles to admissibility. See Jarboe v. Home Bank & Trust Co., supra, 91 Conn. 270-71 (hearsay rule).

Ancient documents are the subject of a hearsay exception with foundational requirements identical to those found in section 902. See Conn. Code Evid. 803(9), supra.

Section 903. Authentication of public records.

The requirement of authentication as a condition precedent to admitting a record, report, statement or data compilation, in any form, into evidence is satisfied by evidence that (A) the record, report, statement or data compilation authorized by law to be recorded or filed in a public office has been recorded or filed in that public office, or (B) the record, report, statement or data compilation, purporting to be a public record, report, statement or data compilation, is from the public office where items of this nature are maintained.

Commentary ( 903)

The state of the law in Connecticut with respect to the authentication of public records without a public official’s certification or official seal is unclear. Cf., e.g., Whalen v. Gleason, 81 Conn. 638, 644, 71 A. 908 (1909); Barber v. International Co. of Mexico, 73 Conn. 587, 602, 48 A. 758 (1901). Nevertheless, it is generally recognized that such records may be authenticated simply by showing that the record purports to be a public record, and comes from the custody of the proper public office. 2 C. McCormick, Evidence (4th Ed. 1992) 224, p.47; C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) 10.4.3, p. 294; 7 J. Wigmore, Evidence (3d. Ed. Rev. 1978) 2159, pp. 775-76. Thus, although certified copies of most public records are "self-authenticating" in accordance with other provisions of the general statutes, see, e.g., General Statutes 7-55 (birth certificates), certification is not the exclusive means by which to authenticate a public record. The rule extends the common law principle to public records or data stored electronically, such as in a computer.

Subsection (a) assumes that documents authorized by law to be recorded or filed in a public office—e.g., tax returns, will, or deeds—are public records for purposes of authentication. Cf. Kelsey v. Hanmer, 18 Conn. 310, 319 (1847) (deed). Subsection (b) covers reports, records, statements, or data compilations prepared and maintained by the public official or public office, whether local, state, federal, or foreign.

Section 904. Subscribing witness' testimony.

If a document is required by law to be attested by witnesses to its execution, at least one subscribing witness must be called to authenticate the document. If no attesting witness is available, the document may then be authenticated in the same manner as any other document. Documents that are authenticated under Section 902 of this code need not be authenticated by an attesting witness.

Commentary ( 904)

Certain documents, such as wills and deeds, are required by law to be attested to by witnesses. See General Statutes 45a-251 (wills); 47-5 (deeds). At common law, the proponent, in order to authenticate such a document, must have called at least one of the attesting witnesses or satisfactorily explained the absence of all of the attesting witnesses. Once the proponent accomplished this, he could, if necessary, authenticate the document through the testimony of non-attesting witnesses. 2 C. McCormick, Evidence (4th Ed. 1992) 220, pp. 39-40; C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) 10.3.1, p. 290; see, e.g., Loewenberg v. Wallace, 147 Conn. 689, 696, 166 A.2d 150 (1960); Kelsey v. Hanmer, 18 Conn. 311, 317-18 (1847). Section 904 continues this common law testimonial preference.

The rule requiring attesting witnesses to be produced or accounted for applies only when proving the fact of valid execution (i.e., genuineness), not when proving other things such as the document’s delivery or contents. 4 J. Wigmore, Evidence (3d Ed. Rev. 1972) 1293, pp. 709-10.

Section 904 exempts ancient documents from the general rule on the theory that the genuineness of a document more than thirty years old is established simply by showing proper custody and suspicionless appearance, Conn. Code Evid. 902, supra, without more. 4 J. Wigmore, supra, 1312, p. 742; see, e.g., Borden v. Westport, 112 Conn. 152, 161, 151 A. 512 (1930); Jarboe v. Home Bank & Trust Co., 91 Conn. 265, 269, 99 A. 563 (1917).

