Sec. 8-2. Hearsay Rule

(a) General rule. Hearsay is inadmissible,

except as provided in the Code, the General Stat­

utes or any Practice Book rule adopted before

June 18, 2014, the date on which the Supreme

Court adopted the Code.

(b) Testimonial statements and constitu­

tional right of confrontation. In criminal cases,

hearsay statements that might otherwise be

admissible under one of the exceptions in this

Sec.

8-1.

Definitions

8-2.

Hearsay Rule

8-3.

Hearsay Exceptions: Availability of Declarant Immaterial

8-4.

Admissibility of Business Entries and Photographic

Copies: Availability of Declarant Immaterial

Sec.

8-5.

Hearsay Exceptions: Declarant Must Be Available

8-6.

Hearsay Exceptions: Declarant Must Be Unavailable

8-7.

Hearsay within Hearsay

8-8.

Impeaching and Supporting Credibility of Declarant

8-9.

Residual Exception

8-10.

Hearsay Exception: Tender Years

ARTICLE VIII—HEARSAY

Sec. 8-2

Article may be inadmissible if the admission of

such statements is in violation of the constitutional

right of confrontation.

COMMENTARY

(a) General rule.

Section 8-2 is consistent with common law. See, e.g., State

v. Oquendo, 223 Conn. 635, 664, 613 A.2d 1300 (1992); State

v. Acquin, 187 Conn. 647, 680, 448 A.2d 163 (1982) (overruled

in part on other grounds by Davis v. United States, 512 U.S.

452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994)), cert. denied,

463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983);

General Motors Acceptance Corp. v. Capitol Garage, Inc., 154

Conn. 593, 597, 227 A.2d 548 (1967).

In a few instances, the Practice Book contains rules of evi-

dence that may ostensibly conflict with Code provisions. The

Supreme Court has resolved any such conflict either through

decisional law or by formally adopting certain hearsay excep­

tions embodied in the rules of practice, adopted before June

18, 2014, the date on which the court adopted the Code

Conn. 593, 597, 227 A.2d 548 (1967).

In a few instances, the Practice Book contains rules of evi-

dence that may ostensibly conflict with Code provisions. The

Supreme Court has resolved any such conflict either through

decisional law or by formally adopting certain hearsay excep­

tions embodied in the rules of practice, adopted before June

18, 2014, the date on which the court adopted the Code. See,

e.g., Practice Book § 13-31 (a) (2) (deposition of certain health-care providers is admissible, regardless of witness’ availabil-

ity); Practice Book § 13-31 (a) (3) (deposition of party or officer,

director, managing agent or employee testifying on behalf of

corporation, partnership or government agency is admissible

when used by adverse party for any purpose); Practice Book

§ 13-31 (a) (4) (deposition is admissible if, inter alia, witness

is more than thirty miles from place of trial); Practice Book

§ 25-60 (c) (report of evaluation or study in family matters

prepared pursuant to Practice Book § 25-60A or § 25-61 is

admissible if author is available for cross-examination); Prac­

tice Book § 35a-9 (social study in dispositional phase of child

neglect and termination of parental rights proceedings is

admissible, if author, if available, appears for cross-examina­

tion); see also Hibbard v. Hibbard, 139 Conn. App. 10, 15–16,

55 A.3d 301 (2012) (report and hearsay statements contained

therein are admissible under Practice Book § 25-60).

lable for cross-examination); Prac­

tice Book § 35a-9 (social study in dispositional phase of child

neglect and termination of parental rights proceedings is

admissible, if author, if available, appears for cross-examina­

tion); see also Hibbard v. Hibbard, 139 Conn. App. 10, 15–16,

55 A.3d 301 (2012) (report and hearsay statements contained

therein are admissible under Practice Book § 25-60).

(b) Testimonial statements and constitutional right of

confrontation.

This subsection reflects the federal constitutional principle

announced in Crawford v. Washington, 541 U.S. 36, 68–69,

124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), which holds that

testimonial hearsay is admissible against a criminal defendant

at trial only if the defendant had a prior opportunity to cross-examine the declarant who is otherwise unavailable to testify

at trial. See U.S. Const., amends. VI and XIV; Conn. Const.,

art. I, § 8.

Sec. 8-3

Hearsay Exceptions: Availability of

Declarant Immaterial

The following are not excluded by the hearsay

rule, even though the declarant is available as a

witness:

(1) Statement by a party opponent. A state­

ment that is being offered against a party and is

(A) the party’s own statement, in either an individ-

ual or a representative capacity, (B) a statement

that the party has adopted or approved, (C) a

statement by a person authorized by the party to

make a statement concerning the subject, (D) a

statement by the party’s agent, servant or

employee, concerning a matter within the scope

of the agency or employment, and made during

the existence of the relationship, (E) a statement

by a coconspirator of a party while the conspiracy

is ongoing and in furtherance of the conspiracy,

(F) in an action for a debt for which the party was

surety, a statement by the party’s principal relating

to the principal’s obligations, or (G) a statement

made by a predecessor in title of the party, pro-

vided the declarant and the party are sufficiently

in privity that the statement of the declarant would

of a party while the conspiracy

is ongoing and in furtherance of the conspiracy,

(F) in an action for a debt for which the party was

surety, a statement by the party’s principal relating

to the principal’s obligations, or (G) a statement

made by a predecessor in title of the party, pro-

vided the declarant and the party are sufficiently

in privity that the statement of the declarant would

affect the party’s interest in the property in

question.

The hearsay statement itself may not be consid-

ered to establish the declarant’s authority under

(C), the existence or scope of the relationship

under (D), or the existence of the conspiracy or

participation in it under (E).

(2) Spontaneous utterance. A statement relat­

ing to a startling event or condition made while

the declarant was under the stress of excitement

caused by the event or condition.

(3) Statement of then existing physical con-

dition. A statement of the declarant’s then

existing physical condition, provided that the

statement is a natural expression of the condition

and is not a statement of memory or belief to

prove the fact remembered or believed.

