Whelan rule in Connecticut

2019In addition to signed documents, the Whelan rule also is applicable to taperecorded statements that otherwise satisfy its conditions." (Citation omitted; footnote omitted; internal quotation marks omitted.) State v. Simpson , 286 Conn. 634 , 641-42, 945 A.2d 449 (2008).

2019In addition to signed documents, the Whelan rule also is applicable to taperecorded statements that otherwise satisfy its conditions." (Citation omitted; footnote omitted; internal quotation marks omitted.) State v. Simpson , 286 Conn. 634 , 641-42, 945 A.2d 449 (2008).

2007Our Supreme Court has concluded that although “ ‘the personal knowledge’ prong of the Whelan rule does not require that the declarant have witnessed the commission of the crime that is the subject of the prior inconsistent written or recorded statement”; State v. Grant, 221 Conn. 93, 99 , 602 A.2d 581 (1992); our case law makes clear that a declarant will be said to possess personal knowledge in such a situation “ [i]f the substance of the prior inconsistent statement of a witness is an admission made by the defendant to the witness.” State v. Woodson, 227 Conn. 1, 22 , 629 A.2d 386 (1993); *1

2007Our Supreme Court has concluded that although “ ‘the personal knowledge’ prong of the Whelan rule does not require that the declarant have witnessed the commission of the crime that is the subject of the prior inconsistent written or recorded statement”; State v. Grant, 221 Conn. 93, 99 , 602 A.2d 581 (1992); our case law makes clear that a declarant will be said to possess personal knowledge in such a situation “ [i]f the substance of the prior inconsistent statement of a witness is an admission made by the defendant to the witness.” State v. Woodson, 227 Conn. 1, 22 , 629 A.2d 386 (1993); *1

2022This rule has also been codified [at] § 8-5 (1) of the Connecticut Code of Evidence, which incorporates all of the developments and clarifications of the Whelan rule that have occurred since Whelan was decided.’’ (Internal quotation marks omitted.) State v. Bennett, 324 Conn. 744 , 768-69, 155 A.3d 188 (2017). ‘‘In determining whether an inconsistency exists, the testimony of a witness as a whole, or the whole impression or effect of what has been said, must be examined. . . .

2022This rule has also been codified [at] § 8-5 (1) of the Connecticut Code of Evidence, which incorporates all of the developments and clarifications of the Whelan rule that have occurred since Whelan was decided.’’ (Internal quotation marks omitted.) State v. Bennett, 324 Conn. 744 , 768-69, 155 A.3d 188 (2017). ‘‘In determining whether an inconsistency exists, the testimony of a witness as a whole, or the whole impression or effect of what has been said, must be examined. . . .

2008Under the Whelan exception, “the linchpin of admissibility is reliability: the [Whelan] statement may be excluded as substantive evidence only if the trial court is persuaded, in light of the circumstances under which the statement was made, that the statement is so untrustworthy that its admission into evidence would subvert the fairness of the fact-finding process.” State v. Muhktaar, 253 Conn. 280, 306-307 , 750 A.2d 1059 (2000).

2008Under the Whelan exception, “the linchpin of admissibility is reliability: the [Whelan] statement may be excluded as substantive evidence only if the trial court is persuaded, in light of the circumstances under which the statement was made, that the statement is so untrustworthy that its admission into evidence would subvert the fairness of the fact-finding process.” State v. Muhktaar, 253 Conn. 280, 306-307 , 750 A.2d 1059 (2000).

