State v. Daniel W. E.

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 STATE OF CONNECTICUT v. DANIEL W. E.*
(SC 19341)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.
Argued September 8, 2015—officially released August 23, 2016

Glenn W. Falk, assigned counsel, for the appellant
(defendant).
Marjorie Allen Dauster, senior assistant state’s attor-
ney, with whom were Andrew J. Slitt, assistant state’s
attorney, and, on the brief, Patricia M. Froehlich, state’s
attorney, for the appellee (state).
 Opinion

ZARELLA, J. Following a jury trial, the defendant,
Daniel W. E., was found guilty of two counts of sexual
assault in the first degree in violation of General Stat-
utes § 53a-70 (a) (2) and one count of risk of injury to
a child in violation of General Statutes (Rev. to 2001)
§ 53-21 (a) (2). The victim, his daughter, was between
six and nine years old at the time of the assaults. The
trial court rendered judgment in accordance with the
jury verdict and sentenced the defendant to a total
effective sentence of twenty-five years incarceration
followed by twenty years of special parole. On appeal,1
the defendant claims that the trial court improperly
instructed the jury on the use of constancy of accusation
evidence and that the constancy of accusation doctrine,
particularly in child sexual abuse cases, should be aban-
doned or modified because of increased public aware-
ness regarding the reasons why children delay in
reporting sexual abuse. The defendant further claims
that the testimony of multiple constancy witnesses is
unnecessary and prejudicial, and that other ways exist
of ensuring fairness to the victim. The state responds
that the trial court properly instructed the jury on the
use of constancy evidence and that the defendant has
failed to offer any cogent rationale for modifying or
abandoning the doctrine. We conclude that the trial
court’s jury instruction was proper but that the con-
stancy of accusation doctrine should be modified.
The record reveals the following relevant facts and
procedural history. The victim was born in March, 1996.
In 2001, after her parents separated, the victim was
living with her mother and two brothers in the town of
Plainfield, and the defendant was living with his parents
in the town of Brooklyn. From the time she was six
years old, the victim and her brothers visited the defen-
dant every other weekend. During each visit, the defen-
dant sexually assaulted the victim at least once for the
next three years. The assaults usually occurred in the
bedroom or during bath time, when the defendant and
the victim were alone. On one occasion, when the vic-
tim’s younger brother awoke from a nap in the chil-
dren’s bedroom and asked why the defendant was lying
on top of the victim, the defendant responded, ‘‘[t]his
is our thing.’’ The visits and the assaults ceased when
the victim was nine years old.
The victim did not remember the assaults as painful
and did not tell her mother, her grandparents or her
pediatrician about them because she did not know they
were wrong. She simply thought the defendant was
doing ‘‘what fathers and daughters did.’’ Although she
repeatedly asked the defendant to stop, he continued
the abuse. The victim’s only complaint to her mother
about the visits was the presence of cigarette smoke
inside the house, which made her feel sick. Both of the
victim’s older stepsisters, M and D, also were sexually
abused by the defendant when they were very young,
but the victim was unaware of this when she was
being abused.
In 2007, after D told the victim that she had been
sexually abused in the past, the victim confided in D
that she had been sexually assaulted by the defendant
over an extended period of time, and then started cry-
ing.2 D responded that the victim should tell her mother
or report the abuse to the police, but the victim did not
do so. Two years later, in October, 2009, the victim also
told a former boyfriend, S, during a telephone conversa-
tion that she had been sexually abused by the defendant
multiple times.
In October, 2009, after the victim finally told her
mother, she reported the abuse to the police. The report
was triggered by an incident involving the victim and
the defendant at a restaurant. The victim had arranged
to meet the defendant at the restaurant, even though
she was not permitted to contact him at that time and
had not obtained her mother’s permission or informed
her about the arrangement. Upon initially meeting and
hugging the defendant, the victim noticed the defendant
had an erection. This caused her to have flashbacks
regarding her past abuse by the defendant and
prompted her to tell the police. She also told the police
she had had a brief sexual relationship with her then
boyfriend, B, a few months earlier.
The state arrested the defendant and charged him
with two counts of sexual assault in the first degree
and one count of risk of injury to a child. The defendant
elected to be tried by a jury. In a pretrial motion in
limine, the defendant requested, among other things,
that the trial court (1) give a limiting instruction regard-
ing any properly admitted constancy of accusation evi-
dence, (2) exclude all constancy evidence, including
any direct or indirect reference thereto, until after the
victim testified, (3) preclude constancy evidence
derived from reports after the victim’s official complaint
to the police or the Department of Children and Fami-
lies, (4) limit ‘‘ ‘corroborative’ ’’ evidence to the fact and
timing of the victim’s complaint, when, where, and to
whom the complaint was made, and the identity of the
alleged perpetrator, and (5) exclude cumulative con-
stancy evidence to the extent its probative value was
outweighed by its prejudicial effect and the jury was
likely to treat the evidence as substantive evidence of
the defendant’s guilt. The defendant also urged the trial
court to instruct the jury that any delay by a victim in
reporting a complaint of sexual abuse to a friend or
relative affects the weight to be given such evidence
and should be considered by the jury. The defendant
argued in part that, although the constancy of accusa-
tion doctrine has a long history in Connecticut, its con-
tinued relevance requires reconsideration because its
underlying rationale has been increasingly questioned
in recent years.
Following a hearing, during which counsel for both
parties failed to engage in any substantive argument,3
the trial court granted the motion in limine insofar as it
sought to limit constancy evidence to statements made
prior to the victim’s official report of abuse and to
preclude such evidence considered potentially redun-
dant or cumulative. The court emphasized that it would
not exclude any evidence at that time but that defense
counsel could object if he believed the assistant state’s
attorney (prosecutor) was not exercising reasonable
restraint. Thereafter, in its preliminary instructions to
the jury, the trial court included a general instruction
that certain evidence admitted at trial was to be consid-
ered only for a limited purpose and that the court would
identify this evidence at the time of its admission.4
At trial, defense counsel did not object when the
victim testified that she had never told anyone about
the abuse until several years later. When the prosecutor
called S as the first constancy witness, however,
defense counsel objected to his testimony on hearsay
grounds. After the court overruled the objection, S testi-
fied that the victim told him during a telephone conver-
sation in 2009 that the defendant had molested her
‘‘multiple times’’ when she was five or six years old.
He also testified that, two days later, he urged the victim
in another telephone conversation to tell her mother
about the abuse.
D, the second constancy witness, testified without
objection that the victim told her she had been sexually
abused by the defendant over a long period of time, and
then started crying. The victim’s mother also testified
without objection that the victim did not tell her about
the abuse until 2009 or 2010, even though the mother
had explained ‘‘good touch-bad touch’’ to the victim
when the victim was younger and that no healthcare
provider had noted the presence of injuries during regu-
lar pediatric checkups from 2001 to 2004 that might
have been caused by sexual abuse.
Erica Kesselman, a physician who examined the vic-
tim in December, 2009, after the victim reported the
abuse to the police, testified that, although she observed
injuries to the victim that could have been caused by
the victim’s consensual sexual relationship with B dur-
ing the summer of 2009, the injuries also were consistent
with the victim’s reported history of sexual abuse and
with medical findings concerning girls who have been
forcibly penetrated before reaching puberty. Kesselman
further testified that the fact that the victim had been
sexually active for a brief time prior to reporting the
abuse to the police did not affect her conclusions
because the victim’s injuries were more common in
abuse cases than in cases in which there has been
consensual intercourse.
 Theresa Montelli then testified for the state as an
expert witness regarding the characteristics of sexually
abused children. She explained that there is often a
delay in reporting abuse due to factors such as the
family relationship between the child and the abuser,
the abuser’s telling the child to keep the abuse a secret,
the child’s loyalty to the abuser, the child’s difficulty
in talking about the abuse, threats or coercion by the
abuser, and the child’s feelings of fear, shame and self-
blame. Montelli also testified that children sometimes
fail to realize that what is happening to them is wrong,
and they only become aware of this at some later time,
such as in a health class at school. She added that
disclosure by many children may involve a process in
which they begin by revealing to a friend only a little
about what happened and gradually provide more
detailed information during an investigation or therapy
as their comfort level and sense of safety increase.