(4) Statement of then existing mental or

emotional condition. A statement of the declar­

ant’s then existing mental or emotional condition,

including a statement indicating a present inten­

tion to do a particular act in the immediate future,

provided that the statement is a natural expres-

sion of the condition and is not a statement of

memory or belief to prove the fact remembered

or believed.

(5) Statement for purposes of obtaining

medical diagnosis or treatment. A statement

made for purposes of obtaining a medical diagno-

sis or treatment and describing medical history,

or past or present symptoms, pain, or sensations,

or the inception or general character of the cause

or external source thereof, insofar as reasonably

pertinent to the medical diagnosis or treatment.

believed.

(5) Statement for purposes of obtaining

medical diagnosis or treatment. A statement

made for purposes of obtaining a medical diagno-

sis or treatment and describing medical history,

or past or present symptoms, pain, or sensations,

or the inception or general character of the cause

or external source thereof, insofar as reasonably

pertinent to the medical diagnosis or treatment.

(6) Recorded recollection. A memorandum or

record concerning an event about which a witness

once had knowledge but now has insufficient rec­

ollection to enable the witness to testify fully and

accurately, shown to have been made or adopted

by the witness at or about the time of the event

recorded and to reflect that knowledge correctly.

(7) Public records and reports. Records,

reports, statements or data compilations, in any

form, of public offices or agencies, provided (A)

the record, report, statement or data compilation

was made by a public official under a duty to

make it, (B) the record, report, statement or data

Sec. 8-2

compilation was made in the course of his or her

official duties, and (C) the official or someone with

a duty to transmit information to the official had

personal knowledge of the matters contained in

the record, report, statement or data compilation.

(8) Statement in learned treatises. To the

extent called to the attention of an expert witness

on cross-examination or relied on by the expert

witness in direct examination, a statement con­

tained in a published treatise, periodical or pam­

phlet on a subject of history, medicine, or other

science or art, recognized as a standard authority

in the field by the witness, other expert witness

or judicial notice.

(9) Statement in ancient documents. A state­

ment in a document in existence for more than

thirty years if it is produced from proper custody

and otherwise free from suspicion.

ned in a published treatise, periodical or pam­

phlet on a subject of history, medicine, or other

science or art, recognized as a standard authority

in the field by the witness, other expert witness

or judicial notice.

(9) Statement in ancient documents. A state­

ment in a document in existence for more than

thirty years if it is produced from proper custody

and otherwise free from suspicion.

(10) Published compilations. Market quota­

tions, tabulations, lists, directories or other pub­

lished compilations, that are recognized authority

on the subject, or are otherwise trustworthy.

(11) Statement in family bible. A statement

of fact concerning personal or family history con­

tained in a family bible.

(12) Personal identification. Testimony by a

witness of his or her own name or age.

(Amended June 29, 2007, to take effect Jan. 1, 2008;

amended Dec. 14, 2017, to take effect Feb. 1, 2018.)

COMMENTARY

(1) Statement by party opponent.

Section 8-3 (1) sets forth six categories of party opponent

admissions that were excepted from the hearsay rule at com­

mon law and adds one more category that has been adopted

in the Federal Rules of Evidence and a majority of other states.

(A) The first category excepts from the hearsay rule a party’s

own statement when offered against him or her. E.g., In re

Zoarski, 227 Conn. 784, 796, 632 A.2d 1114 (1993); State v.

Woodson, 227 Conn. 1, 15, 629 A.2d 386 (1993). Under Sec­

tion 8-3 (1) (A), a statement is admissible against its maker,

whether he or she was acting in an individual or representative

capacity when the statement was made. The rule is in accord

with the modern trend. E.g., Fed. R. Evid. 801 (d) (2) (A). A

party statement is admissible under Section 8-3 (1), regardless

of whether the person making the statement has personal

knowledge of the facts stated therein. Dreier v. Upjohn Co.,

196 Conn. 242, 249, 492 A.2d 164 (1985)

r she was acting in an individual or representative

capacity when the statement was made. The rule is in accord

with the modern trend. E.g., Fed. R. Evid. 801 (d) (2) (A). A

party statement is admissible under Section 8-3 (1), regardless

of whether the person making the statement has personal

knowledge of the facts stated therein. Dreier v. Upjohn Co.,

196 Conn. 242, 249, 492 A.2d 164 (1985). If the statement

at issue was made by a party opponent in a deposition, the

statement is admissible in accordance with Practice Book

§ 13-31 (a) (3). That provision permits an adverse party to

use at trial, for any purpose, the deposition of a party, or a

person who at the time of the deposition was an officer, direc­

tor, managing agent or employee of a party, or a person desig-

nated under Practice Book § 13-27 (h) to testify on behalf of

a public or private corporation, partnership, association or

government agency. This rule of practice was deemed ‘‘analo­

gous’’ to the hearsay exception covered by Section 8-3 (1) in

Gateway Co. v. DiNoia, 232 Conn. 223, 238 n.11, 654 A.2d

342 (1995) (construing Practice Book (1978–97) § 248 (1) (c),

predecessor to Practice Book § 13-31 (a) (3)).

(B) The second category recognizes the common-law hear-

say exception for ‘‘adoptive admissions.’’ See, e.g., State v.

John, 210 Conn. 652, 682–83, 557 A.2d 93, cert. denied, 493

U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); Falker v.

Samperi, 190 Conn. 412, 426, 461 A.2d 681 (1983). Because

adoption or approval may be implicit; see, e.g., State v. Moye,

199 Conn. 389, 393–94, 507 A.2d 1001 (1986); the common-

law hearsay exception for tacit admissions, under which

silence or a failure to respond to another person’s statement

may constitute an admission; e.g., State v. Morrill, 197 Conn.

507, 535, 498 A.2d 76 (1985); Obermeier v. Nielsen, 158

Conn. 8, 11–12, 255 A.2d 819 (1969); is carried forward in

Section 8-3 (1) (B)

e.g., State v. Moye,

199 Conn. 389, 393–94, 507 A.2d 1001 (1986); the common-

law hearsay exception for tacit admissions, under which

silence or a failure to respond to another person’s statement

may constitute an admission; e.g., State v. Morrill, 197 Conn.