Dicta in two Connecticut cases suggest that it is unnecessary to call subscribing witnesses or explain their absence when the document at issue is only collaterally involved in the case. Great Hill Lake, Inc. v. Caswell, 126 Conn. 364, 369, 11 A.2d 396 (1940); see Pepe v. Aceto, 119 Conn. 282, 287-88, 175 A. 775 (1934); 4 J. Wigmore, supra, 1291, p. 705. Another case suggests the same exemption for certified copies of recorded deeds. See Loewenberg v. Wallace, supra, 147 Conn. 696. Although these exemptions, unlike the one for ancient documents, were not included in the text of the rule, they are intended to survive the codification of section 904.

ARTICLE X - CONTENTS OF WRITINGS, RECORDINGS AND PHOTOGRAPHS

Section 1001. General rule.

To prove the content of a writing, recording or photograph, the original writing, recording or photograph must be admitted in evidence, except as otherwise provided by this code.

Commentary ( 1001)

Section 1001 codifies Connecticut’s best evidence rule. The rule embraces two interrelated concepts. First, the proponent must produce the original of a writing, recording, or photograph when he attempts to prove the contents thereof, unless production is excused. E.g., Shelnitz v. Greenberg, 200 Conn. 58, 78, 509 A.2d 1023 (1986). Second, to prove the contents of the writing, recording, or photograph, the original must be admitted in evidence. Thus, for example, the contents of a document cannot be proved by the testimony of a witness who refers to the document while testifying.

The cases have generally restricted the best evidence rule to writings or documents. See Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 11, 513 A.2d 1218 (1986). In extending the rule to recordings and photographs, section 1001 recognizes the growing reliance on modern technologies for the recording and storage of information.

Section 1001 applies only when the proponent seeks to prove contents. E.g., Hotchkiss v. Hotchkiss, 143 Conn. 443, 447, 123 A.2d 174 (1956) (proving the terms of a contract); cf. Dyer v. Smith, 12 Conn. 384, 391 (1837) (proving a fact about a writing, such as its existence or delivery, is not proving contents).

The fact that a written record or recording is made of a transaction or event does not mean the transaction or event must be proved by production of the written record or recording. When the transaction or event itself rather than the contents of the written record or recording is sought to be proved, the best evidence rule has no application. E.g., State v. Moynahan, 164 Conn. 560, 583, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973); State v. Tomanelli, 153 Conn. 365, 374, 216 A.2d 625 (1966).

What constitutes an "original" will be clear in most situations. "Duplicate originals," such as a contract executed in duplicate, that are intended by the contracting parties to have the same effect as the original, qualify as "originals" under the rule. 2 C. McCormick, Evidence (4th Ed. 1992) 236, p. 73; C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) 10.10, p. 305; cf. Lorch v. Page, 97 Conn. 66, 69, 115 A. 681 (1921); Colburn’s Appeal, 74 Conn. 463, 467, 51 A. 139 (1902).

Production of the original may be excused as provided in the code. Conn. Code Evid. 1003-1006, infra; cf. Conn. Code Evid. 804(d), supra. Also, production of the original may be excused pursuant to other provisions of the general statutes. Conn. Code Evid. 102(b); see, e.g., General Statutes 1-7.

Section 1002. Admissibility of copies.

A copy of a writing, recording or photograph is admissible to the same extent as an original unless (A) a genuine question is raised as to the authenticity of the original or the accuracy of the copy, or (B) under the circumstances it would be unfair to admit the copy in lieu of the original.

Commentary ( 1002)

By permitting a copy of an original writing, recording, or photograph to be admitted without requiring the proponent to account for the original, section 1002 represents a departure from common law. See, e.g., British American Ins. Co. v. Wilson, 77 Conn. 559, 564, 60 A. 293 (1905). Nevertheless, in light of the reliability of modern reproduction devices, this section recognizes that a copy derived therefrom will often serve equally as well as the original when proof of its contents is required.

