Asherman balancing test in Connecticut

2017The Asherman balancing test is used to determine "whether the failure of the police to preserve potentially useful evidence had deprived a criminal defendant of due process of law under ... [our] state constitution" and requires the following factors to be weighed: "the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, the reason for its nonavailability to the defense and the prejudice to the defendant caused by the unavailability of the evidence." (Citations omitted.) State v. Morales , 232 Conn. 707 , 719-20, 657 A.2d 585 (1995).

2017The Asherman balancing test is used to determine "whether the failure of the police to preserve potentially useful evidence had deprived a criminal defendant of due process of law under ... [our] state constitution" and requires the following factors to be weighed: "the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, the reason for its nonavailability to the defense and the prejudice to the defendant caused by the unavailability of the evidence." (Citations omitted.) State v. Morales , 232 Conn. 707 , 719-20, 657 A.2d 585 (1995).

1995Ed. 2d 281 (1988), and instead adopted the Asherman balancing test of State v. Asherman, 193 Conn. 695, 724 , 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050 , 105 S. Ct. 1749 , 84 L.

1995Ed. 2d 281 (1988), and instead adopted the Asherman balancing test of State v. Asherman, 193 Conn. 695, 724 , 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050 , 105 S. Ct. 1749 , 84 L.

1995Ed. 2d 281 (1988), and instead adopted the Asherman balancing test of State v. Asherman, 193 Conn. 695, 724 , 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050 , 105 S. Ct. 1749 , 84 L.

1995Ed. 2d 281 (1988), and instead adopted the Asherman balancing test of State v. Asherman, 193 Conn. 695, 724 , 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050 , 105 S. Ct. 1749 , 84 L.

1996State v. Baldwin, [ 224 Conn. 347, 365 , 618 A.2d 513 (1993)]; see also State v. Harden, 175 Conn. 315, 327 , 398 A.2d 1169 (1978). ‘The fact that a defendant failed to request the evidence goes to the issue of materi ality and whether the defendant deemed it significant.’ State v. Morales, supra, 232 Conn. 712 n.7 .” State v. Morales, supra, 39 Conn. App. 625 .

1996State v. Baldwin, [ 224 Conn. 347, 365 , 618 A.2d 513 (1993)]; see also State v. Harden, 175 Conn. 315, 327 , 398 A.2d 1169 (1978). ‘The fact that a defendant failed to request the evidence goes to the issue of materi ality and whether the defendant deemed it significant.’ State v. Morales, supra, 232 Conn. 712 n.7 .” State v. Morales, supra, 39 Conn. App. 625 .

2024We also conclude that we need not apply the Asherman balancing test in such circumstances, as the alleged failure to preserve, which was predicated on a failure to collect or to create evidence, did not implicate the defendant’s right to due process.14 The record in this case shows that Koval never seized the contents of the hamper, meaning those contents were never in his possession, and the defendant acknowledges as much in his appellate brief on the issue when he refers to the contents of the hamper as ‘‘uncollected evidence.’’ (Emphasis added.) Therefore, the defendant cannot demonstrate t

2017By contrast, in testifying that the text message was not inculpatory, the defendant stated that "I might have been drinking and that's how something could have happened, but as far as I know nothing has happened, and I didn't do anything." 10 In State v. Walker , supra, 147 Conn.App. at 29 n.4, 82 A.3d 630 , this court further stated: "Although our Supreme Court in Darden remanded the case to the trial court to hold an evidentiary hearing and to apply the Asherman balancing test, such a remand was appropriate in that case because the defendant had raised a state due process claim before the tr

2017By contrast, in testifying that the text message was not inculpatory, the defendant stated that "I might have been drinking and that's how something could have happened, but as far as I know nothing has happened, and I didn't do anything." 10 In State v. Walker , supra, 147 Conn.App. at 29 n.4, 82 A.3d 630 , this court further stated: "Although our Supreme Court in Darden remanded the case to the trial court to hold an evidentiary hearing and to apply the Asherman balancing test, such a remand was appropriate in that case because the defendant had raised a state due process claim before the tr

2017In Beers v. Bayliner Marine Corp ., supra, 236 Conn. 769 , 675 A.2d 829 , our Supreme Court "adopt[ed] the rule of the majority of the jurisdictions that have addressed the issue [of spoliation of evidence] in a civil context, which is that the trier of fact may draw an inference from the intentional spoliation of evidence that the destroyed evidence would have been unfavorable to the party that destroyed it. ...