At the close of the evidence, the trial court gave the
parties its proposed jury instructions and requested that
counsel review them in preparation for the next day’s
charging conference. Before the conference, however,
defense counsel also submitted his own request to
charge, which included a proposed instruction on con-
stancy testimony.5 After the trial court rejected coun-
sel’s proposed instruction during an in-chambers
charging conference, counsel requested that the court
use Connecticut’s standard criminal jury instruction6
because of differences in ‘‘semantics, language [and]
placing of the paragraphs’’ that rendered the standard
instruction purportedly less prejudicial than the trial
court’s proposed instruction. Counsel specifically
argued that there were ‘‘subtle’’ differences between
language in the trial court’s instruction and language
in the standard instruction pertaining to what was to be
corroborated by the constancy testimony. He explained
his concern that such testimony might be construed by
the jury as corroborating the substance of the victim’s
complaint to the witnesses rather than the fact that the
victim had complained, and that the court’s proposed
instruction did not make this distinction clear. He con-
ceded that the standard instruction and the court’s pro-
posed instruction were ‘‘pretty much the same,’’ but,
‘‘looking at the gestalt of these two instructions, it’s the
subject[ive] feeling of . . . defense counsel that,
because of the placement of [the] language . . . [the
standard instruction is] a little bit less prejudicial
. . . .’’
The trial court responded that any ‘‘nuance’’ to which
counsel had referred was ‘‘so subtle that [the court was]
not inclined in the gestalt of the case overall to believe
that it’s going to be determinative.’’ The court thus
declined to revisit its earlier decision and rejected coun-
sel’s request to use the standard criminal jury instruc-
tion. Shortly thereafter, when defense counsel noted
for the record that he had made a general objection to
the constancy charge, the trial court summarized: ‘‘As
to the constancy of accusation charge, which we’ve just
discussed briefly, we discussed it in greater length in
chambers, [and] I determined that I would use the lan-
guage I had originally drafted.’’
The prosecutor did not refer to the constancy testi-
mony during his closing argument. Defense counsel,
however, challenged the victim’s credibility on the
ground that she had not reported the abuse to anyone
during the three years when the abuse allegedly was
occurring and because she had shown no outward mani-
festations of physical abuse during that time. Counsel
specifically noted that S ‘‘wasn’t here to testify as to
whether or not it happened [because] he couldn’t say,
just that sometime in October of [2009], while they were
dating, she supposedly made this disclosure to him.’’
The prosecutor argued in rebuttal that the victim’s
testimony, if credited, was sufficient to prove that the
defendant was guilty and thus need not be corrobo-
rated. He then argued: ‘‘However, I would submit that
the state did corroborate her testimony. You heard from
[S], who’s known her since he was seven [years old].
[She] told [him] in 2009, ‘my father raped me multiple
times.’ That was his testimony. Also, [D]. She’s known
[the victim] for ten years, [and] considers her her sister.
What . . . did [the victim] say to [D]? ‘My dad raped
me.’ And I cried—or she then cried and then . . . told
[D] it happened often and for a long time. Think about
how those two statements are consistent with each
other and with what [the victim] told you.’’ The prosecu-
tor also referred to the fact that the victim’s mother,
D, S, and Kesselman all testified that the defendant had
sexually assaulted the victim.7
The trial court then excused the jury, and defense
counsel objected to several portions of the prosecutor’s
closing argument, including his contention during
rebuttal argument that the victim’s testimony was cor-
roborated by the constancy evidence. The trial court
responded that defense counsel’s observation was ‘‘cor-
rect’’ and that it would clarify in its jury instructions
how the constancy evidence should be used. The court
specifically stated that its ‘‘plan [was] to let the jury
know that the import of [the constancy] testimony [was]
that [the victim] made these statements. It [did] not
mean that the statements [were] necessarily true. They
[were] simply statements made, and . . . the jury
[could] consider those in its calculation of all the credi-
bility issues.’’
The trial court subsequently gave the following
instruction to the jury: ‘‘I mentioned to you in my open-
ing remarks that sometimes evidence is admitted for a
limited purpose. And I have admitted some evidence
in this case with that limitation, and you must consider
that evidence only as it relates to the limits for which
it was allowed and not consider such testimony and
evidence in finding any other facts as to any other issue.
‘‘First in that category is what we call constancy of
accusation evidence. You will recall that the state
offered evidence of out-of-court statements which [the
victim] made to other persons that the defendant sexu-
ally assaulted her. Specifically, you may recall that [S]
and [D] testified as to the statements that she made to
each of them regarding the defendant sexually
assaulting her.
‘‘Ordinarily, as you may know, statements that are
made out of court are not admissible. Under our law,
this type of testimony is an exception only permitted
in cases alleging a sexual assault and only admitted for
the limited purpose of corroborating what the complain-
ing witness, [the victim], has testified to in court with
respect only to the fact and timing of her complaint,
the time and place of the alleged sexual assaults, and
the identity of the alleged perpetrator.
‘‘First of all, you may determine that the testimony
of these witnesses was not itself credible. If you find
their testimony credible as to what [the victim] told
them, however, you may only thereupon find that these
statements corroborate or support her own testimony.
In other words, they are a factor in your determination
as to what weight and credibility you will give to [the
victim’s] testimony as it pertains to the charges of sex-
ual assault.
‘‘If you find that she has been inconsistent, you may
consider the degree of inconsistency, and you may also
consider the reasons which you find for this inconsis-
tency as you evaluate her testimony.
‘‘[The victim’s] delay in reporting the alleged inci-
dents is also something you may consider in assessing
her credibility. You may discuss that delay, as well as
any reasons which you may find for such delay in evalu-
ating her testimony given in court. You may not deem
this evidence of out-of-court statements by the [victim]
that [the defendant] perpetrated a sexual assault against
her as proof of the truth of what those out-of-court
statements asserted.
‘‘In determining whether or not these out-of-court
statements corroborate [the victim’s] testimony in
court, you should consider all of the circumstances
under which they were made and to whom, and . . .
whether the statements made to those persons were or
were not consistent with [the victim’s] testimony here
in court.’’ Defense counsel did not object to this
instruction.
Prior to sentencing, the defendant moved to set aside
the verdict and for a new trial. In his motion, the defen-
dant claimed, among other things, that ‘‘the jury was
at least confused by the [court’s constancy] instruction.
. . . [T]he instruction was reasonably understood by
the jury to mean that the constancy evidence in fact
corroborated the [victim’s] testimony, and the jury
could not reasonably distinguish between the corrobo-
ration language in the charge to the jury and the instruc-
tion that that constancy evidence could not be used
as substantive evidence that the defendant [sexually
assaulted] the [victim].’’ At the sentencing hearing,
defense counsel likewise argued that the trial court’s
use of the word ‘‘corroboration’’ in its instruction had
sent the wrong message to the jury, as had the prosecu-
tor’s use of the word ‘‘corroboration’’ during closing
argument. Counsel contended that the purpose of con-
stancy testimony is to corroborate that ‘‘the complain-
ing witness has made a complaint and the timing of
that complaint, and very little more than that,’’ but that
the commonly understood meaning of the word ‘‘cor-
roborate’’ is to confirm the substance of what someone
else has said, which is how the word was used in the
jury charge and in the prosecutor’s closing argument.
The prosecutor responded that ‘‘the court and the state
acted within the established limits of the law.’’
The trial court denied the motion to set aside the
verdict and for a new trial. With respect to the jury
instruction, the court first observed that Connecticut
precedent requires that constancy evidence be limited
to the details necessary to associate the victim’s com-
plaint with the pending charge, including the time and
place of the attack and the identity of the perpetrator.
State v. Troupe, 237 Conn. 284, 304, 677 A.2d 917 (1996).
The court then concluded that S’s testimony that the
victim told him the defendant had sexually assaulted
her multiple times when she was five or six years old
and D’s testimony that the victim told her the defendant
had sexually assaulted her did not run afoul of our
precedent and that the jury charge concerning this evi-
dence was proper. With respect to the prosecutor’s
closing argument, the trial court disagreed that the pros-
ecutor’s references to the corroborating evidence con-
stituted prosecutorial impropriety because they ‘‘were
sparse and were a marshaling of the evidence that was
before the jury,’’ and the standard for prosecutorial
behavior requires more egregious conduct than the
prosecutor’s conduct in this case. On appeal, the defen-
dant claims that the trial court improperly instructed
the jury and that this court should abandon or modify
the constancy of accusation doctrine, especially in child
sexual abuse cases. We consider each claim in turn.
I
The defendant first claims that the trial court improp-
erly instructed the jury regarding the correct use of
constancy of accusation evidence, which is admitted
under Troupe only to prove that a complaint was made,
not to prove that the complaint was true. The defendant
specifically claims that the jury instructions were
improper in light of the preexisting susceptibility of
jurors to disregard the subtle distinction between con-
stancy evidence and substantive proof, the court’s use
of dense legal language from an appellate decision, and
the trial court’s failure to define the word ‘‘corroborate.’’
The state responds that it is not reasonably probable
that the trial court’s instructions misled the jury.8 We
agree with the state that the court’s instructions accu-
rately portrayed the law and did not mislead the jury.