"Copy," as used in section 1002, should be distinguished from a "duplicate original," such as a carbon copy of a contract, which the executing or issuing party intends to have the same effect as the original. See commentary to Conn. Code Evid. 1001.

Section 1003. Admissibility of other evidence of contents.

The original of a writing, recording or photograph is not required, and other evidence of the contents of such writing, recording or photograph is admissible if:

(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent destroyed or otherwise failed to produce the originals for the purpose of avoiding production of an original; or

(2) Original not obtainable. No original can be obtained by any reasonably available judicial process or procedure; or

(3) Original in possession of opponent. At a time when an original was under the control of the party against whom it is offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the proceeding, and that party does not produce the original at the proceeding; or

(4) Collateral matters. The contents relate to a collateral matter.

Commentary ( 1003)

The best evidence rule evolved as a rule of preference rather than one of exclusion. E.g., Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 12, 513 A.2d 1218 (1986). If the proponent adequately explained her failure to produce the original, "secondary" evidence of its contents could then be admitted. Section 1003 describes the situations under which production of the original is excused and the admission of secondary evidence is permissible.

Although the issue has yet to be directly addressed, the cases did not appear to recognize degrees of secondary evidence, such as a preference for handwritten copies over oral testimony. See Sears v. Howe, 80 Conn. 414, 416-17, 68 A. 983 (1908). See generally C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) 10.12, pp. 307-08. Section 1003 recognizes no degrees of secondary evidence and thus any available evidence otherwise admissible may be utilized in proving contents once production of the original is excused under section 1003.

(1) Original lost or destroyed.

Subdivision (1) codifies the rule in Woicicky v. Anderson, 95 Conn. 534, 536, 111 A. 896 (1920). A proponent ordinarily proves loss or destruction by demonstrating a diligent but fruitless search for the lost item, see State v. Castelli, 92 Conn. 58, 69-70, 101 A. 476 (1917); Elwell v. Mersick, 50 Conn. 272, 275-76 (1882), or by producing a witness with personal knowledge of destruction, see Richter v. Drenckhahn, 147 Conn. 496, 502, 163 A.2d 109 (1960).

The proponent is not precluded from offering secondary evidence when his purpose in losing or destroying the original is not avoiding production thereof. Mahoney v. Hartford Investment Corp., 82 Conn. 280, 287, 73 A. 766 (1909); Bank of U.S. v. Sill, 5 Conn. 106, 111 (1823).

(2) Original not obtainable.

Subdivision (2) covers the situation in which a person not a party to the litigation possesses the original and is beyond reasonably available judicial process or procedure. See, e.g., Shepard v. Giddings, 22 Conn. 282, 283-84 (1853); Townsend v. Atwater, 5 Day (Conn.) 298, 306 (1812).

(3) Original in possession of opponent.

Common law excuses the proponent from producing the original when an opposing party in possession of the original is put on notice and fails to produce the original at trial. See, e.g., Richter v. Drenckhahn, supra, 147 Conn. 501; City Bank v. Thorp, 78 Conn. 211, 218, 61 A. 428 (1905). Notice need not compel the opponent to produce the original, but merely give her the option to produce the original or face the prospect of the proponent’s offer of secondary evidence. Whether notice is formal or informal, it must be reasonable. See British American Ins. Co. v. Wilson, 77 Conn. 559, 564, 60 A. 293 (1905).

(4) Collateral matters.

Subdivision (4) is consistent with Connecticut law. Misisco v. LaMaita, 150 Conn. 680, 685, 192 A.2d 891 (1963); Farr v. Zoning Board of Appeals, 139 Conn. 577, 582, 95 A.2d 792 (1953).

Section 1004. Public records.

The contents of a record, report, statement or data compilation recorded or filed in a public office may be proved by a copy, certified in accordance with applicable law or testified to be correct by a witness who has compared it with the original.

