************************************************
The “officially released” date that appears near the
beginning of an opinion is the date the opinion will be
published in the Connecticut Law Journal or the date it
is released as a slip opinion. The operative date for the
beginning of all time periods for the filing of postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut Law Journal and subsequently in the Connecticut
Reports or Connecticut Appellate Reports. In the event
of discrepancies between the advance release version of
an opinion and the version appearing in the Connecticut Law Journal and subsequently in the Connecticut
Reports or Connecticut Appellate Reports, the latest
version is to be considered authoritative.
The syllabus and procedural history accompanying
an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or
Connecticut Appellate Reports are copyrighted by the
Secretary of the State, State of Connecticut, and may
not be reproduced or distributed without the express
written permission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
************************************************
Page 0 CONNECTICUT LAW JOURNAL 0, 0
2 ,0 0 Conn. 300
State v. Andres C.
STATE OF CONNECTICUT v. ANDRES C.*
(SC 20692)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Ecker, Dannehy and Bright, Js.…
Syllabus
Convicted of the crimes of sexual assault in the third degree and risk of
injury to a child in connection with his alleged sexual abuse of the
complainant, C, the defendant appealed to the Appellate Court, claiming,
inter alia, that he was entitled to the disclosure of the content of certain
handwritten journals authored by C because they purportedly constituted a ‘‘statement’’ under the relevant rules of practice (§§ 40-13A and
40-15 (1)) and that his rights under Brady v. Maryland (373 U.S. 83)
were violated as a result of the procedures the prosecutors employed
to review the journals for exculpatory information. C revealed the existence of the journals for the first time at trial, testifying that she created
them in connection with the therapy she was receiving after the abuse
and that they concerned her relationship with the defendant and the
abuse he had inflicted, among other things. C admitted to defense counsel on recross-examination that she had reviewed a few pages in one
of her journals before testifying and that the journals were ‘‘the best
record’’ of the abuse. At that point, defense counsel requested the journals ‘‘as discovery . . . .’’ Following an in camera meeting with defense
counsel and the prosecutors, the trial court summarized the discussions
that had occurred in chambers and ordered the prosecutors to review
the journals for C’s statements about the sexual abuse allegations and
for any exculpatory material, and to disclose such material to the
defense. The court stated that, if the prosecutors were uncertain as to
* In accordance with our policy of protecting the privacy interests of the victims
of sexual abuse and the crime of risk of injury to a child, we decline to identify
the victim or others through whom the victim’s identity may be ascertained. See
General Statutes § 54-86e.
Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018),
as amended by the Violence Against Women Act Reauthorization Act of 2022,
Pub. L. No. 117-103, § 106,
136 Stat. 49, 851; we decline to identify any person
protected or sought to be protected under a protection order, protective order,
or a restraining order that was issued or applied for, or others through whom
that person’s identity may be ascertained.
… This case originally was scheduled to be argued before a panel of this court
consisting of Chief Justice Robinson and Justices McDonald, D’Auria, Mullins
and Ecker. Thereafter, Justice Dannehy and Chief Judge Bright were added to
the panel and have read the briefs and appendices, and listened to a recording
of the oral argument prior to participating in this decision.
0, 0 CONNECTICUT LAW JOURNAL Page 1
0 Conn. 300 ,0 3
State v. Andres C.
whether parts of the journals were exculpatory, the court would review
those portions and make a determination. The prosecutors and defense
counsel agreed with the court’s summary. Thereafter, the prosecutors
enlisted the assistance of a Spanish-speaking investigator employed by
the state’s attorney’s office to help review the journals because they
had been written in Spanish. The prosecutors explained to the trial court
that the investigator had been instructed as to what is ‘‘exculpatory’’
and then represented to the court, on the basis of the investigator’s
review, that the journals contained no material subject to disclosure
under Brady. The prosecutors nevertheless turned over four pages from
the journals, out of an abundance of caution, for the trial court to review
to determine whether any or all of those pages should be disclosed to
the defense. Those four pages were translated, after which the trial
court determined that one of those four pages should be disclosed, as
the content of that page concerned C’s allegedly delayed disclosure of
the abuse, which was at issue. On appeal, the Appellate Court affirmed
the judgment of conviction, concluding that the defendant had waived
his claim that he was entitled to the journals under Practice Book §§ 40-
13A and 40-15 (1) insofar as defense counsel had agreed to the trial
court’s summary of the procedure that had been discussed in chambers,
and the court rejected the defendant’s claim that the prosecutors were
constitutionally required to personally review the journals and could not
delegate that review to an investigator. The defendant, on the granting
of certification, appealed to this court, challenging the Appellate Court’s
conclusions and urging this court to adopt a prophylactic rule under
the United States constitution requiring a prosecutor to personally
review any material that first comes to light during trial for, inter alia,
exculpatory information. The state asserted, with respect to the defendant’s claim under §§ 40-13A and 40-15 (1), that this court should affirm
the Appellate Court’s judgment on the alternative ground that C’s journals were not subject to discovery because C purportedly did not adopt
or approve the journals as her ‘‘statement’’ for purposes of those rules
of practice. Held:
1. This court agreed with the state’s alternative ground for affirmance,
namely, that C’s journals were not subject to disclosure under Practice
Book §§ 40-13A and 40-15 (1) because they did not constitute a statement
that was adopted or approved by C, and, therefore, this court did not
address whether the Appellate Court correctly determined that the
defendant had waived his claim concerning disclosure pursuant to those
rules of practice:
a. The state’s alternative ground for affirmance was reviewable, even
though the state did not raise its claim in the Appellate Court or seek
permission to raise it in this court pursuant to the relevant rule of practice
(§ 84-11 (b)):
Page 2 CONNECTICUT LAW JOURNAL 0, 0
4 ,0 0 Conn. 300
State v. Andres C.
It was appropriate to review the state’s alternative claim for affirmance
under the circumstances of this case because the state could raise the
same claim on remand if this court were to grant the defendant’s
requested relief of remanding the case to the trial court for further
proceedings to determine whether the journals constituted a statement
and because reviewing the claim would promote judicial economy, as
the claim presented a pure question of law, the record was adequate for
review, and both parties had briefed the issue.
b. The journals did not constitute a disclosable ‘‘statement’’ under Practice Book §§ 40-13A and 40-15 (1) because C did not adopt or approve
the journals as her statement:
Practice Book § 40-13A requires the disclosure of all ‘‘statements’’ concerning the charged offense that are within the possession of the prosecuting authority or its agents, Practice Book § 40-15 (1) defines
‘‘statement’’ as a written statement that the witness signs or otherwise
adopts or approves, and, because there was no indication that C signed
her journals, the issue with which this court was presented was whether
C otherwise adopted or approved those journals.
For a statement to be adopted or approved, there must be some indication
that the witness has vouched for or intends to be accountable for the
content of the statement, and, unlike statements given to law enforcement officers or government agents, diaries or similar personal writings
typically are not created with the intent of fully and accurately describing
the author’s recollection of the events in question and with the understanding that the author may be held accountable in court for the veracity
of the statements contained therein.
In the present case, there was no indication in the record that C vouched
for or intended to be held accountable for the content of her journals
such that she adopted or approved of it, as she did not embrace the
content of her journals as her statement of the abuse, there was no
evidence that she expected the content of the journals to be communicated or transmitted to anyone else, and her acknowledgment that the
journals were ‘‘the best record’’ of the abuse was merely an affirmative
answer to a question posed by defense counsel.
Moreover, C did not maintain the journals with the primary purpose
of accurately memorializing her recollection of the abuse but, instead,
testified that the journals had been maintained as part of a therapeutic
exercise undertaken at the direction of a mental health professional,
and C also testified that some portions of the journals were not meant
to be factual but, rather, consisted of hypotheticals and counterfactuals
describing events that had never occurred.
Furthermore, although C suggested that some portions of the journals
contained her recollection of the abuse and that those portions were
0, 0 CONNECTICUT LAW JOURNAL Page 3
0 Conn. 300 ,0 5
State v. Andres C.
‘‘the best record’’ thereof, that did not mean that she was knowingly
adopting the journals as a formal statement or that she knew or reasonably should have known from the circumstances surrounding defense
counsel’s questioning of her that she could be held accountable in court
for any omissions or inaccuracies in the journals or that they could be
used for cross-examination and impeachment purposes.
Rather, C reasonably could have believed that her journals were ‘‘the
best record’’ of what had happened, even if she would have been unwilling
to stand by them in court because they omitted facts or contained inaccuracies or fabrications.
In addition, although C agreed to provide her journals to the prosecutors
for review, she did so at the trial court’s request, and nothing suggested
that she did so with the intent to provide information about the sexual
abuse or with the knowledge that she could be held accountable for the
completeness and factual accuracy of the content of the journals.
2. The Appellate Court correctly concluded that the Brady review of C’s
journals by a nonlawyer member of the state’s attorney’s office was
constitutionally adequate, and this court declined the defendant’s request
to adopt a prophylactic rule under the federal constitution requiring
a prosecutor to personally review for exculpatory and impeachment
information any material that first comes to light during trial:
The limited case law concerning whether a prosecutor may delegate his
or her duty to review material for information that must be disclosed
pursuant to Brady suggested that such delegation is not constitutionally
prohibited and that a prosecutor does not have a constitutional obligation
to personally review the material to determine whether disclosure is
required.
The defendant’s claim for a prophylactic rule, however, was premised
on the fact that, because the existence of C’s journals was not disclosed
until trial, the prosecutors were uniquely qualified to determine whether
the journals contained exculpatory or impeachment evidence and, therefore, had a duty to personally review the journals rather than enlisting
the assistance of staff, and, although this court agreed with the defendant
that familiarity with a witness’ testimony is necessary to make a determination as to whether particular evidence is subject to disclosure under
Brady, it concluded that a prophylactic rule was not necessary because
it perceived no significant risk that, in the absence of such a rule, the
constitution would be violated.
This court determined that the defendant’s proposed rule was unnecessary and unwarranted because there already was a sufficient safeguard,
specifically that, when potentially exculpatory information comes to
light during trial, a defendant or counsel may request production of the
information and make a preliminary showing that the specific informa-
Page 4 CONNECTICUT LAW JOURNAL 0, 0
6 ,0 0 Conn. 300
State v. Andres C.
tion in question contains material, favorable evidence, and, if the prosecutor reviews the information and claims that it contains no evidence
subject to disclosure under Brady, the defense can request an in camera
review of the information by the trial court.
Moreover, the defendant’s proposed rule improperly assumes that only
the prosecutor handling the trial will have the requisite familiarity with
the proceedings, ignores the fact that experienced individuals other than
the trial prosecutor may possess that familiarity, and could cause extraordinary delays in the trial depending on the volume of the information
at issue, and there was no reason to believe that the proposed rule was
necessary on the ground that the risk of a constitutional violation is
sufficiently great that simple case-by-case enforcement is inadequate,
the defendant having pointed to no evidence that prosecutors or courts
are experiencing difficulty determining in particular cases whether an
individual other than the trial prosecutor is qualified to conduct a review
for Brady material.
Furthermore, although the defendant claims that this court cannot have
confidence that the investigator who conducted the Brady review in the
present case was properly instructed about Brady’s requirements, the
defendant did not expressly raise a freestanding claim that this particular
delegation of Brady review was improper because the investigator was
not adequately trained to conduct a review for Brady material or was
not sufficiently familiar with the facts of the case.
Nonetheless, this court emphasized a prosecutor’s unique obligations in
the judicial system, as well as the prosecutor’s ultimate responsibility
for complying with Brady and ensuring in the first instance that the
principles of justice that underlie Brady are fully served, and indicated
that it is the better practice for prosecutors to personally review the
information at issue, or at least to seek assistance from other attorneys
or qualified staff who have received comprehensive training in the
requirements of Brady review and who are sufficiently knowledgeable
about the case at hand to appreciate the import of the information
under review.