‘‘Our review of [a jury instruction] claim requires that
we examine the [trial] court’s entire charge to determine
whether it is reasonably [probable] that the jury could
have been misled . . . . While a request to charge that
is relevant to the issues in a case and that accurately
states the applicable law must be honored, a [trial] court
need not tailor its charge to the precise letter of such
a request. . . . If a requested charge is in substance
given, the [trial] court’s failure to give a charge in exact
conformance with the words of the request will not
constitute a ground for reversal. . . . As long as [the
instructions] are correct in law, adapted to the issues
and sufficient for the guidance of the jury . . . we will
not view the instructions as improper. . . . Addition-
ally, we have noted that [a]n [impropriety] in instruc-
tions in a criminal case is reversible . . . when it is
shown that it is reasonably possible for [improprieties]
of constitutional dimension or reasonably probable for
nonconstitutional [improprieties] that the jury [was]
misled.’’ (Internal quotation marks omitted.) State v.
Baltas, 311 Conn. 786, 808–809, 91 A.3d 384 (2014). Jury
instructions regarding constancy of accusation testi-
mony are nonconstitutional in nature. See, e.g., State
v. Rivera, 145 Conn. App. 344, 351–53, 76 A.3d 197
(trial court’s failure to give limiting instruction as to
constancy of accusation testimony was not matter of
constitutional magnitude), cert. denied, 310 Conn. 962,
83 A.3d 344 (2013); State v. Wild, 43 Conn. App. 458,
467, 684 A.2d 720 (same), cert. denied, 239 Conn. 954,
688 A.2d 326 (1996). ‘‘A challenge to the validity of jury
instructions presents a question of law over which [we
exercise] plenary review.’’ (Internal quotation marks
omitted.) State v. Bonilla, 317 Conn. 758, 770, 120 A.3d
481 (2015).
With respect to the governing legal principles, we
concluded in Troupe that ‘‘a person to whom a sexual
assault victim has reported the assault may testify only
with respect to the fact and timing of the victim’s com-
plaint; any testimony by the witness regarding the
details surrounding the assault must be strictly limited
to those necessary to associate the victim’s complaint
with the pending charge, including, for example, the
time and place of the attack or the identity of the alleged
perpetrator. In all other respects, our current rules
remain in effect. Thus, such evidence is admissible only
to corroborate the victim’s testimony and not for sub-
stantive purposes. Before the evidence may be admit-
ted, therefore, the victim must first have testified con-
cerning the facts of the sexual assault and the identity
of the person or persons to whom the incident was
reported. In determining whether to permit such testi-
mony, the trial court must balance the probative value
of the evidence against any prejudice to the defendant.’’
(Footnote omitted.) State v. Troupe, supra, 237 Conn.
304–305.
The foregoing principle is codified in § 6-11 (c) of
the Connecticut Code of Evidence, which provides: ‘‘A
person to whom a sexual assault victim has reported
the alleged assault may testify that the allegation was
made and when it was made, provided the victim has
testified to the facts of the alleged assault and to the
identity of the person or persons to whom the assault
was reported. Any testimony by the witness about
details of the assault shall be limited to those details
necessary to associate the victim’s allegations with the
pending charge. The testimony of the witness is admissi-
ble only to corroborate the victim’s testimony and not
for substantive purposes.’’ Troupe and § 6-11 (c) of the
Connecticut Code of Evidence, in turn, are the basis
for standard criminal jury instruction 7.2-1; see footnote
6 of this opinion; which the defense urged the trial court
to give to the jury following the court’s rejection of its
original request to charge.
In the present case, even considering the state’s
improper suggestion during rebuttal argument that the
constancy of accusation evidence supported the sub-
stance of the victim’s claim, we conclude it is not rea-
sonably probable that the trial court’s limiting instruc-
tion on constancy evidence misled the jury. The court
closely followed the language of Troupe and the Con-
necticut Code of Evidence when instructing that the
victim’s out-of-court statements to S and D that the
defendant had sexually assaulted her were admissible
only ‘‘for the limited purpose of corroborating what the
[victim] . . . has testified to in court with respect only
to the fact and timing of her complaint, the time and
place of the alleged sexual assaults, and the identity of
the alleged perpetrator.’’ The court also instructed that
the testimony of the constancy witnesses, if found credi-
ble by the jury, could be used to ‘‘corroborate or support
[the victim’s] own testimony. In other words, they are
a factor in your determination as to what weight and
credibility you will give to [the victim’s] testimony as
it pertains to the charges of sexual assault.’’ The court
subsequently added that ‘‘[the victim’s] delay in
reporting the alleged incidents is also something you
may consider in assessing her credibility. You may dis-
cuss that delay, as well as any reason which you may
find for such delay in evaluating her testimony given
in court. You may not deem this evidence of out-of-
court statements by the [victim] that [the defendant]
perpetrated a sexual assault against her as proof of the
truth of what those out-of-court statements asserted.’’
 It is clear from these instructions that the jury was
permitted to use the constancy testimony only to cor-
roborate the fact and timing of the victim’s out-of-court
statements to the two constancy witnesses, as well as
any other information necessary to associate the vic-
tim’s out-of-court statements with the pending charge.
The instructions also made clear that, although the jury
was permitted to consider the constancy evidence in
evaluating the weight and credibility of the victim’s
testimony, including the reasons for her delay in
reporting the abuse to the police, the evidence could
not be used as proof of the substance or truthfulness
of the statements themselves. ‘‘The jury is presumed,
in the absence of a fair indication to the contrary, to
have followed the court’s instructions.’’ State v. Parris,
219 Conn. 283, 294, 592 A.2d 943 (1991). Accordingly,
we conclude that the trial court correctly instructed
the jury regarding the limited purpose for which the
constancy evidence could be considered, thus minimiz-
ing the risk of undue prejudice to the defendant.
We reject the defendant’s contentions that the jury
instructions failed to distinguish between constancy
evidence and substantive proof, incorporated too much
‘‘dense legal language’’ and failed to convey the meaning
of the word ‘‘corroborate.’’ Even if we presume that
juries are susceptible to confusion regarding how to
use constancy evidence, the defendant has not identi-
fied any legal language in the trial court’s instruction
that was not contained in the instruction defense coun-
sel suggested in his own request to charge or in the
standard criminal jury instruction he subsequently
asked the court to adopt.
First, with respect to the distinction between con-
stancy evidence and substantive proof, we reiterate that
the trial court expressly cautioned the jury to use the
constancy testimony ‘‘for the limited purpose of corrob-
orating what the [victim] . . . has testified to in court
with respect only to the fact and timing of her complaint,
the time and place of the alleged sexual assaults, and
the identity of the alleged perpetrator.’’ Shortly there-
after, the court added: ‘‘You may not deem this evidence
of out-of-court statements by the [victim] that [the
defendant] perpetrated a sexual assault against her as
proof of the truth of what those out-of-court statements
asserted.’’ In our view, this instruction was sufficient
to distinguish between constancy evidence and substan-
tive proof.
Second, the defendant’s argument that the instruction
contained too much ‘‘dense legal language’’ is directly
contradicted by defense counsel’s admission following
the charging conference that there were only ‘‘subtle’’
differences between the court’s proposed instruction
and the standard criminal jury instruction. Counsel fur-
ther conceded at trial that the two instructions were
‘‘pretty much the same’’ and that, ‘‘looking at the gestalt
of these two instructions, it’s the subject[ive] feeling
of . . . defense counsel that, because of the placement
of [the] language . . . [the standard criminal jury
instruction is] a little bit less prejudicial . . . .’’
(Emphasis added.) Moreover, the precise ‘‘legal’’ lan-
guage identified by the defendant as particularly confus-
ing is nearly identical to corresponding language in
defense counsel’s requested charge.9 Thus, the trial
court’s charge did not differ substantively from the
defendant’s requested charge. Finally, the defendant’s
contention that New Jersey’s model instruction on fresh
complaint evidence does a ‘‘much better job’’ of
explaining the limited purpose of constancy evidence
in terms jurors can readily understand is irrelevant. See
generally State v. Hill, 121 N.J. 150, 578 A.2d 370 (1990).
Although we agree with the defendant that New Jersey’s
model instruction is more detailed than the trial court’s
instruction in the present case; see Criminal Model Jury
Charges—New Jersey Courts: Fresh Complaint (revised
February 5, 2007), available at http://www.judiciary.sta-
te.nj.us/criminal/charges/non2c011.pdf (last visited
August 1, 2016); the defense did not ask the court to
adopt the New Jersey instruction, and, even if it had,
the trial court’s instruction properly explained the man-
ner in which the jury could use the constancy evidence
under existing Connecticut law.
