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*********************************************** 
STATE OF CONNECTICUT v. JAMES K.*

(SC 20693)

Robinson, C. J., and McDonald, D’Auria,

Mullins, Ecker and Alexander, Js.

Syllabus

Convicted of the crime of risk of injury to a child but acquitted of two

counts of first degree sexual assault in connection with the defendant’s

alleged sexual abuse of his daughter, V, the defendant appealed to the

Appellate Court, which affirmed the judgment of conviction. From about

the age of six until twelve, V resided with the defendant, and, during

the earlier part of that time period, V also resided with her half sister,

H. During that time, the defendant allegedly used physical force to

discipline V and H on numerous occasions. Also during that time, there

was an incident in V’s bedroom in which the defendant had contact

with V’s intimate parts. Subsequently, the defendant was arrested on

unrelated charges, and V was placed in the custody of her maternal

grandmother, B. Thereafter, the Department of Children and Families

investigated allegations that the defendant had physically abused V, as

well as B’s complaint that the defendant had acted inappropriately

toward V by kissing her on the lips. A forensic interview of V was conducted, which was video-recorded. In the course of that interview, V

provided details of the incident involving the defendant’s contact with

her intimate parts. During jury selection, the prosecutor indicated that

she would seek to introduce at the defendant’s trial one or more photographs showing the defendant kissing H on the lips. Defense counsel

objected and argued that it was part of her obligation in selecting a fair

and impartial jury to ask prospective jurors to express their feelings

about whether it was appropriate for parents to kiss their children on the

lips. The trial court precluded defense counsel from asking prospective

jurors about a parent’s kissing a child on the lips because it was too

specific to the facts of the case and limited defense counsel to asking

prospective jurors about the ways in which parents can show physical

affection to their children. Thereafter, the court ruled that the photograph or photographs showing the defendant kissing H were inadmissible because they were prejudicial to the defendant. During the remainder

of jury selection, defense counsel did not question prospective jurors

about their opinions with respect to displays of affection between parents and their children. In addition, the defendant filed a motion in limine

before trial, seeking to preclude the admission of the video recording

of V’s forensic interview. The defendant claimed that the video had

limited probative value and was unduly prejudicial, insofar as it constituted cumulative evidence of the facts to be elicited during V’s trial

testimony. The defendant also claimed that the video would improperly

bolster V’s testimony. After V testified at trial, and after hearing arguments from the parties, the trial court admitted the video-recorded

interview into evidence under the medical diagnosis and treatment

exception to the hearsay rule. In affirming the judgment of conviction

of risk of injury to a child, the Appellate Court concluded that the

trial court had not abused its discretion in restricting defense counsel’s

examination of prospective jurors during voir dire, that the defendant

had failed to demonstrate that the trial court’s ruling resulted in harmful

prejudice, and that the trial court had not abused its discretion in admitting the video recording of the forensic interview. The defendant, on

the granting of certification, appealed to this court. Held:

1. The defendant could not prevail on his claim that the trial court had

improperly limited defense counsel’s questioning of prospective jurors

and that the limitation had resulted in harmful prejudice:

This court recognized that there was an inconsistency in the case law

regarding when the trial court’s exercise of discretion in restricting voir

dire will result in reversible error, as the case law had sometimes required

that a party prove both an abuse of discretion and harmful prejudice,

and, at other times, had required that a party prove abuse of discretion
or harmful prejudice.

After reviewing its prior case law, the case law of other jurisdictions,

and similar standards that it had applied when it was called on to evaluate

a trial court’s exercise of discretion, this court clarified that a trial court

has wide discretion in conducting voir dire and that the exercise of that

discretion will not constitute reversible error unless the court has clearly

abused its discretion and harmful prejudice has resulted.

In the present case, even if the trial court had clearly abused its discretion

in precluding defense counsel from asking prospective jurors about their

views on a parent’s act of kissing a child on the lips, the defendant

did not establish that harmful prejudice resulted from that abuse of

discretion.

Defense counsel was permitted to ask prospective jurors about whether

they considered different forms of parental affection appropriate or

inappropriate and was precluded only from asking questions specifically

about their views concerning kissing a child on the lips, and the facts

that defense counsel asked only five of the prospective jurors about

their views on parental affection, availed herself of limited follow-up

with respect to that line of questioning, and stopped asking prospective

jurors about parental affection after the trial court ruled that the prosecutor could not introduce into evidence the photograph or photographs

showing the defendant kissing H suggested that defense counsel did not

consider the issue of parental affection of great importance once the

prosecutor was precluded from introducing the photograph or photographs.

Moreover, evidence regarding the defendant’s conduct of kissing V on

the lips was not a prominent part of the state’s case, as that conduct

did not form the basis for any of the offenses with which the defendant

was charged, and the prosecutor did not rely on that conduct during

her closing argument.

Furthermore, the jury’s split verdict, whereby it found the defendant

guilty of risk of injury to a child but not guilty of the sexual assault

charges, also weighed against any claim that the defense was hampered

in its efforts to select an impartial jury by virtue of the trial court’s

limitation on defense counsel’s questioning during voir dire.