(One justice concurring separately; one justice concurring
and dissenting; one justice dissenting)
Argued January 11, 2023—officially released June 18, 2024*
Procedural History
Substitute information charging the defendant with
the crimes of sexual assault in the third degree, sexual
assault in the fourth degree, and risk of injury to a child,
brought to the Superior Court in the judicial district of
New Haven and tried to the court, Alander, J.; judgment
0, 0 CONNECTICUT LAW JOURNAL Page 5
0 Conn. 300 ,0 7
State v. Andres C.
of guilty of sexual assault in the third degree and risk
of injury to a child, from which the defendant appealed
to the Appellate Court, Moll, Alexander, and DiPentima, Js., which affirmed the trial court’s judgment,
and the defendant, on the granting of certification,
appealed to this court. Affirmed.
Richard Emanuel, for the appellant (defendant).
Timothy F. Costello, supervisory assistant state’s
attorney, with whom, on the brief, were John P. Doyle,
Jr., state’s attorney, and Mary A. SanAngelo and Brian
K. Sibley, Sr., senior assistant state’s attorneys, for the
appellee (state).
Opinion
MULLINS, J. The defendant, Andres C., was convicted, after a court trial, of sexual assault in the third
degree and risk of injury to a child. During the complainant’s testimony at trial, she revealed that, after the
assaults, she had engaged in therapy, and, during that
therapy, she had kept journals, in Spanish, in which she
had written about, among other things, her relationship
with the defendant and his sexual abuse of her. Following this revelation, defense counsel requested that the
trial court review the journals for potential statements
and exculpatory information that should be disclosed
to the defendant. After a discussion with the court about
this revelation, the parties agreed that the complainant
would provide the journals to the prosecutor,1 and,
because the journals were written in Spanish, the prosecutor would enlist the assistance of a Spanish-speaking
investigator on her staff to help review the journals.
On the basis of the investigator’s review, the prosecutor
represented to the court that there was no material in
the journals that was subject to disclosure under Brady
1
The case was tried by two prosecutors, Mary A. SanAngelo and Brian K. Sibley,
Sr. When we refer to ‘‘prosecutor’’ in the singular, we are referring to SanAngelo.
Page 6 CONNECTICUT LAW JOURNAL 0, 0
8 ,0 0 Conn. 300
State v. Andres C.
v. Maryland, 373 U.S. 83, 87,
83 S. Ct. 1194,
10 L. Ed.
2d 215 (1963). Out of an abundance of caution, however,
she submitted four pages of the journals to the court
for its review, indicating that she thought the pages
were subject to General Statutes § 54-86f, the rape shield
statute. Those four pages were translated into English
and reviewed by the trial court, and the court disclosed
one page to the defendant as potential impeachment
material.
The defendant appealed to the Appellate Court. He
alleged that (1) he was entitled to disclosure of the
complainant’s journals as the discoverable statements
of a witness; see State v. Andres C., 208 Conn. App.
825, 851,
266 A.3d 888 (2021); and (2) the prosecutor
violated her Brady obligation by not personally
reviewing the journals for Brady material but instead
delegating that duty to the investigator. Id., 855. The
Appellate Court affirmed the judgment of conviction.
Id., 861. The court concluded, first, that the defendant
had waived his claim that he was entitled to disclosure
of the contents of the complainant’s journals; id.,
851–52; and, second, that the prosecutor did not violate
Brady by delegating the review of the journals to the
investigator. Id., 855, 860–61.
We then granted the defendant’s petition for certification to appeal to this court, limited to the following
issues: (1) ‘‘Did the Appellate Court incorrectly conclude that the defendant had waived his claim that
he was entitled to disclosure of the contents of the
complainant’s journals as the discoverable statements
of a witness?’’ And (2) ‘‘[d]id the Appellate Court incorrectly conclude that the Brady review . . . of the complainant’s journals by a nonlawyer member of the state’s
attorney’s office was constitutionally adequate?’’ (Citation omitted.) State v. Andres C., 342 Conn. 901,
270 A.3d
97 (2022). We resolve the first question on the alternative ground that the journals were not discoverable
0, 0 CONNECTICUT LAW JOURNAL Page 7
0 Conn. 300 ,0 9
State v. Andres C.
statements. We also conclude that the Appellate Court
correctly concluded that the prosecutors were not constitutionally obligated to personally review the complainant’s journals for Brady material. Accordingly, we
affirm the judgment of the Appellate Court.
The Appellate Court’s opinion sets forth the following
facts that the trial court reasonably could have found
and procedural history. ‘‘When [the complainant] was
ten years old, [she], along with her mother and siblings,
moved into her grandmother’s home. Shortly thereafter,
the defendant, the [complainant’s] uncle, moved in. At
some point, during the time that the [complainant] and
the defendant were living at the grandmother’s house,
the defendant . . . had the [complainant] apply lotion
to his penis and masturbate him. . . . This type of
abuse occurred more than ten times over the next two
years while the [complainant] lived at her grandmother’s house and continued after she had moved to
another house.
‘‘The [complainant] described other instances of inappropriate behavior by the defendant. On one occasion,
the defendant, while dressed only in boxer shorts, went
into the [complainant’s] bedroom, got under the covers
with her, and rubbed the [complainant’s] stomach and
legs under her shirt and pajama bottoms. After the [complainant] had moved to another house, she would, on
occasion, sleep over at her grandmother’s home. During
several of these occasions, the defendant got into bed
with the [complainant] and rubbed himself against her
so that she felt his penis against her back.
‘‘A few years later, the then sixteen year old [complainant] began speaking with a therapist [Milagros
Vizueta], and she disclosed the sexual abuse during
her first session. At a therapy session attended by her
mother and brother, the [complainant] disclosed the
sexual abuse by the defendant. Thereafter, on October
Page 8 CONNECTICUT LAW JOURNAL 0, 0
10 ,0 0 Conn. 300
State v. Andres C.
28, 2015, the [complainant] reported the defendant’s
conduct to the police. The defendant was [subsequently] arrested . . . .’’ State v. Andres C., supra, 208
Conn. App. 828–29.
On the first day of trial, the complainant testified
that, during her therapy sessions with Vizueta, ‘‘Vizueta
occasionally took notes and would write down things
for the [complainant] to ‘work on . . . .’ During redirect examination, the prosecutor inquired whether the
[complainant] ever had seen her records from the therapy [sessions] with Vizueta. The [complainant] responded:
‘I have my journals. . . . I don’t have—I don’t know
her records, but I have my journals.’2 Upon further
inquiry, the [complainant] stated: ‘For the journals,
[Vizueta] would have me write a lot about either my
relationship to [the defendant], with [the defendant],
how the abuse happened. I would reflect a lot on how
it made me feel, how I was missing, why I didn’t want
to talk. Sometimes in the journal we’d write about—
like if I was having family fights, so my journals are
the abuse that I lived with him, but also family fights
with my siblings and my mom.’ The [complainant] also
stated that the journals were her ‘words through
therapy.’
‘‘On recross-examination, defense counsel inquired
[‘prior to coming here, did you read your journals?’]
. . . The [complainant] responded that she had looked
at a ‘few pages’ in one of her journals. The following
colloquy between the [complainant] and defense counsel then occurred:
‘‘ ‘Q. Okay. Were those—and the—the journals that
you have, are those your notes that [you] wrote at the
time things were happening?
2
The Appellate Court noted that, ‘‘[o]n the basis of [its] review of the transcripts,
it appear[ed] that neither the prosecutors nor defense counsel had been aware
of these journals until the [complainant] mentioned them during her testimony.’’
State v. Andres C., supra, 208 Conn. App. 845 n.11. We agree.
0, 0 CONNECTICUT LAW JOURNAL Page 9
0 Conn. 300 ,0 11
State v. Andres C.
‘‘ ‘A. No, it was while I was in therapy.
‘‘ ‘Q. Okay. But it was part of the therapy process
about what you spoke to the doctor about, what she
told you and what happened to you, right?
‘‘ ‘A. Yes.
‘‘ ‘Q. And it would be much closer in time to the
events that we’re talking about; [is that] fair to say?
‘‘ ‘A. When I was journaling, closer to the abuse, yes.’
‘‘ ‘Q. Would—would those be the best record you
have of what happened? . . .
‘‘ ‘A. Yes.
‘‘ ‘Q. Okay. And you still have those journals?
‘‘ ‘A. Yes.’
‘‘At this point, defense counsel requested an in camera review of the [complainant’s] journals. The prosecutor objected, arguing that the journals did not constitute
medical records but rather were akin to a diary. The
[trial] court inquired whether the journals were privileged documents, by statute or common law. The prosecutor then requested time to research the issue. Defense
counsel suggested that the court should review the journals for exculpatory material. The court responded that
the obligation to review the journals for exculpatory
material rested with the prosecutors and that, if there
was a claim of privilege, it would conduct an in camera
review. Defense counsel responded: ‘I am asking for it
as discovery; however, I was trying to be as respectful
as I could be to the complainant.’ The court then suggested a further discussion of this issue in chambers
and mentioned the possibility of recalling the [complainant] as a witness, if necessary.
‘‘The next day . . . the [trial] court summarized the
discussions that had occurred in chambers: ‘I have
Page 10 CONNECTICUT LAW JOURNAL 0, 0
12 ,0 0 Conn. 300
State v. Andres C.
determined that [the complainant’s] journals should be
reviewed by the state to determine, what, if anything
in those journals [comprised of 3 notebooks totaling
approximately 200 pages] . . . comprise statements by
[the complainant] concerning the incidents in question
here, and any exculpatory material. . . . [U]pon that
review [the state] should disclose to defense counsel
any such material, specifically, statements made by [the
complainant] in her journals concerning the sexual
assault allegations here or any exculpatory material,
and if there is anything the state is uncertain as to
whether it is exculpatory, [the prosecutors] can provide
those portions of the journals to me, and I will review
them in camera to determine whether they should be
disclosed to defense counsel.
‘‘ ‘It is my understanding that the state has talked to
[the complainant]. She has agreed to provide the journals to [the state], they will be provided to the state
sometime this afternoon . . . but apparently the journals are in Spanish so the state needs the assistance of
someone on [its] staff to interpret those journals so
that [it] can fulfill [its] obligation[s] as I’ve outlined
them.’ The prosecutors and defense counsel agreed
with the court’s summary, and neither side raised any
objection.
‘‘The next day, the [trial] court placed the following
on the record: ‘It is my order that the state review
those journals to determine if there is any exculpatory
information with respect to those journals that need[s]
to be disclosed to the defendant, and that includes any
inconsistent statements and any statements regarding
the therapy method used that may have fostered or . . .
instructed [the complainant] to use her imagination or
[to] speculate or embellish as to what happened, but,
basically, the . . . state needs to review those journals
0, 0 CONNECTICUT LAW JOURNAL Page 11
0 Conn. 300 ,0 13
State v. Andres C.
under its Brady obligations and . . . turn over to the
defendant anything that is exculpatory.’3
‘‘The [trial] court then confirmed that defense counsel
had argued that at least some portions of the journals
were subject to disclosure because the [complainant]
had reviewed them prior to her testimony. The prosecutor countered that, aside from any Brady material,
defense counsel was not entitled to review the [complainant’s] private journals. The prosecutor further represented that her investigator had started the process
of reviewing the 200 pages, which were handwritten in
Spanish, and, after several hours of review, had not
discovered any exculpatory material. The prosecutor
also assured the court that she had given the investigator ‘very, very clear instructions on what is exculpatory
and what is not. [The prosecutor] sat in an office directly
next to [the investigator], so, if [the investigator] had
any questions at all, she came to [the prosecutor], and
there is nothing exculpatory or inconsistent so far at
all . . . .’
‘‘The [trial] court then considered the defendant’s
claim that he was entitled to the journals because the
[complainant] had used them to refresh her memory
prior to her testimony. After [reviewing] § 6-9 of the
Connecticut Code of Evidence, the court stated: ‘In light
of the fact that [the complainant] testified that she . . .
used [only] a few pages of [the] journals that consisted
of hundred[s]—at least, apparently, a couple hundred
pages, and the fact that the state would be reviewing
3
This order appears to be more limited in scope than the trial court’s prior
order. The prior order called for the state to review the journals for statements
by the complainant concerning the incidents in question here, and any exculpatory
material. This subsequent order relates only to the state’s obligation to review
the journals for exculpatory information. Whether this subsequent order is merely
a refinement of the prior order or a superseding order is not entirely clear. Adding
to the lack of clarity is that these orders resulted from discussions in chambers,
and we have no record of what those discussions entailed.
