STATE OF CONNECTICUT v. ANDRES C.
(SC 20692)
Supreme Court of Connecticut
June 18, 2024
Rоbinson, C. J., and McDonald, D‘Auria, Mullins, Ecker, Dannehy and Bright, Js.
Argued January 11, 2023
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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 (1963) were violated as a result of the procedures the prosecutors employed to review the journals for exculpatory information. C revealed the еxistence 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***
- 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:
- 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)):
It was appropriate to review the state‘s alternative claim for affirmance under the circumstances of this case becausе 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. - 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 оr 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
“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.
- 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)):
- 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 prоphylactic 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-
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 оnly 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 Cоurt in the judicial district of New Haven and tried to the court, Alander, J.; judgment
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 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 thе 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
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 thе time things were happening?
“‘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
“‘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 questiоns 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
“On the next day of trial . . . the prosecutor indicated that the investigator had completed the review of the [complainant‘s] journals.5 Pursuant to
Notes
“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-
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 constitutеd 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 the prosecutors employed 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
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
respect to the defendant‘s second сlaim, 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
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
the definition of “statement” in
Pursuant to
Because the definition of “statement” in
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
In the present case, we conclude that the complainant did not formally adopt or approve her journals as required by
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
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
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 рrohibited constitutionally from “delegat[ing]”18 Brady review of informa-
The defendant does not claim that these cases were
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
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 а 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
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 (1977), and cert. denied sub nom. Diaco v. United States, 429 U.S. 1038 (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
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 propоsed 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 694 (1966),
Although the defеndant 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 person-
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 imрort 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 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
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 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
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.
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 PracticeWe 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
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 nоt 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
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 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
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 agаin 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.