***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. MANUEL T.*
(SC 20250)
Robinson, C. J., and McDonald, D’Auria, Mullins, Kahn and Ecker, Js.
Syllabus
Convicted of risk of injury to a child, sexual assault in the first degree,
sexual assault in the second degree, and sexual assault in the fourth
degree in connection with his alleged sexual abuse of the victim, J, the
defendant appealed to the Appellate Court, claiming that the trial court’s
admission of a video recording of a forensic interview of J and exclusion
of screenshots depicting two text messages purportedly sent by J to
the defendant’s niece, V, constituted harmful error. The Appellate Court
upheld the defendant’s conviction, concluding that neither evidentiary
ruling was an abuse of the trial court’s discretion. The Appellate Court
specifically concluded that the statements that J made during the inter-
view were admissible under the medical treatment exception to the
hearsay rule and that V’s testimony was insufficient to authenticate the
text messages and that there was not sufficient additional corroboration
of V’s testimony. On the granting of certification, the defendant appealed
to this court. Held:
1. This court rejected the defendant’s claim that it should overrule prior
Appellate Court precedent and adopt a standard under which statements
made by a minor child abuse victim during a forensic interview can be
admitted under the medical treatment exception to the hearsay rule
only if the victim’s primary purpose in making those statements was to
obtain a medical diagnosis or treatment.
2. The Appellate Court incorrectly determined that the trial court had not
abused its discretion in excluding, for lack of authentication, the screens-
hots of the text messages purportedly sent by J to V: the defendant
established a prima facie case of authentication through V’s testimony,
and any doubts as to V’s credibility or as to the source of the messages
went to the weight, rather than to the admissibility, of the text messages;
moreover, the exclusion of the text messages was not harmless because
the state’s case was not particularly strong insofar as there was no
physical evidence or contemporaneous observations of the alleged sex-
ual abuse, the only evidence of the abuse came from J’s delayed disclo-
sure, and the testimony of J’s younger sister called J’s veracity and
motives into question; furthermore, the text messages, if deemed authen-
tic by the jury, could have been used to impeach one of J’s statements
during her interview and could have been viewed by jurors as evidence
of J’s motivation to fabricate her allegations against the defendant;
accordingly, the case was remanded for a new trial.
Argued June 3—officially released November 19, 2020**
Procedural History
Substitute information charging the defendant with
four counts of the crime of risk of injury to a child,
three counts of the crime of sexual assault in the first
degree, and two counts of the crime of sexual assault
in the second degree, and with one count each of the
crimes of sexual assault in the fourth degree and tam-
pering with a witness, brought to the Superior Court
in the judicial district of Hartford and tried to the jury
before Bentivegna, J.; verdict and judgment of guilty
of four counts of risk of injury to a child, three counts
of sexual assault in the first degree, two counts of sexual
assault in the second degree, and one count of sexual
assault in the fourth degree, from which the defendant
appealed to this court; thereafter, the case was trans-
ferred to the Appellate Court, Alvord, Bright and Bear,
Js., which affirmed the trial court’s judgment, and the
defendant, on the granting of certification, appealed to
this court. Reversed; new trial.
Trent A. LaLima, with whom, on the brief, was
Hubert J. Santos, for the appellant (defendant).
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Elizabeth Tanaka, former assistant state’s
attorney, for the appellee (state).
Jennifer B. Smith filed a brief for the Connecticut
Criminal Defense Lawyers Association as amicus curiae.
Opinion
ROBINSON, C. J. Following a jury trial, the defendant,
Manuel T., was convicted of six counts of sexual assault
and four counts of risk of injury to a child arising from
the sexual abuse of his girlfriend’s daughter, J.1 The
defendant now appeals, upon our grant of his petition
for certification,2 from the judgment of the Appellate
Court affirming the judgment of conviction. See State
v. Manuel T., 186 Conn. App. 51, 53, 198 A.3d 648 (2018).
On appeal, the defendant claims that the Appellate
Court improperly upheld (1) the admission into evi-
dence of a video recording of a forensic interview of J by
a nonmedical professional under the medical diagnosis
and treatment exception to the hearsay rule, § 8-3 (5)
of the Connecticut Code of Evidence, because medical
care was not the ‘‘primary purpose’’ of the interview,
and (2) the exclusion of screenshot photographs of text
messages purportedly sent by J to the defendant’s niece
on the ground that they had not been sufficiently
authenticated. We disagree with the defendant’s claim
that a primary purpose standard applies to the medical
treatment exception. We agree, however, that the
Appellate Court incorrectly concluded that the trial
court had properly excluded the text messages, and we
further conclude that this evidentiary error requires a
new trial. Accordingly, we reverse the judgment of the
Appellate Court.
The record reveals the following undisputed facts
and procedural history. During all relevant times, J lived
with the defendant, whom she considered her stepfa-
ther,3 her mother, her younger sister, and her younger
brother. J’s biological father was mostly absent from
her life, in part due to periods of incarceration.
On March 28, 2014, when J was seventeen years old,
she reported to her boyfriend, and then her family, and
then the police, that the defendant had sexually abused
her over the course of many years. In accordance with
police protocol, J was referred to the Greater Hartford
Children’s Advocacy Center (advocacy center) at Saint
Francis Hospital and Medical Center for a forensic inter-
view.4 On April 1, 2014, J participated in that interview,
which was conducted by Lisa Murphy-Cipolla, the clini-
cal services coordinator at the advocacy center.
Although Murphy-Cipolla interviewed J alone, their con-
versation was observed through a one-way mirror by
Claire Hearn, a police detective, and Audrey Courtney,
a pediatric nurse practitioner. Consistent with the stan-
dard practice of the advocacy center, the interview was
video recorded.
During the interview, J reported that the defendant
had sexually abused her over an approximate seven
year period, after school and while her mother was at
work. She told Murphy-Cipolla that, starting when she
was eight or nine years old, the defendant had, on
numerous occasions, touched her inappropriately
underneath her clothes. J also disclosed that, when she
turned fifteen years old, the defendant had forced her
to have vaginal and anal intercourse with him. The
defendant subsequently was arrested and charged with
six counts of sexual assault and four counts of risk of
injury to a child. See footnote 1 of this opinion.
The trial court held a pretrial hearing to determine
whether the video recording of the forensic interview
would be admissible at trial. As an offer of proof, the
state presented the testimony of Murphy-Cipolla and
played a partially redacted version5 of the video
recording. Murphy-Cipolla testified regarding her back-
ground, the purposes and process of conducting such
interviews, and the circumstances of her interview of
J. The state argued that the video recording was admis-
sible pursuant to the medical diagnosis and treatment
exception to the hearsay rule. See Conn. Code Evid.
§ 8-3 (5). It noted that, if necessary, it could establish
through Hearn’s testimony that J had been referred for
a medical evaluation after the interview. The defendant
objected to the admission of the video recording,
arguing that, except for a couple of J’s statements, the
interview statements did not satisfy the medical treat-
ment hearsay exception because J was not seeking med-
ical diagnosis or treatment in the interview and her
statements were not made to a medical professional.
At the conclusion of the hearing, the court rendered
an oral decision overruling the defendant’s objection.
The court concluded that the statements in the inter-
view satisfied the standard for admission under the
medical diagnosis and treatment exception, as recently
interpreted by the Appellate Court in State v. Griswold,
160 Conn. App. 528, 127 A.3d 189, cert. denied, 320
Conn. 907, 128 A.3d 952 (2015). That standard required
that the purpose of the interview was ‘‘in part’’ to deter-
mine whether J needed medical treatment and that her
statements were ‘‘reasonably pertinent’’ to achieving
that end. See id., 552–53.
Thereafter, the defendant’s case proceeded to a jury
trial. The state presented J to testify about the abuse
and then, over the defendant’s renewed objection, also
presented the video recording of the forensic interview.