Page 12 CONNECTICUT LAW JOURNAL 0, 0
14 ,0 0 Conn. 300
State v. Andres C.
all the journals with the obligation to turn over any
exculpatory evidence to the defendant, I am not going
to order that the entire journals be turned over to the
defense for examination, also, in light of the private
nature of those journals.’ The court indicated it would
make the journals a court exhibit, and the parties noted
their agreement that a translation was not necessary at
that point.’’4 (Footnote added; footnote altered.) Id.,
844–48.
‘‘On the next day of trial . . . the prosecutor indicated that the investigator had completed the review
of the [complainant’s] journals.5 Pursuant to General
Statutes § 54-86c (b),6 the prosecutors submitted, in a
sealed envelope, four pages from the journals for review
by [the trial] court . . . . In their view, the contents
4
Specifically, the trial court stated that the parties had ‘‘agreed in chambers
that [the journals do not] need to be translated . . . .’’ In response, defense
counsel stated, ‘‘[c]orrect.’’
5
‘‘The prosecutor represented the following to the court: ‘These records . . .
were reviewed by my office, specifically . . . [by] . . . an investigator for the
state’s attorney’s office. She has been with the state’s attorney’s office for fifteen
years, she has been an investigator in our office for five years, she is bilingual,
[and] she is a 2013 graduate of Albertus Magnus College with a major in [c]riminal
[j]ustice. She was instructed by [the prosecutors] as far as what she was looking
for, [and] we explained to her very carefully what the state’s obligation is for
exculpatory and Brady material.
‘‘ ‘She indicated that she spent about ten hours reviewing these materials
because they are in Spanish, and she took her time. These materials never left
the state’s attorney’s possession; they did not go to her home, [and] they were
[reviewed] during business hours. She indicated that she spent about ten hours
reviewing them, and, whenever she had any questions, she would talk to [the
prosecutors] . . . .’ ’’ State v. Andres C., supra, 208 Conn. App. 848–49 n.12.
6
General Statutes § 54-86c (b) provides: ‘‘Any state’s attorney, assistant state’s
attorney or deputy assistant state’s attorney may request an ex parte in camera
hearing before a judge, who shall not be the same judge who presides at the
hearing of the criminal case if the case is tried to the court, to determine whether
any material or information is exculpatory.’’
‘‘In the present case, the parties agreed that [the trial court] could review the
four pages from the [complainant’s] journals to determine whether there was
any exculpatory material contained therein.’’ State v. Andres C., supra, 208 Conn.
App. 849 n.13.
0, 0 CONNECTICUT LAW JOURNAL Page 13
0 Conn. 300 ,0 15
State v. Andres C.
of these four pages were protected by . . . § 54-86f,7
but, ‘[out of an] abundance [of] caution,’ [the prosecutors] sought a judicial determination as to whether these
items should be disclosed to the defense.
‘‘Later that day, the [trial] court indicated that it had
reviewed the four pages from the journals submitted
by the prosecution and determined that one page should
be disclosed to the defense. Specifically, the court
stated: ‘One of the material issues in this case is . . .
[the complainant’s] claim that she delayed disclosure
of the alleged assaults by the defendant because, when
[the complainant’s cousin, D] reported such assaults,8
the family rallied behind the defendant, and she felt
that there was no one she could report [those] assault[s]
to and be supported. . . . There is an incident
[recorded in one of the journals in which] she disclosed
a claim of sexual abuse to her mother, which could be
interpreted as the mother then supporting her claim.
So, I think it is material and exculpatory, so I will order
it disclosed to the defendant.’
‘‘[Thereafter], the [trial] court granted the defendant’s
motion to recall the [complainant] as a witness. During
redirect examination by the prosecutor, the [complainant] explained that, following a prompt from Vizueta,
she wrote a passage in her journal about what ‘an envi-
7
General Statutes § 54-86f provides in relevant part: ‘‘(a) 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. . . .’’
8
The state presented evidence at trial that the defendant had also sexually
abused D. State v. Andres C., supra, 208 Conn. App. 829.
Page 14 CONNECTICUT LAW JOURNAL 0, 0
16 ,0 0 Conn. 300
State v. Andres C.
ronment in which speaking about abuse should have
looked like, instead of what [she] grew up in.’ Thus,
the statements in her journal in which the [complainant]
wrote that she had disclosed a sexual assault by a different family member to her mother [were] hypothetical
in nature and part of a therapy exercise, and not based
on actual events.’’ (Footnote added; footnotes altered;
footnote in original.) Id., 848–50.
Subsequently, the trial court found the defendant
guilty of sexual assault in the third degree and risk of
injury to a child and not guilty of sexual assault in the
fourth degree, and rendered judgment accordingly. Id.,
829. The trial court sentenced the defendant to a total
of twenty years of incarceration, execution suspended
after twelve years, and fifteen years of probation. Id.
The defendant appealed to the Appellate Court, claiming, inter alia, that ‘‘he was entitled to the contents of
the [complainant’s] journals because they constituted
a statement pursuant to Practice Book §§ 40-13A and
40-15 (1)’’; id., 851; and that ‘‘his rights under Brady . . .
were violated as a result of the procedures employed
by the prosecutors with respect to the review of the
[complainant’s] journals for exculpatory information.’’
(Citation omitted.) Id., 855. The Appellate Court concluded that the defendant (1) had waived his first claim
insofar as defense counsel had agreed to the trial court’s
summary of the procedure that the parties had discussed in the trial court’s chambers; see id., 854–55;
and (2) had failed to demonstrate that the prosecutors
could not constitutionally delegate the review of the
journals to an investigator but were required to personally review the journals. See id., 855, 860–61. Accordingly, the Appellate Court affirmed the judgment of
conviction. Id., 861.
This certified appeal followed. The defendant argues
on appeal that the Appellate Court incorrectly resolved
both claims. The state disagrees but also argues, with
0, 0 CONNECTICUT LAW JOURNAL Page 15
0 Conn. 300 ,0 17
State v. Andres C.
respect to the defendant’s claim pursuant to Practice
Book §§ 40-13A and 40-15 (1), that we should affirm
the judgment of the Appellate Court on the alternative
ground that the complainant’s journals are not discoverable because they do not constitute a ‘‘statement’’
for purposes of those rules. The defendant counters
that the state’s alternative ground for affirmance is not
reviewable because the state did not raise it in the
Appellate Court and did not seek permission to raise
it in this certified appeal. See Practice Book § 84-11 (b).9
We conclude that, under the specific circumstances
of the present case, we may review the state’s unpreserved alternative ground for affirmance. In doing so,
we conclude that the complainant’s journals were not
subject to discovery under Practice Book §§ 40-13A and
40-15 (1) because the complainant did not adopt or
approve them as her statement. Consequently, we need
not decide whether the Appellate Court correctly determined that the defendant waived this claim.10 With
9
Practice Book § 84-11 (b) provides: ‘‘Within ten days of the filing of the appeal,
the appellee may file a statement of alternative grounds for affirmance or adverse
rulings or decisions to be considered in the event of a new trial, provided that
such party has raised such claims in the Appellate Court. If such alternative
grounds for affirmance or adverse rulings or decisions to be considered in the
event of a new trial were not raised in the Appellate Court, the party seeking to
raise them in the Supreme Court must move for special permission to do so
prior to the filing of that party’s brief. Such permission will be granted only in
exceptional cases where the interests of justice so require.’’
Although Practice Book § 84-11 was amended in 2022, those amendments,
which took effect on January 1, 2023, have no bearing on the merits of this
appeal. In the interest of simplicity, we refer to the current version of that rule.
10
Justice Ecker would conclude that the defendant’s claim was not waived, a
question that is far more complex than the question of whether the journals
constituted a statement. See footnote 5 of the dissenting opinion. Without belaboring the point, we note, for example, that it is unclear from the record whether
the trial court’s order concerning the scope of the state’s Brady review was
intended to supersede its previous order that the state review the journals for
statements or, instead, was intended only to refine its previous order that the
state review the journals for exculpatory material. See footnote 3 of this opinion.
The state seems to adopt the former interpretation, whereas the defendant appears
to adopt the latter. There is nothing in the record, however, to establish that the
trial court sought only to refine its prior order as opposed to issuing a new order
Page 16 CONNECTICUT LAW JOURNAL 0, 0
18 ,0 0 Conn. 300
State v. Andres C.
respect to the defendant’s second claim, we conclude,
on the basis of the record in the present case, that the
state did not violate its obligations under Brady and
that there is no justification for the constitutional prophylactic rule proposed by the defendant.
I
The defendant first contends that the Appellate Court
incorrectly determined that he waived his claim that he
was entitled to disclosure of the complainant’s journals
under Practice Book §§ 40-13A and 40-15 (1) insofar as
defense counsel had agreed to the procedure outlined
by the trial court after the discussion in the trial court’s
chambers. As mentioned, we need not address this
claim because, regardless of whether the defendant
waived the claim, he cannot prevail. Specifically, we
agree with the state that the journals were not subject
to disclosure under §§ 40-13A and 40-15 (1) because
they were not adopted or approved by the complainant.
A
As a preliminary matter, we address the defendant’s
contention that the state’s claim that the complainant’s
journals do not constitute a disclosable statement is
unreviewable because the state did not raise that claim
in the Appellate Court and did not seek permission to
raise it in this certified appeal, as required by Practice
Book § 84-11 (b). We conclude that, under the specific
circumstances of the present case, we can and should
review the state’s claim for two interrelated reasons.
First, the relief that the defendant seeks if we were
to agree with his claim is a remand to the Appellate
Court with direction to remand the case to the trial court
directed solely at Brady. The fact that the subsequent order followed an inchambers discussion between the parties and the trial court, where the defense
acquiesced in the procedure the court laid out regarding how the state would
review the records, only further complicates the picture.
0, 0 CONNECTICUT LAW JOURNAL Page 17
0 Conn. 300 ,0 19
State v. Andres C.
for it to conduct proceedings to determine whether the
journals constitute a statement. If we were to grant that
relief, nothing would prevent the state from raising on
remand the same claim that it has raised on appeal.
Second, the issue of whether a witness’ personal journals constitute a disclosable statement within the meaning of the rules of practice presents a pure question of
law on this record, the record is adequate for review
of the state’s claim, and both parties have briefed the
issue.11 We conclude, therefore, that considerations of
judicial economy militate in favor of reviewing the
state’s alternative ground for affirmance. Cf. Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 171–72,
84 A.3d 840 (2014)
(‘‘interests of judicial economy justify appellate review
of an unpreserved, alternative ground for affirmance
that likely would arise when . . . a decision in favor of
the appellant would result in a remand for a new trial’’).
B
We turn, therefore, to the merits of the state’s claim
that the complainant’s journals do not constitute a disclosable statement under Practice Book §§ 40-13A and
40-15 (1). The state contends that (1) a document or
communication qualifies as a statement only if the wit-
11
We acknowledge that whether a statement has been adopted or approved
for purposes of the rules of practice may be a mixed question of fact and law,
with the historical facts subject to review for clear error and the legal question
of whether the established subsidiary facts constitute adoption or approval subject
to plenary review. See, e.g., Lapointe v. Commissioner of Correction, 316 Conn.
225, 264,
112 A.3d 1 (2015). There is no factual issue in the present case because
the relevant subsidiary facts—namely, the complainant’s statements about the
journals during her testimony—are undisputed. See footnote 14 of this opinion.
Whether these undisputed statements constituted an adoption or approval of the
journals is a question of law. See, e.g., Bridgeport v. Plan & Zoning Commission,
277 Conn. 268, 275,
890 A.2d 540 (2006) (whether party complied with statutory
notice requirements under General Statutes § 8-3 (a) was mixed question of fact
and law subject to plenary review when facts were undisputed and dispute
concerned ‘‘the trial court’s application of § 8-3 (a) to those facts’’).