2. The Appellate Court correctly concluded that the trial court had not abused

its discretion in admitting the video recording of V’s forensic interview:

There was no merit to the defendant’s claim that the trial court had not

engaged in the required balancing of the probative value of the evidence

against its prejudicial effect because, although the court did not conduct

an on-the-record balancing of the evidence, it was not required to do

so, and a review of the entire record, particularly the parties’ arguments

before the trial court, revealed that the court had considered the probative value of the evidence and its prejudicial effect before making its ruling.

Moreover, the video recording of the forensic interview was probative

of the particular details underlying the defendant’s sexual assault

charges, and, although the defendant claimed that the video recording

had limited probative value because V had testified to the same facts at

trial, the defendant conceded, and a review of the evidence demonstrated,

that there were details revealed during the forensic interview that were

not contained in V’s trial testimony.

Furthermore, the admission of the video recording of the forensic interview was not unduly prejudicial, as the interview contained new or

inconsistent evidence regarding the crimes with which the defendant

was charged.

Nevertheless, this court acknowledged that the interview also contained

a large amount of consistent evidence and cautioned that, when an

alleged sexual assault victim’s prior consistent statements are admitted

in the absence of an applicable exception to the general rule precluding

the admission of such statements, there is a danger that the evidence

will be improperly used to enhance the credibility of the victim.

This court emphasized that defendants can request and trial courts should

consider redacting portions of video recordings of forensic interviews
to limit their prejudicial effect.

In the present case, the trial court could have addressed, by way of

redaction, many of the issues that the defendant raised on appeal with

respect to why the video recording of V’s forensic interview was more

prejudicial than probative, but, at trial, the defense challenged the admission of the video in its entirety rather than seeking redaction.

Argued March 23—officially released August 29, 2023

Procedural History

Substitute information charging the defendant with

two counts of the crime of sexual assault in the first

degree and one count of the crime of risk of injury to

a child, brought to the Superior Court in the judicial

district of New Haven and tried to the jury before B.

Fischer, J.; thereafter, the court denied the defendant’s

motion to preclude certain evidence; verdict and judgment of guilty of risk of injury to a child, from which

the defendant appealed to the Appellate Court, Prescott,

Moll and Suarez, Js., which affirmed the trial court’s

judgment, and the defendant, on the granting of certification, appealed to this court. Affirmed.

Pamela S. Nagy, supervisory assistant public

defender, for the appellant (defendant).

Melissa E. Patterson, senior assistant state’s attorney, with whom were Sarah Hanna, former senior

assistant state’s attorney, and, on the brief, John P.

Doyle, state’s attorney, Maxine Wilensky, former senior

assistant state’s attorney, and Karen Roberg, supervisory assistant state’s attorney, for the appellee (state).
Opinion

MULLINS, J. The defendant, James K., appeals from

the judgment of the Appellate Court, affirming the judgment of conviction, rendered following a jury trial, of

risk of injury to a child in violation of General Statutes

§ 53-21 (a) (2).1 On appeal to this court, the defendant

asserts that the Appellate Court incorrectly concluded

that the trial court did not (1) improperly limit defense

counsel’s questions to potential jurors and that this

limitation did not result in harmful prejudice, and (2)

improperly admit into evidence a video recording of

the forensic interview of the victim regarding the crimes

at issue. We disagree and conclude that, even if the trial

court improperly limited defense counsel’s questions

to potential jurors, any error did not result in harmful

prejudice, and that the trial court did not abuse its

discretion by admitting the video recording of the forensic interview into evidence. Accordingly, we affirm the

judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the

following facts, which the jury reasonably could have

found. ‘‘The defendant is the victim’s biological father.

In 2010, when the victim was approximately six years

old, the defendant obtained full physical custody of

the victim as a consequence of drug abuse and mental

health issues affecting the victim’s biological mother.

Initially, the victim resided with the defendant; her stepmother, M; her half sister, H; and other relatives. The

victim and H are close in age, shared a close bond, and

attended the same school. Later, the defendant, M, H,

and the victim moved to a different residence.

‘‘On numerous occasions, the defendant used physical force to discipline the victim and H. The defendant

often struck the victim on her buttocks, back, and arms

with his bare hands or physical objects such as a belt

or an extension cord. Occasionally, if the use of force

resulted in visible injuries to the victim, the defendant

would make the victim conceal her bruises with clothing, or he would keep her home from school.

‘‘One night in 2011 or 2012, when the victim was

seven or eight years of age, the defendant verbally and

physically assaulted M in the victim’s presence, following which M and H left the residence. The victim, preparing to take a shower, went into her bedroom, undressed,

and wrapped herself in a towel. The defendant entered

the bedroom and told the victim that he had received

a telephone call from her teacher and was upset to have

learned that the victim had misbehaved in class. After

the victim and the defendant discussed this matter, the

defendant instructed the victim to remove her towel

and bend over a nearby bed. The victim, expecting to

be struck by the defendant as a form of discipline,

complied with the defendant’s instruction.

‘‘The victim positioned herself on all fours on the
bed. As the defendant stood behind her, at the edge of

the bed, he touched the victim’s anus and her vagina

with his penis. Penetration did not occur.2 As the incident progressed, the defendant pushed the victim down

so that her head and chest were on the bed. When

the victim told the defendant to stop touching her, he

responded by telling her to be quiet. Despite the fact

that the defendant’s hands were on the victim’s waist,

he stated that he was using ‘his thumb.’ After a few

minutes, the defendant stopped what he was doing, told

the victim to remain bent over until he left her bedroom,

and walked into another room. The victim was confused

by the defendant’s conduct and knew that it was ‘bad

. . . .’ She proceeded to use the shower. After the victim showered, the defendant told her that they were

going out to get pizza for dinner, and he stated that

‘what happened in the house stays in the house.’ The

victim understood this to mean that the defendant did

not want her to discuss what he had done to her in the

bedroom, and she believed that, if she told anyone about

it, it would either happen again or the defendant would

punish her by beating her.