507, 535, 498 A.2d 76 (1985); Obermeier v. Nielsen, 158

Conn. 8, 11–12, 255 A.2d 819 (1969); is carried forward in

Section 8-3 (1) (B). The admissibility of tacit admissions in

criminal cases is subject to the evidentiary limitations on the

use of an accused’s postarrest silence; see State v. Ferrone,

97 Conn. 258, 266, 116 A. 336 (1922); and the constitutional

limitations on the use of the accused’s post-Miranda warning

silence. Doyle v. Ohio, 426 U.S. 610, 617–19, 96 S. Ct. 2240,

49 L. Ed. 2d 91 (1976); see, e.g., State v. Zeko, 177 Conn.

545, 554, 418 A.2d 917 (1979).

(C) The third category restates the common-law hearsay

exception for ‘‘authorized admissions.’’ See, e.g., Presta v.

Monnier, 145 Conn. 694, 699, 146 A.2d 404 (1958); Collins

v. Lewis, 111 Conn. 299, 305–306, 149 A. 668 (1930). For this

exception to apply, the speaker must have actual or apparent

authority to speak concerning the subject upon which he or she

speaks in the declaration at issue; a mere agency relationship

(e.g., employer-employee), without more, is not enough to

confer such authority. E.g., Liebman v. Society of Our Lady

of Mount St. Carmel, Inc., 151 Conn. 582, 586, 200 A.2d 721

149 A. 668 (1930). For this

exception to apply, the speaker must have actual or apparent

authority to speak concerning the subject upon which he or she

speaks in the declaration at issue; a mere agency relationship

(e.g., employer-employee), without more, is not enough to

confer such authority. E.g., Liebman v. Society of Our Lady

of Mount St. Carmel, Inc., 151 Conn. 582, 586, 200 A.2d 721

(1964); Munson v. United Technologies Corp., 28 Conn. App.

184, 188, 609 A.2d 1066 (1992); cf. Graham v. Wilkins, 145

Conn. 34, 40–41, 138 A.2d 705 (1958); Haywood v. Hamm,

77 Conn. 158, 159, 58 A. 695 (1904). The proponent need

not, however, show that the speaker was authorized to make

the particular statement sought to be introduced. The exis-

tence of authority to speak for the principal is to be determined

by reference to the substantive law of agency. See, e.g., Acker-

man v. Sobol Family Partnership, LLP, 298 Conn. 495,

507–12, 4 A.3d 288 (2010) (applying principles of agency

law to conclude that attorney had authority to bind client to

settlement). Although not expressly mentioned in the excep­

tion, the Code in no way abrogates the common-law rule that

speaking authority must be established without reference to

the purported agent’s out-of-court statements, save when

those statements are independently admissible. See Section

1-1 (d) (2); see generally Robles v. Lavin, 176 Conn. 281,

284, 407 A.2d 957 (1978).

(D) The fourth category encompasses the exception set

forth in rule 801 (d) (2) (D) of the Federal Rules of Evidence

and adopted in a majority of state jurisdictions. The notes of

the advisory committee on the 1972 proposed rules express

‘‘[d]issatisfaction’’ with the traditional rule requiring proof that

the agent had actual authority to make the offered statement

on behalf of the principal. The advisory committee notes cite

to ‘‘[a] substantial trend [that] favors admitting statements

related to a matter within the scope of the agency or employ­

ment. Grayson v

s of

the advisory committee on the 1972 proposed rules express

‘‘[d]issatisfaction’’ with the traditional rule requiring proof that

the agent had actual authority to make the offered statement

on behalf of the principal. The advisory committee notes cite

to ‘‘[a] substantial trend [that] favors admitting statements

related to a matter within the scope of the agency or employ­

ment. Grayson v. Williams, 256 F.2d 61 [66] (10th Cir. 1958);

[see also Koninklijke Luchtvaart Maatschappij N.V. KLM Royal

Dutch Airlines Holland] v. Tuller, [292 F.2d 775, 783–84 (D.C.

Cir.), cert. denied, 368 U.S. 921, 82 S. Ct. 243, 7 L. Ed. 2d

136] (1961); Martin v. [Savage Truck Line, Inc.], 121 F. Supp.

417 [418–19] (D.D.C. 1954), and numerous state court deci­

sions collected in 4 [J. Wigmore, Evidence (4th Ed. 1972)

§ 1078, pp. 166–69 n.2] . . . .’’ Fed. R. Evid. 801 (d) (2) (D),

advisory committee notes. This trend has continued since

then. See, e.g., B & K Rentals & Sales Co. v. Universal Leaf

Sec. 8-3

Tobacco Co., 324 Md. 147, 158, 596 A.2d 640 (1991) (adopting

federal approach and observing that ‘‘[t]he authorities, both

courts and commentators, have almost universally con-

demned the strict [common-law] rule in favor of the . . .

rule set forth in [rule 801 (d) (2) (D) of the Federal Rules of

Evidence]’’). Connecticut now adopts the modern rule as well,

and, in doing so, overrules the line of cases adhering to the

common law in requiring proof that the declarant was authorized to speak on behalf of the employer or principal. See, e.g.,

Cascella v. Jay James Camera Shop, Inc., 147 Conn. 337,

341, 160 A.2d 899 (1960); Wade v. Yale University, 129 Conn.

615, 617–18, 30 A.2d 545 (1943).

(E) The fifth category encompasses the hearsay exception

for statements of coconspirators. E.g., State v. Peeler, 267

Conn. 611, 628–34, 841 A.2d 181 (2004); State v. Couture,

218 Conn. 309, 322, 589 A.2d 343 (1991); State v. Pelletier,

209 Conn. 564, 577, 552 A.2d 805 (1989); see also State v.

Vessichio, 197 Conn

99 (1960); Wade v. Yale University, 129 Conn.

615, 617–18, 30 A.2d 545 (1943).