Page 18 CONNECTICUT LAW JOURNAL 0, 0
20 ,0 0 Conn. 300
State v. Andres C.
ness conveyed it to a government agent, which was not
true of the complainant’s private therapy journals, and
(2) the complainant did not adopt or approve of the
journals. Because we conclude that the complainant
did not adopt or approve her journals, we need not
determine whether the statement must be made to a
government agent.12
We begin with the standard of review. ‘‘The interpretive construction of the rules of practice is to be governed by the same principles as those regulating
statutory interpretation. . . . The interpretation and
application of a statute, and thus a Practice Book provision, involves a question of law over which our review
is plenary.’’ (Internal quotation marks omitted.) Meadowbrook Center, Inc. v. Buchman, 328 Conn. 586, 594,
181 A.3d 550 (2018).
With these principles in mind, we review the language
of the rules of practice. Practice Book § 40-13A provides: ‘‘Upon written request by a defendant and without requiring any order of the judicial authority, the
prosecuting authority shall, no later than forty-five days
from receiving the request, provide photocopies of all
statements, law enforcement reports and affidavits
within the possession of the prosecuting authority and
his or her agents, including state and local law enforcement officers, which statements, reports and affidavits
were prepared concerning the offense charged, subject
to the provisions of Sections 40-10 and 40-40 et seq.’’
Practice Book § 40-15 provides in relevant part: ‘‘The
term ‘statement’ as used in Sections 40-11, 40-13 and
40-26 means . . . (1) [a] written statement made by a
person and signed or otherwise adopted or approved
by such person . . . .’’ (Emphasis added.) We interpret
12
We also need not consider whether, for purposes of Practice Book §§ 40-
13A and 40-15 (1), an author’s written work product constitutes a statement
when the author never shared the writing with anyone else.
0, 0 CONNECTICUT LAW JOURNAL Page 19
0 Conn. 300 ,0 21
State v. Andres C.
the definition of ‘‘statement’’ in § 40-15 (1) also to
extend to that term as used in § 40-13A.13
Pursuant to Practice Book § 40-15 (1), the complainant’s journals constitute a ‘‘statement’’ only if she
‘‘signed or otherwise adopted or approved’’ the journals.
There is no indication that the complainant signed her
journals. The issue before us, then, is whether she otherwise adopted or approved the journals.
Because the definition of ‘‘statement’’ in Practice
Book § 40-15 (1) was borrowed from the federal Jencks
Act, 18 U.S.C. § 3500, which sets the requirements for
disclosing government witness statements in federal
prosecutions, this court consistently has relied on the
history and judicial interpretations of the Jencks Act
when construing § 40-15 and related rules of practice.
See, e.g., State v. Johnson, 288 Conn. 236, 278–79,
951
A.2d 1257 (2008) (looking to federal decisions interpreting Jencks Act to resolve whether Practice Book §§ 40-
13 and 40-15 impose affirmative duty on government
to create record of witness interviews); State v. Cain,
223 Conn. 731, 749, 752–53,
613 A.2d 804 (1992) (relying
on case law interpreting Jencks Act in construing predecessor to § 40-15 (2)).
Courts have held that, in order to conclude that a
statement is adopted or approved under the Jencks Act
13
We acknowledge that Practice Book § 40-15 does not expressly provide that
the definition of ‘‘statement’’ in that section applies to the word ‘‘statement’’ as
used in Practice Book § 40-13A but refers to the term only as used in Practice
Book §§ 40-11, 40-13 and 40-26. Before the adoption of § 40-13A in 2009; see
Practice Book (2010) § 40-13A; Practice Book (2009) § 40-13 (a) (1) required the
state to produce ‘‘[a]ny statements of the witnesses in the possession of the
prosecuting authority or his or her agents, including state and local law enforcement officers, which statements relate to the subject matter about which each
witness will testify . . . .’’ That provision was deleted when § 40-13A was
adopted. See Practice Book (2010) § 40-13 (a). It would appear that the failure
to amend § 40-15 to include a reference to the new section, § 40-13A, was an
oversight. In the present case, both parties have assumed that § 40-15 (1) applies
to § 40-13A.
Page 20 CONNECTICUT LAW JOURNAL 0, 0
22 ,0 0 Conn. 300
State v. Andres C.
or rule 26.2 of the Federal Rules of Criminal Procedure,
which effectively incorporates the Jencks Act into the
federal criminal procedure rules; see, e.g., United States
v. Scotti, 47 F.3d 1237, 1249 (2d Cir. 1995); there must
be some indication that the witness has vouched for,
or intends to be accountable for, the contents of the
writing. See, e.g., United States v. Gotchis, 803 F.2d 74,
77–78 (2d Cir. 1986). ‘‘Not everything a witness has
written constitutes his ‘statement’ within [18 U.S.C.]
§ 3500 (e) (1).’’ United States v. Thomas, 97 F.3d 1499,
1502 (D.C. Cir. 1996). This interpretation is consistent
with the public policy principles underlying the Jencks
Act. As Justice Lewis F. Powell, Jr., explained in his
concurring opinion in Goldberg v. United States, 425
U.S. 94,
96 S. Ct. 1338,
47 L. Ed. 2d 603 (1976), ‘‘[i]n the
ordinary course the [g]overnment in taking statements
of . . . witnesses will impress [on] them the probable
use of the statements. Congress recognized as much,
noting that one reason the [g]overnment takes statements is to tie the witness down so that he will stand
by the statement.’’ (Internal quotation marks omitted.)
Id., 126 n.16 (Powell, J., concurring in the judgment).
He further noted that the ‘‘guarantees of dependability
that Congress relied [on] . . . arise partly from the
sense that a witness normally would have of going on
the record when he makes a statement . . . .’’ (Footnotes omitted; internal quotation marks omitted.) Id.,
126 (Powell, J., concurring in the judgment).
Justice Powell also emphasized the unfairness of
holding a witness accountable for a statement that was
not made with ‘‘the knowledge that he is formalizing a
statement [on] which he may be cross-examined.’’ Id.,
125 (Powell, J., concurring in the judgment). He
observed that, if a statement is ‘‘producible on a showing of less than knowing adoption as a formal statement,
honest and reliable witnesses will be postured wrongly
before the [fact finder] as having made inconsistent
0, 0 CONNECTICUT LAW JOURNAL Page 21
0 Conn. 300 ,0 23
State v. Andres C.
statements. This is unfair to the witness, and it unduly
handicaps the [g]overnment’s efforts to [successfully
prosecute] guilty defendants.’’ Id., 128 (Powell, J., concurring in the judgment). Accordingly, ‘‘to protect interests sought to be served by the [Jencks] Act,’’ the
witness must make and approve the statement ‘‘with
the knowledge that he is formalizing a statement [on]
which he may be cross-examined.’’ Id., 125 (Powell, J.,
concurring in the judgment); see, e.g., United States v.
Gotchis, supra,803 F.2d 78 (witness must evince ‘‘an
intent to be held accountable for the content of his
[statement]’’).
‘‘The question of adoption [of a witness’ statement]
arises [most] frequently in connection with notes taken
by a [g]overnment agent while interviewing a witness.’’
United States v. Bosier, 12 M.J. 1010, 1013 (A.C.M.R.
1982); see, e.g., United States v. Valdez-Gutierrez, 249
F.R.D. 368, 372 (D.N.M. 2007). In such cases, the government agent typically memorializes a summary of the
interview and then asks the witness to review the summary for accuracy and completeness and, by signing, to
adopt it as his or her own statement. Unlike statements
given to a law enforcement officer or other government
agent, diaries or similar personal writings, including the
‘‘diaries’’ of an agent or government informant, typically
are not created with the intent of fully and accurately
describing the author’s recollections of the events in
question or with the understanding that the author may
be held accountable in court for their veracity. On this
point, the case of United States v. Melo, 411 F. Supp.
2d 17 (D. Mass. 2006), is instructive.
In Melo, the United States magistrate judge addressed
whether a government agent’s own rough, handwritten
notes, taken while conducting surveillance of the defendant during the investigation, were subject to production under the Jencks Act and rule 26.2 of the Federal
Rules of Criminal Procedure. See id., 18. Although the
Page 22 CONNECTICUT LAW JOURNAL 0, 0
24 ,0 0 Conn. 300
State v. Andres C.
agent testified that the information in the surveillance
log was accurate and that he did not put anything in
the log that he did not believe to be true, the magistrate
nevertheless concluded that the notes were not adopted
or approved. See id., 24. In reaching this conclusion,
the magistrate observed that, for purposes of the Jencks
Act, ‘‘ ‘[s]igning’ . . . means putting a signature or other
mark on the [document] so as to attest to [its] accuracy
and to intend to be accountable in a formal manner for
[its] contents.’’ Id., 20. The magistrate then concluded
that ‘‘ ‘approv[ing]’ or ‘adopt[ing]’ . . . connote[s] the
same thing as ‘signing.’ ’’ Id. In addition, the magistrate
observed that there was no indication that the agent
intended the notes to be final. See id., 24. Rather, the
notes likely contained impressions and interpretations,
were not in the nature of a complete recitation that
eliminated the possibility of portions being selected out
of context, and ultimately were not meant to be a complete account of what was observed during the surveillance. See id., 21–22, 24; see, e.g., United States v.
Carrasco, 537 F.2d 372, 375 (9th Cir. 1976) (‘‘[a] statement, unlike notes or a diary, seeks to transmit information from the declarant to the reader’’); State v.
Morrison, 33 Or. App. 9, 16,
575 P.2d 988 (1978) (‘‘[t]o
be a statement that can be used for impeachment, there
must have been some intent to communicate information to another’’).
In the present case, we conclude that the complainant
did not formally adopt or approve her journals as required
by Practice Book § 40-15 (1). There is no indication
in the record that the complainant ‘‘vouched for’’ the
journals or intended to be held accountable for their
contents. United States v. Gotchis, supra, 803 F.2d 77–
78. She acknowledged authorship. And she agreed with
defense counsel’s suggestion that the journals were the
‘‘the best record [she had] of what [had] happened
. . . .’’ But she did not embrace them as her statement
0, 0 CONNECTICUT LAW JOURNAL Page 23
0 Conn. 300 ,0 25
State v. Andres C.
of the abuse or in any way indicate that she intended
to be held accountable for the contents of the journals.
In fact, there is no evidence whatsoever that she even
expected that the contents of her private diaries would
be communicated or transmitted to anyone else. Confirming the complainant’s intent to formally adopt the
journals was especially important in a case such as this,
in which English is not the complainant’s native language and her previously mentioned acknowledgments
came only in providing affirmative answers to questions
posed by defense counsel.
It is also highly significant that the complainant did
not maintain the journals with the primary purpose of
accurately memorializing her recollections of the events
in question. Instead, she described them as therapeutic
journals, her ‘‘words through therapy,’’ that she maintained at the direction of a mental health professional
to help her process her feelings about the abuse. Indeed,
the complainant testified that some portions of the journals, at least, were not factual at all. Rather, they were
therapy exercises in which she was encouraged to imagine hypothetical assaults and counterfactual family
environments. This is illustrated by the portion of the
journals that was admitted into evidence. In that part
of her journals, the complainant described herself disclosing the abuse to her mother and depicted her
mother as believing her. The complainant testified, however, that these events never happened and that her
therapist had instructed her to describe, as a therapeutic exercise, what should have happened if she had
disclosed the abuse to her family. The complainant was
clear that that account was not intended to be a factual
one and that she had not disclosed the abuse to her
mother until after it had ceased, while the complainant
was in therapy.