‘‘The defendant and M later separated, and the victim

thereafter resided with the defendant and his new girlfriend. The victim resided there until December, 2015,

when the defendant was arrested on charges unrelated

to the present case. The victim was placed in the custody

of her maternal grandmother, B. Thereafter, the Department of Children and Families (department) investigated

allegations that the victim had suffered physical abuse

caused by the defendant. The department also investigated concerns expressed by B that the defendant had

acted inappropriately toward the victim because he had

a habit of kissing the victim on the lips. Ultimately, the

victim disclosed to a department social worker that the

defendant had done something that made her uncomfortable and that he ‘tried to say it was his finger . . . .’

During a forensic interview at Yale New Haven Hospital’s child sexual abuse clinic in 2016, the victim provided details of the incident involving the defendant’s

contact with her intimate parts in her bedroom.’’ (Footnote in original.) State v. James K., 209 Conn. App. 441,

444–47, 267 A.3d 858 (2021).

On appeal, the Appellate Court affirmed the judgment

of conviction. Id., 482. The Appellate Court concluded

that the trial court had not abused its discretion by

restricting defense counsel’s examination of prospective jurors during voir dire and that the defendant had

failed to demonstrate that the trial court’s ruling

resulted in harmful prejudice. See id., 447–59. The

Appellate Court also concluded that the trial court had

not abused its discretion in admitting the video

recording of the victim’s forensic interview into evidence. See id., 459–73.

Thereafter, the defendant filed a petition for certifica-
tion to appeal to this court, which we granted, limited to

the following issues: (1) ‘‘Did the trial court improperly

preclude defense counsel from asking prospective jurors

to express their opinions about the practice of a parent

kissing his or her child on the lips, and, if the answer to

that question is ‘yes’ and the error is subject to harmless

error review, was that error harmful?’’ And (2) ‘‘[d]id

the trial court err in not excluding a video-recorded

forensic interview with the [victim] when the [victim]

gave clear and cogent testimony at trial and the prejudicial effect of the video-recorded interview greatly outweighed its marginal probative value?’’ State v. James

K., 342 Conn. 904, 270 A.3d 692 (2022).3

I

Both in this court and in the Appellate Court, the

state identified an inconsistency in our case law regarding when the trial court’s exercise of discretion in

restricting voir dire will result in reversible error. Therefore, before addressing the defendant’s claim related

to the improper limitation on voir dire questioning, to

adequately address whether reversal is required, we

take this opportunity to clarify the appropriate standard

for evaluating such claims.

It is well established and undisputed that ‘‘[t]he [trial]

court has wide discretion in conducting the voir dire

. . . .’’ (Citations omitted.) State v. Dahlgren, 200 Conn.

586, 601, 512 A.2d 906 (1986). At times, this court has

stated that a party must prove both an abuse of discretion and harmful prejudice resulting therefrom to demonstrate reversible error. See, e.g., State v. Edwards,

201 Conn. 125, 159, 513 A.2d 669 (1986) (explaining that

‘‘[t]he extent to which parties may go in [the examination of prospective jurors during voir dire] rests largely

in the discretion of the [trial] court, and the exercise

of that discretion will not constitute reversible error

unless the discretion has been clearly abused and one

of the parties has been prejudiced thereby’’ (emphasis

added; internal quotation marks omitted)).

However, at other times, this court and the Appellate

Court have stated that ‘‘the exercise of that discretion

will not constitute reversible error unless it has clearly

been abused or harmful prejudice appears to have

resulted.’’ (Emphasis added; internal quotation marks

omitted.) State v. Skipper, 228 Conn. 610, 625, 637 A.2d

1101 (1994); accord State v. Mota-Royaceli, 186 Conn.

App. 735, 739, 200 A.3d 1187 (2018), cert. denied, 330

Conn. 960, 199 A.3d 20 (2019). Thus, we have been

less than clear about whether the test to determine

reversible error due to a restriction on voir dire is conjunctive or disjunctive.

Tracing this issue back to its origins reveals that the

standard initially had required both a clear abuse of

discretion and harmful prejudice. More than one century ago, in State v. Lee, 69 Conn. 186, 37 A. 75 (1897),
this court held that a defendant is ‘‘not entitled, as a

matter of strict right, to have the [prospective] jurors

sworn as requested,’’ which is ‘‘a matter [that] is left

largely to the discretion of the trial court.’’ Id., 194–95.

In Lee, this court concluded that, in that case, the trial

court’s ‘‘discretion appear[ed] to have been properly

exercised, and the record fail[ed] to show how the

defendant was in any way harmed by the refusal of

which he complains.’’ Id., 195. We later maintained in

Sherman v. William M. Ryan & Sons, Inc., 126 Conn.