2008In State v. Whelan, supra, 200 Conn. 753 , however, we adopted a hearsay exception “allowing the substantive use of prior written inconsis *642 tent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination.” “This rule has also been codified in § 8-5 (1) of the Connecticut Code of Evidence, which incorporates all of the developments and clarifications of the Whelan rule that have occurred since Whelan was decided.” 12 State v. Pierre, 277 Conn. 42, 58 , 890 A.2d 474 , cert. denied, 547 U.S. 11

2008In State v. Whelan, supra, 200 Conn. 753 , however, we adopted a hearsay exception “allowing the substantive use of prior written inconsis *642 tent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination.” “This rule has also been codified in § 8-5 (1) of the Connecticut Code of Evidence, which incorporates all of the developments and clarifications of the Whelan rule that have occurred since Whelan was decided.” 12 State v. Pierre, 277 Conn. 42, 58 , 890 A.2d 474 , cert. denied, 547 U.S. 11

2007Our Supreme Court has concluded that although “ ‘the personal knowledge’ prong of the Whelan rule does not require that the declarant have witnessed the commission of the crime that is the subject of the prior inconsistent written or recorded statement”; State v. Grant, 221 Conn. 93, 99 , 602 A.2d 581 (1992); our case law makes clear that a declarant will be said to possess personal knowledge in such a situation “ [i]f the substance of the prior inconsistent statement of a witness is an admission made by the defendant to the witness.” State v. Woodson, 227 Conn. 1, 22 , 629 A.2d 386 (1993); *1

2007Our Supreme Court has concluded that although “ ‘the personal knowledge’ prong of the Whelan rule does not require that the declarant have witnessed the commission of the crime that is the subject of the prior inconsistent written or recorded statement”; State v. Grant, 221 Conn. 93, 99 , 602 A.2d 581 (1992); our case law makes clear that a declarant will be said to possess personal knowledge in such a situation “ [i]f the substance of the prior inconsistent statement of a witness is an admission made by the defendant to the witness.” State v. Woodson, 227 Conn. 1, 22 , 629 A.2d 386 (1993); *1

2003The Whelan rule is meant to assure a reasonable degree of reliability in a proffered statement; to be admissible, “a prior inconsistent statement must have been given under circumstances ensuring its reliability and trustworthiness.” State v. Davis, 32 Conn. App. 21, 38 , 628 A.2d 11 (1993).

2003The Whelan rule is meant to assure a reasonable degree of reliability in a proffered statement; to be admissible, “a prior inconsistent statement must have been given under circumstances ensuring its reliability and trustworthiness.” State v. Davis, 32 Conn. App. 21, 38 , 628 A.2d 11 (1993).

1995Our Supreme Court has held that an incorrect Whelan instruction is “an evidentiary error that did not involve the violation of a constitutional right.” State v. Tatum, 219 Conn. 721, 738 , 595 A.2d 322 (1991); State v. Wooten, 227 Conn. 677, 701 , 631 A.2d 271 (1993).

1995Our Supreme Court has held that an incorrect Whelan instruction is “an evidentiary error that did not involve the violation of a constitutional right.” State v. Tatum, 219 Conn. 721, 738 , 595 A.2d 322 (1991); State v. Wooten, 227 Conn. 677, 701 , 631 A.2d 271 (1993).

1995Our Supreme Court has held that an incorrect Whelan instruction is “an evidentiary error that did not involve the violation of a constitutional right.” State v. Tatum, 219 Conn. 721, 738 , 595 A.2d 322 (1991); State v. Wooten, 227 Conn. 677, 701 , 631 A.2d 271 (1993).

1995Our Supreme Court has held that an incorrect Whelan instruction is “an evidentiary error that did not involve the violation of a constitutional right.” State v. Tatum, 219 Conn. 721, 738 , 595 A.2d 322 (1991); State v. Wooten, 227 Conn. 677, 701 , 631 A.2d 271 (1993).