Although the complainant’s testimony suggests that
some portions of the journals contain her recollections
Page 24 CONNECTICUT LAW JOURNAL 0, 0
26 ,0 0 Conn. 300
State v. Andres C.
of the past abuse, and she indicated that those portions
are the ‘‘best record’’ she had of that abuse, that does
not mean that she was knowingly adopting the journals
as a formal statement. Nor does it imply that she knew
or reasonably should have known from the circumstances surrounding defense counsel’s questioning of
her that she could be held accountable in court for any
omissions or inaccuracies in the journals, or that they
could be used for cross-examination and impeachment purposes.14
14
The defendant seems to suggest that the policy underlying the requirement
that the statement be signed, adopted or approved is to ensure that the statement
is authentic, i.e., that it is what it purports to be. Specifically, he states that the
complainant adopted and approved the journals when she ‘‘acknowledged under
oath that the journals were her own handwritten product, and she described
their contents.’’ As we explained, that is not the purpose of the requirement, or
at least not the exclusive purpose. Signing, approving or adopting is also required
to ensure that the witness knows that he or she may be held accountable for
the truth and accuracy of the statement in a court of law. The question before
us is whether the complainant did in fact knowingly adopt or approve the
journals as a formal account of the alleged abuse. See Goldberg v. United States,
supra, 425 U.S. 128 (Powell, J., concurring in the judgment) (Jencks Act requires
showing of ‘‘knowing adoption as a formal statement’’). No reasonable fact finder
could conclude, on the basis of the record, that the complainant ever had any
intent to adopt or approve the journals as her formal statement of the abuse or
that she had any knowledge of the consequences of doing so. Simply acknowledging that she had written the journals, even if under oath, is not the equivalent
of adopting or approving their contents as a formal statement.
Contrary to Justice Ecker’s contention, our conclusion that the existing records
do not establish that the complainant adopted or approved the journals as a
statement does not mean that we believe that the state was required to formally
canvass the complainant to ensure that she knew that she could be held accountable in court for any omissions or inaccuracies in the journals or that they could
be used for cross-examination and impeachment purposes. See footnote 9 of the
dissenting opinion. It means only that we believe that the evidence must support
the conclusion that the complainant knowingly provided the journals to the
state as her formal account of the abuse, i.e., that she provided them under
circumstances that would reasonably lead her to believe that she would be held
accountable for inconsistencies between the journals and her testimony at trial.
The fact that the complainant’s testimony would support an inference that some
portions of the journals in fact contained an accurate account of the abuse is
not sufficient.
Finally, contrary to Justice Ecker’s suggestion, there is no reason to believe
that, even if the journals do not constitute a statement for purposes of Practice
0, 0 CONNECTICUT LAW JOURNAL Page 25
0 Conn. 300 ,0 27
State v. Andres C.
Indeed, the complainant reasonably could have believed
that her journals were her ‘‘best record’’ of what had
happened, even if she would have been unwilling to
stand by them in court because they omitted facts or
contained inaccuracies or fabrications. As far as the
record shows, the journals were her only written
account of what had happened, and at least part of the
account was written for therapeutic reasons, not as a
historical record. And nothing in the rules of practice
suggests that a defendant is entitled under Practice
Book §§ 40-13A and 40-15 (1) to a witness’ best record
of what happened if the witness did not formally
approve or adopt the record as an accurate account of
her recollection for which she could be held accountable in court, even assuming that the record was actually
accurate and complete. Of course, if the complainant’s
journals contained impeachment or exculpatory material, that material would be subject to disclosure under
Brady, regardless of whether the complainant had adopted
or approved them as a statement for purposes of the
rules of practice.
Finally, in the present case, although the complainant
later agreed to provide the journals to the state, nothing
in the record suggests that, even then, she did so with
the intent to provide information about the offense or
with the knowledge that she could be held accountable
for the completeness and factual accuracy of their contents under cross-examination in court. Rather, as far
as the record shows, the sole reason that she provided
Book §§ 40-13A and 40-15 (1), the undisclosed portions of the journals necessarily
contain information that is subject to Brady. See part I of the dissenting opinion.
Any descriptions of the defendant’s sexual abuse contained in the journals could
be purely inculpatory and consistent with the complainant’s trial testimony, and
there is no reason to believe that the journals contained ‘‘[f]abricated claims of
abuse,’’ other than the counterfactual account that was disclosed. Id. Indeed,
Justice Ecker himself recognizes that ‘‘[i]t is not clear what information the
journals contain . . . .’’ Footnote 26 of the dissenting opinion.
Page 26 CONNECTICUT LAW JOURNAL 0, 0
28 ,0 0 Conn. 300
State v. Andres C.
the journals to the state was that the trial court asked
her to turn them over.
We therefore conclude that the defendant was not
entitled to disclosure of the complainant’s journals
under Practice Book §§ 40-13A and 40-15 (1) because
the complainant did not adopt or approve them as
her statement.15
II
We turn next to the defendant’s claim that the Appellate Court incorrectly determined that the Brady review
of the complainant’s journals by a nonlawyer member
of the state’s attorney’s office was constitutionally adequate.16 Specifically, he contends that, because the exis-
15
We note that the defendant was not without recourse in this respect. As the
state points out, although ‘‘[a] criminal defendant has no general constitutional
right to discovery’’; State v. Fuller, 178 Conn. App. 575, 582,
177 A.3d 578 (2017),
cert. denied, 327 Conn. 1001,
176 A.3d 1194 (2018); the defense could have
issued a subpoena duces tecum to the complainant to compel production of any
exculpatory or impeachment materials contained in the journals upon making a
showing that they could allow the defense to challenge the complainant’s credibility. See, e.g., State v. DeCaro, 252 Conn. 229, 251,
745 A.2d 800 (2000) (defense
issued subpoena duces tecum to key state witness); id., 256 n.22 (noting that,
‘‘[o]f course, the state does not dispute that [a] subpoena is an appropriate process
for the production of documents that are relevant to the matter before the [trial]
court’’ (internal quotation marks omitted)); State v. Wiener, 58 Conn. App. 203,
207–208, 210–11, 753 A.2d 376 (2000) (defendant has right under due process
and confrontation clauses to subpoena records of state witness that would allow
defendant to challenge witness’ credibility), appeal dismissed, 256 Conn. 223,
772
A.2d 592 (2001). We further note that we are aware of no requirement that a
defendant must establish that a witness has signed, adopted or approved a written
account of facts related to the witness’ testimony that is exculpatory or impeaching
or that the witness has provided the account to the state before the defense can
issue a subpoena duces tecum seeking to compel the witness to produce the
writing. We, of course, express no opinion here as to whether the journals
in fact contained any information to which the defendant would have been
constitutionally entitled if they had been subpoenaed.
16
The state contends that, because the complainant’s journals were not, and
never had been, in the possession of the state when defense counsel learned of
their existence during trial and made his initial request for discovery, they could
not contain evidence subject to disclosure under Brady at that time. See, e.g.,
United States v. Marshall, 132 F.3d 63, 68 (D.C. Cir. 1998) (‘‘the government
cannot be required to disclose evidence that it neither possesses nor controls’’);
Conyers v. Wainwright, 309 F. Supp. 1101, 1105 (S.D. Fla. 1970) (prosecutor had
0, 0 CONNECTICUT LAW JOURNAL Page 27
0 Conn. 300 ,0 29
State v. Andres C.
tence of the complainant’s journals was not disclosed
until she testified at trial, the prosecutors were uniquely
qualified to determine whether the journals contained
impeachment evidence, and, therefore, they had a constitutional obligation to review the journals personally
rather than enlisting the assistance of a member of their
staff who had not been present during the complainant’s
testimony to review them. Thus, the defendant argues
that this court should adopt a constitutional prophylactic rule requiring a prosecutor personally to review
material for exculpatory and impeachment information
if the material comes to light during trial.17 We disagree.
We begin our analysis with a brief discussion of the
nature of constitutional prophylactic rules and the disno duty to discover potentially exculpatory evidence or to make evidence available
to defendant, but, once defendant became aware of existence of evidence, defendant had right to compulsory process). But see United States v. Brooks, 966 F.2d
1500, 1504 (D.C. Cir. 1992) (‘‘[when] there is an explicit request for an apparently
very easy examination, and a [nontrivial] prospect that the examination might
yield material exculpatory information,’’ prosecution should seek out potentially
exculpatory information that is not within its possession). The state also suggests
that the proper procedure would have been for the defense to issue a subpoena
duces tecum to the complainant to compel production of the journals. See
footnote 15 of this opinion; see also United States v. Yousef, 327 F.3d 56, 112–13 (2d
Cir.) (defendant could not complain about unavailability of potentially exculpatory
evidence when he failed to use procedural tools at his disposal to obtain evidence),
cert. denied, 540 U.S. 933,
124 S. Ct. 353,
157 L. Ed. 2d 241 (2003), and cert.
denied sub nom. Ismoil v. United States, 540 U.S. 993,
124 S. Ct. 492,
157 L. Ed.
2d 392 (2003). Both parties, however, appear to have assumed in the proceedings
before the trial court that, once defense counsel requested production of the
journals and the complainant provided them to the state, any exculpatory or
impeachment evidence that they contained was subject to disclosure under
Brady. Because the state did not raise any claim to the contrary before the trial
court, we also assume, for present purposes, that that is the case.
17
The state claims that, because it disclosed the method that it intended to
use to review the journals, and defense counsel failed to object to that method,
the defendant waived any claim that the method was unconstitutional. We agree
with the Appellate Court that the defendant’s claim is reviewable pursuant to
State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989), as modified by In
re Yasiel R., 317 Conn. 773, 781,
120 A.3d 1188 (2015). See State v. Andres C.,
supra, 208 Conn. App. 855–56; see also, e.g., State v. Rosa, 196 Conn. App. 480,
496–97, 230 A.3d 677 (reviewing defendant’s unpreserved Brady claim pursuant
to Golding), cert. denied, 335 Conn. 920,
231 A.3d 1169 (2020).
Page 28 CONNECTICUT LAW JOURNAL 0, 0
30 ,0 0 Conn. 300
State v. Andres C.
tinction between such rules and ordinary case-by-case
judicial review of constitutional claims. This court has
recognized that ‘‘courts have the duty not only to craft
remedies for actual constitutional violations, but also
to craft prophylactic constitutional rules to prevent the
significant risk of a constitutional violation.’’ (Emphasis
omitted.) State v. Dickson, 322 Conn. 410, 426 n.11,
141
A.3d 810 (2016), cert. denied,
582 U.S. 922,
137 S. Ct.
2263,
198 L. Ed. 2d 713 (2017); see, e.g., C. Rogers,
‘‘Putting Meat on Constitutional Bones: The Authority
of State Courts To Craft Constitutional Prophylactic
Rules Under the Federal Constitution,’’ 98 B.U. L. Rev.
541, 545 (2018) (former Chief Justice of Connecticut
Supreme Court explaining nature, scope, and purpose
of court’s power to adopt prophylactic rules). Prophylactic rules ‘‘are [forward-looking] and [have the potential to] either sanction future government conduct that
is not expressly prohibited by the applicable constitutional provision or require future government conduct
that the constitutional provision does not expressly
mandate . . . .’’ C. Rogers, supra, 547. Because constitutional prophylactic rules have this potential to prohibit or to mandate what the constitution does not, their
adoption is justified only when the risk of a constitutional violation is high, i.e., when the constitutional
protections are ‘‘not by their terms readily applicable
in the field’’; (internal quotation marks omitted) id.,
553; or when case-by-case analysis by the courts is
inadequate due to the lack of ‘‘judicially manageable
standards.’’ Id., 554. Thus, ‘‘the authority . . . to create
prophylactic rules is not without limits. To the contrary,
there is general agreement that [courts] should use this
authority cautiously and rules should be as narrowly
tailored as possible to accomplish their purpose.’’ Id.,
565.
With this general background in mind, we turn to the
defendant’s claim that prosecutors are constitutionally
0, 0 CONNECTICUT LAW JOURNAL Page 29
0 Conn. 300 ,0 31
State v. Andres C.
required to personally review the records that come to
light during trial and, therefore, that we should adopt
what he characterizes as a narrow prophylactic rule
prohibiting prosecutors from enlisting the assistance
of anyone other than the trial prosecutor himself to
review such records in fulfilling their obligation under
Brady. Specifically, the defendant asks this court ‘‘to
adopt an additional layer of prophylaxis to prevent a
significant risk of deprivation . . . of a defendant’s due
process rights under Brady.’’ (Citation omitted; internal
quotation marks omitted.) In Brady, the United States
Supreme Court held that ‘‘[t]he defendant has a right
to the disclosure of exculpatory evidence under the due
process [clause] of . . . [the fourteenth amendment
to] the United States constitution . . . . In order to
prove a Brady violation, the defendant must show: (1)
that the prosecution suppressed evidence after a request
by the defense; (2) that the evidence was favorable to
the defense; and (3) that the evidence was material.’’