Third, neither the Connecticut standard criminal jury
instruction nor our precedent suggests or requires that
trial courts define the word ‘‘corroborate’’ in an instruc-
tion on constancy of accusation evidence, and defense
counsel never suggested to the court at any point in
the proceedings that the word should be defined. The
court used the word in the same way it is used in
the standard criminal jury instruction, the Connecticut
Code of Evidence and, even more significantly, in the
defendant’s requested instruction. See footnotes 5 and
6 of this opinion. Accordingly, we conclude that the
trial court’s instruction in the present case did not mis-
lead the jury or cause the defendant undue prejudice.
We suggest, however, that, to ensure clarity in future
cases in which constancy evidence is admitted, § 6-11
(c) of the Connecticut Code of Evidence and the stan-
dard criminal jury instruction on constancy of accusa-
tion evidence should be modified to conform more
closely to the language used in New Jersey’s model
instruction on fresh complaint evidence.10 The New Jer-
sey instruction explains that evidence of a sexual
assault victim’s complaint to other persons is admissi-
ble only for the purpose of negating any inference that,
because there was a delay in reporting the offense, the
offense did not occur, and, therefore, such evidence
may be used only in considering whether the complaint
was made, and not to corroborate the substance of the
complaint or to strengthen the credibility of the victim
with respect to any other issue.11
II
 The defendant next claims that the constancy of accu-
sation doctrine is no longer relevant in Connecticut due
to changed societal views regarding sexual assault and
its effect on victims, and, as a consequence, the doctrine
should be abandoned or modified, especially in child
sexual abuse cases. He specifically contends that, in
the current climate of increased public awareness and
understanding of child sexual abuse, the ‘‘piling on’’ of
multiple constancy witnesses is unnecessary and overly
prejudicial to defendants, and that there are other ways
of ensuring fairness to the victim and introducing proba-
tive evidence. In the alternative, the defendant suggests
that, if the doctrine is not abandoned, it should be
limited to a victim’s first complaint or to the testimony
of the complainant. The state responds that there are
no cogent reasons to abandon or modify the doctrine.
It is certainly possible that, because of increased pub-
lic awareness of the reasons for delayed reporting,
many jurors may no longer harbor biases against victims
who do not make timely reports that they have been
sexually abused. We nonetheless agree with the state
that there is no well developed body of scientific
research suggesting that these long-standing biases
have been entirely eliminated. We thus conclude that
the constancy of accusation doctrine should continue
to be employed in Connecticut to counter implicit juror
bias against victims, including children, who delay in
reporting sexual abuse, but in a modified form intended
to address the potential prejudice to defendants caused
by the testimony of multiple constancy witnesses.
We begin with a brief review of the history and pur-
pose of the constancy of accusation doctrine in Con-
necticut. In Troupe, we explained that the doctrine
‘‘traces its roots to the fresh complaint rule’’; (internal
quotation marks omitted) State v. Troupe, supra, 237
Conn. 294; ‘‘[t]he narrow purpose of [which] . . . was
to negate any inference that because the victim had
failed to tell anyone that she had been [sexually
assaulted], her later assertion of [sexual assault] could
not be believed.’’ (Internal quotation marks omitted.)
Id., 296. We observed that, ‘‘[b]ecause juries were
allowed—sometimes even instructed—to draw nega-
tive inferences from the woman’s failure to complain
after an assault . . . the doctrine of fresh complaint
evolved as a means of counterbalancing these negative
inferences. Used in this way, the fresh complaint doc-
trine allowed the prosecutor to introduce, during the
case-in-chief, evidence that the victim had complained
soon after the [sexual assault]. Its use thereby fore-
stalled the inference that the victim’s silence was incon-
sistent with her present formal complaint of [assault].
. . . In other words, evidence admitted under this doc-
trine effectively served as anticipatory rebuttal, in that
the doctrine often permitted the prosecutor to bolster
the credibility of the victim before her credibility had
first been attacked. . . . The fresh complaint doctrine
thus constituted a rare exception to the common-law
rule that prohibited rehabilitative evidence in the
absence of an attack on the [witness’] credibility.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.
We further explained that, following its adoption by
this court in State v. DeWolf, 8 Conn. 93, 100 (1830),
the fresh complaint doctrine applied for forty-six years
until it was modified in State v. Kinney, 44 Conn. 153
(1876). State v. Troupe, supra, 237 Conn. 297. In Kinney,
the court ‘‘expanded the rule to permit the state to
introduce testimony concerning the details of the com-
plaint,’’ at which time it became known as ‘‘the con-
stancy of accusation doctrine.’’ Id.; see State v. Kinney,
supra, 156–57. We noted that the rule as modified in
Kinney allowed the state ‘‘to introduce the fact of the
complaint and the details of the complaint once the
victim ha[d] testified regarding the alleged sexual
assault and the identity of the person or persons to
whom a complaint had been made’’; State v. Troupe,
supra, 284; and that, ‘‘[s]ubject to a determination by
the trial court’’ that the evidence was ‘‘more probative
than prejudicial, the state [could] introduce the con-
stancy of accusation testimony of each of the persons
to whom the complainant had reported the sexual
assault.’’ Id., 297–98. We added that ‘‘the complaint need
not have been made promptly after the commission of
the alleged offense; any delay in reporting [was] to be
considered by the fact finder in evaluating the weight
of the constancy of accusation testimony.’’ Id., 298. This
rule was applied without modification in sexual assault
cases until it was reexamined 120 years later in Troupe.
See id.
We reiterated in Troupe that, although there was no
support for an assumption that a delay in the reporting
of a sexual assault casts doubt on the victim’s credibil-
ity, such a misconception still was ‘‘not uncommon.’’
Id., 301. We thus continued to acknowledge in Troupe
the need to ‘‘protect against the the unwarranted, but
nonetheless persistent, view that a sexual assault victim
who does not report the crime cannot be trusted to
testify truthfully about the incident’’; id., 303; while also
recognizing that ‘‘a defendant has an interest in not
being unreasonably burdened by such accrediting or
supporting evidence, which . . . generally is not
admissible in the trial of crimes other than sexual
assault.’’ Id., 302. Ultimately, because ‘‘we [were] not yet
willing to reject the constancy of accusation doctrine
completely due to biases still extant in our society’’;
id., 303; we modified the doctrine to allow a constancy
witness to testify ‘‘only with respect to the fact and
timing of the victim’s complaint; any testimony by the
witness regarding the details surrounding the assault
must be strictly limited to those necessary to associate
the victim’s complaint with the pending charge, includ-
ing, for example, the time and place of the attack or
the identity of the alleged perpetrator. In all other
respects, our current rules remain in effect. Thus, such
evidence is admissible only to corroborate the victim’s
testimony and not for substantive purposes. Before the
evidence may be admitted, therefore, the victim must
first have testified concerning the facts of the sexual
assault and the identity of the person or persons to
whom the incident was reported. In determining
whether to permit such testimony, the trial court must
balance the probative value of the evidence against any
prejudice to the defendant.
‘‘In addition, the defendant is entitled to an instruc-
tion that any delay by the victim in reporting the incident
is a matter for the jury to consider in evaluating the
weight of the victim’s testimony.’’ (Footnotes omitted.)
Id., 304–305.
Twenty years have passed since our decision in
Troupe. At that time, we noted that every state but
California allowed the prosecution to introduce evi-
dence in its case-in-chief of a sexual assault victim’s
out-of-court complaint;12 id., 299; with the vast majority
of states limiting such evidence to the fact of the com-
plaint and excluding evidence of its details. See id.,
299–300 n.14. Prior to Troupe, however, Connecticut
was not one of those states but, rather, was one of five
states13 that permitted testimony regarding both the fact
of the complaint and its details. Id., 299–300. Thus, our
decision in Troupe to exclude testimony regarding the
details of a complaint brought Connecticut law in line
with that of most other jurisdictions.
Following Troupe, at least two states fully reexam-
ined their rules on the admission of constancy evidence
in sexual assault cases and reached strikingly different
conclusions.14 Most recently, the Supreme Court of Ver-
mont rejected the fresh complaint doctrine and deter-
mined, without reviewing the limited scientific
literature on juror attitudes toward victims in such
cases, that a victim’s out-of-court complaint is admissi-
ble only under the generally applicable rules of evi-
dence. See State v. Madigan, 122 A.3d 517, 528–30 (Vt.
2015) (rejecting fresh complaint rule as independent
evidentiary doctrine on ground that it has become
largely supplanted by ordinary rules of evidence, includ-
ing rules on admission of prior consistent statements
to rebut charges of recent fabrication, evidence to
establish timing or circumstances of official report,
excited utterances, statements made for purposes of
medical diagnosis or treatment, and out-of-court state-
ments by children under thirteen years of age or who
are putative victims of abuse, neglect, or certain sexual
crimes). The Vermont court based its decision in part
on its view that most jurisdictions no longer recognize
the fresh complaint doctrine; id., 528; which the court
characterized as a ‘‘historic artifact’’; (internal quotation
marks omitted) id., 529; but ‘‘sensibly prefer to apply
the same rules of evidence in [sexual abuse] cases as
in other cases.’’15 Id. Accordingly, the court did not
consider any other independent rule under which to
admit otherwise inadmissible evidence of out-of-court
complaints by sexual assault victims.