The defendant’s theory of the case was that J had
fabricated the allegations of abuse. In support of this
theory, the defendant sought to introduce two cell
phone screenshots depicting text messages purportedly
sent by J to V, the defendant’s niece, a couple of months
before J reported the abuse. On cross-examination, J
denied sending any text messages to V.
The court held a hearing outside the presence of the
jury to determine the admissibility of the screenshots.
As an offer of proof, the defendant conducted a direct
examination of V and produced both screenshots. At
the conclusion of the hearing, the court issued an oral
decision concluding that the screenshots had not been
sufficiently authenticated to be admitted into evidence.
The jury subsequently found the defendant guilty on
six counts of sexual assault and four counts of risk of
injury to a child. See footnote 1 of this opinion. The
court rendered judgment in accordance with the jury’s
verdict and imposed a total effective sentence of forty
years incarceration, execution suspended after thirty
years, and thirty-five years probation and lifetime sex
offender registration.
The defendant appealed from the judgment of convic-
tion to the Appellate Court, contending that the admis-
sion into evidence of the forensic interview and the
exclusion of the text messages were harmful error.6
See State v. Manuel T., supra, 186 Conn. App. 53. The
Appellate Court concluded that neither ruling was an
abuse of the trial court’s discretion. Id., 64–65, 72. With
regard to the interview, the Appellate Court cited the
standard it had articulated in State v. Griswold, supra,
160 Conn. App. 552–57, and other cases, under which
‘‘[s]tatements may be reasonably pertinent . . . to
obtaining medical diagnosis or treatment even when
that was not the primary purpose of the inquiry that
prompted them, or the principal motivation behind
their expression. . . . Although [t]he medical treat-
ment exception to the hearsay rule requires that the
statements be both pertinent to treatment and moti-
vated by a desire for treatment . . . in cases involving
juveniles, [we] have permitted this requirement to be
satisfied inferentially.’’ (Emphasis altered; internal quo-
tation marks omitted.) State v. Manuel T., supra, 61.
Applying these principles to the present case, the Appel-
late Court concluded that the trial court had not abused
its discretion in admitting the recording of the interview
‘‘because it reasonably can be inferred from the circum-
stances apparent to [J] that she understood the inter-
view had a medical purpose.’’ Id., 63.
With regard to the screenshots of the text messages,
the Appellate Court concluded that the trial court had
not abused its discretion in excluding them. Id., 65.
The Appellate Court determined that V’s testimony was
insufficient authentication and that there was not suffi-
cient additional corroboration for her testimony. Id.,
70–72. Accordingly, the Appellate Court affirmed the
judgment of conviction. Id., 72. This certified appeal
followed. See footnote 2 of this opinion. Additional facts
and procedural history will be set forth as necessary.
On appeal, the defendant contends that the Appellate
Court incorrectly concluded that the trial court did not
abuse its discretion in admitting the video recorded
interview and excluding the text messages. The defen-
dant contends that both rulings rested on the applica-
tion of improper standards, to the prejudice of the
defendant, requiring a new trial. We agree with the
defendant’s claim with regard to the text messages and
conclude that the trial court’s exclusion of this evidence
was harmful error.
I
We begin with the defendant’s challenge to the admis-
sion of the recording of the forensic interview. The
defendant, supported by the amicus curiae, the Con-
necticut Criminal Defense Lawyers Association, asks
this court to adopt a standard under which a minor
victim’s statements in this type of interview are admissi-
ble under the medical treatment exception to the hear-
say rule, § 8-3 (5) of the Connecticut Code of Evidence,
only if the ‘‘primary purpose’’ in making and eliciting
those statements is to obtain and/or provide such treat-
ment. The defendant contends that, because a primary
purpose standard applies to the admission of such inter-
views under the tender years exception to the hearsay
rule; see Conn. Code Evid. § 8-10; it is both logical and
sound policy to apply the same standard to the medical
treatment exception. Specifically, the defendant argues
that this court previously indicated that the two excep-
tions would yield the same result in State v. Maguire,
310 Conn. 535, 78 A.3d 828 (2013), and, therefore, the
same standard should control. The defendant also
asserts that the rationale for the medical treatment
exception—that such statements are reliable because
a person has a strong motivation to be truthful when
her health and well-being are at stake—does not apply
to an interview involving the police and lacking the
confidentiality of the physician-patient relationship.
The defendant acknowledges that the Appellate Court
squarely rejected this argument in State v. Griswold,
supra, 160 Conn. App. 550, but asks this court to over-
rule Griswold.7 We are not persuaded that it is necessary
or appropriate to limit the medical treatment hearsay
exception to statements made for the ‘‘primary’’ pur-
pose of obtaining such treatment.8
A
The record reveals the following additional relevant
facts. The forensic interview at issue in this case was
conducted in accordance with a statutorily prescribed,
multidisciplinary team approach.9 See General Statutes
§ 17a-106a. Murphy-Cipolla, who conducted the inter-
view, is not a medical professional; her professional
training is in counseling and family therapy. At the com-
mencement of the interview, she identified herself to
J as ‘‘Lisa,’’ ‘‘one of the interviewers’’ at the ‘‘Children’s
Center . . . .’’ Although the interview was observed
remotely by a police officer and a pediatric nurse prac-
titioner, Murphy-Cipolla informed J only that ‘‘a couple
of ladies . . . I work with’’ could see them through a
one-way mirror in the room. Murphy-Cipolla also
informed J that the interview was being recorded,
explaining that this procedure would avoid J having to
repeat her account. Murphy-Cipolla took some back-
ground information and then asked J what she had
come to talk about, to which J replied: ‘‘My stepdad
. . . molested me when I was [eight years old] until
last year, and I just never said anything, and I just said
something [four days ago].’’ J thereafter described the
defendant’s sexual abuse. Murphy-Cipolla pressed for
details when J’s account regarding the abuse was vague
and inquired about certain matters that J did not offer,
which prompted J to disclose, among other things, the
location where particular incidents took place, whether
anyone else was present in the house when these inci-
dents occurred, and which brand of condom the defen-
dant had used. J mentioned experiencing physical pain
during the incidents of anal intercourse, expressed con-
cern that she could have contracted a sexually transmit-
ted disease, and explained how the abuse and her
reporting of it had affected her state of mind. Following
the interview, J was offered a medical examination,10
which she declined, she was given a pregnancy test and
a test for sexually transmitted diseases, both of which
were negative, and she was referred for counseling.
B
Section 8-3 of the Connecticut Code of Evidence pro-
vides in relevant part: ‘‘The following are not excluded
by the hearsay rule, even though the declarant is avail-
able as a witness . . . (5) A statement made for pur-
poses of obtaining a medical diagnosis or treatment
and describing medical history, or past or present symp-
toms, pain, or sensations, or the inception or general
character of the cause or external source thereof, inso-
far as reasonably pertinent to the medical diagnosis or
treatment. . . .’’ This rule sets forth, in effect, a two-
pronged test. The first addresses the declarant’s pur-
pose or motivation in the making of the statement, and
the second addresses the pertinence of the statement
to that end.11 See State v. Dollinger, 20 Conn. App. 530,
535, 568 A.2d 1058 (‘‘[t]he medical treatment exception
to the hearsay rule requires that the statements be both
pertinent to treatment and motivated by a desire for
treatment’’ (emphasis added)), cert. denied, 215 Conn.
805, 574 A.2d 220 (1990).
We emphasize at the outset that, although at oral
argument before this court, the defendant’s appellate
counsel pointed to a few statements in the interview
that he contends have no relevance to medical treat-
ment (e.g., reporting the brand of condoms used by the
defendant) and conceded that a few others would be
pertinent to such treatment, the defendant’s certified
appeal does not challenge the admission of particular
statements for lack of pertinence to medical treatment.
The defendant’s claim on appeal is that the entire inter-
view should have been excluded under the purpose
prong because we should construe this hearsay excep-
tion to require that the interview’s primary purpose was
to obtain and/or provide medical treatment or diagno-
sis.