(Citations omitted; internal quotation marks omitted.)
State v. Floyd, 253 Conn. 700, 736–37,
756 A.2d 799
(2000). ‘‘It is well established that [i]mpeachment evidence as well as exculpatory evidence falls within Brady’s
definition of evidence favorable to an accused.’’ (Internal quotation marks omitted.) Id., 737. ‘‘Whether the
[defendant] was deprived of his due process rights due
to a Brady violation is a question of law, to which
we grant plenary review.’’ (Internal quotation marks
omitted.) Morant v. Commissioner of Correction, 117
Conn. App. 279, 284,
979 A.2d 507, cert. denied,
294
Conn. 906,
982 A.2d 1080 (2009).
With respect to the defendant’s specific claim in the
present case, that a prosecutor be prohibited constitutionally from ‘‘delegat[ing]’’18 Brady review of informa-
18
Although the defendant claims that the prosecutors in this case ‘‘delegated’’
their Brady obligations to someone who is not an attorney, and, although some
of the case law uses ‘‘delegate’’ to describe similar situations, we think that it is
an inaccurate and imprecise term. As we explain subsequently in this opinion,
although prosecutors may, in appropriate situations, enlist the assistance of
Page 30 CONNECTICUT LAW JOURNAL 0, 0
32 ,0 0 Conn. 300
State v. Andres C.
tion discovered during trial to another, neither the defendant nor Justice Ecker, in his dissenting opinion, has
pointed to a single case that prohibits a prosecutor from
seeking assistance when material is reviewed to identify
discoverable Brady information. Indeed, there is limited authority on this point. The authority that does
exist regarding delegation suggests that delegation is
not constitutionally prohibited. In fact, the defendant
acknowledges that there is persuasive authority for the
proposition that a prosecutor does not have a constitutional obligation to personally review materials in the
government’s possession to determine whether disclosure is required under Brady. See, e.g., United States
v. Jennings, 960 F.2d 1488, 1491 (9th Cir. 1992) (‘‘[w]e
have never held that the prosecutor’s obligations under
Brady . . . require the personal effort demanded of
the [prosecutor] by the [trial] court’’); United States v.
Smith, 552 F.2d 257, 262 (8th Cir. 1977) (‘‘[i]t is unreasonable to impose [on] a prosecutor the duty of personally searching agency files for favorable evidence’’);
Stacy v. State, 500 P.3d 1023, 1038 (Alaska App. 2021)
(‘‘the [s]tate can comply with its obligations under Brady
without having individual prosecutors personally review
personnel files’’).19
certain nonlawyers to review records for potential Brady material, it is ultimately
the nondelegable duty and responsibility of the prosecutor to disclose exculpatory
material to the defense. To the extent other cases use the term ‘‘delegation,’’ we
understand it to be an imprecise, shorthand way of characterizing the enlistment
of another to assist in the review of records for potential Brady material. When,
and if, we do that in this opinion, we too use it as shorthand terminology.
19
See also U.S. Dept. of Justice, Justice Manual, tit. 9, 9-5.002 (Step 2),
available at https://www.justice.gov/jm/jm-9-5000-issues-related-trials-and-othercourt-proceedings#9-5.002 (last visited June 11, 2024) (‘‘It would be preferable if prosecutors could review the information [for Brady material]
themselves in every case, but such review is not always feasible or necessary.
. . . This process may involve agents, paralegals, agency counsel, and computerized searches. Although prosecutors may delegate the process and set
forth criteria for identifying potentially discoverable information, prosecutors should not delegate the disclosure determination itself.’’ (Emphasis
in original.)).
0, 0 CONNECTICUT LAW JOURNAL Page 31
0 Conn. 300 ,0 33
State v. Andres C.
The defendant does not claim that these cases were
wrongly decided; nor does he challenge the constitutionality of a prosecutor’s authority to seek assistance
from another person for purposes of reviewing evidence
for Brady material before trial. The defendant does
claim, however, that, when potentially exculpatory
material comes to light during trial, the prosecutor is
uniquely qualified to determine whether the material
contains exculpatory or impeachment evidence subject
to disclosure under Brady. He therefore asks this court
to adopt a federal constitutional, prophylactic rule
requiring the prosecutor personally to review such
material.
In support of this claim, the defendant relies on language in two United States Supreme Court cases suggesting that the determination as to whether information in the government’s possession constitutes exculpatory or impeachment evidence is best made when
the reviewer has access to the complete trial record.
See Kyles v. Whitley, 514 U.S. 419, 439,
115 S. Ct. 1555,
131 L. Ed. 2d 490 (1995) (‘‘the character of a piece of
evidence as favorable will often turn on the context of
the existing or potential evidentiary record’’); United
States v. Agurs, 427 U.S. 97, 108,
96 S. Ct. 2392,
49 L.
Ed. 2d 342 (1976) (for purposes of determining whether
material is disclosable under Brady, ‘‘the significance of
an item of evidence can seldom be predicted accurately
until the entire record is complete’’).20 The defendant
contends that Whitley and Agurs support the proposition that, when potential Brady material comes to light
20
The defendant also relies on a number of cases holding that prosecutors
are charged with the responsibility of determining whether evidence contains Brady material, an issue that is not in dispute. As the Appellate Court
pointed out, and we agree, it does not follow from the fact that prosecutors
are ultimately responsible for ensuring that all exculpatory evidence in the
state’s possession is disclosed to the defendant that prosecutors cannot
seek assistance in complying with that responsibility. See State v. Andres
C., supra, 208 Conn. App. 859.
Page 32 CONNECTICUT LAW JOURNAL 0, 0
34 ,0 0 Conn. 300
State v. Andres C.
during trial, only the prosecutor, who has full knowledge of the substance and context of a witness’ testimony, is in a position to determine whether the material
constitutes impeachment evidence subject to Brady.
We do not disagree that familiarity with a witness’
testimony is necessary to make a determination as to
whether particular evidence is subject to disclosure
under Brady. However, we do not agree that this fact
requires us to adopt a prophylactic rule, under the federal constitution, requiring prosecutors personally to
review potentially exculpatory information that comes
to light during trial because we perceive no significant
risk that, in the absence of such a prophylactic rule, the
constitution will be violated. See, e.g., State v. Dickson,
supra,322 Conn. 426 n.11 (prophylactic rule is justified
only when it will ‘‘prevent the significant risk of a constitutional violation’’ (emphasis omitted)).
First, the proposed new prophylactic rule is unnecessary and unwarranted because a sufficient safeguard
already exists. Indeed, the law already recognizes that,
when potentially exculpatory information comes to light
during trial, if defense counsel requests production of
the information and makes some showing that the specific information in question contains material, favorable evidence, and, if, after review by the prosecutor,
the prosecutor claims that the information contains no
evidence subject to disclosure under Brady, defense
counsel can request an in camera review by the trial
court. See, e.g., United States v. Agurs, supra,427 U.S.
106 (‘‘[a]lthough there is, of course, no duty to provide
defense counsel with unlimited discovery of everything
known by the prosecutor, if the subject matter of . . .
a [specific Brady] request [made before or during trial]
is material, or indeed if a substantial basis for claiming
materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or
by submitting the problem to the trial judge’’ (emphasis
0, 0 CONNECTICUT LAW JOURNAL Page 33
0 Conn. 300 ,0 35
State v. Andres C.
added)); United States v. Prochilo, 629 F.3d 264, 268–69
(1st Cir. 2011) (if defense counsel can ‘‘articulate with
some specificity what evidence he hopes to find in
the requested materials, why he thinks the materials
contain this evidence, and finally, why this evidence
would be both favorable to [the defense] and material,’’
and government maintains that requested information
is not disclosable under Brady, trial court can conduct
in camera review of information); 6 W. LaFave et al.,
Criminal Procedure (4th Ed. 2015) § 24.3 (b), p. 447
(‘‘[i]f the prosecutor refuses to respond to a specific
pretrial request, stating that the material need not be
disclosed under Brady, the defense may ask the trial
court to examine the requested items in camera and
order disclosure if it should find the items to be exculpatory and material’’). Thus, if the defendant was unsatisfied with the prosecutor’s representation that the
journals did not contain any exculpatory evidence,
defense counsel could have asked for in camera review
by the trial court at that point, which counsel did not
do. In camera review by the trial court of potentially
exculpatory evidence certainly is adequate protection
for the defendant’s constitutional rights under Brady.21
21
We recognize that defense counsel asked for an immediate in camera
review of the journals for exculpatory material when their existence was
disclosed at trial. The trial court’s response was that the state had the
obligation to review the journals for exculpatory information. The defendant
did not claim before the trial court that the court incorrectly determined
that review of the journals for Brady material was for the prosecutor in
the first instance, he makes no such claim on appeal, and defense counsel
did not renew his request for an in camera review after the prosecutor
reported that the journals contained no exculpatory materials, with the
possible exception of the short excerpt.
We further note that the defendant requests on appeal that, ‘‘if this court
agrees that the prosecutors had the constitutional obligation to personally
review the journals,’’ and, ‘‘if further review of the journals is deemed
necessary [to determine whether the trial court’s failure to order the prosecutors to do so was harmful error] . . . this court [either] conduct the Brady
review or remand the case [and order] that [the] prosecutors personally
conduct that review.’’ The defendant does not seek any alternative form of
relief if this court should reject his contention that a prosecutor is constitutionally prohibited from delegating review. Accordingly, because we conclude that the prosecutor did not violate Brady by not personally reviewing
Page 34 CONNECTICUT LAW JOURNAL 0, 0
36 ,0 0 Conn. 300
State v. Andres C.
the journals, no further review is required. Thus, contrary to Justice D’Auria’s
suggestion in his concurring and dissenting opinion, there is no mystery as
to the reason that we have not addressed his ‘‘practical’’ approach; the
reason is that it was not raised on appeal.
The position of Justices Ecker and D’Auria, though billed as the ‘‘practical’’
approach by Justice D’Auria, essentially embarks down a path of review
that has not been requested and is unwarranted. The cases cited by Justices
Ecker and D’Auria to support the conclusion that a remand to the trial court
for an in camera review is appropriate and necessary are inapposite. See
Pennsylvania v. Ritchie, 480 U.S. 39, 43, 57,
107 S. Ct. 989,
94 L. Ed. 2d 40
(1987); United States v. Stillwell, 986 F.3d 196, 200–201 (2d Cir. 2021); United
States v. Djibo, 730 Fed. Appx. 52, 55–56 (2d Cir. 2018); United States v.
Alvarez, 358 F.3d 1194, 1209 (9th Cir.), cert. denied sub nom. Valenzuela
v. United States, 543 U.S. 887,
125 S. Ct. 126,
160 L. Ed. 2d 148 (2004);
United States v. Rosario-Peralta, 175 F.3d 48, 56–57 (1st Cir. 1999); United
States v. Griggs, 713 F.2d 672, 674 (11th Cir. 1983); United States v. Dansker,
537 F.2d 40, 65 (3d Cir. 1976), cert. denied,
429 U.S. 1038,
97 S. Ct. 732,
50
L. Ed. 2d 748 (1977), and cert. denied sub nom. Valentine v. United States,
429 U.S. 1038,
97 S. Ct. 732,
50 L. Ed. 2d 748 (1977), and cert. denied sub
nom. Diaco v. United States, 429 U.S. 1038,
97 S. Ct. 732,
50 L. Ed. 2d 748
(1977); State v. Pollitt, 199 Conn. 399, 406–407, 415–16,
508 A.2d 1 (1986);
State v. Gonzales, 186 Conn. 426, 435–36,
441 A.2d 852 (1982). Put simply,
these cases are distinguishable because, in each of them, the defendant
claimed on appeal either that the government had refused the defendant’s
request to review specific evidence for Brady material, or that the defendant
became aware of undisclosed evidence that was subject to disclosure under
Brady during or after trial. This is not the case here.