574, 13 A.2d 134 (1940), that ‘‘[t]he extent to which

parties should be allowed to go in examining [prospective] jurors as to their qualifications is a matter largely

resting in the sound discretion of the trial court, the

exercise of which will not constitute reversible error

unless clearly abused, and [when] harmful prejudice

appears to have been caused thereby.’’ Id., 578. And,

then, in State v. Higgs, 143 Conn. 138, 120 A.2d 152

(1956), we reiterated that ‘‘the extent to which parties

may go in such an examination rests largely in the

discretion of the [trial] court, and the exercise of that

discretion will not constitute reversible error unless the

discretion has been clearly abused and one of the parties has been prejudiced thereby.’’ Id., 142.

It appears that the main source of the confusion arose

in 1969, in Childs v. Blesso, 158 Conn. 389, 260 A.2d

582 (1969), when this court replaced the ‘‘and’’ with

‘‘or’’ and stated the standard as ‘‘[t]here is no reversible

error in the [trial] court’s exercise of its discretion

unless it has been clearly abused or one of the parties

has been prejudiced.’’4

(Emphasis added.) Id., 394. In

Childs, there was no discussion or explanation for why

the court deviated from the conjunctive standard common to the case law of this court. Nevertheless, that

version of the standard has been repeated, though not

always consistently.

Even though the more recent iteration of the standard

in the disjunctive did not explicitly require proof of

abuse of discretion and harm, a review of our cases

citing that standard demonstrates that this court typically engages in an analysis of the harmful prejudice

caused by any abuse of the trial court’s discretion in

order to determine if the error is reversible. See, e.g.,

State v. Fritz, 204 Conn. 156, 162, 527 A.2d 1157 (1987)

(declining to adopt per se rule that limiting defense

counsel’s questioning of prospective juror about testimony of police officer was reversible error and engaging

in harmless error analysis), overruled on other grounds

by State v. Crawford, 257 Conn. 769, 778 A.2d 947

(2001), cert. denied, 534 U.S. 1138, 122 S. Ct. 1086, 151

L. Ed. 2d 985 (2002).

Requiring a defendant to prove both that the trial

court clearly abused its discretion and that harmful

prejudice resulted is consistent with the treatment of

these types of claims in other jurisdictions. See, e.g.,
State v. Lovette, 225 N.C. App. 456, 463, 737 S.E.2d 432

(2013) (‘‘The regulation of the manner and the extent

of the inquiry rests largely in the discretion of the trial

court. The exercise of such discretion constitutes

reversible error only upon a showing by the defendant

of harmful prejudice and clear abuse of discretion by

the trial court.’’ (Internal quotation marks omitted.)),

quoting State v. Jones, 347 N.C. 193, 203, 491 S.E.2d

641 (1997); see also, e.g., Wright v. State, 374 A.2d 824,

829 (Del. 1977) (‘‘[a]ny limitation on the voir dire

imposed by the [t]rial [c]ourt will not be disturbed

absent a clear showing of abuse of discretion to the

prejudice of the defendant’’); Tate v. United States, 610

A.2d 237, 239 (D.C. 1992) (‘‘the trial court has broad

discretion in the conduct of jury voir dire . . . and its

rulings will be affirmed on appeal unless the record

reveals an abuse of discretion resulting from an erroneous ruling coupled with substantial prejudice to the

defendant’’ (citation omitted)).

The use of the conjunctive test is more appropriate

in this type of case. The two factors at issue in the

test—clear abuse of discretion and harmful prejudice—

are both necessary to require reversible error. A clear

abuse of discretion that does not result in harmful prejudice would not require reversal. Moreover, the conjunctive test is also more consistent with similar tests we

apply when we are called on to evaluate a trial court’s

exercise of discretion, such as the test for evidentiary

improprieties, which requires that the defendant prove

both an abuse of discretion and harmful error. See, e.g.,

State v. Qayyum, 344 Conn. 302, 316, 279 A.3d 172

(2022) (‘‘[i]n order to establish reversible error on an

evidentiary impropriety, the defendant must prove both

an abuse of discretion and a harm that resulted from

such abuse’’ (internal quotation marks omitted)). Accordingly, we clarify that a trial court has wide discretion

in conducting a voir dire and that the exercise of that

discretion will not constitute reversible error unless it

has clearly been abused and harmful prejudice appears

to have resulted.

The following additional facts and procedural history

are relevant to this claim. ‘‘On October 16, 2018, the

second day of jury selection, defense counsel alerted

the [trial] court to the fact that the state was in possession of photographs depicting the defendant kissing H

on the lips. Defense counsel expressed her belief that

the state intended to introduce these photographs in

evidence over [her] objection. The court, B. Fischer,

J., added that, during the victim’s forensic interview,

the victim indicated that the defendant had kissed her

on the lips. In light of the possibility that evidence of

the defendant’s habit of kissing his daughters on the

lips was likely to be before the jury, defense counsel

opined that some potential jurors would have a very

strong reaction to such evidence. She argued that it

was part of her obligation in selecting a fair and impar-
tial jury to ask prospective jurors to express their feelings about that behavior. Defense counsel provided the

court with the type of inquiry she believed was appropriate, stating: ‘I guess I would ask a venireperson,

do they have opinions about how parents might show

affection to their children and . . . might they have

opinions about whether parents kiss their children . . .

as part of showing affection, and might they also have

any strong opinions one way or another about whether

. . . it’s okay for parents to kiss their children on the

lips, in terms of . . . is that a common thing in their

mind in terms of showing affection?’ The prosecutor

objected to any inquiry concerning kissing or ‘physically

showing affections between a parent and child.’