(E) The fifth category encompasses the hearsay exception

for statements of coconspirators. E.g., State v. Peeler, 267

Conn. 611, 628–34, 841 A.2d 181 (2004); State v. Couture,

218 Conn. 309, 322, 589 A.2d 343 (1991); State v. Pelletier,

209 Conn. 564, 577, 552 A.2d 805 (1989); see also State v.

Vessichio, 197 Conn. 644, 654–55, 500 A.2d 1311 (1985)

(additional foundational elements include existence of conspiracy and participation therein by both declarant and party

against whom statement is offered), cert. denied, 475 U.S.

1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986). The exception

is applicable in civil and criminal cases alike. See Cooke v.

Weed, 90 Conn. 544, 548, 97 A. 765 (1916). The proponent

must prove the foundational elements by a preponderance of

the evidence and independently of the hearsay statements

sought to be introduced. See, e.g., State v. Carpenter, 275

Conn. 785, 843, 882 A.2d 604 (2005), cert. denied, 547 U.S.

1025, 126 S. Ct. 1578, 164 L. Ed. 2d 309 (2006); State v.

Vessichio, supra, 655; State v. Haggood, 36 Conn. App. 753,

767, 653 A.2d 216, cert. denied, 233 Conn. 904, 657 A.2d

644 (1995).

(F) The sixth category of party opponent admissions is

derived from Agricultural Ins. Co. v. Keeler, 44 Conn. 161,

162–64 (1876).

(G) The final category incorporates the common-law hear­

say exception applied in Pierce v. Roberts, 57 Conn. 31,

40–41, 17 A. 275 (1888), and Ramsbottom v. Phelps, 18 Conn.

278, 285 (1847).

753,

767, 653 A.2d 216, cert. denied, 233 Conn. 904, 657 A.2d

644 (1995).

(F) The sixth category of party opponent admissions is

derived from Agricultural Ins. Co. v. Keeler, 44 Conn. 161,

162–64 (1876).

(G) The final category incorporates the common-law hear­

say exception applied in Pierce v. Roberts, 57 Conn. 31,

40–41, 17 A. 275 (1888), and Ramsbottom v. Phelps, 18 Conn.

278, 285 (1847).

(2) Spontaneous utterance.

The hearsay exception for spontaneous utterances is

well established. See, e.g., State v. Stange, 212 Conn. 612,

616–17, 563 A.2d 681 (1989); Cascella v. Jay James Camera

Shop, Inc., supra, 147 Conn. 341–42; Perry v. Haritos, 100

Conn. 476, 483–84, 124 A. 44 (1924). Although the language

of Section 8-3 (2) is not identical to the language used in pre-

Code cases to describe the exception; cf. State v. Stange,

supra, 616–17; Rockhill v. White Line Bus Co., 109 Conn.

706, 709, 145 A. 504 (1929); Perry v. Haritos, supra, 484;

State v. Guess, 44 Conn. App. 790, 803, 692 A.2d 849 (1997),

aff’d, 244 Conn. 761, 715 A.2d 643 (1998); the provision incor-

porates the same principles. See, e.g., State v. Kirby, 280

Conn. 361, 373–77, 908 A.2d 506 (2006).

The event or condition triggering the utterance must be

sufficiently startling, so ‘‘as to produce nervous excitement in

the declarant and render [the declarant’s] utterances sponta­

neous and unreflective.’’ State v. Rinaldi, 220 Conn. 345, 359,

599 A.2d 1 (1991).

(1998); the provision incor-

porates the same principles. See, e.g., State v. Kirby, 280

Conn. 361, 373–77, 908 A.2d 506 (2006).

The event or condition triggering the utterance must be

sufficiently startling, so ‘‘as to produce nervous excitement in

the declarant and render [the declarant’s] utterances sponta­

neous and unreflective.’’ State v. Rinaldi, 220 Conn. 345, 359,

599 A.2d 1 (1991).

(3) Statement of then existing physical condition.

Section 8-3 (3) embraces the hearsay exception for state­

ments of then existing physical condition. Martin v. Sherwood,

74 Conn. 475, 481–82, 51 A. 526 (1902); State v. Dart, 29

Conn. 153, 155 (1860); see McCarrick v. Kealy, 70 Conn. 642,

645, 40 A. 603 (1898).

The exception is limited to statements of then existing

physical condition, whereby the declarant describes how the

declarant feels at the time the declarant makes the hearsay

statement. Statements concerning past physical condition;

Martin v. Sherwood, supra, 74 Conn. 482; State v. Dart, supra,

29 Conn. 155; or the events leading up to or the cause of a

present condition; McCarrick v. Kealy, supra, 70 Conn. 645;

are not admissible under this exception. Cf. Section 8-3 (5)

(exception for statements made to physician for purpose of

obtaining medical treatment or advice and describing past or

present bodily condition or cause thereof).

(4) Statement of then existing mental or emotional con-

dition.

Section 8-3 (4) embodies what is frequently referred to as

the ‘‘state of mind’’ exception to the hearsay rule. See, e.g.,

State v. Periere, 186 Conn. 599, 605–606, 442 A.2d 1345

or statements made to physician for purpose of

obtaining medical treatment or advice and describing past or

present bodily condition or cause thereof).

(4) Statement of then existing mental or emotional con-

dition.

Section 8-3 (4) embodies what is frequently referred to as

the ‘‘state of mind’’ exception to the hearsay rule. See, e.g.,

State v. Periere, 186 Conn. 599, 605–606, 442 A.2d 1345

(1982).

The exception allows the admission of a declarant’s state­

ment describing his or her then existing mental or emotional

condition when the declarant’s mental or emotional condition

is a relevant issue in the case. See, e.g., State v. Perkins,

271 Conn. 218, 256–59, 856 A.2d 917 (2004) (defendant’s

state of mind at time of hearsay statement was not relevant

to any issue in case); State v. Periere, supra, 186 Conn.

606–607 (relevant to show declarant’s fear). Only statements

describing then existing mental or emotional condition, i.e.,

that existing when the statement is made, are admissible.

The exception also covers a declarant’s statement of pre-

sent intention to perform a subsequent act as an inference

that the subsequent act actually occurred. E.g., State v.