2025This rule has also been codified [at] § 8-5 (1) of the Connecticut Code of Evidence, which incorporates all of the developments and clarifications of the Whelan rule that have occurred since Whelan was decided.’’ (Internal quotation marks omitted.) State v. Sayles, 348 Conn. 669 , 688 n.11, 310 A.3d 929 (2024). 8 ‘‘In habeas corpus proceedings, courts often describe constitutional claims that are not tethered to a petitioner’s sixth amendment right to counsel as ‘freestanding.’ ’’ McCarthy v. Commissioner of Correction, 192 Conn. App. 797 , 810 n.8, 218 A.3d 638 (2019). 0 Conn. App. 1 ,0 9 Man

2025This rule has also been codified [at] § 8-5 (1) of the Connecticut Code of Evidence, which incorporates all of the developments and clarifications of the Whelan rule that have occurred since Whelan was decided.’’ (Internal quotation marks omitted.) State v. Sayles, 348 Conn. 669 , 688 n.11, 310 A.3d 929 (2024). 8 ‘‘In habeas corpus proceedings, courts often describe constitutional claims that are not tethered to a petitioner’s sixth amendment right to counsel as ‘freestanding.’ ’’ McCarthy v. Commissioner of Correction, 192 Conn. App. 797 , 810 n.8, 218 A.3d 638 (2019). 0 Conn. App. 1 ,0 9 Man

2025This rule has also been codified [at] § 8-5 (1) of the Connecticut Code of Evidence, which incorporates all of the developments and clarifications of the Whelan rule that have occurred since Whelan was decided.’’ (Internal quotation marks omitted.) State v. Sayles, 348 Conn. 669 , 688 n.11, 310 A.3d 929 (2024). 8 ‘‘In habeas corpus proceedings, courts often describe constitutional claims that are not tethered to a petitioner’s sixth amendment right to counsel as ‘freestanding.’ ’’ McCarthy v. Commissioner of Correction, 192 Conn. App. 797 , 810 n.8, 218 A.3d 638 (2019). 0 Conn. App. 1 ,0 9 Man

2025This rule has also been codified [at] § 8-5 (1) of the Connecticut Code of Evidence, which incorporates all of the developments and clarifications of the Whelan rule that have occurred since Whelan was decided.’’ (Internal quotation marks omitted.) State v. Sayles, 348 Conn. 669 , 688 n.11, 310 A.3d 929 (2024). 8 ‘‘In habeas corpus proceedings, courts often describe constitutional claims that are not tethered to a petitioner’s sixth amendment right to counsel as ‘freestanding.’ ’’ McCarthy v. Commissioner of Correction, 192 Conn. App. 797 , 810 n.8, 218 A.3d 638 (2019). 0 Conn. App. 1 ,0 9 Man

2024This rule has also been codified [at] § 8-5 (1) of the Connecticut Code of Evidence, which incorporates all of the developments and clarifications of the Whelan rule that have occurred since Whelan was decided.’’ (Internal quotation marks omitted.) State v. Gray, 342 Conn. 657 , 686, 271 A.3d 101 (2022). 12 Thus, we respectfully disagree with the dissent’s blanket statement that ‘‘[t]here was no physical evidence connecting the defendant to the crimes.’’ (Emphasis added.) Part III of the dissenting opinion.

2024This rule has also been codified [at] § 8-5 (1) of the Connecticut Code of Evidence, which incorporates all of the developments and clarifications of the Whelan rule that have occurred since Whelan was decided.’’ (Internal quotation marks omitted.) State v. Gray, 342 Conn. 657 , 686, 271 A.3d 101 (2022). 12 Thus, we respectfully disagree with the dissent’s blanket statement that ‘‘[t]here was no physical evidence connecting the defendant to the crimes.’’ (Emphasis added.) Part III of the dissenting opinion.

2019In this opinion the other judges concurred. 1 Pursuant to State v. Carrion, 313 Conn. 823 , 837, 100 A.3d 361 (2014), ‘‘[i]n addition to signed documents, the Whelan rule also is applicable to tape-recorded statements that otherwise satisfy its conditions.’’ (Internal quotation marks omitted.) 2 The defendant also claims on appeal that portions of the video recorded statement contained police statements that were untrue, hearsay or irrelevant, but at trial, he expressed only one specific objection relating to misin- formation about nonexistent polygraph results, which the court instructed the