Our analysis begins with the observation that,
although many other jurisdictions have adopted a simi-
larly phrased two-pronged medical treatment hearsay
exception; see, e.g., Fed. R. Evid. 803 (4); Ind. R. Evid.
803 (4); Ky. R. Evid. 803 (4); Mich. R. Evid. 803 (4);
N.M. R. Evid. 11-803 (4); N.C. R. Evid. 803 (4); Ohio R.
Evid. 803 (4); neither the defendant nor the amicus has
identified a single jurisdiction that has applied a primary
medical purpose standard to this exception generally
or to its application in this type of interview of minor
victims specifically.12 Our independent research has
revealed none.
One sister state jurisdiction has provided cogent rea-
sons for rejecting the application of a primary purpose
standard in a case that, like this one, involved a chal-
lenge to the admissibility of an interview of a minor
sexual assault victim. The New Mexico Supreme Court
first recognized that ‘‘[t]he ‘primary purpose of the
encounter’ approach . . . is derived from the United
States Supreme Court’s [c]onfrontation [c]lause juris-
prudence.’’ State v. Mendez, 148 N.M. 761, 769, 242 P.3d
328 (2010). Under Crawford v. Washington, 541 U.S.
36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the
hearsay statements of an unavailable witness that are
‘‘testimonial’’ in nature may be admitted under the sixth
amendment’s confrontation clause only if the defendant
has had a prior opportunity to cross-examine the declar-
ant. ‘‘Statements are nontestimonial when made in the
course of police interrogation under circumstances
objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an
ongoing emergency. They are testimonial when the cir-
cumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of
the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.’’
(Emphasis added.) Davis v. Washington, 547 U.S. 813,
822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).
The New Mexico Supreme Court then explained:
‘‘The hearsay rule and the [c]onfrontation [c]lause are
not [coextensive] and must remain distinct. The hearsay
rule is intended to ensure that the jury is not exposed
to unreliable evidence, even when the declarant testifies
at trial and is subject to [cross-examination]. The [c]on-
frontation [c]lause guarantees the accused in a criminal
trial the right to be confronted with the witnesses
against him, regardless of how trustworthy the out-of-
court statement may appear to be. [See U.S. Const.,
amend. VI.] More important for present purposes, the
unique dangers each seeks to avoid can be implicated
under quite distinct circumstances. As the United States
Supreme Court explained in Crawford, not all hearsay
implicates the [s]ixth [a]mendment’s core concerns. An
off-hand, overheard remark might be unreliable evi-
dence and thus a good candidate for exclusion under
hearsay rules, but it bears little resemblance to the [civil
law] abuses the [c]onfrontation [c]lause targeted. On
the other hand, ex parte examinations might sometimes
be admissible under modern hearsay rules, but the
[f]ramers certainly would not have condoned them.’’
(Internal quotation marks omitted.) State v. Mendez,
supra, 148 N.M. 769.
‘‘In Crawford, the United States Supreme Court listed
several examples of the core class of testimonial state-
ments which trigger [c]onfrontation [c]lause concerns
. . . .’’ (Internal quotation marks omitted.) Id. ‘‘What
these examples have in common is that they lend them-
selves to an analysis that focuses largely on surrounding
circumstances to separate testimonial from [nontesti-
monial] statements.
‘‘For example, once an individual prepares an affida-
vit, the reliability of any single statement is largely irrel-
evant for constitutional purposes because it will all be
testimonial and inadmissible under the [s]ixth [a]mend-
ment without a prior opportunity for cross-examina-
tion. The act of preparing an affidavit evinces the pre-
parer’s awareness that each statement could be used
at trial.’’ (Footnote omitted.) Id., 770.
‘‘Unlike the [c]onfrontation [c]lause context, in which
the surrounding circumstances determine whether the
declarant is bearing testimony, the medical or nonmedi-
cal purpose of a statement cannot be determined with-
out closely examining the substance of the statement.
Surrounding circumstances are certainly relevant, but
the focus must center on the individual statement.’’
(Emphasis in original; internal quotation marks omit-
ted.) Id.
‘‘The diversion created by [applying a primary medi-
cal purpose test to the medical treatment hearsay
exception] is that it directs courts to determine the
purpose of the encounter, instead of considering the
substance of, and circumstances surrounding, indi-
vidual statements. This approach is irreconcilable with
previous hearsay opinions in which . . . courts have
focused on particular statements, determining in each
instance the purpose for which the statement was
made.’’ (Emphasis added.) Id., 772.
We agree with the reasoning of the New Mexico
Supreme Court in Mendez. We disagree with the defen-
dant’s argument that our decision in State v. Maguire,
supra, 310 Conn. 535, dictates otherwise. In Maguire,
this court considered whether the trial court properly
admitted the child sexual abuse victim’s statements
adduced in a forensic interview under the tender years
exception to the hearsay rule without making certain
findings mandated by law, including that the interview
had not been conducted ‘‘in preparation of a legal pro-
ceeding.’’ Id., 563, citing General Statutes § 54-86l (a)
and Conn. Code Evid. (2009) § 8-10 (a).13 We rejected
the state’s contention that this court had previously
determined that forensic interviews like the one at issue
were admissible as a matter of law and, thus, that such
a finding was unnecessary. State v. Maguire, supra,
563–64. We noted that the tender years hearsay excep-
tion must be applied ‘‘consistently with the sixth amend-
ment bar against testimonial hearsay, as explained in
Crawford [v. Washington, supra, 541 U.S. 68–69]. . . .
The prohibition of the tender years exception against
statements made in preparation of a legal proceeding
is simply another way of saying that, to be admissible,
the statement must be nontestimonial for purposes of
Crawford.’’ (Citation omitted.) State v. Maguire, supra,
564–65. We explained in Maguire that this court had
determined in the prior case relied on by the state that
the forensic interview of the child sexual assault victim
had met ‘‘the fact intensive ‘primary purpose’ test articu-
lated in Davis v. Washington, [supra, 547 U.S. 822].’’
State v. Maguire, supra, 566. We clarified that state-
ments in such interviews are not per se nontestimonial,
and, instead, ‘‘a victim’s statements during a forensic
interview may be deemed nontestimonial only if the
essential purpose of the interview is to provide medical
assistance to the victim.’’ (Emphasis added.) Id., 569.
The court in Maguire then noted in dictum: ‘‘Indeed,
statements made in the course of a forensic interview
that satisfy the criteria for admission under the tender
years exception are similar to statements made to a
physician in the course of medical treatment, which
are admissible under the medical treatment and diag-
nosis exception to the hearsay rule, including state-
ments that reveal the identity of the abuser.’’ (Emphasis
added.) Id. This statement has spawned some confusion
in our trial courts.
Our Appellate Court correctly recognized in Griswold
that this statement in Maguire was not intended to
suggest equivalence between the two hearsay excep-
tions when considering whether either exception sup-
ported the trial court’s admission of statements made
by child sex abuse victims in forensic interviews. In
Griswold, the Appellate Court first concluded that the
trial court improperly had admitted video recordings
of forensic interviews under the tender years exception,
as interpreted in Maguire, because ‘‘the circumstances
surrounding the victims’ forensic interviews objectively
demonstrate[d] that their primary purpose was not to
provide the victims with medical diagnosis or treat-
ment, but to [establish] or prov[e] past events poten-
tially relevant to later criminal prosecution.’’ (Internal
quotation marks omitted.) State v. Griswold, supra, 160
Conn. App. 547.
The Appellate Court rejected the defendant’s claim,
however, that Maguire necessarily compelled the con-
clusion that the trial court also improperly admitted
the videos under the medical diagnosis and treatment
exception. It began its analysis by underscoring that,
‘‘because the victims appeared at trial and were subject
to cross-examination by the defendant, Crawford and
its progeny [did] not apply directly to the . . . case.’’