In contrast, the Supreme Judicial Court of Massachu-
setts, following an intensive review of the limited scien-
tific literature, determined that ordinary rules of
evidence are insufficient to counter persistent juror
biases against sexual assault victims who delay in
reporting the assault, and, therefore, testimony regard-
ing out-of-court complaints by victims should continue
to be admitted under a special evidentiary rule. See
Commonwealth v. King, 445 Mass. 217, 242–48, 834
N.E.2d 1175 (2005) (replacing state’s existing fresh com-
plaint doctrine with first complaint doctrine and permit-
ting testimony by victim and third party regarding
details of complaint as well as circumstances under
which complaint was made), cert. denied, 546 U.S. 1216,
126 S. Ct. 1433, 164 L. Ed. 2d 136 (2006).16 Significantly,
the Massachusetts court recognized the continued
necessity for a special evidentiary rule in this context
even after acknowledging increased public awareness
of the reasons for delayed reporting by victims of sexual
assault.17 See id., 238–41.
Referring to several studies on the subject, the court
stated: ‘‘[Although] we have located little recent
research on juror perceptions of [sexual assault] com-
plainants, the research and scholarship of which we
are aware suggests that damaging stereotypes persist.
Some jurors may continue to believe incorrectly that
‘real’ victims will promptly disclose a sexual attack.18
Some jurors may continue to harbor prejudicial misper-
ceptions about the nature of [sexual assault] and . . .
allegations [thereof], including that complainants who
wear revealing clothing, consume drugs or alcohol, or
have unorthodox or promiscuous lifestyles cannot be
‘real’ victims of [sexual assault]; that forced sex by a
spouse or a past partner does not constitute ‘real’ [sex-
ual assault]; and that false accusations of sexual assault
are more frequent than those of other violent crimes.19
Juror biases may be particularly strong in child [sexual
abuse] cases, as some may attribute allegations of sex-
ual assault to the child’s imagination or improper adult
influence. And jurors may unfairly perceive child com-
plainants as incredible. . . . Both adults and children
may delay complaining about sexual assaults but then
face claims of fabrication, and the reasons for the
behavior of adult and child victims of sexual assault
are still widely misunderstood. . . .
‘‘While more than a decade has passed since [the
court] last observed that ‘juries tend toward consider-
able and perhaps inordinate skepticism in [sexual
assault] cases’ . . . that observation has continued
vitality. Although many jurors may no longer harbor
stereotypical assumptions concerning the behavior of
‘real’ [sexual assault] victims, others may still harbor
stereotypical assumptions to the effect that victims will
immediately disclose a sexual assault and that the
absence of a timely complaint suggests fabrication of
the assault. There is a continued need in sexual assault
cases to counterbalance or address inaccurate assump-
tions regarding stereotypes about delayed reporting of
a sexual assault or about sexual assault victims in gen-
eral.’’20 (Citations omitted; emphasis omitted; footnotes
altered.) Id., 238–40.
Although little research on the subject appears to
have been published since the decision in King, at least
one recent law review article examining general juror
bias against sexual assault victims has concluded, fol-
lowing a review of the studies cited in King and a
large body of other research, that damaging stereotypes
continue to exist, despite the considerable media atten-
tion that has been devoted in recent years to sexual
assaults and their impact on adult and child victims.
See C. Fraser, ‘‘From ‘Ladies First’ to ‘Asking for It’:
Benevolent Sexism in the Maintenance of Rape Cul-
ture,’’ 103 Cal. L. Rev. 141, 184–87 (2015) (discussing
sexist stereotypes and possibilities for decreasing juror
bias in sexual assault cases). Indeed, that is precisely
why Connecticut courts routinely allow the admission
of expert testimony to describe the behavior patterns
of children who have been sexually abused and the
behaviors customarily displayed by the victims of bat-
tered woman syndrome. See, e.g., State v. Taylor G.,
315 Conn. 734, 761, 110 A.3d 338 (2015) (‘‘[I]n cases
that involve allegations of sexual abuse of children,
we have held that expert testimony of reactions and
behaviors common to victims of sexual abuse is admis-
sible. . . . Such evidence assists a jury in its determina-
tion of the victim’s credibility by explaining the typical
consequences of the trauma of sexual abuse on a child.’’
[Internal quotation marks omitted.]); State v. Borrelli,
227 Conn. 153, 174, 629 A.2d 1105 (1993) (expert testi-
mony is admissible ‘‘to describe the behavior patterns
typically ascribed to battered [woman] syndrome’’).
We thus agree with the court in King and with the
overwhelming majority of other jurisdictions that the
generally applicable rules of evidence are insufficient
to remedy potential juror bias against victims who delay
in reporting a sexual assault. As the court noted in King,
the spontaneous utterance exception to the hearsay
rule allows only for the admission of statements made
during or shortly after the commission of the assault,
and prior inconsistent statements are allowed only to
rebut charges of recent fabrication. See Commonwealth
v. King, supra, 445 Mass. 241; see also Conn. Code Evid.
§ 6-11 (a) and (b) (3) (prior consistent statements);
Conn. Code Evid. § 8-3 (2) (spontaneous utterance hear-
say exception). Connecticut’s ‘‘tender years’’ hearsay
exception is also of limited application, as it pertains
only to certain statements made by victims under thir-
teen years of age regarding physical abuse by a person
who has authority or apparent authority over the child,
such as a parent, or regarding sexual abuse. Conn. Code
Evid. § 8-10 (effective January 1, 2011), in 72 Conn.
L.J., No. 2, pp. 237C through 238C (July 13, 2010). We
therefore continue to believe that victims of sexual
assault who delay in reporting the offense require pro-
tection against presumptive juror bias.21 At the same
time, we conclude that the constancy of accusation
doctrine articulated in Troupe should be further modi-
fied to protect defendants from undue prejudice arising
from the ‘‘enhanced risk that the jury may be unduly
swayed by the repeated iteration of the constancy of
accusation testimony.’’ State v. Troupe, supra, 237
Conn. 303.
Having considered the myriad ways in which other
courts have attempted to balance these competing inter-
ests, we conclude that the victim in a sexual assault
case should continue to be allowed to testify on direct
examination regarding ‘‘the facts of the sexual assault
and the identity of the person or persons to whom
the incident was reported.’’ Id., 304–305. Thereafter, if
defense counsel challenges the victim’s credibility by
inquiring, for example, on cross-examination as to any
out-of-court complaints or delayed reporting, the state
will be permitted to call constancy of accusation wit-
nesses subject to the limitations established in Troupe,
as modified in this opinion. If defense counsel does not
challenge the victim’s credibility in any fashion on these
points, the trial court shall not permit the state to intro-
duce constancy testimony but, rather, shall instruct the
jury that there are many reasons why sexual assault
victims may delay in officially reporting the offense,
and, to the extent the victim delayed in reporting the
offense, the delay should not be considered by the jury
in evaluating the victim’s credibility.
We believe this modification of our present doctrine
achieves a proper balance between the interests of the
state and the defendant. The state will retain the ability
to introduce testimony by the victim regarding out-
of-court complaints to other persons and the victim’s
reasons for the delayed reporting. In addition, the state
will be free to introduce expert testimony regarding the
traumatic effect of sexual assaults on victims generally
and why sexual assault victims often fail to promptly
report the offense. The state also will benefit from the
trial court’s instruction that the jury is not allowed to
consider a delay by the victim in reporting the offense.
Defendants will likewise benefit because they no longer
will be required to defend against testimony by con-
stancy witnesses unless they choose to challenge the
victim’s testimony regarding any out-of-court com-
plaints or delayed reporting. In such cases, we believe
that trial courts, in the exercise of their discretion, will
be able to properly balance the probative value of the
constancy testimony against its prejudicial effect. See
id., 305. These modifications, like the rule articulated
in Troupe, will apply to both adult and child victims of
sexual assault. In keeping with our precedent, however,
they will apply only prospectively to cases in which the
evidentiary portion of the trial has not commenced as
of the date of the release of this decision. Finally,
because our decision is based solely on policy consider-
ations; see id.; there is no reason to order a new trial
when the testimony at issue, as in the present case, has
been properly admitted under our former articulation
of the doctrine. See id., 305–306.
The judgment is affirmed.
In this opinion ROGERS, C. J., and PALMER, EVE-
LEIGH, McDONALD and ROBINSON, Js., concurred.
* In accordance with our policy of protecting the privacy interest of victims
of sexual abuse and the crime of risk of injury to a child, we decline to
identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
1
The defendant appealed from the judgment of the trial court to the
Appellate Court, and we transferred the appeal to this court pursuant to
§ 51-199 (c) and Practice Book § 65-2.