2019In this opinion the other judges concurred. 1 Pursuant to State v. Carrion, 313 Conn. 823 , 837, 100 A.3d 361 (2014), ‘‘[i]n addition to signed documents, the Whelan rule also is applicable to tape-recorded statements that otherwise satisfy its conditions.’’ (Internal quotation marks omitted.) 2 The defendant also claims on appeal that portions of the video recorded statement contained police statements that were untrue, hearsay or irrelevant, but at trial, he expressed only one specific objection relating to misin- formation about nonexistent polygraph results, which the court instructed the

2019Even if hearsay evidence satisfies an exception to the hearsay rule, however, it may remain inadmissible in a criminal case unless it also comports with the confrontation clauses of the federal and state constitutions. 8 Conn. Code Evid. § 8-2 (b) ; 9 see also California v. Green , 399 U.S. 149 , 155-56, 90 S.Ct. 1930 , 26 L.Ed.2d 489 (1970) (noting that "more than once [the court had] found a violation of confrontation [rights] even though the statements in issue were admitted under an arguably recognized hearsay exception").

2019Even if hearsay evidence satisfies an exception to the hearsay rule, however, it may remain inadmissible in a criminal case unless it also comports with the confrontation clauses of the federal and state constitutions. 8 Conn. Code Evid. § 8-2 (b) ; 9 see also California v. Green , 399 U.S. 149 , 155-56, 90 S.Ct. 1930 , 26 L.Ed.2d 489 (1970) (noting that "more than once [the court had] found a violation of confrontation [rights] even though the statements in issue were admitted under an arguably recognized hearsay exception").

2017State v. Hannah , 104 Conn.App. 710 , 721, 935 A.2d 645 (2007), cert. denied, 285 Conn. 916 , 943 A.2d 475 (2008). "[W]hether [an improper ruling] is harmless in a particular case depends upon a number of factors, such as the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." (Internal quotation marks omitted.) St

2017State v. Hannah , 104 Conn.App. 710 , 721, 935 A.2d 645 (2007), cert. denied, 285 Conn. 916 , 943 A.2d 475 (2008). "[W]hether [an improper ruling] is harmless in a particular case depends upon a number of factors, such as the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." (Internal quotation marks omitted.) St

2017State v. Hannah , 104 Conn.App. 710 , 721, 935 A.2d 645 (2007), cert. denied, 285 Conn. 916 , 943 A.2d 475 (2008). "[W]hether [an improper ruling] is harmless in a particular case depends upon a number of factors, such as the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." (Internal quotation marks omitted.) St

2017State v. Hannah , 104 Conn.App. 710 , 721, 935 A.2d 645 (2007), cert. denied, 285 Conn. 916 , 943 A.2d 475 (2008). "[W]hether [an improper ruling] is harmless in a particular case depends upon a number of factors, such as the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." (Internal quotation marks omitted.) St

2017State v. Hannah , 104 Conn.App. 710 , 721, 935 A.2d 645 (2007), cert. denied, 285 Conn. 916 , 943 A.2d 475 (2008). "[W]hether [an improper ruling] is harmless in a particular case depends upon a number of factors, such as the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." (Internal quotation marks omitted.) St

2017State v. Hannah , 104 Conn.App. 710 , 721, 935 A.2d 645 (2007), cert. denied, 285 Conn. 916 , 943 A.2d 475 (2008). "[W]hether [an improper ruling] is harmless in a particular case depends upon a number of factors, such as the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." (Internal quotation marks omitted.) St

2017"Furthermore, [a]llowing a party to circumvent the exception to the hearsay rule established by Whelan merely by repudiating the foundation for his knowledge when that foundation is an element of the statement itself would eviscerate the Whelan exception, potentially leaving no statement admissible under the pertinent rule." (Internal quotation marks omitted.) State v. Juan V. , supra, at 444, 951 A.2d 651 .

2017"Furthermore, [a]llowing a party to circumvent the exception to the hearsay rule established by Whelan merely by repudiating the foundation for his knowledge when that foundation is an element of the statement itself would eviscerate the Whelan exception, potentially leaving no statement admissible under the pertinent rule." (Internal quotation marks omitted.) State v. Juan V. , supra, at 444, 951 A.2d 651 .