(Emphasis in original.) Id., 550–51. It then reasoned
that, because ‘‘hearsay that does not fall into one excep-
tion to the hearsay rule may still be admissible if it falls
within another exception . . . the question of whether
the videos and their written summaries [were] admissi-
ble under the medical diagnosis and treatment excep-
tion require[d] its own analysis independent of the one
undertaken pursuant to the tender years exception.
Indeed, the Code of Evidence specifically states in the
tender years exception that [n]othing in this section
shall be construed to . . . prevent the admission of
any statement under another hearsay exception. Conn.
Code Evid. § 8-10 (b) (1).’’ (Citation omitted; internal
quotation marks omitted.) State v. Griswold, supra, 160
Conn. App. 551–52. The Appellate Court further
explained that, ‘‘[i]n the context of a forensic interview,
[the medical diagnosis and treatment] standard is sub-
stantially less demanding than the one imposed by
Crawford and incorporated into the tender years excep-
tion.’’ Id., 552. In light of these factors, the Appellate
Court ‘‘decline[d] to construe the court’s observation [in
Maguire] as suggesting that, because some statements
admissible under both hearsay exceptions are similar
in nature, other statements inadmissible under one
exception are necessarily inadmissible under the
other.’’ (Emphasis in original.) Id., 554.
The Appellate Court in Griswold did note, however,
the following concern: ‘‘[B]ecause the standard for
admission of forensic interview evidence under the
medical diagnosis and treatment exception is less strin-
gent than the standard for admission under the tender
years exception, the state in future cases may rely solely
on the medical diagnosis and treatment exception,
thereby effectively rendering Maguire a nullity. This
potential anomaly, however, is not for [the Appellate]
[C]ourt to address but, instead, is best left for consider-
ation by [the] Supreme Court, either in its adjudicative
function or as overseer of the Code of Evidence.’’ Id.,
557–58.
We take this opportunity to clarify that, in the context
of this type of interview of a minor sexual assault victim,
the tender years hearsay exception and the medical
treatment exception may substantially overlap in appli-
cation but nevertheless may also occupy different fields
of operation. The tender years exception is not limited
to statements that reasonably pertain to ‘‘medical diag-
nosis or treatment’’ but includes any statement ‘‘relating
to’’ a sexual offense committed against that child or an
offense involving physical abuse committed against that
child by certain persons. As the Appellate Court
observed in the present case, the tender years exception
considers the purpose of the interview, whereas the
medical treatment exception focuses on the declarant’s
purpose in making individual statements. See State v.
Manuel T., supra, 186 Conn. App. 62 (‘‘[b]ecause the
focus of the medical treatment exception is the declar-
ant’s understanding of the purpose of the interview, the
inquiry must be restricted to the circumstances that
could be perceived by the declarant, as opposed to the
motivations and intentions of the interviewer that were
not apparent to the declarant’’). The mere fact that
the state may rely on the medical treatment exception
rather than the tender years exception to avoid the
more restrictive primary purpose test is not in itself
a sound reason to engraft the latter’s constitutionally
derived primary purpose standard onto the former.
The defendant’s concern, at bottom, appears to be
one of reliability. See, e.g., State v. Cruz, 260 Conn. 1,
7, 792 A.2d 823 (2002) (‘‘[t]he rationale underlying the
medical treatment exception to the hearsay rule is that
the patient’s desire to recover his health . . . will
restrain him from giving inaccurate statements to a
[health care professional] employed to advise or treat
him’’ (internal quotation marks omitted)). We are not
persuaded that the proper application of the existing
medical treatment hearsay exception does not ensure
the reliability of the statements made at a forensic inter-
view. There is a legitimate question as to J’s motivation
in participating in the interview in the present case and
whether all of her statements were reasonably pertinent
to medical treatment or diagnosis. The trial court plainly
did not assess the admissibility of the statements in the
forensic interview individually but in toto. This approach
may have been a reflection of the position taken by the
parties, both of whom seemed to take an ‘‘all or nothing’’
view of interviews of minor sexual assault victims. Because
we conclude in part II of this opinion that the defendant
is entitled to a new trial, he will have the opportunity
to make specific objections to individual statements
should he so choose.14
II
We next turn to the defendant’s claim that the Appel-
late Court incorrectly concluded that the trial court did
not abuse its discretion in excluding the screenshots
of two text messages purportedly authored by J for
lack of authentication. The defendant contends that,
although the traditional authentication standard was
met in the present case, the trial court and, in turn,
the Appellate Court improperly applied a heightened
standard for the authentication of the electronic com-
munication. He further contends that the exclusion of
this evidence was harmful because it would have sup-
ported his defense that J fabricated the claims of abuse
because she was upset with the defendant for, among
other things, failing to buy her a car. We agree.
A
The record reveals the following additional undis-
puted facts and procedural history. When the defendant
cross-examined J during the state’s case-in-chief, she
denied that she had ever sent text messages to V and
specifically denied sending the messages reflected in
the defendant’s two exhibits. To authenticate the two
screenshots taken of the messages, in his rebuttal case,
the defendant made an offer of proof through direct
examination of V and production of the screenshots.
Outside the presence of the jury, V offered the follow-
ing testimony. V and J are approximately the same age.
They had known each other since they were children
and were close during their younger years, but had
drifted apart more recently. Sometime in February or
early March, 2014, V decided to reach out to J by way
of text message. J had given her phone number to V at a
previous family function, and V saved it in her telephone
contacts under J’s name.
In her initial message, V greeted J by name. V received
replies, which she believed to be from J because the
messages came from the number J had given V, they
referred to J’s family members by name, and the author
of the reply messages expressed herself in a manner
as J previously had.
Later, V took screenshots of two of the text messages
she received in reply to that exchange. She attested
that the screenshots accurately reflected the text mes-
sages on her telephone. V was unable to capture the
full exchange in her screenshots because the texts were
too long. She attested, however, that the text messages
in the two screenshots were part of the same conversa-
tion.
By the time of trial, V had replaced the cell phone
on which she had received these text messages and
could not produce that cell phone. V also had been
unable to produce telephone records to demonstrate
when the text conversation had occurred between these
telephone numbers because her mobile service provider
no longer retained records for the February–March,
2014 period.
The first screenshot, which did not fully capture the
contact’s name, contains a small portion of a message
from one party and the following reply: ‘‘I didn’t forget
lol and yes he got himself a new car in a week [and]
then sold it for another car in less than a day but when
it comes to me he can’t get one. Smh15 his excuse is I
don’t deserve one cus of my attitude. He broke his
promise to me about getting me [one] that’s why I don’t
talk to him anymore he doesn’t deserve my kindness
I’m sick and tired of BROKEN promises!
‘‘But it is what it is. I’ll just buy my own damn car
since I buy everything else myself. But what’s new with
you? Why you all of a sudden hit me up. Lol.’’ (Footnote
The second screenshot revealed the contact to be
someone with the same first name as J. The screenshot
cut off the top of the message, which continued:16 ‘‘I
turn 18 this year . . . I should be happy but I’m scared.
And [m]y job is so stressful. This year hasn’t been good
for me at all it’s always something everyday nothing
good happens to me anymore the ONLY [thing] going
good right now is my relationship with [T]17 and my
bf.18 That’s it. And same my dad keeps breaking his
promises along with my step dad well [M]anny.19 We
don’t even talk anymore it’s like neither of my fathers
are there for me . . . so my mom is all I got. It really
hurts to say it but it is what it is.
‘‘And on top of this I’ve been looking for another job
and saving up for a car cus [M]anny is selfish and won’t
buy me one.’’ (Footnotes added.)
The trial court sustained the state’s objection to the
admission of the screenshots on the ground that they
had not been sufficiently authenticated. The court
determined that the defendant had failed to make a
prima facie case that J authored the text messages
exhibited by the screenshots because the messages
were not the complete exchange between the parties,
lacked temporal indicators of date and time, and were
devoid of distinctive characteristics that would identify
J as the author.