2
The victim testified she had told D in 2007, two years before she told
anyone else, whereas D testified the victim had told her in 2009. In either
case, however, it seems clear that the victim told D before she told anyone
else, including S or the police.
3
Defense counsel made no argument, and the assistant state’s attorney
merely asked the court to give the standard instruction regarding constancy
witnesses in criminal cases. See State v. Troupe, 237 Conn. 284, 304–305,
677 A.2d 917 (1996).
4
The court instructed in relevant part: ‘‘When I mentioned evidence that’s
admitted for a limited purpose, sometimes, a witness will testify to something
that is not going to be fully given weight but is valid for explaining one
piece of the picture. And I will say to you, if you accept this testimony, then
you may find this particular aspect of the case to be proven, but not all
other aspects. It’s only a part of the larger picture; it’s part of the mosaic.
And, so, I’ll let you know when evidence is admitted for a limited purpose,
and you can just keep in mind that it has only that certain value.’’
5
The defendant requested the following instruction, which is reproduced
as submitted: ‘‘EVIDENCE ADMITTED FOR A LIMITED PURPOSE
‘‘You will recall that I have ruled that some testimony and evidence have
been allowed for a limited purpose or for application to one defendant. Any
testimony or evidence which I identified as being limited to a purpose or
a defendant, you will consider only as it relates to the limits for which it
was allowed, and you shall not consider such testimony and evidence in
finding any other facts as to any other issue or defendant.
‘‘A) CONSTANCY OF ACCUSATION EVIDENCE
‘‘The complainant testified here in court before you. You may use her
testimony as evidence and proof of the facts asserted in that testimony and
give it the weight you find is reasonable.
‘‘The state offered evidence of out-of-court statements made by the com-
plainant to other persons that the defendant sexually assaulted her. Those
persons to whom the state alleges that she made such statements are: [the
complainant’s stepsister, D, and her former boyfriend, S]. Under our law,
the testimony of these witnesses was limited in its scope to the fact and
timing of the complainant’s complaint, the time of place of the alleged sexual
assaults and the identity of the alleged perpetrator. Each of these people
testified as to the statements the complainant made to each of them regarding
the defendant sexually assaulting her.
‘‘This evidence is to be considered by you only in determining the weight
and credibility you will give the complainant’s testimony as it pertains to
WHETHER OR NOT THE COMPLAINANT TOLD THE WITNESSES ABOUT
THE ALLEGED sexual assault. This evidence of out-of-court statements by
the complainant of a sexual assault against her by the defendant is not to
be considered by you to prove the truth of the matter asserted in those out-
of-court statements.
 ‘‘In determining whether or not these out-of-court statements corroborate
the complainant’s testimony in court THAT SHE TOLD THESE WITNESSES
OF THE ALLEGED SEXUAL ASSAULTS, you should consider all of the
circumstances under which they were made and to whom and whether the
statements made to these persons were or were not consistent with the
complainant’s testimony in court.
‘‘If you find any delay in her reporting the alleged incidents, you may
consider such delay and any reasons which you may find for such delay in
evaluating her testimony given in court.
‘‘To the extent you find that what she has said outside the courtroom is
consistent with her testimony in court, you may find her testimony in court
to be corroborated or supported ONLY with respect to the fact and timing
THAT SHE MADE A STATEMENT TO OTHERS THAT SHE HAD BEEN
SEXUALLY ASSAULTED. To the extent you find that what she has said
outside the courtroom is inconsistent with her testimony in court REGARD-
ING THE FACT, CONTENT AND TIMING OF HER STATEMENT THAT
SHE HAD BEEN SEXUALLY ASSAULTED, you may consider the degree of
inconsistency which you find, and you may consider the reasons which
you may find for the inconsistency, in evaluating (his/her) testimony given
in court.
‘‘In this case, there has been evidence that the complainant told others
that she had been sexually molested by the defendant. Such evidence is
properly termed ‘constancy of accusation’ evidence and may be considered
by you solely for the purpose of corroborating that the complainant made
the accusation of sexual abuse—and as substantive evidence that the defen-
dant is guilty of sexual assault. This evidence of out-of-court statements by
the complainant of a sexual assault against her by the defendant is not to
be considered by you to prove the truth of the matter asserted in those out-
of-court statements, that is, it may not be considered to be evidence of the
defendant’s guilt.’’
6
Connecticut Criminal Jury Instructions 7.2-1 (revised to May 20, 2011),
available at http://jud.ct.gov/ji/criminal/Part7/7.2-1.htm (last visited August
1, 2016), provides: ‘‘The complainant testified here in court before you. You
may use (his/her) testimony as evidence and proof of the facts asserted in
that testimony and give it the weight you find is reasonable.
‘‘The state offered evidence of out-of-court statements made by the com-
plainant to other persons that the defendant sexually assaulted (him/her).
Those persons to whom the state alleges that (he/she) made such statements
are: . Under our law, the testimony of these wit-
nesses was limited in its scope to the fact and timing of the complainant’s
complaint, the time and place of the alleged sexual assault(s) and the identity
of the alleged perpetrator. Each of these people testified as to the statements
the complainant made to each of them regarding the defendant sexually
assaulting (him/her).
‘‘This evidence is to be considered by you only in determining the weight
and credibility you will give the complainant’s testimony as it pertains to
the charge(s) of sexual assault. This evidence of out-of-court statements by
the complainant of a sexual assault against (him/her) by the defendant is
not to be considered by you to prove the truth of the matter asserted in
those out-of-court statements.
‘‘In determining whether or not these out-of-court statements corroborate
the complainant’s testimony in court, you should consider all of the circum-
stances under which they were made and to whom and whether the state-
ments made to these persons were or were not consistent with the
complainant’s testimony in court.
‘‘If you find any delay in (his/her) reporting the alleged incidents, you
may consider such delay and any reasons which you may find for such
delay in evaluating (his/her) testimony given in court.
‘‘To the extent you find that what (he/she) has said outside the courtroom
is consistent with (his/her) testimony in court, you may find (his/her) testi-
mony in court to be corroborated or supported with respect to the fact and
timing of (his/her) complaint, the time and place of the alleged sexual
assault(s) and the identity of the alleged perpetrator. To the extent you find
that what (he/she) has said outside the courtroom is inconsistent with (his/
her) testimony in court, you may consider the degree of inconsistency which
you find, and you may consider the reasons which you may find for the
inconsistency, in evaluating (his/her) testimony given in court.’’ (Emphasis
omitted; footnote omitted.)
7
The defendant has not challenged Kesselman’s testimony on constancy
grounds, apparently because her testimony regarding what the victim had
told her in the course of being evaluated and treated was admissible for
substantive purposes under the medical treatment exception to the hearsay
rule. See Conn. Code Evid. § 8-3 (5).
8
The state also contends that the defendant’s claim of instructional impro-
priety is unreviewable because defense counsel did not make the arguments
in the trial court that the defendant makes on appeal. We disagree.
Practice Book § 16-20 provides in relevant part: ‘‘An appellate court shall
not be bound to consider error as to the giving of, or the failure to give, an
instruction unless the matter is covered by a written request to charge or
exception has been taken by the party appealing immediately after the
charge is delivered. Counsel taking the exception shall state distinctly the
matter objected to and the ground of objection. . . .’’ ‘‘It is [this court’s]
long-standing position that [t]o review [a] claim, which has been articulated
for the first time on appeal and not before the trial court, would result in
a trial by ambuscade of the trial judge.’’ (Internal quotation marks omitted.)
State v. Darryl W., 303 Conn. 353, 371, 33 A.3d 239 (2012).
In the present case, defense counsel submitted a written request to charge
and, after the trial court rejected it at the charging conference, argued at
trial that the court should use the standard criminal jury instruction on
constancy evidence rather than the court’s proposed instruction because
the proposed instruction failed to clearly explain that the constancy evidence
could not be used to establish the truth or substance of the victim’s com-
plaint. Thereafter, defense counsel did not object to the trial court’s instruc-
tion directly after it was given. Rather, the defense waited until two months
later at the sentencing hearing in a motion to set aside the verdict and for
a new trial, in which the defendant argued that ‘‘the jury was at least confused
by the instruction.’’ At that time, the defendant contended that the instruction
reasonably could be understood as allowing the jury to use the constancy
evidence to corroborate the substance of the victim’s testimony. He also
contended that the court’s use of the word ‘‘corroboration’’ in its instruction
was unclear and sent the wrong message to the jury. Thus, although the
defendant’s argument in support of his posttrial motion was more specific
than defense counsel’s previous objection to the trial court’s proposed
instruction following the charging conference, defense counsel’s prior argu-
ment sufficiently preserved the defendant’s jury instruction claim on appeal
because that claim makes exactly the same underlying point, namely, that
the instruction did not clearly convey to the jury that the constancy of
accusation evidence could not be used to corroborate the truth or substance
of the victim’s complaint. Accordingly, we conclude that the defendant’s
claim of instructional impropriety is reviewable. See, e.g., Neuhaus v.