2017In Beers v. Bayliner Marine Corp ., supra, 236 Conn. 769 , 675 A.2d 829 , our Supreme Court "adopt[ed] the rule of the majority of the jurisdictions that have addressed the issue [of spoliation of evidence] in a civil context, which is that the trier of fact may draw an inference from the intentional spoliation of evidence that the destroyed evidence would have been unfavorable to the party that destroyed it. ...

2009The first factor is the materiality of the records. “[F]avorable evidence is that evidence which . . . might have led the jury to entertain a reasonable doubt about . . . guilt . . . and this doubt must be one that did not otherwise exist. . . . [Ejvidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. *142 A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Internal quotation marks omitted.) State v. McClelland, 113 Conn. App. 142, 163

2009The first factor is the materiality of the records. “[F]avorable evidence is that evidence which . . . might have led the jury to entertain a reasonable doubt about . . . guilt . . . and this doubt must be one that did not otherwise exist. . . . [Ejvidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. *142 A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Internal quotation marks omitted.) State v. McClelland, 113 Conn. App. 142, 163

1995Whether the historical facts as found by the [trial] court constituted a violation of the [defendant’s right to due process] is subject to plenary review by this court, unfettered by the clearly erroneous standard.” (Citation omitted; internal quotation marks omitted.) Davis v. Warden, 32 Conn. App. 296, 301 , 629 A.2d 440 , cert. denied, 227 Conn. 924 , 632 A.2d 701 (1993); see also Copas v. Commissioner of Correction, 234 Conn. 139, 152-53 , 662 A.2d 718 (1995).

1995Whether the historical facts as found by the [trial] court constituted a violation of the [defendant’s right to due process] is subject to plenary review by this court, unfettered by the clearly erroneous standard.” (Citation omitted; internal quotation marks omitted.) Davis v. Warden, 32 Conn. App. 296, 301 , 629 A.2d 440 , cert. denied, 227 Conn. 924 , 632 A.2d 701 (1993); see also Copas v. Commissioner of Correction, 234 Conn. 139, 152-53 , 662 A.2d 718 (1995).

1995With regard to the first Asherman factor, namely, the materiality of the potentially exculpatory evidence, our courts have held that “ ‘[t]he evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” State v. Baldwin, 224 Conn. 347, 365 , 618 A.2d 513 (1993), quoting United States v. Bagley, 473 U.S. 667, 681-82 , 105 S. Ct. 3375 , 87 L.

1995With regard to the first Asherman factor, namely, the materiality of the potentially exculpatory evidence, our courts have held that “ ‘[t]he evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” State v. Baldwin, 224 Conn. 347, 365 , 618 A.2d 513 (1993), quoting United States v. Bagley, 473 U.S. 667, 681-82 , 105 S. Ct. 3375 , 87 L.

1995The Asherman balancing test has been used by our courts in considering whether testimony concerning lost or destroyed evidence should be admitted; State v. Marra, 222 Conn. 506, 516 , 610 A.2d 1113 (1992); State v. McIver, 201 Conn. 559, 565 , 518 A.2d 1368 (1986); State v. Boucino, 199 Conn. 207, 229 , 506 A.2d 125 (1986); State v. Hamele, 188 Conn. 372, 381 , 449 A.2d 1020 (1982); as well as in considering whether the underlying prosecution should be dismissed due to the loss or destruction of evidence.

1995The Asherman balancing test has been used by our courts in considering whether testimony concerning lost or destroyed evidence should be admitted; State v. Marra, 222 Conn. 506, 516 , 610 A.2d 1113 (1992); State v. McIver, 201 Conn. 559, 565 , 518 A.2d 1368 (1986); State v. Boucino, 199 Conn. 207, 229 , 506 A.2d 125 (1986); State v. Hamele, 188 Conn. 372, 381 , 449 A.2d 1020 (1982); as well as in considering whether the underlying prosecution should be dismissed due to the loss or destruction of evidence.