In its decision affirming the trial court’s judgment,
the Appellate Court relied on a recent line of its cases
beginning with State v. Eleck, 130 Conn. App. 632, 23
A.3d 818 (2011), aff’d, 314 Conn. 123, 100 A.3d 817
(2014); State v. Manuel T., supra, 186 Conn. App. 69–70;
which it characterized as its ‘‘seminal decision on the
authentication of electronic evidence.’’ Id., 69. The court
acknowledged that, ‘‘[a]mong the examples of methods
of authenticating evidence set forth in the official com-
mentary to § 9-1 (a) of the [Connecticut] Code of Evi-
dence is that [a] witness with personal knowledge may
testify that the offered evidence is what its proponent
claims it to be, and [t]he distinctive characteristics of
an object, writing or other communication, when con-
sidered in conjunction with the surrounding circum-
stances, may provide sufficient circumstantial evidence
of authenticity.’’ (Internal quotation marks omitted.) Id.,
68. It suggested that, although the traditional methods of
authentication applied to electronic communications,
a more stringent standard of proof would apply because
‘‘an electronic communication, such as a Facebook
message, an e-mail or a cell phone text message, could
be generated by someone other than the named sender
. . . .’’ (Internal quotation marks omitted.) Id. The
Appellate Court concluded that the trial court did not
abuse its discretion in determining that this standard
had not been met in the present case because the
screenshots did not capture the complete communica-
tion between the parties, there was no proof of the date
on which the communication occurred, there were no
distinguishing features in the text that would identify
J as the author, and J had denied sending the messages.
Id., 69–72.
B
The defendant advances two reasons why the Appel-
late Court incorrectly determined that the trial court
did not abuse its discretion in excluding the screens-
hots: first, the Appellate Court and the trial court
improperly applied a heightened standard of authentica-
tion and, second, the screenshots met the proper
authentication standard. Although the parties analyze
this question under the abuse of discretion standard,
for the reasons set forth hereinafter, we conclude that
it is more properly analyzed as a legal question subject
to plenary review.20 See, e.g., Hartford v. CBV Parking
Hartford, LLC, 330 Conn. 200, 214, 192 A.3d 406 (2018)
(‘‘[w]hether the trial court applied the proper legal stan-
dard is subject to plenary review on appeal’’); State v.
Saucier, 283 Conn. 207, 218, 926 A.2d 633 (2007) (‘‘To
the extent a trial court’s admission of evidence is based
on an interpretation of the [Connecticut] Code of Evi-
dence, our standard of review is plenary. . . . We
review the trial court’s decision to admit evidence, if
premised on a correct view of the law . . . for an abuse
of discretion.’’ (Citations omitted.)). Under the proper,
universally applicable standard, the trial court incor-
rectly determined that the defendant had not met his
burden of authenticating this evidence.
‘‘Authentication . . . is viewed as a subset of rele-
vancy, because evidence cannot have a tendency to
make the existence of a disputed fact more or less likely
if the evidence is not that which its proponent claims.’’
(Internal quotation marks omitted.) Lorraine v. Markel
American Ins. Co., 241 F.R.D. 534, 539 (D. Md. 2007).
Our Code of Evidence provides that ‘‘[t]he requirement
of authentication as a condition precedent to admissi-
bility is satisfied by evidence sufficient to support a
finding that the offered evidence is what its proponent
claims it to be.’’ Conn. Code Evid. § 9-1 (a). ‘‘[A] writing
may be authenticated by a number of methods, includ-
ing direct testimony or circumstantial evidence.’’ (Inter-
nal quotation marks omitted.) State v. Garcia, 299 Conn.
39, 57, 7 A.3d 355 (2010).
‘‘Both courts and commentators have noted that the
showing of authenticity is not on a par with the more
technical evidentiary rules that govern admissibility,
such as hearsay exceptions, competency and privilege.
. . . Rather, there need only be a prima facie showing
of authenticity to the court. . . . Once a prima facie
showing of authorship is made to the court, the evi-
dence, as long as it is otherwise admissible, goes to the
jury, which will ultimately determine its authenticity.’’
(Internal quotation marks omitted.) Id., 57–58. ‘‘[C]om-
pliance with [§] 9-1 (a) does not automatically guarantee
that the fact finder will accept the proffered evidence
as genuine.’’ Conn. Code Evid. § 9-1, commentary.
It is widely recognized that a prima facie showing of
authenticity is a low burden.21 See United States v.
Barnes, 803 F.3d 209, 217 (5th Cir. 2015) (standard
‘‘is not a burdensome one’’ (internal quotation marks
omitted)), cert. denied sub nom. Hall v. United States,
U.S. , 137 S. Ct. 691, 196 L. Ed. 2d 570 (2017);
United States v. Tin Yat Chin, 371 F.3d 31, 38 (2d Cir.
2004) (‘‘minimal standards for authentication’’); Lor-
raine v. Markel American Ins. Co., supra, 241 F.R.D.
545 (recognizing ‘‘the proponent’s light burden of proof
in authenticating an exhibit’’ (internal quotation marks
omitted)); Gagliardi v. Commissioner of Children &
Families, 155 Conn. App. 610, 619, 110 A.3d 512 (bar
for authentication of evidence is not particularly high),
cert. denied, 316 Conn. 917, 113 A.3d 70 (2015); State
v. Mrza, 302 Neb. 931, 938, 926 N.W.2d 79 (2019) (‘‘[the]
rule does not impose a high hurdle for authentication’’).
This is because ‘‘[a] proponent of evidence is not
required to conclusively prove the genuineness of the
evidence or to rule out all possibilities inconsistent
with authenticity.’’ (Emphasis added.) State v. Mrza,
supra, 938; accord Campbell v. State, 382 S.W.3d 545,
549 (Tex. App. 2012); see also State v. Valentine, 255
Conn. 61, 77, 762 A.2d 1278 (2000) (‘‘[t]he proffering
party must demonstrate to the trial court that there is
substantial evidence from which the jury could infer
that the telephone communication was authentic’’
(emphasis added)).
The commentary to our rule of evidence makes clear
that electronic communications, such as text messages,
are subject to the same standard of authentication and
the same methods of authentication as other forms of
evidence: ‘‘As with any other form of evidence, a party
may use any appropriate method, or combination of
methods, described in this commentary, or any other
proof to demonstrate that the proffer is what its propo-
nent claims it to be, to authenticate any particular item
of electronically stored information.’’ Conn. Code Evid.
(2018) § 9-1, commentary; cf. State v. Hannah, 448 N.J.
Super. 78, 88–89, 151 A.3d 99 (App. Div. 2016) (‘‘Despite
the seeming novelty of social [network generated] docu-
ments, courts have applied the existing concepts of
authentication . . . . We need not create a new test
for social media postings.’’ (Citations omitted; internal
quotation marks omitted.)).
One such appropriate method of authentication iden-
tified in the commentary to our rule, and broadly recog-
nized in other jurisdictions, is that ‘‘[a] witness with
personal knowledge may testify that the offered evi-
dence is what its proponent claims it to be.’’ Conn.
Code Evid. § 9-1, commentary. This is precisely what
V’s testimony accomplished. V testified: she and J had
been close while they were growing up; J provided her
phone number to V at a family function; V entered
the number in her phone contacts; a couple of months
before J reported the abuse, V initiated a text message
to that number in which she greeted J by name; V
received replies; V believed the replies to be from J
because of their substance and manner of expression;
and the screenshots accurately reflected the text mes-
sages V received.