‘‘The court responded, ‘[t]he kissing is too fact specific. You know, prospective jurors may not be questioned regarding their predisposition to decide issues

with respect to evidence that may be offered at trial or

with the intent to condition them to prejudge issues

that will affect the outcome of the trial. I have no issues

with a question along the following lines . . . . ‘‘Do

you understand that parents can have different methods

of showing physical affection to their children’’ or a

question like that, but to specifically ask about kissing

on the lips is too fact specific.’ Defense counsel asked

whether a question about kissing on the lips could be

asked in the event that a venireperson raised the issue.

The court stated that such a follow-up inquiry was not

permissible because it would be ‘too fact specific.’ The

court clarified that defense counsel could ask questions

about a parent engaging in ‘different methods of showing physical affection to [his or her] child’ but that

defense counsel could not ask about kissing on the

lips. Defense counsel stated that she disagreed with the

court’s ruling but that she would abide by it.’’ State v.

James K., supra, 209 Conn. App. 447–48.

On the third day of jury selection, after hearing arguments from the parties, ‘‘[t]he [trial] court excluded the

photograph [depicting the defendant kissing H on the

lips] from evidence. The court stated: ‘I’m not going to

allow it in. It is a [photograph] of [H], who is not the

[alleged victim] here. Clearly, as I understand it, there

will be evidence from the [victim] that the defendant

did kiss her on the mouth . . . but we’ll wait to hear

that testimony. But this is separate. This is not the

[victim’s photograph], it’s [H]. The court finds it’s too

inflammatory, too prejudicial to the defendant.’ During

the remaining three days of jury selection that followed

the court’s ruling, defense counsel did not question

prospective jurors about their opinions, if any, with

respect to displays of affection between parents and

their children.

‘‘Prior to the victim’s testimony at trial, defense counsel expressly agreed that testimony about the fact that

the defendant had kissed the victim on the lips was
admissible. The victim subsequently testified that the

defendant had a habit of kissing her on the lips, that

this behavior ‘bother[ed]’ her, and that she asked the

defendant to kiss her on the cheek instead. The victim

testified, however, that the defendant continued to kiss

her on the lips. Kelly Adams, a department investigator,

testified at trial that, when she spoke with B, [B] stated

that ‘she believed something happened because [the

defendant] would kiss [the victim on] the mouth and

[the victim] didn’t like it, she said it made her feel very

uncomfortable . . . .’ Adams further testified that B’s

statements led her to question the victim as to whether

anyone had done something that made her feel uncomfortable, and that this inquiry resulted in the victim’s

initial disclosure of [the defendant’s] sexual abuse [of

her]. Adams testified that the defendant mentioned to

her that he was aware of the fact that others had told

her that he had kissed the victim on the lips but that he

had not behaved inappropriately. During [her] closing

argument, the [prosecutor] did not rely on evidence

related to the defendant’s habit of kissing the victim

on the lips.’’ (Footnote omitted.) Id., 451–52.

Even if we assume, without deciding, that the trial

court clearly abused its discretion in precluding defense

counsel from asking the prospective jurors to express

their feelings about parents kissing their children on

the lips, the defendant has not demonstrated that any

such error caused harmful prejudice.

First, in assessing whether the defendant was harmed

by the limitation on questioning, we must ‘‘begin our

analysis by determining the scope of the trial court’s

ruling, i.e., what specific question or questions actually

were prohibited.’’ State v. Lugo, 266 Conn. 674, 684, 835

A.2d 451 (2003). In the present case, the limitation on

defense counsel’s ability to question the prospective

jurors was narrow. Although the trial court prohibited

defense counsel from asking prospective jurors about

their views regarding parents kissing a child on the lips,

the court clarified that defense counsel could ask about

their views on different forms of parental affection.5

Defense counsel still could inquire into the types of

affection that the prospective jurors considered to be

appropriate and those that they considered to be inappropriate. See State v. James K., supra, 209 Conn. App.

448–51. The trial court gave defense counsel the opportunity to ask follow-up questions in this area and to

explore each prospective juror’s views regarding parental affection, only precluding questions specifically

about kissing a child on the lips. See State v. Lugo,

supra, 687, 690 (concluding that trial court’s limitation

on questioning during voir dire was not reversible error

because defense counsel ‘‘was afforded ample opportunity to uncover each prospective juror’s predisposition

toward gangs’’ in general, even though trial court had

prohibited questions about ‘‘Latin Kings’’ gang).
Second, the manner in which defense counsel questioned the prospective jurors demonstrates that the trial

court’s limitation on questioning did not cause the

defendant harmful prejudice. Although defense counsel

asked some questions regarding prospective jurors’

views on parental affection, counsel only availed herself

of limited follow-up on this line of questioning and only

asked five of the prospective jurors about their views

on parental affection. After the trial court precluded

the state from introducing into evidence the photograph

of the defendant kissing H, defense counsel stopped

asking prospective jurors about parental affection.