Rinaldi, 220 Conn. 345, 358 n.7, 599 A.2d 1 (1991); State v.

Santangelo, 205 Conn. 578, 592, 534 A.2d 1175 (1987); State

v. Journey, 115 Conn. 344, 351, 161 A. 515 (1932). The

inference drawn from the statement of present intention that

the act actually occurred is a matter of relevancy rather than

a hearsay concern.

When a statement describes the declarant’s intention to do

a future act in concert with another person, e.g., ‘‘I am going

to meet Ralph at the store at ten,’’ the case law does not

prohibit admissibility. See State v. Santangelo, supra, 205

Conn. 592. But the declaration can be admitted only to prove

the declarant’s subsequent conduct, not to show what the

other person ultimately did. State v. Perelli, 125 Conn. 321,

325, 5 A.2d 705 (1939)

n to do

a future act in concert with another person, e.g., ‘‘I am going

to meet Ralph at the store at ten,’’ the case law does not

prohibit admissibility. See State v. Santangelo, supra, 205

Conn. 592. But the declaration can be admitted only to prove

the declarant’s subsequent conduct, not to show what the

other person ultimately did. State v. Perelli, 125 Conn. 321,

325, 5 A.2d 705 (1939). Thus, in the previous example, the

declarant’s statement could be used to infer that the declarant

actually did go to meet Ralph at the store at ten but not to

show that Ralph went to the store at ten to meet the declarant.

Placement of Section 8-3 (4) in the ‘‘availability of the declar-

ant immaterial’’ category of hearsay exceptions confirms that

the admissibility of statements of present intention to show

future acts is not conditioned on any requirement that the

declarant be unavailable. See State v. Santangelo, supra, 205

Conn. 592 (dictum suggesting that declarant’s unavailability

is precondition to admissibility).

While statements of present intention looking forward to the

doing of some future act are admissible under the exception,

backward looking statements of memory or belief offered to

prove the act or event remembered or believed are inadmissi-

ble. See Wade v. Yale University, supra, 129 Conn. 618–19;

but see State v. Santangelo, supra, 205 Conn. 592–93. As

the advisory committee notes to the corresponding federal

rule suggest, ‘‘[t]he exclusion of ‘statements of memory or

belief to prove the fact remembered or believed’ is necessary

to avoid the virtual destruction of the hearsay rule which would

otherwise result from allowing state of mind, provable by a

hearsay statement, to serve as the basis for an inference of

the happening of the event which produced the state of mind.’’

Fed. R. Evid. 803 (3), advisory committee notes, citing Shep-

ard v. United States, 290 U.S. 96, 54 S. Ct. 22, 78 L. Ed. 196

ieved’ is necessary

to avoid the virtual destruction of the hearsay rule which would

otherwise result from allowing state of mind, provable by a

hearsay statement, to serve as the basis for an inference of

the happening of the event which produced the state of mind.’’

Fed. R. Evid. 803 (3), advisory committee notes, citing Shep-

ard v. United States, 290 U.S. 96, 54 S. Ct. 22, 78 L. Ed. 196

(1933). For cases dealing with the admissibility of statements

Sec. 8-3

of memory or belief in will cases, see Spencer’s Appeal, 77

Conn. 638, 643, 60 A. 289 (1905), Vivian Appeal, 74 Conn.

257, 260–62, 50 A. 797 (1901), and Comstock v. Hadlyme

Ecclesiastical Society, 8 Conn. 254, 263–64 (1830). Cf. Bab­

cock v. Johnson, 127 Conn. 643, 644, 19 A.2d 416 (1941)

(statements admissible only as circumstantial evidence of

state of mind and not for truth of matter asserted); In re John­

son’s Will, 40 Conn. 587, 588 (1873) (same).

(5) Statement for purposes of obtaining medical diagno-

sis or treatment.

Statements made in furtherance of obtaining a medical diag-

nosis or treatment are excepted from the hearsay rule. E.g.,

State v. DePastino, 228 Conn. 552, 565, 638 A.2d 578 (1994).

This is true even if diagnosis or treatment is not the primary

purpose of the medical examination or the principal motivation

for the statement; State v. Griswold, 160 Conn. App. 528,

552–53, 556–57, 127 A.3d 189 (statements made during

forensic interview in child sexual abuse context), cert. denied,

320 Conn. 907, 128 A.3d 952 (2015); as long as the statement

is ‘‘reasonably pertinent’’ to obtaining diagnosis or treatment.

Id., 556.

It is intended that the term ‘‘medical’’ be read broadly so that

the exception would cover statements made for the purpose

of obtaining diagnosis or treatment for both somatic and psy­

chological maladies and conditions. See State v. Wood, 208

Conn. 125, 133–34, 545 A.2d 1026, cert. denied, 488 U.S.

895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988)

’ to obtaining diagnosis or treatment.

Id., 556.

It is intended that the term ‘‘medical’’ be read broadly so that

the exception would cover statements made for the purpose

of obtaining diagnosis or treatment for both somatic and psy­

chological maladies and conditions. See State v. Wood, 208

Conn. 125, 133–34, 545 A.2d 1026, cert. denied, 488 U.S.

895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988).

Statements concerning the cause of an injury or condition

traditionally were inadmissible under the exception. See Smith

v. Hausdorf, 92 Conn. 579, 582, 103 A. 939 (1918). Subse­

quent cases recognize that, in some instances, causation may

be pertinent to medical diagnosis or treatment. See State v.

Daniels, 13 Conn. App. 133, 135, 534 A.2d 1253 (1987); cf.

State v. DePastino, supra, 228 Conn. 565. Section 8-3 (5)

thus excepts from the hearsay rule statements describing ‘‘the

inception or general character of the cause or external source’’

of an injury or condition when reasonably pertinent to medical

diagnosis or treatment.