The commentary to the code also provides that ‘‘[t]he
distinctive characteristics of an object, writing or other
communication, when considered in conjunction with
the surrounding circumstances, may provide sufficient
circumstantial evidence of authenticity.’’ Conn. Code
Evid. § 9-1, commentary. Although the contents of the
text messages do not reveal facts known only to J, they
are consistent with having been sent by her. They refer
to her age, her job, her family members, her boyfriend,
and her biological father’s absence, and imply that she
had not heard from V in some time, which was consis-
tent with V’s testimony. 22
Although the Appellate Court recited the aforemen-
tioned legal principles, it is apparent that neither that
court nor the trial court held the defendant to the low
burden of establishing a prima facie case of authenticity
and, instead, effectively required the defendant to estab-
lish that the text messages were in fact what they pur-
ported to be. Specifically, the trial court and the Appel-
late Court deemed the testimony of V insufficient authen-
tication. They pointed to information missing from the
screenshots or not provided through corroborative evi-
dence, such as the date of the communication. This con-
clusion, however, is inconsistent with numerous federal
and sister state decisions that have held that compara-
ble testimony sufficiently authenticated text messages
or similar electronic communication. See, e.g., United
States v. Arnold, 696 Fed. Appx. 903, 907 (10th Cir. 2017)
(rejecting argument that text messages copied into sep-
arate document were not sufficiently authenticated
because they ‘‘contained insufficient distinctive identifi-
ers—e.g., dates, phone numbers, and customary text
message format’’—when proffering party presented wit-
ness who testified that he had received original text
messages from defendant and testified ‘‘as to the gen-
eral time frame and the order of events that occurred
when he received particular messages and groups of
messages’’); United States v. Ramirez, 658 Fed. Appx.
949, 952 (11th Cir. 2016) (screenshots of text messages
were properly authenticated when party to exchange
testified that photographs of messages were from her
phone and identified text messages sent between her
and purported author, there was testimony that screens-
hots fairly and accurately represented text messages,
and there was evidence that purported author was user
of other phone number); United States v. Lanzon, 639
F.3d 1293, 1300–1301 (11th Cir.) (instant messages
transferred to Microsoft Word document were properly
authenticated by witness who testified that he partici-
pated in online chats and that transcripts were accurate
copies of those conversations), cert. denied, 565 U.S.
916, 132 S. Ct. 333, 181 L. Ed. 2d 208 (2011); Pierce
v. State, 302 Ga. 389, 395–96, 807 S.E.2d 425 (2017)
(screenshots of text messages on cell phone were prop-
erly authenticated, despite facts that proffering party
did not introduce cell phone records, that purported
author denied sending messages, and that no one testi-
fied that they observed him send them, when there was
testimony that images were fair and accurate represen-
tation of what appeared on cell phone screen and cell
phone owner testified that phone number shown for
text messages he received was author’s phone number
and that he exchanged several text messages with
author); People v. Ziemba, 100 N.E.3d 635, 648 (Ill. App.
2018) (finding that text messages were authenticated
by ‘‘the undercover officer who personally sent and
received the text messages’’); State v. Tieman, 207 A.3d
618, 622 (Me. 2019) (Facebook Messenger conversation
was authenticated through testimony of person with
whom victim was communicating); State v. Roseberry,
197 Ohio App. 3d 256, 270, 967 N.E.2d 233 (2011) (‘‘in
most cases involving . . . texts, instant messaging, and
e-mails, the photographs taken of the print media or
the printouts of those conversations are authenticated,
introduced, and received into evidence through the tes-
timony of the recipient of the messages’’); Common-
wealth v. Davis, Docket No. 1055 MDA 2018, 2019 WL
2323815, *5 (Pa. Super. May 31, 2019) (deeming text
message authenticated because ‘‘there was first-hand
corroborating testimony from . . . [the] recipient’’
(internal quotation marks omitted)), appeal denied, 222
A.3d 1125 (Pa. 2020); Commonwealth v. Danzey, 210
A.3d 333, 338 (Pa. Super.) (‘‘the proponent of social
media evidence must present direct or circumstantial
evidence that tends to corroborate the identity of the
author of the communication in question, such as testi-
mony from the person who sent or received the commu-
nication, or contextual clues in the communication
tending to reveal the identity of the sender’’ (internal
quotation marks omitted)), appeal denied, 219 A.3d 597
(Pa. 2019); Hasan v. Board of Medicine, 242 W. Va. 283,
295, 835 S.E.2d 147 (2019) (concluding that testimony
from recipient of text messages that they accurately
reflected ones that she had received from purported
author was ‘‘sufficient to authenticate the text mes-
sages’’ but noting ‘‘that there was additional evidence
showing distinctive characteristics that link [the par-
ties] to the text messages’’).
The trial court and the Appellate Court also mistak-
enly relied on the fact that the screenshots did not
capture the complete communication. The rule of com-
pleteness is a different rule of evidence; see Conn. Code
Evid. § 1-5; that serves different concerns from those
of authentication. See United States v. Arnold, supra,
696 Fed. Appx. 906–907 (rejecting argument that gov-
ernment failed to properly authenticate exhibit
reflecting screenshots of text messages because recipi-
ent testified that he was not sure whether printed
exhibit included all messages exchanged between par-
ties when government never represented at trial that
exhibit contained all text messages between parties,
and, accordingly, government properly authenticated
exhibit ‘‘as a document that displayed . . . [screens-
hots] of the text messages’’ saved on cell phone); State
v. Mrza, supra, 302 Neb. 939 (noting that defendant’s
argument improperly ‘‘attempts to invoke the rule of
completeness under the rubric of authenticity’’ and that
‘‘[t]he rule of authentication did not require the [s]tate
to offer all of the Snapchat messages in evidence’’ (foot-
note omitted)); Commonwealth v. Hart, Docket No.
3284 EDA 2016, 2018 WL 2307381, *9 (Pa. Super. May
22, 2018) (resolving authentication issue before turning
to completeness claim). Moreover, the present case
does not implicate the concern underlying the rule of
completeness, because there is no contention that other
relevant parts of the text messages exist that would
provide a different context for the portion of the mes-
sages offered. See, e.g., State v. Jackson, 257 Conn.
198, 213, 777 A.2d 591 (2001) (‘‘[W]hen one party to a
litigation or prosecution seeks to introduce admissions
that constitute only a portion of a conversation, the
opposing party may introduce other relevant portions
of the conversation, irrespective of whether they are
self-serving or hearsay. . . . The purpose of this rule
is to ensure that statements placed in evidence are
not taken out of context.’’ (Citations omitted; internal
quotation marks omitted.)). Rather, J simply asserted
that she had not sent the messages at issue.
It appears that the trial court and the Appellate Court
held the defendant to a higher standard than a prima
facie case because the evidence was an electronic com-
munication. The Appellate Court cited its prior cases
in expressing the concern that ‘‘an electronic communi-
cation, such as a Facebook message, an e-mail or a cell
phone text message, could be generated by someone
other than the named sender . . . .’’ (Internal quotation
marks omitted.) State v. Manuel T., supra, 186 Conn.
App. 68. Similar concerns, however, may arise even
with more traditional forms of communication. In a
federal case cited favorably in the commentary to our
rule, the court addressed this issue: ‘‘The argument is
that e-mails or text messages are inherently unreliable
because of their relative anonymity and the fact that
while an electronic message can be traced to a particu-
lar computer, it can rarely be connected to a specific
author with any certainty. Unless the purported author
is actually witnessed sending the e-mail, there is always
the possibility it is not from whom it claims. . . . [A]ny-
body with the right password can gain access to anoth-
er’s e-mail account and send a message ostensibly from
that person. However, the same uncertainties exist with
traditional written documents. A signature can be
forged; a letter can be typed on another’s typewriter;
distinct letterhead station[ery] can be copied or stolen.
. . . We see no justification for constructing unique
rules of admissibility of electronic communications
such as instant messages; they are to be evaluated on a
case-by-case basis as any other document to determine
whether . . . there has been an adequate foundational
showing of their relevance and authenticity.’’23 (Internal
quotation marks omitted.) Lorraine v. Markel Ameri-
can Ins. Co., supra, 241 F.R.D. 543; see Conn. Code Evid.