1995The Asherman balancing test has been used by our courts in considering whether testimony concerning lost or destroyed evidence should be admitted; State v. Marra, 222 Conn. 506, 516 , 610 A.2d 1113 (1992); State v. McIver, 201 Conn. 559, 565 , 518 A.2d 1368 (1986); State v. Boucino, 199 Conn. 207, 229 , 506 A.2d 125 (1986); State v. Hamele, 188 Conn. 372, 381 , 449 A.2d 1020 (1982); as well as in considering whether the underlying prosecution should be dismissed due to the loss or destruction of evidence.

1995The Asherman balancing test has been used by our courts in considering whether testimony concerning lost or destroyed evidence should be admitted; State v. Marra, 222 Conn. 506, 516 , 610 A.2d 1113 (1992); State v. McIver, 201 Conn. 559, 565 , 518 A.2d 1368 (1986); State v. Boucino, 199 Conn. 207, 229 , 506 A.2d 125 (1986); State v. Hamele, 188 Conn. 372, 381 , 449 A.2d 1020 (1982); as well as in considering whether the underlying prosecution should be dismissed due to the loss or destruction of evidence.

1995The Asherman balancing test has been used by our courts in considering whether testimony concerning lost or destroyed evidence should be admitted; State v. Marra, 222 Conn. 506, 516 , 610 A.2d 1113 (1992); State v. McIver, 201 Conn. 559, 565 , 518 A.2d 1368 (1986); State v. Boucino, 199 Conn. 207, 229 , 506 A.2d 125 (1986); State v. Hamele, 188 Conn. 372, 381 , 449 A.2d 1020 (1982); as well as in considering whether the underlying prosecution should be dismissed due to the loss or destruction of evidence.

1995The Asherman balancing test has been used by our courts in considering whether testimony concerning lost or destroyed evidence should be admitted; State v. Marra, 222 Conn. 506, 516 , 610 A.2d 1113 (1992); State v. McIver, 201 Conn. 559, 565 , 518 A.2d 1368 (1986); State v. Boucino, 199 Conn. 207, 229 , 506 A.2d 125 (1986); State v. Hamele, 188 Conn. 372, 381 , 449 A.2d 1020 (1982); as well as in considering whether the underlying prosecution should be dismissed due to the loss or destruction of evidence.

1995State v. Gonzalez, 206 Conn. 213, 224 , 537 A.2d 460 (1988); State v. Harden, 175 Conn. 315, 326-27 , 398 A.2d 1169 (1978); State v. Grillo, 23 Conn. App. 50, 55-56 , 578 A.2d 677 (1990); State v. Leroux, 18 Conn. App. 223, 230-31 , 557 A.2d 1271 , cert. denied, 212 Conn. 809 , 564 A.2d 1072 (1989).

1995State v. Gonzalez, 206 Conn. 213, 224 , 537 A.2d 460 (1988); State v. Harden, 175 Conn. 315, 326-27 , 398 A.2d 1169 (1978); State v. Grillo, 23 Conn. App. 50, 55-56 , 578 A.2d 677 (1990); State v. Leroux, 18 Conn. App. 223, 230-31 , 557 A.2d 1271 , cert. denied, 212 Conn. 809 , 564 A.2d 1072 (1989).

1995State v. Gonzalez, 206 Conn. 213, 224 , 537 A.2d 460 (1988); State v. Harden, 175 Conn. 315, 326-27 , 398 A.2d 1169 (1978); State v. Grillo, 23 Conn. App. 50, 55-56 , 578 A.2d 677 (1990); State v. Leroux, 18 Conn. App. 223, 230-31 , 557 A.2d 1271 , cert. denied, 212 Conn. 809 , 564 A.2d 1072 (1989).

1995State v. Gonzalez, 206 Conn. 213, 224 , 537 A.2d 460 (1988); State v. Harden, 175 Conn. 315, 326-27 , 398 A.2d 1169 (1978); State v. Grillo, 23 Conn. App. 50, 55-56 , 578 A.2d 677 (1990); State v. Leroux, 18 Conn. App. 223, 230-31 , 557 A.2d 1271 , cert. denied, 212 Conn. 809 , 564 A.2d 1072 (1989).

