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*********************************************** 
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 interview 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 screenshots 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 sexual abuse, the only evidence of the abuse came from J’s delayed disclosure, and the testimony of J’s younger sister called J’s veracity and

motives into question; furthermore, the text messages, if deemed authentic 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 tampering 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 transferred 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 evidence 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 stepfather,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 interview.4 On April 1, 2014, J participated in that interview,

which was conducted by Lisa Murphy-Cipolla, the clinical services coordinator at the advocacy center.

Although Murphy-Cipolla interviewed J alone, their conversation was observed through a one-way mirror by

Claire Hearn, a police detective, and Audrey Courtney,

a pediatric nurse practitioner. Consistent with the standard 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 background, the purposes and process of conducting such

interviews, and the circumstances of her interview of

J. The state argued that the video recording was admissible 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 treatment hearsay exception because J was not seeking medical 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 interview 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 determine 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 conviction to the Appellate Court, contending that the admission 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 treatment exception to the hearsay rule requires that the

statements be both pertinent to treatment and motivated by a desire for treatment . . . in cases involving

juveniles, [we] have permitted this requirement to be

satisfied inferentially.’’ (Emphasis altered; internal quotation marks omitted.) State v. Manuel T., supra, 61.

Applying these principles to the present case, the Appellate 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 circumstances apparent to [J] that she understood the interview 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 sufficient 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 defendant contends that both rulings rested on the application 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 admission of the recording of the forensic interview. The

defendant, supported by the amicus curiae, the Connecticut Criminal Defense Lawyers Association, asks

this court to adopt a standard under which a minor

victim’s statements in this type of interview are admissible under the medical treatment exception to the hearsay 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 treatment. The defendant contends that, because a primary

purpose standard applies to the admission of such interviews 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 exceptions 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 overrule 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’’ purpose 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 interview, is not a medical professional; her professional

training is in counseling and family therapy. At the commencement 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 practitioner, 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 incidents occurred, and which brand of condom the defendant had used. J mentioned experiencing physical pain

during the incidents of anal intercourse, expressed concern that she could have contracted a sexually transmitted 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 provides in relevant part: ‘‘The following are not excluded

by the hearsay rule, even though the declarant is available as a witness . . . (5) A statement made for purposes of obtaining a medical diagnosis or treatment

and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general

character of the cause or external source thereof, insofar as reasonably pertinent to the medical diagnosis or

treatment. . . .’’ This rule sets forth, in effect, a twopronged test. The first addresses the declarant’s purpose 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 treatment (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 interview should have been excluded under the purpose

prong because we should construe this hearsay exception 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 similarly 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 reasons for rejecting the application of a primary purpose

standard in a case that, like this one, involved a challenge 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 jurisprudence.’’ 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 declarant. ‘‘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 circumstances 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]onfrontation [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-ofcourt 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 statements which trigger [c]onfrontation [c]lause concerns

. . . .’’ (Internal quotation marks omitted.) Id. ‘‘What

these examples have in common is that they lend themselves to an analysis that focuses largely on surrounding

circumstances to separate testimonial from [nontestimonial] statements.

‘‘For example, once an individual prepares an affidavit, the reliability of any single statement is largely irrelevant for constitutional purposes because it will all be

testimonial and inadmissible under the [s]ixth [a]mendment without a prior opportunity for cross-examination. The act of preparing an affidavit evinces the preparer’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 nonmedical purpose of a statement cannot be determined without 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 omitted.) Id.

‘‘The diversion created by [applying a primary medical 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, individual 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 defendant’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 proceeding.’’ 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 exception must be applied ‘‘consistently with the sixth amendment 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 articulated in Davis v. Washington, [supra, 547 U.S. 822].’’

State v. Maguire, supra, 566. We clarified that statements 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 diagnosis exception to the hearsay rule, including statements 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 exceptions when considering whether either exception supported 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 treatment, but to [establish] or prov[e] past events potentially 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 conclusion 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 exception 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] admissible under the medical diagnosis and treatment exception 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 substantially less demanding than the one imposed by

Crawford and incorporated into the tender years exception.’’ 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 stringent 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 consideration 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 application but nevertheless may also occupy different fields

of operation. The tender years exception is not limited

to statements that reasonably pertain to ‘‘medical diagnosis 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 declarant’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 interview. 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 Appellate 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 communication. He further contends that the exclusion of

this evidence was harmful because it would have supported 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 undisputed 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 following 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 messages 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 conversation.

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

added.)
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 commentary to § 9-1 (a) of the [Connecticut] Code of Evidence 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 considered in conjunction with the surrounding circumstances, 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 communication 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 Appellate Court incorrectly determined that the trial court

did not abuse its discretion in excluding the screenshots: first, the Appellate Court and the trial court

improperly applied a heightened standard of authentication 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 standard 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 Evidence, 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 incorrectly determined that the defendant had not met his

burden of authenticating this evidence.

‘‘Authentication . . . is viewed as a subset of relevancy, 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 admissibility 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, including direct testimony or circumstantial evidence.’’ (Internal 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 evidence, 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]ompliance 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’’); Lorraine 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 proponent 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] documents, 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 identified in the commentary to our rule, and broadly recognized in other jurisdictions, is that ‘‘[a] witness with

personal knowledge may testify that the offered evidence 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 messages 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 consistent with V’s testimony. 22

Although the Appellate Court recited the aforementioned 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 establish that the text messages were in fact what they purported to be. Specifically, the trial court and the Appellate Court deemed the testimony of V insufficient authentication. They pointed to information missing from the

screenshots or not provided through corroborative evidence, such as the date of the communication. This conclusion, however, is inconsistent with numerous federal

and sister state decisions that have held that comparable 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 separate document were not sufficiently authenticated

because they ‘‘contained insufficient distinctive identifiers—e.g., dates, phone numbers, and customary text

message format’’—when proffering party presented witness who testified that he had received original text

messages from defendant and testified ‘‘as to the general 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 screenshots 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 participated 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 properly authenticated, despite facts that proffering party

did not introduce cell phone records, that purported

author denied sending messages, and that no one testified that they observed him send them, when there was

testimony that images were fair and accurate representation 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 testimony of the recipient of the messages’’); Commonwealth 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 testimony from the person who sent or received the communication, 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 messages’’ but noting ‘‘that there was additional evidence

showing distinctive characteristics that link [the parties] to the text messages’’).

The trial court and the Appellate Court also mistakenly relied on the fact that the screenshots did not

capture the complete communication. The rule of completeness 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 government failed to properly authenticate exhibit

reflecting screenshots of text messages because recipient testified that he was not sure whether printed

exhibit included all messages exchanged between parties 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 . . . [screenshots] 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’’ (footnote 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 messages 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 communication. The Appellate Court cited its prior cases

in expressing the concern that ‘‘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.) 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 particular 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]nybody with the right password can gain access to another’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 American 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 testimony. 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 messages. Therefore, the Appellate Court incorrectly determined 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 conclude, 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 testimony of the witness on material points, the extent of

cross-examination otherwise permitted, and, of course,

the overall strength of the prosecution’s case. . . .

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 admitted 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 defendant 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 complained on more than one occasion about the defendant’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 feelings 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 commenced. 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 § 53a71 (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 commonlaw 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 examination 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 inadmissible 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 circumstances of the statement, including its timing and content, provide particularized 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 nontestimonial 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 definitions 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 declarants, 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 computer 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 communication 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.