Therefore, because the trial court only prohibited defense

counsel from asking about ‘‘kissing on the lips’’ and

allowed counsel to ask questions about parental affection,

the fact that defense counsel did not avail herself of

this opportunity not only weighs against the defendant’s

claim of prejudice caused by the limitation imposed by

the court, but also reveals that even defense counsel

did not consider the issue of parental affection of great

importance once the state was precluded from introducing the photograph. See State v. Lugo, supra, 266 Conn.

687 (noting that, although defense counsel did not ask

questions about gangs in general, counsel was not prohibited from doing so by trial court’s limitation).

Third, evidence regarding the defendant kissing the

victim on the lips was not a prominent part of the state’s

case. The jury heard evidence that the defendant had

kissed the victim on the lips and that the victim had

objected to that kissing. The jury also heard evidence

that B was concerned about the defendant’s practice

of kissing the victim on the lips, that she reported that

concern to Adams, and that Adams began investigating

whether the victim had been sexually abused. The

defendant’s habit of kissing the victim on the lips did

not form the basis for any of the offenses with which

he was charged. Also, the prosecutor did not rely on

the evidence regarding kissing the victim on the lips

during her closing argument.

Moreover, as the Appellate Court recognized, in

assessing the impact of the evidence regarding kissing

on the lips, it is important to remember that the jury,

in this case, returned a split verdict. See State v. James

K., supra, 209 Conn. App. 458–59. Indeed, although the

jury found the defendant guilty of risk of injury to a

child, the jury found him not guilty of the sexual assault

charges. See footnotes 1 and 2 of this opinion. The

jury’s ability to assess each charge separately and to

find the defendant not guilty of some of the charges

weighs against the defendant’s claim that the trial

court’s limitation on defense counsel’s questioning during voir dire caused harmful prejudice by impacting the

defendant’s ability to choose an impartial jury. See, e.g.,

State v. Dahlgren, supra, 200 Conn. 597–98, 603 (relying

on fact that defendants were each acquitted of some
counts to conclude that trial court’s limitation on questioning of potential jurors did not cause harmful prejudice).

Accordingly, even if we assume that the trial court

clearly abused its discretion in precluding defense counsel from asking potential jurors about their views on

parents kissing their children on their lips, the defendant has not established that harmful prejudice resulted

from that limitation.

II

The defendant next claims that the Appellate Court

incorrectly concluded that the trial court had not abused

its discretion in admitting the video recording of the

victim’s forensic interview because its probative value

was outweighed by its prejudicial effect. Specifically,

the defendant asserts that, contrary to the conclusion

of the Appellate Court, the video recording was not

probative because the victim’s testimony had already

established the elements of the crimes with which he

was charged. See State v. James K., supra, 209 Conn.

App. 466–68. The defendant further claims that the

admission of the video recording constituted harmful

error.6 We disagree.

The following facts, as set forth in the Appellate

Court’s opinion, are relevant to this claim. ‘‘Prior to

trial, the state filed a notice of its intent to offer into

evidence a video recording of the victim’s forensic interview that occurred on March 9, 2016, and that was

conducted by Monica Vidro Madigan, a clinical social

worker employed by . . . Yale New Haven Hospital’s

child sexual abuse clinic. Later, the defendant filed a

motion in limine to preclude the admission of the video.

The defendant assumed for purposes of his motion that

the victim would testify at trial and would be able to

recall and narrate the details of her sexual abuse allegations against the defendant. The defendant expressly

stated that he did not object to the admissibility of the

video on hearsay grounds. Instead, the defendant raised

what he characterized as an objection related to ‘relevance and bolstering . . . .’ The defendant argued that

the video had limited probative value and was unduly

prejudicial to him. In arguing that it was unduly prejudicial, [the defense] argued that it was unnecessary and

cumulative evidence of the facts to be elicited during

the victim’s trial testimony, and it would improperly

bolster the victim’s testimony.

‘‘Following the victim’s trial testimony, on October 24,

2018, the [trial] court heard arguments on the motion.

Defense counsel reiterated that the video would not

add anything to the victim’s trial testimony and argued

that the admission of the video would constitute an

improper bolstering of that testimony. Defense counsel

argued that ‘[the victim] had clear recollection. She did

not have any confusion about the details. This isn’t a
case like some [in which] the child [victim] kind of

broke down and had trouble and, therefore, the state

tried to offer this evidence [of prior disclosure] . . . .

[The victim] had clear detail, clear memory and so I

think to pile on another version of her statement, it’s

very prejudicial and I think it’s cumulative . . . . It’s

really important to be clear about bolstering. And so I

think, here, when you’re allowing . . . the jury to hear

twice, once live in person, once on a [video-recorded]

forensic interview from the same complainant, that

really . . . is highly prejudicial. . . .

‘‘ ‘[T]here’s nothing contained in that forensic interview which was not already testified to by [the victim]

in front of this jury. It would simply be a rerun of

her testimony, of course without any sort of crossexamination there, and I think . . . its prejudicial

impact outweighs its probative value. I don’t think it

has any probative value. We’ve heard her testimony.’

Defense counsel acknowledged, however, that she was

unaware of any authority to support the proposition

that a forensic interview [such as the one in the present

case] is not admissible evidence.

‘‘Responding to the argument that the evidence was

cumulative, the prosecutor argued that the details provided by the victim during the forensic interview differed in some ways from the details provided by the

victim during her trial testimony. For example, the prosecutor stated that the victim provided different descriptions of the alleged anal penetration by the defendant.