2015On appeal, the defendant claims that (1) the trial court improperly denied his motion for a judgment of acquittal because there was insufficient evidence to sustain the jury’s verdict, (2) he was denied his right to a fair trial as a result of prosecutorial impro- priety that occurred during rebuttal argument, (3) the court improperly determined that the complainant’s confidential records should not be disclosed to the defendant, (4) the court improperly permitted the state to reopen the direct examination of the complainant, (5) the court improperly allowed a video recorded forensic interview

2015On appeal, the defendant claims that (1) the trial court improperly denied his motion for a judgment of acquittal because there was insufficient evidence to sustain the jury’s verdict, (2) he was denied his right to a fair trial as a result of prosecutorial impro- priety that occurred during rebuttal argument, (3) the court improperly determined that the complainant’s confidential records should not be disclosed to the defendant, (4) the court improperly permitted the state to reopen the direct examination of the complainant, (5) the court improperly allowed a video recorded forensic interview

2014As the basis for denying Whelan’s motion, the trial court determined that the defendant’s conduct did not rise to the level of ‘‘ ‘egregious litigation misconduct’ ’’ under Ramin v. Ramin, 281 Conn. 324 , 357–59, 915 A.2d 790 (2007).

2014As the basis for denying Whelan’s motion, the trial court determined that the defendant’s conduct did not rise to the level of ‘‘ ‘egregious litigation misconduct’ ’’ under Ramin v. Ramin, 281 Conn. 324 , 357–59, 915 A.2d 790 (2007).

2014As we recently explained in Berzins v. Berzins, 306 Conn. 651 , 657, 51 A.3d 941 (2012), ‘‘[t]he question of whether Ramin applies to [nondiscovery litigation mis- conduct related to claims for attorney’s fees under § 46b-62] is a ‘question of law subject to our plenary review.’ Fish v. Fish, 285 Conn. 24, 37 , 939 A.2d 1040 (2008).’’ Although our opinion in Berzins v. Berzins, supra, 306 Conn. 657 , was not available to the trial court at the time it ruled on Whelan’s claim of litigation miscon- duct in the present case, we find it dispositive of Whel- an’s claim before this court.

2014As we recently explained in Berzins v. Berzins, 306 Conn. 651 , 657, 51 A.3d 941 (2012), ‘‘[t]he question of whether Ramin applies to [nondiscovery litigation mis- conduct related to claims for attorney’s fees under § 46b-62] is a ‘question of law subject to our plenary review.’ Fish v. Fish, 285 Conn. 24, 37 , 939 A.2d 1040 (2008).’’ Although our opinion in Berzins v. Berzins, supra, 306 Conn. 657 , was not available to the trial court at the time it ruled on Whelan’s claim of litigation miscon- duct in the present case, we find it dispositive of Whel- an’s claim before this court.

2014The relevant facts and procedural history are set forth in the Appellate Court opinion in the related case, Perry v. Perry, 130 Conn. App. 720 , 722–23, 24 A.3d 1269 (2011). ‘‘In a complaint filed January 9, 2006, the plaintiff . . . alleged that her marriage to the defendant . . . had broken down irretrievably and sought dissolution of their marriage, an order regarding custody and sup- port of their two minor children, alimony, educational support orders and attorney’s fees.3 The child custody and financial issues were bifurcated for trial.

2014The relevant facts and procedural history are set forth in the Appellate Court opinion in the related case, Perry v. Perry, 130 Conn. App. 720 , 722–23, 24 A.3d 1269 (2011). ‘‘In a complaint filed January 9, 2006, the plaintiff . . . alleged that her marriage to the defendant . . . had broken down irretrievably and sought dissolution of their marriage, an order regarding custody and sup- port of their two minor children, alimony, educational support orders and attorney’s fees.3 The child custody and financial issues were bifurcated for trial.