DeCholnoky, 280 Conn. 190, 216 n.18, 905 A.2d 1135 (2006) (considering
three new arguments in support of plaintiff’s appellate claim that defendant
owed continuing duty to plaintiffs because arguments were made in context
of general claim that defendant was under continuing duty to plaintiffs, which
claim was consistently advanced in trial court and at all stages of appeal).
9
(1) (A) CHARGE GIVEN: ‘‘[S]tatements that are made out of court are
not admissible. Under our law, this type of testimony is an exception only
permitted in cases alleging a sexual assault and only admitted for the limited
purpose of corroborating what the complaining witness . . . has testified
to in court with respect only to the fact and timing of her complaint, the
time and place of the alleged sexual assaults, and the identity of the
alleged perpetrator.’’
(1) (B) REQUESTED CHARGE: ‘‘Under our law, the testimony of these
witnesses was limited in its scope to the fact and time of the complainant’s
complaint, the time and place of the alleged sexual assaults and the identity
of the allege perpetrator.’’
(2) (A) CHARGE GIVEN: ‘‘If you find their testimony credible as to what
[the victim] told them, however, you may only thereupon find that these
statements corroborate or support her own testimony. In other words, they
are a factor in your determination as to what weight and credibility you will
give to [the victim’s] testimony as it pertains to the charges of sexual assault.’’
(2) (B) REQUESTED CHARGE: ‘‘This evidence is to be considered by you
only in determining the weight and credibility you will give the complainant’s
testimony as it pertains to WHETHER OR NOT THE COMPLAINANT TOLD
THE WITNESSES ABOUT THE ALLEGED sexual assault.’’
(3) (A) CHARGE GIVEN: ‘‘You may not deem this evidence of out-of-
court statements by the [victim] that [the defendant] perpetrated a sexual
assault against her as proof of the truth of what those out-of-court state-
ments asserted.’’
(3) (B) REQUESTED CHARGE: ‘‘This evidence of out-of-court statements
by the complainant of a sexual assault against her by the defendant is not
to be considered by you to prove the truth of the matter asserted in those
out-of-court statements . . . .’’
(4) (A) CHARGE GIVEN: ‘‘In determining whether or not these out-of-
court statements corroborate [the victim’s] testimony in court, you should
consider all of the circumstances under which they were made and to whom,
and . . . whether the statements made to those persons were or were not
consistent with [the victim’s] testimony . . . in court.’’
(4) (B) REQUESTED CHARGE: ‘‘In determining whether or not these
out-of-court statements corroborate the complainant’s testimony in court
THAT SHE TOLD THESE WITNESSES OF THE ALLEGED SEXUAL
ASSAULTS, you should consider all of the circumstances under which they
were made and to whom and whether the statements made to these persons
were or were not consistent with the complainant’s testimony in court.’’
10
We note that this court rejected the fresh complaint doctrine in Troupe;
see State v. Troupe, supra, 237 Conn. 298; and we reaffirm our rejection of
that doctrine today. The purpose of fresh complaint evidence and constancy
evidence, however, is the same, namely, to negate any inference that the
victim’s prolonged silence before officially reporting the sexual assault sug-
gests that the assault did not occur. Accordingly, an instruction similar to
the New Jersey instruction, as revised to eliminate all references to fresh
complaint evidence, would be compatible with Connecticut law.
11
The New Jersey jury instruction; Criminal Model Jury Charges—New
Jersey Court: Fresh Complaint, supra; in the following modified form, would
be consistent with Connecticut law on the admission of constancy of accusa-
tion evidence: ‘‘In this case, you heard testimony that, sometime after the
alleged sexual offense, (the complainant) made out-of-court statements to
other persons (names) about what had taken place. More particularly, there
was testimony that (the court should specify the particular testimony to
which the constancy of accusation rule applies).
‘‘The law recognizes that people might assume that anyone subjected to
a sexual offense would complain within a reasonable time to someone to
whom (he/she) ordinarily would turn for sympathy, protection or advice.
If there was no evidence that (the complainant) made such a complaint,
some might conclude that no sexual offense occurred.
‘‘As a result, in cases involving an allegation of a sexual offense, the state
is permitted in certain circumstances to introduce evidence of out-of-court
statements to other persons about what occurred. The only reason that the
evidence is permitted is to negate the inference that (the complainant) failed
to confide in anyone about the sexual offense. In other words, the narrow
purpose of the constancy evidence is to negate any inference that (the
complainant) failed to tell anyone about the sexual offense and, therefore,
that (the complainant’s) later assertion could not be believed.
‘‘Constancy evidence is not evidence that the sexual offense actually
occurred, or that (the complainant) is credible. It merely serves to negate
any inference that, because of (the complainant’s) assumed silence, the
offense did not occur. It does not strengthen (the complainant’s) credibility.
It does not prove the underlying truth of the sexual offense. Constancy
evidence only dispels any negative inference that might be made from (the
complainant’s) assumed silence.
‘‘In determining whether a complaint was in fact made, you may consider
all the relevant factors in evidence. These include (the complainant’s) age,
demeanor, background, and relationship with both the defendant and the
person(s) to whom the complaint was made. You may also consider the
timeliness of the complaint, the context in which the complaint was made,
any circumstances that would explain the delay in making the complaint
and whether the complaint was volunteered or the result of an interrogation.
It is up to you to determine what the facts are with regard to the circum-
stances of the complaint and what weight to give to these facts in determining
whether a complaint was made.
‘‘As I have indicated earlier, this testimony was for a limited purpose.
The making of a complaint is not an element of the offense. Proof that a
complaint was made is neither proof that the sexual offense occurred nor
proof that (the complainant) was truthful. It merely dispels any negative
inference that might arise from (the complainant’s) assumed silence. It
eliminates any negative inference that (the complainant’s) claims of having
been sexually assaulted are false because of (the complainant’s) assumed
failure to have confided in anyone about the sexual offense.’’
12
Troupe identified California as the only state that did not allow such
evidence under People v. Brown, 8 Cal. 4th 746, 883 P.2d 949, 35 Cal. Rptr.
2d 407 (1994). State v. Troupe, supra, 237 Conn. 299 n.13. Although the
California Supreme Court rejected the fresh complaint rule in Brown, it did
not reject evidence of a victim’s complaint to a third party prior to making
an official report. See People v. Brown, supra, 749–50. The court explained
as follows: ‘‘Upon reexamining its theoretical underpinnings, [the court]
conclude[s] that the [fresh complaint] doctrine, as traditionally defined, no
longer provides a sound basis for the admission of evidence of extrajudicial
statements made by the victim of a sexual offense in reporting the
alleged crime.
‘‘At the same time, however, [the court] conclude[s] that—setting aside
the outdated notions [on] which the doctrine traditionally has rested—the
limited, nonhearsay evidence that in the past has been admitted under
the [fresh complaint] doctrine nonetheless is, in most instances, properly
admissible at trial under generally applicable evidentiary standards.
‘‘Accordingly, [the court] conclude[s] that the formulation and parameters
of the [fresh complaint] doctrine . . . should be revised to reflect a more
accurate understanding of the proper basis for the admission of such evi-
dence. . . . [U]nder principles generally applicable to the determination of
evidentiary relevance and admissibility, proof of an extrajudicial complaint,
made by the victim of a sexual offense, disclosing the alleged assault, may
be admissible for a limited, nonhearsay purpose—namely, to establish the
fact of, and the circumstances surrounding, the victim’s disclosure of the
assault to others—whenever the fact that the disclosure was made and the
circumstances under which it was made are relevant to the trier of fact’s
determination as to whether the offense occurred. Under such generally
applicable evidentiary rules, the timing of a complaint (e.g., whether it
was made promptly after the incident or, rather, at a later date) and the
circumstances under which it was made (e.g., whether it was volunteered
spontaneously or, instead, was made only in response to the inquiry of
another person) are not necessarily determinative of the admissibility of
evidence of the complaint. Thus, the ‘freshness’ of a complaint, and the
‘volunteered’ nature of the complaint, should not be viewed as essential
prerequisites to the admissibility of such evidence.’’ (Emphasis omitted.) Id.
13
Troupe identified the other four states as Hawaii, Massachusetts, Minne-
sota and Ohio. See State v. Troupe, supra, 237 Conn. 300 n.15.