The prosecutor also responded that the state was seeking the admission of the video under the medical diagnosis and treatment exception to the rule against hearsay.

‘‘The [trial] court stated that ‘the record obviously

reflects that the [victim] did appear . . . at this trial

and was subject to cross-examination, and the forensic

interview will be admitted, and that’s going to be admitted under the medical diagnosis and treatment [exception] to the hearsay rule, [§ 8-3 (5) of the Connecticut

Code of Evidence], and our existing case law under

State v. Griswold, [160 Conn. App. 528, 127 A.3d 189,

cert. denied, 320 Conn. 907, 128 A.3d 952 (2015)]. You

know, the purpose of the interview is to minimize

trauma so a child doesn’t have to repeat allegations to

numerous officials such as school officials, [the department], [the] police . . . and it also . . . assesses medical and mental health needs of the particular child,

and it also advances and coordinates the prompt investigation of suspected cases of child abuse. So, for those

reasons, and no existing case law to support the defendant’s position, I am going to deny the defendant’s

motion.’ The video of the forensic interview was admitted into evidence during the testimony of Vidro Madigan.’’ (Footnote omitted.) State v. James K., supra, 209

Conn. App. 459–62.

Our standard of review for evidentiary claims is well
settled. ‘‘Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice . . . .’’ Conn. Code Evid. § 4-3. ‘‘Because of the

difficulties inherent in this balancing process, the trial

court’s decision will be reversed only whe[n] abuse of

discretion is manifest or whe[n] an injustice appears

to have been done. . . . On review by this court, therefore, every reasonable presumption should be given in

favor of the trial court’s ruling.’’ (Internal quotation

marks omitted.) State v. Collins, 299 Conn. 567, 582,

10 A.3d 1005, cert. denied, 565 U.S. 908, 132 S. Ct. 314,

181 L. Ed. 2d 193 (2011). ‘‘In order to establish reversible

error on an evidentiary impropriety . . . the defendant

must prove both an abuse of discretion and a harm that

resulted from such abuse.’’7

(Internal quotation marks

omitted.) State v. Roy D. L., 339 Conn. 820, 830, 262

A.3d 712 (2021).

‘‘It is well settled that . . . [a]n out-of-court statement offered to prove the truth of the matter asserted is

hearsay and is generally inadmissible unless an exception

to the general rule applies.’’ (Internal quotation marks

omitted.) Id. Section 8-3 (5) of the Connecticut Code of

Evidence excludes from the hearsay rule ‘‘[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.’’

‘‘As we have previously noted, the rationale behind

the medical treatment exception [to the hearsay rule]

is that a person’s desire to recover his [or her] health

incentivizes [that person] to tell the truth to individuals

involved in [his or her] medical care. . . . [T]he presumption that such statements are reliable applies to

statements made during a forensic interview when the

surrounding circumstances could lead an objective

observer to reasonably infer that the victim’s statements

were given in order to obtain medical treatment and

diagnosis.’’ (Citation omitted; internal quotation marks

omitted.) State v. Roy D. L., supra, 339 Conn. 833–34.

In the present case, the defendant does not dispute

that the video recording of the victim’s forensic interview was admissible pursuant to the medical treatment

exception. Instead, the defendant asserts that the trial

court did not engage in the balancing test required by

§ 4-3 of the Connecticut Code of Evidence, and, if the

trial court had done so, it would have precluded the

state from introducing the video recording into evidence because its probative value was outweighed by

its prejudicial effect.

We first address the defendant’s claim that the trial

court did not engage in the balancing test required by

§ 4-3 of the Connecticut Code of Evidence. In doing so,

we are mindful that this court previously has rejected
the idea that a trial court must engage in an on-therecord balancing or ‘‘use some talismanic phraseology

in order to satisfy this balancing process. Rather . . .

in order for this test to be satisfied, a reviewing court

must be able to infer from the entire record that the trial

court considered the prejudicial effect of the evidence

against its probative nature before making a ruling.’’

State v. Nunes, 260 Conn. 649, 689–90, 800 A.2d 1160

(2002).

As we explained previously, the defendant filed a

motion in limine seeking to preclude the entirety of the

video recording of the victim’s forensic interview. In

the motion, the defendant argued that ‘‘[a]ll or most of

the information given by [the victim] to [Vidro Madigan]

during her [March 9, 2016] interview would be the same

as (or less than) that testified to during the trial, making

the prior statement unnecessary and cumulative . . . .’’

(Emphasis omitted.) The defense did not point to any

specific portions of the video recording that were

unduly prejudicial either in the defendant’s motion or

during defense counsel’s oral argument before the trial

court. Instead, in his motion, the defendant asserted

that the video recording, in its entirety, was unduly

prejudicial because it would improperly bolster the

credibility of the victim. Consistent therewith, during

her argument on the motion, defense counsel claimed

that it was prejudicial because it was cumulative and

constituted improper bolstering, and, thus, the entire

video recording should not be admitted.