(2018) § 9-1, commentary. As another court correctly
observed, ‘‘[q]uestions about the integrity of electronic
data generally go to the weight of electronically based
evidence, not its admissibility.’’24 (Emphasis added;
internal quotation marks omitted.) State v. Tieman,
supra, 207 A.3d 622.
In the present case, the defendant clearly established
a prima face case of authentication through V’s testi-
mony. Whatever doubts might exist as to V’s credibility
or as to the reliability of the source of the messages
go to the weight, not the admissibility, of the text mes-
sages. Therefore, the Appellate Court incorrectly deter-
mined that the trial court properly excluded the text
messages.
C
The question that remains is whether the improper
exclusion of the text messages requires reversal of the
judgment and a new trial. The state argues that the
exclusion of this evidence was harmless error. We con-
clude, however, that the defendant has met his burden
of proving harmful error, which requires reversal of the
judgment.
‘‘[A] nonconstitutional [evidentiary] error is harmless
when an appellate court has a fair assurance that the
error did not substantially affect the verdict.’’ (Internal
quotation marks omitted.) State v. Sinclair, 332 Conn.
204, 233, 210 A.3d 509 (2019). ‘‘[W]hether [an improper
ruling] is harmless in a particular case depends upon
a number of factors, such as the importance of the
witness’ testimony in the [defendant’s] case, whether
the testimony was cumulative, the presence or absence
of evidence corroborating or contradicting the testi-
mony of the witness on material points, the extent of
cross-examination otherwise permitted, and, of course,
the overall strength of the prosecution’s case. . . .
Most importantly, we must examine the impact of the
. . . evidence on the trier of fact and the result of the
trial.’’ (Internal quotation marks omitted.) Id.
The following factors deprive us of this assurance.
The state does not contend that it had a particularly
strong case, and it is clear that it did not. The only
evidence of the sexual abuse came from J’s delayed
disclosure. There was no physical evidence of the abuse
or contemporaneous observations of other witnesses
that would tend to corroborate J’s account. Testimony
from J’s younger sister, the defendant’s biological
daughter, called J’s veracity and motives into question.
The defendant’s theory of the case was that J had
fabricated the claims of abuse because she wanted to
move in with her boyfriend—something that she admit-
ted the defendant would not have allowed and that
occurred not long after the defendant was removed
from the home following J’s disclosure—and because
she was angry with him for, among other things, not
having bought her a car. The text messages, if deemed
authentic by the jury, could have been seen by a juror
as powerful evidence of one of those motivations. The
evidence also could have been used to impeach J’s
statement in her interview that, in December, 2013, a
few months before she disclosed the abuse, the defen-
dant offered to buy her a car if she agreed to have sex
with him. J said in the interview that she had refused
the defendant’s offer and told him that she would prefer
to buy her own car.
Although J’s younger sister testified that J had com-
plained on more than one occasion about the defen-
dant’s failure to buy her a car, we are not persuaded
that this fact renders the excluded evidence cumulative.
The text messages, if authentic, were J’s own words.
Those words could be understood to express hurt feel-
ings and anger that are not equally conveyed by her
sister’s secondhand account of J’s complaints.
We are not persuaded by the state’s arguments that
the exclusion of this evidence did not affect the verdict.
In addition to the sister’s testimony, the state points to
the fact that defense counsel’s closing argument
referred to J’s anger at the defendant for failing to
purchase a car for her. But counsel’s argument is not
evidence, and the trial court informed the jury of this
well settled principle before closing arguments com-
menced. See, e.g., State v. Ancona, 270 Conn. 568, 609,
854 A.2d 718 (2004), cert. denied, 543 U.S. 1055, 125 S.
Ct. 921, 160 L. Ed. 2d 780 (2005). The state also points
to the fact that J stated unequivocally in her forensic
interview that she did not like the defendant. In the
absence of the text messages, however, the jury was
more likely to conclude that her dislike was a natural
consequence of the abuse that the defendant had
inflicted on her.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the trial court and to remand
the case to that court for a new trial.
In this opinion the other justices concurred.
* In accordance with our policy of protecting the privacy interests of the
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.
** November 19, 2020, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The defendant was convicted of two counts of sexual assault in the first
degree in violation of General Statutes § 53a-70 (a) (1), one count of sexual
assault in the first degree in violation of § 53a-70 (a) (2), two counts of
sexual assault in the second degree in violation of General Statutes § 53a-
71 (a) (1), one count of sexual assault in the fourth degree in violation of
General Statutes § 53a-73a (a) (1) (E), and four counts of risk of injury to
a child in violation of General Statutes § 53-21 (a) (2). The defendant also
was charged with one count of tampering with a witness in violation of
General Statutes § 53a-151. After the jury was unable to reach a verdict on
that count, the state entered a nolle prosequi as to that count.
2
We granted the defendant’s petition for certification to appeal to this
court, limited to the following issues: (1) ‘‘Did the Appellate Court apply
the proper standard in determining that, in a criminal prosecution for sexual
abuse of a child, hearsay statements made during a forensic interview of
the child complainant are admissible under § 8-3 (5) of the Connecticut
Code of Evidence?’’ And (2) ‘‘Did the Appellate Court properly conclude
that the trial court did not abuse its discretion by excluding from evidence
certain screenshots of text messages?’’ State v. Manuel T., 330 Conn. 968,
200 A.3d 189 (2019).
3
J referred to the defendant as her stepfather, but also as her mother’s
boyfriend. Because the defendant also refers to himself as her stepfather,
and his legal relationship to J is not relevant to any legal issue in the case,
for convenience, we treat his status as J’s stepfather.
4
Although the Appellate Court referred to the advocacy center’s interview
as a ‘‘diagnostic’’ interview; State v. Manuel T., supra, 186 Conn. App. 54;
as did the state and the advocacy center’s interviewer in her testimony at
trial, the statutory scheme designates it as a ‘‘forensic’’ interview. General
Statutes § 17a-106a (e). Therefore, we use the statutory term, as we have
done in other cases. See, e.g., State v. Maguire, 310 Conn. 535, 538, 78 A.3d
828 (2013).
5
The state voluntarily redacted, with the approval of the defendant and
the trial court, certain statements, including ones that implicated the rape
shield law, General Statutes § 54-86f, and others that were deemed irrelevant.
6
The defendant initially appealed to this court, and we transferred the
appeal to the Appellate Court pursuant to General Statutes § 51-199 (c) and
Practice Book § 65-1.
7
Although the state argues that Griswold properly was applied by the
courts below, its threshold position is that this court should not consider
the defendant’s claim that a ‘‘primary purpose’’ standard should have been
applied because (1) he did not seek application of this standard in the trial
court, and (2) as a consequence, the record lacks the necessary findings
as to the primary purpose of the interview. The defendant disputes both
contentions.
We conclude that it is proper to address the defendant’s primary purpose
claim, irrespective of any potential preservation concerns or deficiencies
in the record. In light of our conclusion in part II of this opinion that the
defendant is entitled to a new trial due to the improper exclusion of the
text messages, we would address the proper standard for admission of this
evidence even if the issue was unpreserved, as it would be likely to arise
on remand. See, e.g., State v. Lebrick, 334 Conn. 492, 521 n.16, 223 A.3d 333
(2020); In re Taijha H.-B., 333 Conn. 297, 312 n.9, 216 A.3d 601 (2019). The
proper standard for admission of the evidence is purely a question of law,
to which we apply plenary review. See State v. Saucier, 283 Conn. 207, 218,
926 A.2d 633 (2007) (proper interpretation of rules of evidence is subject
to plenary review); see also State v. Mendez, 148 N.M. 761, 766, 242 P.3d
328 (2010) (whether primary purpose of interview controls admissibility of
all statements made during diagnostic interview under medical treatment
hearsay exception is subject to de novo review).
