Conn. R. Evid. 1-1
Conn. Code. Evid. 1-1
COMMENTARY
(b) Application of the Code.
When the Code was initially adopted by the judges of the Superior Court in 1999 and then readopted by the Supreme Court in 2014, the adoption included both the rules and the commentary, thereby making both equally applicable. See State v. Pierre, 277 Conn. 42, 60, 890 A.2d 474 (2006).
The Code is broadly applicable. The Code applies to all civil and criminal bench or jury trials in the superior court. The Probate Assembly adopted Probate Rule 62.1, effective July 1, 2013, making the Code applicable to all issues in which facts are in dispute. The Code applies, for example, to the following proceedings:
(1) court-ordered fact-finding proceedings conducted pursuant to General Statutes § 52-549n and Practice Book § 23-53; see General Statutes § 52-549r;
(2) probable cause hearings conducted pursuant to General Statutes § 54-46a, excepting certain matters exempted under General Statutes § 54-46a(b); see State v. Conn., 234 Conn. 97, 110, 662 A.2d 68 (1995); In re Ralph M., 211 Conn. 289, 305-306, 559 A.2d 179 (1989);
(3) juvenile transfer hearings conducted pursuant to General Statutes § 46b-127 as provided in subsection (b) of that provision; In re Michael B., 36 Conn. App. 364, 381, 650 A.2d 1251 (1994); In re Jose M., 30 Conn. App. 381, 384-85, 620 A.2d 804, cert. denied, 225 Conn. 921, 625 A.2d 821 (1993);
(4) juvenile proceedings; however, adoption of subsection (b) is not intended to abrogate the well established rule that the court may relax its strict application of the formal rules of evidence to reflect the informal nature of juvenile proceedings provided the fundamental rights of the parties are preserved; In re Juvenile Appeal ( 85-2), 3 Conn. App. 184, 190, 485 A.2d 1362 (1986); see Anonymous v. Norton, 168 Conn. 421, 425, 362 A.2d 532, cert. denied, 423 U.S. 925, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975); Practice Book 32a-2(a); and
(5) proceedings involving family relations matters enumerated under General Statutes § 46b-1.
The Code is not intended to apply to matters to which the technical rules of evidence traditionally have not applied. Thus, for example, the Code would be inapplicable to hearings on the issuance of bench warrants of arrest or search warrants conducted pursuant to General Statutes §§ 54-2a and 54-33a, respectively; see State v. DeNegris, 153 Conn. 5, 9, 212 A.2d 894 (1965); State v. Caponigro, 4 Conn. Cir. Ct. 603, 609, 238 A.2d 434 (1967).
Matters to which the Code specifically is inapplicable are set forth in subsection (d).
(c) Rules of privilege.
Subsection (c) addresses the recognition of evidentiary privileges only with respect to proceedings in the court. See Article V-Privileges. It does not address the recognition of evidentiary privileges in any other proceedings outside the court, whether legislative, administrative or quasi-judicial, in which testimony may be compelled.
d) The Code inapplicable.
Subsection (d) specifically states the proceedings to which the Code, other than with respect to evidentiary privileges, is inapplicable. The list is intended to be illustrative rather than exhaustive and subsection (d) should be read in conjunction with subsection (b) in determining the applicability or inapplicability of the Code. The removal of these matters from the purview of the Code generally is supported by case law, the General Statutes or the Practice Book. They include:
(1) proceedings before investigatory grand juries; e.g., State v. Avcollie, 188 Conn. 626, 630-31, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983);
(2) preliminary determinations of questions of fact by the court made pursuant to Section 1-3(a); although there is no Connecticut authority specifically stating this inapplicability, it is generally the prevailing view. E.g., Fed. R. Evid. 104(a); Unif. R. Evid. 104(a), 13A U.L.A. 16-17(1999);
(3) sentencing proceedings following trial; e.g., State v. Huey, 199 Conn. 121, 126, 505 A.2d 1242 (1986); State v. Pena, 301 Conn. 669, 680-83, 22 A.3d 611 (2011) (in sentencing, trial judge may rely on evidence bearing on charges for which defendant was acquitted). The Code, however, does apply to sentencing proceedings that constitutionally require that a certain fact be found by the trier of fact beyond a reasonable doubt before the defendant is deemed eligible for a particular sentence. See, e.g., Bullington v. Missouri, 451 U.S. 430, 446, 101 S. Ct. 1852, 68 L. Ed. 2d 270 (1981) ("many of the protections available to a defendant at a criminal trial also are available at a sentencing hearing . . . in a capital case''); Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) ("[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt'');
(4) hearings involving the violation of probation conducted pursuant to General Statutes § 53a-32(a); State v. White, 169 Conn. 223, 239-40, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975); In re Marius M., 34 Conn. App. 535, 536, 642 A.2d 733 (1994);
(5) proceedings involving small claims matters; General Statutes § 52-549c(a); see Practice Book § 24-23;
(6) summary contempt proceedings; see generally Practice Book § 1-16.
(7) certain criminal pretrial proceedings; see, e.g., State v. Fernando A., 294 Conn. 1, 26-30, 981 A.2d 427 (2009); General Statutes § 54- 64f(b) (hearing on revocation of release).
Nothing in subdivision (d) (2) abrogates the common-law rule that in determining preliminary questions of fact upon which the application of certain exceptions to the hearsay rule depends, the court may not consider the declarant's out-of-court statements themselves in determining those preliminary questions. E.g., State v. Vessichio, 197 Conn. 644, 655, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986) (court may not consider coconspirator statements in determining preliminary questions of fact relating to admissibility of those statements under coconspirator statement exception to hearsay rule; see Section 8-3); Robles v. Lavin, 176 Conn. 281, 284, 407 A.2d 958 (1978) (in determining whether authorized admissions against party opponent exception to hearsay rule applies, authority to speak must be established before alleged agent's declarations can be introduced; see Section 8-3); Ferguson v. Smazer, 151 Conn. 226, 231, 196 A.2d 432 (1963) (in determining whether hearsay exception for statements of pedigree and family relationships applies, declarant's relationship to person to whom statement relates must be established without reference to declarant's statements; see Section 8-6).