Conn. R. Evid. 1-3
Conn. Code. Evid. 1-3
COMMENTARY
(a) Questions of admissibility generally
The admissibility of evidence, qualification of a witness and applicability of a privilege are preliminary questions to be determined by the court. Often, such a determination is dependent upon the existence of foundational facts. Was the declarant's statement made under the stress of excitement? Is the alleged expert a qualified social worker? Wasa third party present during a conversation between husband and wife? In each of these examples, the court's determination will turn upon the answer to these foundational questions of fact. In most instances, subsection (a) makes it the responsibility of the court to find these preliminary facts. See, e.g., State v. Stange, 212 Conn. 612, 617, 563 A.2d 681 (1989); Manning v. Michael, 188 Conn. 607, 610, 453 A.2d 1157 (1982); D'Amato v. Johnston, 140 Conn. 54, 61-62, 97 A.2d 893 (1953).
Pursuant to Section 1-1(d) (2), courts are not bound by the Code in determining most preliminary questions of fact under subsection (a). Accordingly, in finding these facts, the court may consider nonprivileged evidence that would otherwise be inadmissible under the Code. In such instances, the court acts as the fact finder in determining whether the foundational facts exist by a fair preponderance of the evidence. The court may assess the credibility of the foundational evidence, including any testimony offered by the proponent of the evidence.
The Code does apply, however, to factual determinations regarding the existence of an evidentiary privilege; see Section 1-1(d); and to questions of conditional relevance, including whether evidence has been sufficiently authenticated. See Section 1-3(b).
(b) Relevance conditioned on fact.
Frequently, the relevance of a particular fact or item of evidence depends upon evidence of another fact or other facts, i.e., connecting facts. For example, the relevance of a witness' testimony that the witness observed a truck swerving in and out of the designated lane at a given point depends upon other testimony identifying the truck the witness observed as the defendant's. Similarly, the probative value of evidence that A warned B that the machine B was using had a tendency to vibrate depends upon other evidence establishing that B actually heard the warning. When the relevance of evidence depends upon evidence of connecting facts, subsection (b) authorizes the court to admit the evidence upon admission of the connecting facts or subject to later admission of the connecting facts. See, e.g., State v. Anonymous (83-FG), 190 Conn. 715, 724-25, 463 A.2d 533 (1983); Steiber v. Bridgeport, 145 Conn. 363, 366-67, 143 A.2d 434 (1958)
If the proponent fails to introduce evidence sufficient to support a finding of the connecting facts, the court may instruct the jury to disregard the evidence or order the earlier testimony stricken. State v. Ferraro, 160 Conn. 42, 45, 273 A.2d 694 (1970); State v. Johnson, 160 Conn. 28, 32-33, 273 A.2d 702 (1970).
The authentication of evidence is another example of an instance in which the relevance of evidence to the case depends upon the existence of another fact or other facts. Evidence can be relevant for the purpose for which it is being offered only if it is what the proponent claims it to be. As a preliminary matter, the court must decide whether the proponent has offered a satisfactory foundation from which the finder of fact could reasonably determine that the evidence is what it purports to be. The court makes this preliminary determination in light of the authentication requirements of Article IX. In conducting its preliminary inquiry, the court does not assess the credibility of the evidence proffered in support of authentication but simply determines whether the evidence, if credited, is sufficient to support a finding that the proffered evidence is what the proponent claims it to be. State v. Porfil, 191 Conn. App. 494, 519-21, 215 A.3d 161 (2019), appeal dismissed, 338 Conn. 792, 259 A.3d 1127 (2021). If the court deter mines that a prima facie showing of authenticity has been made, the evidence, if otherwise admissible, goes to the fact finder. It is for the fact finder ultimately to decide whether evidence submitted for its consideration is what the proponent claims it to be. See, e.g., State v. Carpenter, 275 Conn. 785, 856±57, 882 A.2d 604 (2005), cert. denied, 547 U.S. 1025, 126 S. Ct. 1578, 164 L. Ed. 2d 309 (2006); State v. Colon, 272 Conn. 106, 188-89, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005); State v. Shah, 134 Conn. App. 581, 593, 39 A.3d 1165 (2012); see also commentary to Section 9-1.
The Code applies in making determinations required by Section 1-3(b).