14
We note that, in State v. Samuels, 273 Conn. 541, 871 A.2d 1005 (2005),
this court modified the constancy of accusation doctrine by precluding the
admission of any out-of-court complaint made by the victim following an
official complaint to the police. See id., 551–52 (‘‘[o]nce a sexual assault
victim has reported the crime to the police . . . corroborative testimony
by constancy witnesses that is based on postcomplaint conversations with
the victim, even if relevant, no longer serves the purpose of countering a
negative inference as to the victim’s credibility because it is the inconsistency
between the victim’s silence following the assault and her subsequent com-
plaint to the police that gives rise to such an inference’’). The court, however,
did not reconsider the continuing validity of the underlying doctrine in that
case, as we do today.
15
The Vermont court’s view that most other courts apply ordinary rules
of evidence in sexual assault cases reflects a misunderstanding of the law,
perhaps because the court did not consider that most jurisdictions that have
rejected the fresh complaint doctrine, as this court did in Troupe, allow the
admission of testimony regarding out-of-court complaints by victims of
sexual assault as nonhearsay evidence under other theories.
16
Massachusetts was not the first state to adopt the first complaint doc-
trine. See State v. Krieger, 803 A.2d 1026, 1031 (Me. 2002) (discussing
application of first complaint rule in Maine, under which, unlike in Massachu-
setts, ‘‘[n]either the details of the complaint . . . nor the identity of the
perpetrator . . . [is] admissible’’); see also State v. Calor, 585 A.2d 1385,
1387 (Me. 1991) (noting that details of complaint are not admissible
under doctrine).
17
In Commonwealth v. Aviles, 461 Mass. 60, 71–73, 958 N.E.2d 37 (2011),
the Supreme Judicial Court of Massachusetts reaffirmed the continuing
vitality of the first complaint doctrine but changed the standard employed
to review a trial court’s determination regarding the admissibility of evidence
pursuant to that doctrine. In observing that the first complaint evidence at
issue was also admissible under other rules of evidence; see id., 75–76; the
court explained that, because it had become apparent that trial courts needed
greater flexibility in dealing with the multiplicity of factual scenarios that
arise in the context of first complaint evidence, the rule sometimes broke
down when courts were presented with factual circumstances that were
not anticipated when the rule was established. Id., 72–73. The court thus
concluded that the doctrine should not be viewed as an evidentiary rule but
as ‘‘a body of governing principles to guide a trial judge on the admissibility of
first complaint evidence. . . . The judge who is evaluating the facts of a
particular case is in the best position to determine the scope of admissible
evidence, keeping in mind the underlying goals of the first complaint doc-
trine, [the court’s] established first complaint jurisprudence, and [its] guide-
lines for admitting or excluding relevant evidence.’’ (Citation omitted.) Id.,
73. The court then determined that, instead of deeming the admission of
evidence in violation of the rule always erroneous and subject to a determina-
tion on appeal of whether the error was prejudicial when a defendant objects
to the admission of the evidence, or whether the error created a substantial
risk of a miscarriage of justice when a defendant does not object, the trial
court’s admission of first complaint evidence should be reviewed under an
abuse of discretion standard. Id., 72–73.
18
‘‘See, e.g., [I. Seidman & S. Vickers, ‘The Second Wave: An Agenda for
the Next Thirty Years of Rape Law Reform,’ 38 Suffolk U. L. Rev. 467, 469
(2005) (‘[j]urors still expect evidence of fresh complaints by victims with
accompanying hysteria and torn clothes’)]; [A.] Taslitz, Rape and the Culture
of the Courtroom [(1999) pp. 19–25] (discussing culture of silence that
results in expectation that ‘real’ [sexual assault] victims will speak ‘promptly
and loudly’); [K.] Stanchi, [‘The Paradox of the Fresh Complaint Rule,’ 37
B.C. L. Rev. 441, 458–64 (1996)] (explaining perseverance of so-called ‘timing
myth’ that victims who do not promptly report [sexual assault] are lying
about assault in face of empirical data establishing that victims often do
not report sexual assaults for variety of reasons).’’ Commonwealth v. King,
supra, 445 Mass. 238–39 n.19.
19
‘‘See, e.g., [I. Seidman & S. Vickers, ‘The Second Wave: An Agenda for
the Next Thirty Years of Rape Law Reform,’ 38 Suffolk U. L. Rev. 467,
468–69 (2005)] (expressing view that ‘vast majority of people—including
law enforcement personnel, judges and potential jurors—remain conflicted
about what constitutes ‘‘consensual’’ sex [and thus victims] continue to
encounter the same hurdles that they did thirty years ago’); [M. Anderson,
‘The Legacy of the Prompt Complaint Requirement, Corroboration Require-
ment, and Cautionary Instructions on Campus Sexual Assault,’ 84 B.U. L.
Rev. 945, 1007–10 (2004)] (discussing popular misconceptions about nature
of sexual assault [on] college campuses, including that [sexual assault] is
committed by strangers and that alcohol consumption is linked with sexual
availability and tends to shift blame to victim); [M. Anderson, ‘From Chastity
Requirement to Sexuality License: Sexual Consent and a New Rape Shield
Law,’ 70 Geo. Wash. L. Rev. 51, 104–108, 129–30 (2002)] (summarizing
research over past two decades suggesting that jurors are biased against
complainants with prior history of sexual promiscuity, who frequent bars
or parties with alcohol, and who have had prior sexual relationship with
defendant); [D.] Koski, [‘Jury Decisionmaking in Rape Trials: A Review &
Empirical Assessment,’ 38 Crim. L. Bull. 21, 119–36] (2002) (empirical
research on juries’ decision-making behavior in rape cases revealed jurors
‘may rely on rape ‘‘scripts’’ which they bring with them into the jury room’ and
‘jury room [is] a complex context in which legal mandates [jury instructions]
interact very explicitly with commonsense understandings of the world’);
[A.] Taslitz, Rape and the Culture of the Courtroom [(1999) pp.] 38–40 (citing
recent data on . . . [college] students revealing significant numbers agree
‘women frequently cry rape falsely [and] that [sexual assault] is often pro-
voked by the victim’; noting factors such as victim’s appearance, alcohol
consumption, sexual promiscuity, and careless behaviors contribute to per-
ceived blameworthiness; [and] concluding juries harbor persistent rape
mythologies); [L. Olsen-Fulero & S. Fulero, ‘Commonsense Rape Judgments:
An Empathy-Complexity Theory of Rape Juror Story Making,’ 3 Psychol.
Pub. Policy & L. 402, 418] (1997) (reviewing twenty-five years of research
and empirical studies regarding juror decision-making in [sexual assault]
cases, and concluding that ‘[their] work and [the] recent work of others
have supported the notion that jurors come to the rape judgment situation
with preconceptions and attitudes that lead them to entertain particular
stories about what may have happened . . . and that these stories are then
used to arrive at a legal decision or verdict’); [D. Bryden & S. Lengnick,
‘Rape in the Criminal Justice System,’ 87 J. Crim. L. & Criminology 1194,
1272 (1997)] (reviewing decades of research on [sexual assault] prosecutions
and concluding most research supports ‘finding that acquaintance cases,
especially those with nontraditional victims, are more difficult for the prose-
cution than stranger cases’). [Contra Office for Victims of Crime, Office of
Justice Programs, United States Department of Justice, First Response to
Victims of Crime (2001) p. 10] (‘[f]alse accusations of sexual assault are
estimated to occur at the low rate of 2 percent—similar to the rate of false
accusations for other violent crimes’).’’ Commonwealth v. King, supra, 445
Mass. 239–40 n.20.
20
We cite these studies, which do not appear to have been tested by the
adversarial method or addressed by experts in the Massachusetts court, not
to suggest that they are correct but, rather, to suggest that we have found
no studies indicating that juror bias has been eliminated.
21
The authors of Tait’s Handbook of Connecticut Evidence argue that
this court should reject constancy testimony entirely, at least in child sexual
abuse cases, because such evidence has been rejected in Connecticut for
all other types of crimes, has a high potential for prejudice to the accused,
was originally intended to benefit adult victims of sexual assault, and con-
sumes an inordinate amount of judicial attention. C. Tait & E. Prescott,
Tait’s Handbook of Connecticut Evidence (5th Ed. 2014) § 6.37.6, pp. 434–35;
see id., § 6.37.4 (a), p. 431. Referring to ‘‘dissipating societal views of [sexual
assault]’’; id., § 6.37.6, p. 434; and ‘‘fading societal attitudes as to [a sexual
assault victim’s] credibility’’; id., p. 435; the authors contend that any lingering
prejudices of jurors in sexual assault cases may be adequately addressed
by a ‘‘vigorous and individualized voir dire’’ and in closing argument. Id.,
p. 434. The authors, however, fail to cite any research documenting the
purported change in societal attitudes regarding the credibility of sexual
assault victims who delay in reporting the offense.