Statements as to causation that include the identity of the

person responsible for the injury or condition ordinarily are

neither relevant to nor in furtherance of the patient’s medical

treatment. State v. DePastino, supra, 228 Conn. 565; State

v. Dollinger, 20 Conn. App. 530, 534, 568 A.2d 1058, cert.

denied, 215 Conn. 805, 574 A.2d 220 (1990). Connecticut

courts have recognized an exception to this principle in cases

of domestic child abuse. State v. DePastino, supra, 565; State

v. Dollinger, supra, 534–35; State v. Maldonado, 13 Conn.

App. 368, 372–74, 536 A.2d 600, cert. denied, 207 Conn. 808,

541 A.2d 1239 (1988). The courts reason that, ‘‘[i]n cases of

sexual abuse in the home, hearsay statements made in the

course of medical treatment which reveal the identity of the

abuser, are reasonably pertinent to treatment and are admissi-

ble. . .

no, supra, 565; State

v. Dollinger, supra, 534–35; State v. Maldonado, 13 Conn.

App. 368, 372–74, 536 A.2d 600, cert. denied, 207 Conn. 808,

541 A.2d 1239 (1988). The courts reason that, ‘‘[i]n cases of

sexual abuse in the home, hearsay statements made in the

course of medical treatment which reveal the identity of the

abuser, are reasonably pertinent to treatment and are admissi-

ble. . . . If the sexual abuser is a member of the child victim’s

immediate household, it is reasonable for a physician to ascer­

tain the identity of the abuser to prevent recurrences and to

facilitate the treatment of psychological and physical injuries.’’

(Citation omitted; internal quotation marks omitted.) State v.

Dollinger, supra, 535, quoting State v. Maldonado, supra, 374;

accord State v. DePastino, supra, 565. In 2001, this reasoning

was extended to apply the exception to adult victims of sexual

abuse as well. State v. Kelly, 256 Conn. 23, 45, 770 A.2d 908

(2001). ‘‘In any sexual assault, the identity of the perpetrator

undoubtedly is relevant to the physician to facilitate the treat­

ment of psychological and physical injuries.’’ (Emphasis

added; internal quotation marks omitted.) Id.

Traditionally, the exception seemingly required that the

statement be made to a physician. See, e.g., Wilson v. Granby,

47 Conn. 59, 76 (1879). Statements qualifying under Section

8-3 (5), however, may be those made not only to a physician,

but to other persons involved in the treatment of the patient,

such as a nurse, a paramedic, an interpreter or even a family

member. This approach is in accord with the modern trend.

See State v. Maldonado, supra, 13 Conn. App. 369, 374 n.3

(statement by child abuse victim who spoke only Spanish

made to Spanish speaking hospital security guard enlisted by

treating physician as translator).

Common-law cases address the admissibility of statements

made only by the patient. E.g., Gilmore v. American Tube &

Stamping Co., 79 Conn. 498, 504, 66 A. 4 (1907)

th the modern trend.

See State v. Maldonado, supra, 13 Conn. App. 369, 374 n.3

(statement by child abuse victim who spoke only Spanish

made to Spanish speaking hospital security guard enlisted by

treating physician as translator).

Common-law cases address the admissibility of statements

made only by the patient. E.g., Gilmore v. American Tube &

Stamping Co., 79 Conn. 498, 504, 66 A. 4 (1907). Section 8-

3 (5) does not, by its terms, restrict statements admissible

under the exception to those made by the patient. For example,

if a parent were to bring his or her unconscious child into an

emergency room, statements made by the parent to a health-care provider for the purpose of obtaining treatment and perti-

nent to that treatment fall within the scope of the exception.

Early common law distinguished between statements made

to physicians consulted for the purpose of treatment and state-

ments made to physicians consulted solely for the purpose of

testifying as an expert witness. Statements made to these so-called ‘‘nontreating’’ physicians were not accorded substantive

effect. See, e.g., Zawisza v. Quality Name Plate, Inc., 149

Conn. 115, 119, 176 A.2d 578 (1961); Rowland v. Philadelphia,

Wilmington & Baltimore Railroad Co., 63 Conn. 415, 418–19,

28 A. 102 (1893). This distinction was eliminated by the court

in George v. Ericson, 250 Conn. 312, 324–25, 736 A.2d 889

(1999), which held that nontreating physicians could rely on

such statements. The distinction between admission only as

foundation for the expert’s opinion and admission for all pur-

poses was considered too inconsequential to maintain.

Accordingly, the word ‘‘diagnosis’’ was added to, and the

phrase ‘‘advice pertaining thereto’’ was deleted from, the

phrase ‘‘medical treatment or advice pertaining thereto’’ in

Section 8-3 (5).

ysicians could rely on

such statements. The distinction between admission only as

foundation for the expert’s opinion and admission for all pur-

poses was considered too inconsequential to maintain.

Accordingly, the word ‘‘diagnosis’’ was added to, and the

phrase ‘‘advice pertaining thereto’’ was deleted from, the

phrase ‘‘medical treatment or advice pertaining thereto’’ in

Section 8-3 (5).

(6) Recorded recollection.

The hearsay exception for past recollection recorded

requires four foundational requirements. First, the witness

must have had personal knowledge of the event recorded in

the memorandum or record. Papas v. Aetna Ins. Co., 111

Conn. 415, 420, 150 A. 310 (1930); Jackiewicz v. United Illumi-

nating Co., 106 Conn. 302, 309, 138 A. 147 (1927); Neff v.

Neff, 96 Conn. 273, 278, 114 A. 126 (1921).

Second, the witness’ present recollection must be insuffi-

cient to enable the witness to testify fully and accurately about

the event recorded. State v. Boucino, 199 Conn. 207, 230, 506

A.2d 125 (1986). The rule thus does not require the witness’

memory to be totally exhausted. See id. Earlier cases to the

contrary, such as Katsonas v. W. M. Sutherland Building &

Contracting Co., 104 Conn. 54, 69, 132 A. 553 (1926), appar­

ently have been rejected. See State v. Boucino, supra, 230.

‘‘Insufficient recollection’’ may be established by demonstra-

ting that an attempt to refresh the witness’ recollection pursu-

ant to Section 6-9 (a) was unsuccessful. See Katsonas v. W.