For the same reason, Justice D’Auria’s reliance on this court’s decision
in State v. Floyd, supra,253 Conn. 732, as support for his suggestion that
we remand the case to the trial court to order the translation of the journals
and for further fact-finding is misplaced. See part IV of the concurring and
dissenting opinion. Floyd involved the discovery of potential Brady material
posttrial, while the defendant’s appeal was pending. See State v. Floyd,
supra, 730. Subsequent to Floyd, this court has made clear that ‘‘[w]e will
order a Floyd hearing to develop a potential Brady violation only in the
unusual situation in which a defendant was precluded from perfecting the
record due to new information obtained after judgment.’’ (Internal quotation
marks omitted.) State v. Ortiz, 280 Conn. 686, 713 n.17,
911 A.2d 1055 (2006).
As we explained, in the present case, the trial court ordered the state to
review the journals for Brady material, and that review occurred with the
full knowledge of the defendant as to exactly how that review was going
to take place; there was no refusal to review the journals. Following the
review, there was no request for additional relief that the trial court denied.
And the defendant has not identified on appeal any evidence that was subject
to Brady that the state failed to disclose. The defendant’s only claim on
appeal is that the prosecutor herself was required to conduct the review.
Notwithstanding the insistence to the contrary by Justices D’Auria and
Ecker, the defendant does not seek—and the state does not acquiesce in—
any additional form of relief should we reject this nondelegation claim. To
0, 0 CONNECTICUT LAW JOURNAL Page 35
0 Conn. 300 ,0 37
State v. Andres C.
Second, the defendant’s request is shortsighted. It
assumes that only the prosecutor handling the trial will
have the requisite familiarity with the trial proceedings
and ignores the fact that very experienced individuals
other than the trial attorney may possess that familiarity. For example, under the defendant’s proposed rule,
a highly experienced paralegal who has been trained
in the requirements of Brady and who sat by the prosecutor’s side during the entire trial, or a supervising
prosecuting attorney who had been supplied with the
transcript of the proceedings, could not conduct a
Brady review. Moreover, a rule that required the trial
prosecutor personally to conduct a Brady review might
result in extraordinary delays in the trial, depending on
the volume of records to be reviewed.
Third, courts may adopt constitutional prophylactic
rules only when ‘‘the risk of a constitutional violation
is sufficiently great that simple case-by-case enforcement of the core right is insufficient to secure that right
. . . .’’ (Footnotes omitted; internal quotation marks
omitted.) C. Rogers, supra, 98 B.U. L. Rev. 547. Case-by-case enforcement is inadequate only when constitutional protections are ‘‘not by their terms readily applicable in the field’’; (internal quotation marks omitted)
id., 553; or when there is an absence of ‘‘judicially manageable standards.’’
Id., 554. In the present case, the
defendant has pointed to no evidence that prosecutors
or courts are experiencing difficulty in determining in
particular cases whether a person is qualified to conduct a Brady review. But cf. id. (before United States
Supreme Court’s adoption of prophylactic rule in Miranda
v. Arizona, 384 U.S. 436,
86 S. Ct. 1602, 16 L. Ed. 2d
the extent that Justices D’Auria and Ecker rely on the defendant’s contention
that, if this court were to agree with his nondelegation claim (which we do
not), a Brady violation must exist because the nondisclosed portions of the
journals necessarily contain impeaching or exculpatory information, we
disagree with that contention. See footnote 14 of this opinion.
Page 36 CONNECTICUT LAW JOURNAL 0, 0
38 ,0 0 Conn. 300
State v. Andres C.
694 (1966), ‘‘[c]ourts had struggled to determine whether
confessions were voluntary or whether, instead, a defendant’s will was overborne’’ (internal quotation marks omitted)). Thus, there is no reason to believe that case-by-case enforcement is inadequate. If a defendant challenges
the qualifications of the person who conducted the Brady
review, and the trial court finds that the person was unqualified, it can order review by a qualified person. See, e.g.,
Batarfi v. Bush, 602 F. Supp. 2d 118, 120 (D.D.C. 2009)
(instructing government that ‘‘[a]ny delegation of a review
for exculpatory evidence to attorneys who do not understand or are not familiar with Brady and its progeny . . .
is absolutely unacceptable and will not be tolerated’’).
Courts also have the authority to dismiss the charges in
egregious cases22 or to refer the prosecutor for disciplinary proceedings.23
Although the defendant in the present case argues, in
support of his proposed prophylactic rule, that, on the
basis of the record, this court cannot have ‘‘confidence
22
See, e.g., Virgin Islands v. Fahie, 419 F.3d 249, 254–55 (3d Cir. 2005)
(‘‘dismissal for a Brady violation may be appropriate in cases of deliberate
misconduct because those cases call for penalties [that] are not only corrective but are also highly deterrent’’).
23
A prosecutor who fails to comply with his or her ethical obligation to
disclose exculpatory and mitigating evidence to the defendant may be
referred to professional disciplinary proceedings and subject to sanctions.
See In re Kurtzrock, 192 App. Div. 3d 197, 209, 213–15, 221, 138 N.Y.S.3d 649
(2020) (granting motion to confirm prosecutor’s suspension from practice
of law for two years after he removed favorable materials from disclosed
files and neglected, in several instances, to make any effort to comply
with rule of professional conduct requiring him to disclose to defendant all
information known to prosecutor ‘‘that tends to negate the guilt of the
accused, mitigate the degree of the offense, or reduce the sentence’’); see
also Rules of Professional Conduct 3.8 (4) (prosecutor shall ‘‘[m]ake timely
disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense’’);
Kyles v. Whitley, supra,514 U.S. 437 (Brady ‘‘requires less of the prosecution
than the [American Bar Association] Standards for Criminal Justice, which
call generally for prosecutorial disclosures of any evidence tending to exculpate or mitigate’’).
0, 0 CONNECTICUT LAW JOURNAL Page 37
0 Conn. 300 ,0 39
State v. Andres C.
that the investigator [who conducted the Brady review]
was properly instructed about Brady’s requirements,’’ he
has not expressly raised a freestanding claim that, even
if this court should reject his request for a prophylactic
rule categorically barring the prosecutor from delegating
to anyone Brady review of records that come to light
during trial, we should find that this particular delegation
was improper. The defendant’s decision not to raise this
claim on appeal is probably for good reason: he did not
raise the issue of the adequacy of the investigator’s legal
training in the trial court, and, therefore, there are no
factual findings concerning the issue. There also are no
factual findings as to whether the investigator had sufficient knowledge of the facts of this case and the nature
of the complainant’s testimony to conduct a Brady review.
Thus, if the defendant had made that unpreserved claim
on appeal, the record would be inadequate for review of
those issues. Unlike Justice Ecker, we decline to draw
negative conclusions regarding the investigator’s background from an incomplete and inadequate record.24
24
Justice Ecker would have us misapply State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R.,
317 Conn. 773,
781, 120 A.3d 1188 (2015), by addressing a claim that the defendant has not
raised on appeal, namely, that, even if the prosecutor was not constitutionally
required to personally review the journals, this particular investigator was
unqualified to do so. See part II of the dissenting opinion. Even if the
defendant had raised that claim, the record would be inadequate for review
under the first prong of Golding. See, e.g., State v. Brunetti, 279 Conn. 39,
53, 58, 63–64,
901 A.2d 1 (2006) (under first prong of Golding, record was
inadequate to review defendant’s claim that consent of both present joint
occupants of premises is necessary for search when issue of one occupant’s
consent was not before trial court, and, therefore, facts relevant to that
occupant’s consent were not adduced), cert. denied, 549 U.S. 1212,
127 S.
Ct. 1328,
167 L. Ed. 2d 85 (2007). Because the defendant has not raised that
claim on appeal, we need not consider whether we should adopt an exception
to the Golding requirement of an adequate record for review in cases in
which the defendant has failed to claim before the trial court that the person
who conducted the Brady review was unqualified to do so and remand such
cases to the trial court for further factual findings on the issue. But cf. State
v. Ortiz, 280 Conn. 686, 713 n.17,
911 A.2d 1055 (2006) (‘‘[w]e will order a
Floyd hearing to develop a potential Brady violation only in the unusual
situation in which a defendant was precluded from perfecting the record
Page 38 CONNECTICUT LAW JOURNAL 0, 0
40 ,0 0 Conn. 300
State v. Andres C.
Although we reject the defendant’s request for a constitutional prophylactic rule requiring prosecutors to personally review evidence that comes to light during trial for
Brady material, we recognize that, when a prosecutor
obtains assistance from another person for purposes of
reviewing material for potential Brady information, and
that person fails to identify information that is, in fact,
subject to Brady, it is possible that that information may
never come to light. Accordingly, we pause here to reiterate and emphasize ‘‘the unique responsibilities of the prosecutor in our judicial system. A prosecutor is not only an
officer of the court, like every other attorney, but is also
a high public officer, representing the people of the [s]tate,
who seek impartial justice for the guilty as much as for
the innocent.’’ (Internal quotation marks omitted.) State
v. Stevenson, 269 Conn. 563, 571–72,
849 A.2d 626 (2004);
see, e.g., Rules of Professional Conduct 3.8, commentary
(‘‘[a] prosecutor has the responsibility of a minister of
justice and not simply that of an advocate’’). As the United
States Court of Appeals for the Ninth Circuit stated in
United States v. Alvarez, 86 F.3d 901 (9th Cir. 1996), cert.
denied, 519 U.S. 1082,
117 S. Ct. 748,
136 L. Ed. 2d 686
(1997), ‘‘[b]ecause the government’s failure to turn over
exculpatory information in its possession is unlikely to be
discovered and thus largely unreviewable, it is particularly
important for the prosecutor to ensure that a careful and
proper Brady review is done. Delegating the responsibility
to a nonattorney police investigator to review his own
and other officers’ rough notes to determine whether they
contain Brady . . . information is clearly problematic.
Although we have held that the [trial] court cannot order
[a prosecutor] personally to review law enforcement personnel files . . . we see little justification and much danger to both the prosecutor’s reputation and the quality of
justice her office serves for a prosecutor not to review
due to new information obtained after judgment’’ (internal quotation
marks omitted)).
0, 0 CONNECTICUT LAW JOURNAL Page 39
0 Conn. 300 ,0 41
State v. Andres C.
personally those materials directly related to the investigation and prosecution of the defendants, such as a testifying
officer’s surveillance notes.’’ (Citations omitted.) Id., 905.
Indeed, it is the obligation of the prosecutor, not the
defendant or the courts, to ensure, in the first instance,
that the principles of justice that underlie Brady are fully
served. See, e.g., United States v. Jennings, supra,960
F.2d 1490 (prosecutor ‘‘is responsible for compliance with
the dictates of Brady and its progeny’’); United States v.
Cadet, 727 F.2d 1453, 1467 (9th Cir. 1984) (‘‘[t]he prosecutor’s oath of office, not the command of a federal court,
should have compelled the government to produce any
favorable evidence in the personnel records’’). We therefore believe that, regardless of when the state becomes
aware of potentially exculpatory information or how the
information comes to light, it is the better practice for
prosecutors personally to review the information, or at
least to seek assistance from attorneys, or other qualified
staff members, who have received comprehensive training
in the requirements of Brady and who are sufficiently
knowledgeable about the case, including possible defenses,
to appreciate the import of the information under review.
We emphasize that the review for Brady material is
quintessentially a prosecutor’s role, and the prosecutor
bears ultimate responsibility for compliance with Brady.
See, e.g., General Statutes § 54-86c (a) (‘‘the state’s attorney, assistant state’s attorney or deputy assistant state’s
attorney in charge of the case shall disclose any exculpatory information or material which he may have with
respect to the defendant whether or not a request has
been made therefor’’); accord Practice Book § 40-11 (b).
For example, the United States Department of Justice
policies and procedures provide that ‘‘prosecutors must
ensure that the material is reviewed to identify discoverable [Brady] information. It would be preferable
if prosecutors could review the information themselves
in every case, but such review is not always feasible
Page 40 CONNECTICUT LAW JOURNAL 0, 0
42 ,0 0 Conn. 300
State v. Andres C.
or necessary. The prosecutor is ultimately responsible
for compliance with discovery obligations. . . .