1995The Asherman balancing test has been used by our courts in considering whether testimony concerning lost or destroyed evidence should be admitted; State v. Marra, 222 Conn. 506, 516 , 610 A.2d 1113 (1992); State v. McIver, 201 Conn. 559, 565 , 518 A.2d 1368 (1986); State v. Boucino, 199 Conn. 207, 229 , 506 A.2d 125 (1986); State v. Hamele, 188 Conn. 372, 381 , 449 A.2d 1020 (1982); as well as in considering whether the underlying prosecution should be dismissed due to the loss or destruction of evidence.

1995The Asherman balancing test has been used by our courts in considering whether testimony concerning lost or destroyed evidence should be admitted; State v. Marra, 222 Conn. 506, 516 , 610 A.2d 1113 (1992); State v. McIver, 201 Conn. 559, 565 , 518 A.2d 1368 (1986); State v. Boucino, 199 Conn. 207, 229 , 506 A.2d 125 (1986); State v. Hamele, 188 Conn. 372, 381 , 449 A.2d 1020 (1982); as well as in considering whether the underlying prosecution should be dismissed due to the loss or destruction of evidence.

1995Whether the historical facts as found by the [trial] court constituted a violation of the [defendant’s right to due process] is subject to plenary review by this court, unfettered by the clearly erroneous standard.” (Citation omitted; internal quotation marks omitted.) Davis v. Warden, 32 Conn. App. 296, 301 , 629 A.2d 440 , cert. denied, 227 Conn. 924 , 632 A.2d 701 (1993); see also Copas v. Commissioner of Correction, 234 Conn. 139, 152-53 , 662 A.2d 718 (1995).

1995Whether the historical facts as found by the [trial] court constituted a violation of the [defendant’s right to due process] is subject to plenary review by this court, unfettered by the clearly erroneous standard.” (Citation omitted; internal quotation marks omitted.) Davis v. Warden, 32 Conn. App. 296, 301 , 629 A.2d 440 , cert. denied, 227 Conn. 924 , 632 A.2d 701 (1993); see also Copas v. Commissioner of Correction, 234 Conn. 139, 152-53 , 662 A.2d 718 (1995).

1995State v. Gonzalez, 206 Conn. 213, 224 , 537 A.2d 460 (1988); State v. Harden, 175 Conn. 315, 326-27 , 398 A.2d 1169 (1978); State v. Grillo, 23 Conn. App. 50, 55-56 , 578 A.2d 677 (1990); State v. Leroux, 18 Conn. App. 223, 230-31 , 557 A.2d 1271 , cert. denied, 212 Conn. 809 , 564 A.2d 1072 (1989).

1995State v. Gonzalez, 206 Conn. 213, 224 , 537 A.2d 460 (1988); State v. Harden, 175 Conn. 315, 326-27 , 398 A.2d 1169 (1978); State v. Grillo, 23 Conn. App. 50, 55-56 , 578 A.2d 677 (1990); State v. Leroux, 18 Conn. App. 223, 230-31 , 557 A.2d 1271 , cert. denied, 212 Conn. 809 , 564 A.2d 1072 (1989).

1995State v. Gonzalez, 206 Conn. 213, 224 , 537 A.2d 460 (1988); State v. Harden, 175 Conn. 315, 326-27 , 398 A.2d 1169 (1978); State v. Grillo, 23 Conn. App. 50, 55-56 , 578 A.2d 677 (1990); State v. Leroux, 18 Conn. App. 223, 230-31 , 557 A.2d 1271 , cert. denied, 212 Conn. 809 , 564 A.2d 1072 (1989).

1995State v. Gonzalez, 206 Conn. 213, 224 , 537 A.2d 460 (1988); State v. Harden, 175 Conn. 315, 326-27 , 398 A.2d 1169 (1978); State v. Grillo, 23 Conn. App. 50, 55-56 , 578 A.2d 677 (1990); State v. Leroux, 18 Conn. App. 223, 230-31 , 557 A.2d 1271 , cert. denied, 212 Conn. 809 , 564 A.2d 1072 (1989).