8
This court previously has held that it has the authority to modify the
Connecticut Code of Evidence. See State v. DeJesus, 288 Conn. 418, 454–62,
953 A.2d 45 (2008) (holding that this court has authority to modify common-
law rules of evidence codified in code).
9
Forensic interviews of child sexual assault victims are designed, by law,
to serve dual functions: to investigate child abuse and to treat victims of
such abuse. See General Statutes §§ 17a-101, 17a-101h and 17a-106a. By
conducting and recording an interview that is available to a multidisciplinary
team comprised of law enforcement, medical and mental health profession-
als, and the Department of Children and Families, the law aims to minimize
further trauma to the victim. See General Statutes §§ 17a-101 and 17a-101h.
10
It is the advocacy center’s standard practice to offer a medical examina-
tion following these interviews.
11
In sexual assault cases, this court has held that ‘‘testimony pertaining
to the identity of the defendant and the nature of the sexual assault [are]
. . . pertinent to proper diagnosis and treatment of the resulting physical
and psychological injuries of sexual assault.’’ State v. Kelly, 256 Conn. 23,
45, 770 A.2d 908 (2001); see also State v. Wood, 208 Conn. 125, 133–34, 545
A.2d 1026 (‘‘medical’’ encompasses psychological as well as somatic illnesses
and conditions), cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225
(1988). Statements made by a sexual assault complainant to someone other
than a treating physician or mental health care provider may satisfy this
exception if the person receiving that account is found to have been ‘‘acting
within the chain of medical care’’ and the other requirements of the exception
are met. State v. Cruz, 260 Conn. 1, 6, 792 A.2d 823 (2002); see id. (statements
to social worker were admissible).
12
The amicus brief cites cases from other jurisdictions in which courts
have (a) characterized a victim’s statements about the defendant’s abuse as
lacking a medical purpose or motive under the circumstances, (b) effectively
determined that, if the child victim was too young to be unaware that
his statements would enable a physician to make a diagnosis and provide
treatment and thus would not understand the need to speak truthfully, the
statements would be inadmissible under the medical treatment exception,
and (c) deemed statements identifying the defendant as the abuser inadmissi-
ble under this exception.
Although some of this case law relates to the proper application of the
medical purpose prong of the exception, none is relevant to the specific
issue in this certified appeal, namely, whether the victim must have the
primary purpose of obtaining medical treatment or diagnosis. In the cases
falling under (a), the courts determined that there was no medical purpose.
If the defendant in the present case, on remand, is able to establish that
the victim was not motivated by such a purpose even in part, her statements
would be inadmissible under our law as it currently exists.
The cases falling under (b) and (c) are no doubt in tension with our state’s
appellate case law, which has declined to take a strict view of the medical
treatment exception. See, e.g., State v. Kelly, 256 Conn. 23, 45, 770 A.2d 908
(2001). Appellate Court case law has allowed the purpose prong to be
satisfied inferentially in cases involving juveniles, even if the victim was too
young to have the conscious purpose of obtaining medical treatment to
advance her own health. See State v. Dollinger, supra, 20 Conn. App. 536.
This court has held that the abuser’s identity is pertinent to medical treatment
and diagnosis. See State v. Kelly, supra, 45. Neither of the issues in (b) or
(c) is relevant to the issue in this certified appeal. Moreover, the vitality of
case law addressing children too young to form a conscious intent of
obtaining medical treatment and to understand the need for truthfulness
would have no application to the present case, in which J was seventeen
years old at the time of her interview.
13
General Statutes § 54-86l provides: ‘‘(a) Notwithstanding any other rule
of evidence or provision of law, a statement by a child twelve years of age
or younger at the time of the statement relating to a sexual offense committed
against that child, or an offense involving physical abuse committed against
that child by the child’s parent or guardian or any other person exercising
comparable authority over the child at the time of the offense, shall be
admissible in a criminal or juvenile proceeding if: (1) The court finds, in a
hearing conducted outside the presence of the jury, if any, that the circum-
stances of the statement, including its timing and content, provide particular-
ized guarantees of its trustworthiness, (2) the statement was not made in
preparation for a legal proceeding, (3) the proponent of the statement makes
known to the adverse party an intention to offer the statement and the
particulars of the statement including the content of the statement, the
approximate time, date and location of the statement, the person to whom
the statement was made and the circumstances surrounding the statement
that indicate its trustworthiness, at such time as to provide the adverse
party with a fair opportunity to prepare to meet it, and (4) either (A) the
child testifies and is subject to cross-examination at the proceeding, or (B)
the child is unavailable as a witness and (i) there is independent nontestimo-
nial corroborative evidence of the alleged act, and (ii) the statement was
made prior to the defendant’s arrest or institution of juvenile proceedings
in connection with the act described in the statement.
‘‘(b) Nothing in this section shall be construed to (1) prevent the admission
of any statement under another hearsay exception, (2) allow broader defini-
tions in other hearsay exceptions for statements made by children twelve
years of age or younger at the time of the statement concerning any alleged
act described in subsection (a) of this section than is done for other declar-
ants, or (3) allow the admission pursuant to the residual hearsay exception
of a statement described in subsection (a) of this section.’’
Section 8-10 of the Connecticut Code of Evidence codifies this provision.
14
We note that it is not uncommon in these types of cases for a defendant
to attempt to impeach the victim through the use of statements made in
the forensic interview. In such cases, the court could consider whether the
defendant has opened the door to the admission of other parts of the forensic
interview as nonhearsay or under another hearsay exception.
15
V testified that ‘‘SMH’’ stands for ‘‘[s]haking my head.’’ She stated that
J previously had used this phrase, as well as an expression used later in
the text about ‘‘hitting someone up.’’ V acknowledged on cross-examination
that both expressions were common to her generation.
16
We have excluded emojis from the quoted passage.
17
The message used an abbreviated form of a name, consistent with that
of J’s sister.
18
‘‘Bf’’ reasonably could be interpreted to refer either to ‘‘boyfriend’’ or
‘‘best friend.’’ The evidence established that J had a boyfriend during the
time these messages purportedly were sent. In her interview, J indicated
that she did not get along with girls generally, but she testified that she
presently had a female best friend.
19
In the interview, J said that she just called the defendant by his name
and noted that he went by ‘‘Manny or Manuel.’’
20
Even if we were to characterize the trial court’s decision as too
demanding an application of the correct standard and thus subject to review
under the abuse of discretion standard, we would reach the same conclusion.
21
A similar rule of evidence applies in many other jurisdictions; see, e.g.,
Fed. R. Evid. 901; and we have considered such sources when determining
the contours of our rule. See State v. Swinton, 268 Conn. 781, 811–12 and
n.28, 847 A.2d 921 (2004) (adopting factors utilized under rule 901 of Federal
Rules of Evidence for purposes of conducting foundational analysis of com-
puter generated evidence). See generally State v. Foreman, 288 Conn. 684,
721, 954 A.2d 135 (2008) (‘‘[w]here a state rule is similar to a federal rule
we review the federal case law to assist our interpretation of our rule’’
(internal quotation marks omitted)).
22
The inquiry in the text message, ‘‘[w]hy you all of a sudden hit me up,’’
is consistent with V’s account that she had not been in contact with J for
some time before she sent J a text message in early 2014.
23
See also Pierce v. State, supra, 302 Ga. 395–96 (‘‘Although there may
exist evidence that a specific phone sent a certain text message, that does
not prove who used the phone . . . . Every form of electronic communica-
tion can be spoofed, hacked, or forged. But this does not and can not mean
that courts should reject any and all such communications. Indeed the vast
majority of these communications are just as they appear to be—quite
authentic. The goal is to supply sufficient, nonhearsay evidence as the
identity of the source such that a reasonable [fact finder] could conclude
that the evidence is what it is claimed to be.’’ (Internal quotation marks
omitted.)).
24
Insofar as State v. Eleck, supra, 130 Conn. App. 632, indicates otherwise,
it is overruled.