Because the responsibility for compliance with discovery obligations rests with the prosecutor, the prosecutor’s decision about how to conduct this review is
controlling. This process may involve agents, paralegals, agency counsel, and computerized searches.
Although prosecutors may delegate the process and set
forth criteria for identifying potentially discoverable
information, prosecutors should not delegate the disclosure determination itself.’’ (Emphasis altered.) U.S.
Dept. of Justice, Justice Manual, tit. 9, 9-5.002 (Step 2),
available at https://www.justice.gov/jm/jm-9-5000-issues-related-trials-and-other-court-proceedings#9-5.002 (last visited June 11, 2024).
Similarly, the Connecticut Division of Criminal Justice
recognizes the central role the prosecutor plays in the
Brady process: ‘‘The prosecutor is deemed to possess all
favorable evidence, and is deemed to know if any member
of the prosecution team possesses favorable evidence, even
if the prosecutor does not have actual possession or knowledge of that favorable evidence.’’ Office of the Chief State’s
Attorney, Connecticut Division of Criminal Justice Policies
and Procedures (July, 2022) Policy 512a (Policy Regarding
Disclosure of Exculpatory & Impeachment Evidence), p.
2. We have recognized as much. See Demers v. State, 209
Conn. 143, 153,
547 A.2d 28 (1988) (collective knowledge
of entire prosecution team imputed to prosecutor).
With respect to voluminous discovery material, in order
to avoid an inadvertent failure to disclose Brady material,
‘‘prosecutors may discharge their disclosure obligations by
choosing to make the voluminous information available to
the defense.’’ U.S. Dept. of Justice, supra, 9-5.002 (Step 1);
see id. (Step 3) (‘‘[p]rosecutors are encouraged to provide
broad and early discovery consistent with any countervailing considerations’’); see also id. (Step 2) (‘‘[i]n cases involving voluminous evidence obtained from third parties,
prosecutors should consider providing defense access to
0, 0 CONNECTICUT LAW JOURNAL Page 41
0 Conn. 300 ,0 43
State v. Andres C.
the voluminous documents to avoid the possibility that a
well-intentioned review process nonetheless fails to identify
material discoverable evidence’’). In sum, a prosecutor may
seek assistance in reviewing discovery for potential Brady
material from someone with competency and an understanding of the full scope of the prosecutor’s responsibility
under Brady. That individual also must have an understanding of the specific details of the case. The prosecutor himself, however, remains constitutionally, professionally and
ethically accountable for that individual’s performance.
As we explained, the defendant has not expressly raised
a freestanding claim that the particular delegation of Brady
review in this case was improper because the investigator
was not adequately trained to conduct a review for Brady
material or was not sufficiently familiar with the facts of
the case. Indeed, when the prosecutor informed the trial
court that a Spanish-speaking investigator would conduct
the review, the defendant and his counsel did not object
to this approach and agreed that a translation was not
necessary.25 See footnotes 4 and 21 of this opinion. Because
prosecutors have no constitutional obligation personally to
conduct a review for Brady material that comes to light
during trial, we conclude that the Appellate Court correctly
determined that the prosecutor was not constitutionally
required to personally review the complainant’s journals
for Brady material.26
25
In any event, the focus of Justices D’Auria and Ecker on obtaining a
translation misses the point. In fact, the defendant barely mentions the lack
of a translation in his briefs to this court, which is not surprising given his
and defense counsel’s agreement in the trial court that a translation was
not necessary. In the end, it is not the translation that is at the crux of the
question here but, rather, the review for Brady material. We have rejected
the defendant’s claim that a prosecutor cannot ask a qualified individual to
conduct a Brady review of evidence that comes to light during trial. Thus,
delegation is not constitutionally prohibited regardless of whether the
records are in English, and translation of the journals into English would
not resolve our disagreement with Justices D’Auria and Ecker over who is
required to review them.
26
Justice Ecker would go much farther and, relying on Kyles v. Whitley,
supra, 514 U.S. 437–48, concludes that the individual prosecuting attorney
or a trained attorney on the prosecution team has an obligation, not just to
Page 42 CONNECTICUT LAW JOURNAL 0, 0
44 ,0 0 Conn. 300
State v. Andres C.
Justice Ecker concludes in his dissent that, to the contrary, ‘‘the investigator’s review of the complainant’s journals for Brady material was not constitutionally adequate,
and, therefore, the journals were suppressed . . . within
the meaning of Brady.’’ Part II of the dissenting opinion. To
the extent that Justice Ecker concludes that the particular
investigator who conducted the Brady review did not possess the legal training and knowledge required to conduct
a Brady review and was unqualified to translate the journals, as we already explained, the defendant has not raised
any such claim on appeal. The defendant also did not raise
any such claim before the trial court, and, consequently,
there are no factual findings concerning this issue.27 It is
disclose exculpatory evidence, but also to personally review at least certain
evidence to fulfill the disclosure obligation. See part II of the dissenting
opinion. The problem is that the United States Supreme Court nowhere in
Kyles sets forth such a review requirement. Rather, the statements from
Kyles relied on by Justice Ecker were made in response to the argument that
a prosecutor is not responsible for disclosing exculpatory or impeachment
material in the hands of the police that the prosecutor does not know about.
See Kyles v. Whitley, supra, 438. The Supreme Court in Kyles confirmed
that the prosecutor is responsible under Brady for any failure to disclose
exculpatory evidence to the defense, even if the police have not revealed
the evidence to the prosecutor. See id., 437–38. The ultimate responsibility
for disclosure rests with the prosecutor. See id.
27
Justice Ecker asserts that, when the prosecutor gave four pages of the
journals to the trial court for an in camera review, she represented to the
trial court that they did not contain Brady material ‘‘but, instead, were
subject to in camera review under . . . § 54-86f (a) [the rape shield statute]
because they involved evidence of the complainant’s sexual conduct.’’ Footnote 21 of the dissenting opinion. Justice Ecker contends that ‘‘one of those
pages contained Brady material that went unrecognized and unacknowledged by the prosecutors,’’ and this fact ‘‘demonstrates conclusively’’ that
the prosecutor herself was unable to recognize Brady material. Id. In turn,
Justice Ecker contends, this ‘‘casts doubt on the propriety of delegating
that responsibility to a nonlawyer instructed by the prosecutors . . . .’’ Id.
We disagree.
It is true that, before disclosing the four pages to the trial court for review,
the prosecutor stated that the material was not exculpatory and that defense
counsel was not entitled to cross-examine the complainant on that material,
which involved an account of prior sexual conduct that the complainant
later testified was counterfactual, because the four pages were protected
by § 54-86f, the rape shield statute.
We acknowledge that the prosecutor’s statement that the excerpts from
the journals were not subject to Brady is somewhat confounding. The rape
shield statute created no obligation for the prosecutor to disclose evidence
0, 0 CONNECTICUT LAW JOURNAL Page 43
0 Conn. 300 ,0 45
State v. Andres C.
axiomatic that appellate courts cannot find facts in the first
instance. See, e.g., Gianetti v. Norwalk Hospital, 266 Conn.
544, 560,
833 A.2d 891 (2003). Thus, the record is inadequate
for review. Indeed, had the state known that the investigator’s qualifications would be subject to scrutiny on appeal,
it might have sought to present additional ones.
of the complainant’s sexual conduct to the defendant. Rather, the statute
provides that evidence of the complainant’s sexual conduct is inadmissible
unless that evidence is subject to one of the statutory exceptions. For
purposes of this case, the relevant exceptions are set forth in subdivision
(2) of § 54-86f (a), which provides that such information is admissible on
the issue of a complainant’s credibility if the complainant has testified on
direct examination as to his or her sexual conduct, and in subdivision (4)
of § 54-86f (a), which provides that the information is admissible if it is ‘‘so
relevant and material to a critical issue in the case that excluding it would
violate the defendant’s constitutional rights.’’ We have recognized that subdivision (4) contemplates a Brady review. See Demers v. State, supra, 209
Conn. 160 (evidence that is subject to Brady is subject to exception set
forth in what is now § 54-86f (a) (4)).
Whatever the prosecutor’s reason may have been for providing the
excerpts to the trial court, it is clear that the court understood that it
was reviewing them for Brady material. After the prosecutor provided the
excerpts to the trial court, although the court initially stated that ‘‘the state
[is] not ask[ing] [it] to review [the excerpts] for Brady material’’ but was
requesting review pursuant to the rape shield statute, the court then immediately observed that ‘‘the [rape shield] statute authorizes the [prosecutor] to
ask a judge to review [evidence subject to the statute for] potential Brady
material to determine whether it was in fact exculpatory and should be
turned over to the defendant,’’ and asked the parties whether it should refer
the matter to another judge to make that determination. Shortly thereafter,
the trial court again observed that, under the rape shield statute, ‘‘certain
material . . . should be turned over to the defendant,’’ and asked the parties
a second time whether they objected to the court’s reviewing the excerpts
for such material. The parties agreed that the trial court could conduct the
review. We further note that the trial court earlier explained to the state
its obligation by stating that, ‘‘if there’s anything that the state is uncertain
as to whether it’s exculpatory, [it] can provide those portions of the journals
to [the court], and [it] will review them in camera to determine whether
they should be disclosed to defense counsel.’’
Thus, although the prosecutor’s statement that the four pages contained
no Brady material was not correct, because the trial court conducted the
Brady review after the prosecutor asked the trial court to conduct an in
camera review, and the defendant received the information to which he
was constitutionally entitled, we decline to draw the inference that other
aspects of the Brady review were inadequate. Furthermore, even if the
prosecutor may have made a mistake in her Brady analysis as to one
document, that would not demonstrate conclusively that she did not understand her obligations under Brady. Finally, we again note that the defendant,
after learning that there was at least one page of exculpatory material in
the journals, never asked the court to conduct a further in camera review
of the journals for additional Brady material.
Page 44 CONNECTICUT LAW JOURNAL 0, 0
46 ,0 0 Conn. 300
State v. Andres C.
To the extent that Justice Ecker suggests that no one but
the prosecutor constitutionally could perform the Brady
review under the circumstances present here, for the reasons set forth previously, we cannot agree. Justice Ecker
cites numerous authorities for the propositions that the
ultimate responsibility for complying with Brady rests with
the prosecutor and that compliance with Brady requires
specialized legal training and the exercise of judgment—
propositions with which we have no quarrel. But neither
Justice Ecker nor the defendant has cited, and our research
has not revealed, a single case in which a court has concluded that the government violated Brady merely because
the records at issue were not personally reviewed by the
prosecutor.28 No such prophylactic rule is necessary
because a case-by-case review and the available judicial
standards adequately protect a defendant’s constitutional
rights. To be sure, the defendant was free to challenge
the qualifications of the investigator to conduct the Brady
review at trial or to ask the trial court for an in camera
review after the prosecutor indicated that, with the exception of the short excerpt, the journals contained no Brady
material. We therefore decline to adopt a gratuitous Brady
requirement that no other court has recognized simply as
a hook on which to hang relief that would not have been
necessary if the defense had taken advantage of adequate
existing procedures.
The judgment of the Appellate Court is affirmed.
In this opinion ROBINSON, C. J., and McDONALD, DANNEHY and BRIGHT, Js., concurred.
28
Contrary to Justice Ecker’s contention that the review here resulted in
suppression; see footnote 25 of the dissenting opinion; as the state points
out, the defendant does not claim that the state ‘‘suppressed’’ favorable
information in violation of Brady, which is ordinarily an element of a Brady
claim; see, e.g., State v. Floyd, supra,253 Conn. 736; but claims only that
the procedure that the state used to review the journals was constitutionally
inadequate. Although the state is correct, we underscore that, in order to
ensure a meaningful review for exculpatory material, Brady requires that
the person conducting the review be knowledgeable about ‘‘the meaning of
exculpatory evidence and the principles set forth in Brady . . . .’’ (Citation
omitted.) Batarfi v. Bush, supra, 602 F. Supp. 2d 119–20; as well as the
facts of the case being prosecuted.
