State v. Andres C.State v. Andres C.
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, thе 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
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 thе 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)):
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 сourt 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
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 рrosecutors 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 tо light during trial, a defendant or counsel may request production of the information and make a preliminary showing that the specific informa-
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 аttorneys 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.
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 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
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
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 ocсasion, 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
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?
‘‘ ‘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 yоu, 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
‘‘ ‘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
‘‘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 clаim 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
‘‘On the next day of trial . . . the prosecutor indicated that the investigator had completed the review of the [complainant’s] journals.5 Pursuant to
‘‘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 disclоsed 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-
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 dеfendant argues on appeal that the Appellate Court incorrectly resolved both claims. The state disagrees but also argues, with
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 аnd 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
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-
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
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,
Courts have held that, in order to conclude that a statement is adopted or approved under the Jencks Act
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
“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
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
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
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
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
We begin our analysis with a brief discussion of the nature of constitutional prophylactic rules and the dis
With this general background in mind, we turn to the defendant‘s claim that prosecutors are constitutionally
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
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 сan 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
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
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 sеcure 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 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
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 problematiс. 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
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.,
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 еncouraged 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
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
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 thаt 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
The judgment of the Appellate Court is affirmed.
In this opinion ROBINSON, C. J., and McDONALD, DANNEHY and BRIGHT, Js., concurred.
Notes
‘‘ ‘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.
‘‘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.
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.