M. Sutherland Building & Contracting Co., supra, 69.

Third, the memorandum or record must have been made

or adopted by the witness ‘‘at or about the time’’ the event

was recorded. Gigliotti v. United Illuminating Co., 151 Conn.

114, 124, 193 A.2d 718 (1963); Neff v. Neff, supra, 96 Conn.

278; State v. Day, 12 Conn. App. 129, 134, 529 A.2d 1333

ion 6-9 (a) was unsuccessful. See Katsonas v. W.

M. Sutherland Building & Contracting Co., supra, 69.

Third, the memorandum or record must have been made

or adopted by the witness ‘‘at or about the time’’ the event

was recorded. Gigliotti v. United Illuminating Co., 151 Conn.

114, 124, 193 A.2d 718 (1963); Neff v. Neff, supra, 96 Conn.

278; State v. Day, 12 Conn. App. 129, 134, 529 A.2d 1333

(1987).

Finally, the memorandum or record must accurately reflect

the witness’ knowledge of the event as it existed at the time

of the memorandum’s or record’s making or adoption. See

State v. Vennard, 159 Conn. 385, 397, 270 A.2d 837 (1970)

(overruled in part on other grounds by State v. Ferrell, 191

Sec. 8-3

Conn. 37, 463 A.2d 573 (1983)), cert. denied, 400 U.S. 1011,

91 S. Ct. 576, 27 L. Ed. 2d 625 (1971); Capone v. Sloan, 149

Conn. 538, 543, 182 A.2d 414 (1962); Hawken v. Daley, 85

Conn. 16, 19, 81 A. 1053 (1911); see also State v. Juan V.,

109 Conn. App. 431, 441 n.9, 951 A.2d 651 (‘‘[p]roving that

the record was accurate at the time it was made is an essential

element of this exception’’), cert. denied, 289 Conn. 931, 958

A.2d 161 (2008).

A memorandum or record admissible under the exception

may be read into evidence and received as an exhibit. Katso-

nas v. W. M. Sutherland Building & Contracting Co., supra,

104 Conn. 69; see Neff v. Neff, supra, 96 Conn. 278–79.

Because a memorandum or record introduced under the

exception is being offered to prove its contents, the original

must be produced pursuant to Section 10-1, unless its produc-

tion is excused. See Sections 10-3 through 10-6; cf. Neff v.

Neff, supra, 278.

Multiple person involvement in recordation and observation

of the event recorded is contemplated by the exception. For

example, A reports to B an event A has just observed. B

immediately writes down what A reported to him. A then exam­

ines the writing and adopts it as accurate close to the time of

its making. A is now testifying and has forgotten the event

10-6; cf. Neff v.

Neff, supra, 278.

Multiple person involvement in recordation and observation

of the event recorded is contemplated by the exception. For

example, A reports to B an event A has just observed. B

immediately writes down what A reported to him. A then exam­

ines the writing and adopts it as accurate close to the time of

its making. A is now testifying and has forgotten the event. A

may independently establish the foundational requirements

for the admission of the writing under Section 8-3 (6). Cf.

Curtis v. Bradley, 65 Conn. 99, 105–107, 31 A. 591 (1894).

The past recollection recorded exception to the hearsay

rule is to be distinguished from the procedure for refreshing

recollection, which is covered in Section 6-9.

(7) Public records and reports.

Section 8-3 (7) sets forth a hearsay exception for certain

public records and reports. The exception is derived primarily

from common law although public records and reports remain

the subject of numerous statutes. See, e.g., General Statutes

§§ 12-39bb and 19a-412.

Although Connecticut has neither precisely nor consistently

defined the elements comprising the common-law public

records exception to the hearsay rule; cf. Hing Wan Wong v.

Liquor Control Commission, 160 Conn. 1, 9, 273 A.2d 709

(1970), cert. denied, 401 U.S. 938, 91 S. Ct. 931, 28 L. Ed.

2d 218 (1971); Section 8-3 (7) gleans from case law three

distinct requirements for substantive admissibility. Proviso (A)

is found in cases such as Hing Wan Wong v. Liquor Control

Commission, supra, 9, Russo v. Metropolitan Life Ins. Co.,

125 Conn. 132, 139, 3 A.2d 844 (1939), and Ezzo v. Geremiah,

107 Conn. 670, 679–80, 142 A. 461 (1928). Proviso (B) comes

from cases such as Gett v. Isaacson, 98 Conn. 539, 543–44,

120 A. 156 (1923), and Enfield v. Ellington, 67 Conn. 459,

462, 34 A. 818 (1896). Proviso (C) is derived from Heritage

Village Master Assn., Inc. v. Heritage Village Water Co., 30

Conn. App

opolitan Life Ins. Co.,

125 Conn. 132, 139, 3 A.2d 844 (1939), and Ezzo v. Geremiah,

107 Conn. 670, 679–80, 142 A. 461 (1928). Proviso (B) comes

from cases such as Gett v. Isaacson, 98 Conn. 539, 543–44,

120 A. 156 (1923), and Enfield v. Ellington, 67 Conn. 459,

462, 34 A. 818 (1896). Proviso (C) is derived from Heritage

Village Master Assn., Inc. v. Heritage Village Water Co., 30

Conn. App. 693, 701, 622 A.2d 578 (1993), and from cases

in which public records had been admitted under the business

records exception. See, e.g., State v. Palozie, 165 Conn. 288,

294–95, 334 A.2d 458 (1973); Mucci v. LeMonte, 157 Conn.

566, 569, 254 A.2d 879 (1969).

The ‘‘duty’’ under which public officials act, as contemplated

by proviso (A), often is one imposed by statute. See, e.g.,

Lawrence v. Kozlowski, 171 Conn. 705, 717–18, 372 A.2d

110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53

L. Ed. 2d 1066 (1977); Hing Wan Wong v. Liquor Control

Commission, supra, 160 Conn. 8–10. Nevertheless, Section

8-3 (7) does not preclude the recognition of other sources

of duties.