Commentary ( 1004)

Section 1004 codifies an exception to section 1001’s requirement of an original for certified or compared copies of certain public records. Based on the impracticability and inconvenience involved in removing original public records from their place of keeping, see Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 12, 513 A.2d 1218 (1986); Gray v. Davis, 27 Conn. 447, 454 (1858), Connecticut cases have allowed the contents of these documents to be proved by certified copies. E.g., Brown v. Connecticut Light & Power Co., 145 Conn. 290, 295-96, 141 A.2d 634 (1958); Lomas & Nettleton Co. v. Waterbury, 122 Conn. 228, 234-35, 188 A. 433 (1936). Allowing proof of contents by compared copies represents a departure from prior case law that is in accord with the modern trend. E.g., Fed. R. Evid. 1005.

Other statutory provisions address the use of copies to prove the contents of public records. See, e.g., General Statutes 52-181.

Section 1005. Summaries.

The contents of voluminous writings, recordings or photographs, otherwise admissible, that cannot conveniently be examined in court may be admitted in the form of a chart, summary or calculation, provided that the originals or copies are available for examination or copying, or both, by other parties at a reasonable time and place.

Commentary ( 1005)

Case law permits the use of summaries to prove the contents of voluminous writings that cannot conveniently be examined in court. Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 12-13, 513 A.2d 1218 (1986); McCann v. Gould, 71 Conn. 629, 631-32, 42 A. 1002 (1899). Section 1005 extends the rule to voluminous recordings and photographs in conformity with other provisions of Article X.

The summarized originals or copies must be made available to other parties for examination or copying, or both, at a reasonable time and place. See McCann v. Gould, supra, 71 Conn. 632; cf. Brookfield v. Candlewood Shores Estates, Inc., supra, 201 Conn. 13.

Section 1006. Admissions of a party.

The contents of a writing, recording or photograph may be proved by the admission of a party against whom it is offered that relates to the contents of the writing, recording or photograph.

Commentary ( 1006)

Section 1006 codifies a recognized exception to the best evidence rule for admissions of a party relating to the contents of a writing when offered against the party to prove the contents thereof. Morey v. Hoyt, 62 Conn. 542, 557, 26 A. 127 (1893). Section 1006 extends the exception to recordings and photographs in conformity with other provisions of Article X.

ARTICLE XI – STANDING CODE OF EVIDENCE ADVISORY COMMITTEE

Section 1101. Standing code of evidence advisory committee. Law revision commission to create committee. Duties of the committee.

(a) The law revision commission shall create a standing code of evidence advisory committee. The advisory committee shall consist of individuals expert in the law of evidence. The members of the advisory committee shall receive no compensation for their services. Research and administrative services shall be provided to the advisory committee by the staff of the law revision commission. The advisory committee shall study and make recommendations to the law revision commission as to: (1) Amendments to or repeal of provisions of the code, (2) additional provisions to be included in the code; (3) any bill introduced in the legislature that adds, modifies or repeals provisions of the code of evidence, and (4) any other matters concerning the code. The law revision commission shall make recommendations to the judiciary committee after considering the recommendations of the advisory committee.

COMMENTARY (' 1101)

The advisory committee is to be a vehicle for the reasoned evolution of evidence law in Connecticut. The Drafting Committee intends for the code to be a non-static codification of the rules of evidence as they develop in response to new demands and conditions in the law, in technology and in society. The advisory committee is a forum to which experts in evidence law from the legislature, the judiciary, academia and private practice will come to consider proposed modifications to the code. The advisory committee will advise the law revision commission on recommendations to the legislature as to additions or revisions to statutory evidence law in Connecticut.

ARTICLE XI I - REPEALER

Section 1201. Repealer.

Sections 52-180, 54-86f and 54-86i of the general statutes are repealed.

COMMENTARY (' 1201)

These statutes have been included in the code. General Statutes ' 52-180 is contained in section 804 of the code; General Statutes ' 54-86f is contained in section 411 of the code; General Statutes ' 54-86i is contained in section 703(b) of the code.