Sec. 1-1. Short Title; Application

(a) Short title. These rules shall be known and

may be cited as the Code of Evidence. The Code

of Evidence is hereinafter referred to as the

‘‘Code.’’

(b) Application of the Code. The Code and

the commentary apply to all proceedings in the

Superior Court in which facts in dispute are found,

except as otherwise provided by the Code, the

General Statutes or any Practice Book rule

adopted before June 18, 2014, the date on which

the Supreme Court adopted the Code.

(c) Rules of privilege. Privileges shall apply at

all stages of all proceedings in the court.

(d) The Code inapplicable. The Code, other

than with respect to privileges, does not apply in

proceedings such as, but not limited to, the fol­

lowing:

(1) Proceedings before investigatory grand

juries, as provided for in General Statutes §§ 54-

47b through 54-47f.

(2) Proceedings involving questions of fact pre­

liminary to the determination of the admissibility

of evidence as provided in Section 1-3 (a) of

the Code.

(3) Proceedings involving sentencing.

(4) Proceedings involving probation.

(5) Proceedings involving small claims matters.

(6) Proceedings involving summary contempt.

(7) Certain pretrial criminal proceedings in

which it has been determined as a matter of

statute or decisional law that the rules of evidence

do not apply.

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, cert. denied,

547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (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:

ert. denied,

547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (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

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 enumer­

ated 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:

ct 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),

Sec. 1-1

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); see also

State v. Pena, 301 Conn. 669, 680–83, 22 A.3d 611 (2011)

(in sentencing, trial court may rely on evidence bearing on

crimes of 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., 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 statu-

tory maximum must be submitted to a jury, and proved beyond

a reasonable doubt’’); 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’’);

iction, any fact that

increases the penalty for a crime beyond the prescribed statu-

tory maximum must be submitted to a jury, and proved beyond

a reasonable doubt’’); 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’’);

(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; and

(7) certain criminal pretrial proceedings; see, e.g., State v.

Fernando A., 294 Conn. 1, 26–30, 981 A.2d 427 (2009); see

also General Statutes § 54-64f (b) (hearing on revocation of

release).

Nothing in subsection (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) (court may not consider coconspirator state-

ments in determining preliminary questions of fact relating to

admissibility of those statements under coconspirator state­

ment exception to hearsay rule; see Section 8-3 (1) (E)), cert.

denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187

(1986); Robles v. Lavin, 176 Conn. 281, 284, 407 A.2d 958

chio, 197 Conn. 644, 655, 500

A.2d 1311 (1985) (court may not consider coconspirator state-

ments in determining preliminary questions of fact relating to

admissibility of those statements under coconspirator state­

ment exception to hearsay rule; see Section 8-3 (1) (E)), cert.

denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187

(1986); 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 (1) (C)); Ferguson v.

Smazer, 151 Conn. 226, 231, 196 A.2d 432 (1963) (in

determining whether hearsay exception for statements of pedi­

gree 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 (7)).