Proviso (C) anticipates the likelihood that more than one

individual may be involved in the making of the public record.

By analogy to the personal knowledge requirement imposed

in the business records context; e.g., In re Barbara J., 215

Conn. 31, 40, 574 A.2d 203 (1990); proviso (C) demands that

the public record be made upon the personal knowledge of

either the public official who made the record or someone, such

as a subordinate, whose duty it was to relay that information

to the public official. See, e.g., State v. Palozie, supra, 165

Conn. 294–95 (public record introduced under business

records exception).

rbara J., 215

Conn. 31, 40, 574 A.2d 203 (1990); proviso (C) demands that

the public record be made upon the personal knowledge of

either the public official who made the record or someone, such

as a subordinate, whose duty it was to relay that information

to the public official. See, e.g., State v. Palozie, supra, 165

Conn. 294–95 (public record introduced under business

records exception).

(8) Statement in learned treatises.

Exception (8) explicitly permits the substantive use of state-

ments contained in published treatises, periodicals or pam­

phlets on direct examination or cross-examination under the

circumstances prescribed in the rule. In the case of a journal

article, the requirement that the treatise is recognized as a

‘‘standard authority in the field’’; (internal quotation marks omit-

ted) Filippelli v. Saint Mary’s Hospital, 319 Conn. 113, 136,

124 A.3d 501 (2015); generally requires proof that the specific

article at issue is so recognized. See id., 137–38; Musorofiti

v. Vlcek, 65 Conn. App. 365, 382–85, 783 A.2d 36, cert.

denied, 258 Conn. 938, 786 A.2d 426 (2001). There may be

situations, however, in which a journal is so highly regarded

that a presumption of authoritativeness will arise with respect

to an article selected for publication in that journal without any

additional showing. See Filippelli v. Saint Mary’s Hospital,

supra, 138.

Although most of the earlier decisions concerned the use

of medical treatises; e.g., Cross v. Huttenlocher, 185 Conn.

390, 395, 440 A.2d 952 (1981); Perez v. Mount Sinai Hospital,

7 Conn. App. 514, 520, 509 A.2d 552 (1986); Section 8-3 (8),

by its terms, is not limited to that one subject matter or format.

Ames v. Sears, Roebuck & Co., 8 Conn. App. 642, 650–51,

514 A.2d 352 (published technical papers on design and oper-

ation of riding lawnmowers), cert. denied, 201 Conn. 809, 515

A.2d 378 (1986).

Connecticut allows the jury to receive the treatise, or portion

thereof, as a full exhibit. Cross v. Huttenlocher, supra, 185

Conn

by its terms, is not limited to that one subject matter or format.

Ames v. Sears, Roebuck & Co., 8 Conn. App. 642, 650–51,

514 A.2d 352 (published technical papers on design and oper-

ation of riding lawnmowers), cert. denied, 201 Conn. 809, 515

A.2d 378 (1986).

Connecticut allows the jury to receive the treatise, or portion

thereof, as a full exhibit. Cross v. Huttenlocher, supra, 185

Conn. 395–96; see State v. Gupta, 297 Conn. 211, 239, 998

A.2d 1085 (2010). If admitted, the excerpts from the published

work may be read into evidence or received as an exhibit, as

the court permits. See Cross v. Huttenlocher, supra, 395–96;

see also Filippelli v. Saint Mary’s Hospital, supra, 319 Conn.

138–41 (trial court has discretion to require redaction so that

only portion of article is admitted as full exhibit).

(9) Statement in ancient documents.

The hearsay exception for statements in ancient documents

is well established. Jarboe v. Home Bank & Trust Co., 91

Conn. 265, 270–71, 99 A. 563 (1917); New York, New Haven &

Hartford Railroad Co. v. Cella, 88 Conn. 515, 520, 91 A. 972

(1914); see Clark v. Drska, 1 Conn. App. 481, 489, 473 A.2d

325 (1984).

The exception, by its terms, applies to all kinds of docu­

ments, including documents produced by electronic means

and electronically stored information, and is not limited to docu-

ments affecting an interest in property. See Petroman v. Ander­

son, 105 Conn. 366, 369–70, 135 A. 391 (1926) (ancient map

introduced under exception).

‘‘[M]ore than thirty years’’ means any instant of time beyond

the point in time at which the document has been in existence

for thirty years.

ments produced by electronic means

and electronically stored information, and is not limited to docu-

ments affecting an interest in property. See Petroman v. Ander­

son, 105 Conn. 366, 369–70, 135 A. 391 (1926) (ancient map

introduced under exception).

‘‘[M]ore than thirty years’’ means any instant of time beyond

the point in time at which the document has been in existence

for thirty years.

(10) Published compilations.

Connecticut cases have recognized an exception to the

hearsay rule—or at least have assumed that an exception

exists—for these items. Henry v. Kopf, 104 Conn. 73, 80–81,

131 A. 412 (1925) (market reports); see State v. Pambianchi,

139 Conn. 543, 548, 95 A.2d 695 (1953) (compilation of used

automobile prices); Donoghue v. Smith, 114 Conn. 64, 66,

157 A. 415 (1931) (mortality tables).

(11) Statement in family bible.

Sec. 8-3

Connecticut has recognized, at least in dictum, an exception

to the hearsay rule for factual statements concerning personal

or family history contained in family bibles. See Eva v. Gough,

93 Conn. 38, 46, 104 A. 238 (1918).

(12) Personal identification.

A witness’ in-court statement of his or her own name or age

is admissible, even though knowledge of this information often

is based on hearsay. Blanchard v. Bridgeport, 190 Conn. 798,

806, 463 A.2d 553 (1983) (name); Toletti v. Bidizcki, 118 Conn.

531, 534, 173 A. 223 (1934) (name), overruled in part on other

grounds by Petrillo v. Maiuri, 138 Conn. 557, 86 A.2d 869

(1952); State v. Hyatt, 9 Conn. App. 426, 429, 519 A.2d 612

(1987) (age); see Creer v. Active Auto Exchange, Inc., 99

Conn. 266, 276, 121 A. 888 (1923) (age).