We acknowledge that the trial court did not conduct

an on-the-record balancing test. As a result, we, as the

reviewing court, must look to see whether we can draw

an inference from the record that the trial court considered the potential prejudice. A review of the entire

record, particularly the parties’ arguments before the

trial court, reveals that the trial court considered the

prejudicial effect of the evidence against its probative

nature before making a ruling. We agree with the Appellate Court that the trial court ‘‘used broad language that

suggests that it had considered and rejected the specific

grounds of the defendant’s objection by stating that it

was unable to identify ‘existing case law to support the

defendant’s position . . . .’ ’’ State v. James K., supra,

209 Conn. App. 464–65. Stated simply, the trial court

appears to have rejected the defendant’s claim of prejudice in light of the arguments of the parties. It appears

that the trial court also found the defendant’s claim

unpersuasive in part because there is no existing appellate case law requiring the exclusion of a forensic interview of a child victim of sexual assault under § 4-3 of

the Connecticut Code of Evidence.8

We next address whether the trial court abused its

discretion in admitting the video recording into evidence. We conclude that the video recording of the

victim’s forensic interview was probative of the particu-
lar details involving the incident in which the defendant

had contact with the victim’s vagina and anus. As the

Appellate Court explained, ‘‘[t]he defendant was charged

with two counts of sexual assault in the first degree in

violation of General Statutes § 53a-70 (a) (1). One count

was premised on the allegation [of penile-vaginal intercourse], and one count was premised on the allegation

[of penile-anal intercourse].’’ Id., 466. In the video

recording, the victim described the incident in detail.

The defendant asserts that the video recording had limited probative value because the victim had testified

to these facts at trial. However, even the defendant

concedes that the victim described different details of

the incident in the video recording than she did at trial.

The defendant explains that, during her forensic interview, the victim ‘‘also described many . . . things in

greater detail or in different ways than [during] her

[trial] testimony, which fortified her allegations and

made her appear sympathetic.

‘‘For instance, [the victim] stated that, after the defendant put his thumb inside her bottom, [he] told her to

open . . . her legs wider, and then she felt something

go inside of her. . . . She did not mention anything

about opening her legs during her testimony. She also

stated that, ever since the assault happened, she had

been worried because, ‘I’m having white stuff come out

of me.’ ’’ (Citation omitted.) A review of the evidence

demonstrates that, although the victim’s testimony at

trial and the statements she made during her forensic

interview overlapped, there were details in the video

recording of her interview that were not contained in

her trial testimony. See, e.g., State v. Gray, 342 Conn.

657, 690, 271 A.3d 101 (2022) (‘‘[i]n precluding evidence

solely because it is cumulative . . . the [trial] court

should exercise care to avoid precluding evidence

merely because of an overlap with the evidence previously admitted’’ (internal quotation marks omitted)).

Therefore, on the basis of the foregoing, we conclude

that the record establishes that the video recording was

probative.

We next consider whether the trial court abused its

discretion in concluding that the video recording of the

victim’s forensic interview was not unfairly prejudicial.

‘‘To be unfairly prejudicial, evidence must be likely to

cause a disproportionate emotional response in the

jury, thereby threatening to overwhelm its neutrality

and rationality to the detriment of the opposing party.

. . . A mere adverse effect on the party opposing

admission of the evidence is insufficient. . . . Evidence is prejudicial when it tends to have some adverse

effect [on] a defendant beyond tending to prove the

fact or issue that justified its admission into evidence.’’

(Internal quotation marks omitted.) State v. Miguel C.,

305 Conn. 562, 575–76, 46 A.3d 126 (2012). ‘‘All evidence

adverse to an opposing party is inherently prejudicial

because it is damaging to that party’s case. . . . For
exclusion, however, the prejudice must be unfair in the

sense that it unduly arouse[s] the [jurors’] emotions of

prejudice, hostility or sympathy . . . .’’ (Internal quotation marks omitted.) State v. Sandoval, 263 Conn. 524,

545, 821 A.2d 247 (2003).

We agree with the trial court that the video recording

was not unduly prejudicial to the extent that it contained new or inconsistent evidence regarding the

crimes with which the defendant was charged.9 We

acknowledge that, in addition to new or inconsistent

evidence, the video recording contained a large amount

of consistent evidence. We caution that, when the prior

consistent statements of an alleged victim of sexual

assault are admitted in the absence of an applicable

exception to the general rule that such statements are

inadmissible at trial; see Conn. Code Evid. § 6-11 (b)

and (c); there is a danger that the evidence will be

misused to enhance the credibility of the victim.

Therefore, this case brings to our attention an issue

this court has had the opportunity to address recently—

namely, that defendants can request and trial courts

should consider the redaction of video recordings of

forensic interviews to limit their prejudicial effect. State

v. Roy D. L., supra, 339 Conn. 820, is instructive on this

point. In Roy D. L., we explained that ‘‘the trial court

in [that] case [had] assessed the admissibility of the

video recording of the forensic interview in its entirety

and did not assess the admissibility of individual statements made during the interview. We recognize that

the trial court’s approach was likely a reflection of the

position taken by defense counsel, who, in opposing

the prosecutor’s motion to admit the video recording,

argued that the recording should be excluded in its

entirety. In response to defense counsel’s ‘all or nothing’

approach, the trial court remarked, ‘[s]o, it’s either in

or it’s out, and, if it’s in, it can be played in its entirety.’

Given the formulation of defense counsel’s opposition

to the admission of the video recording . . . we believe

that the trial court’s response was reasonable. We do,

however, take this opportunity to emphasize that the

purpose underlying the medical treatment exception to

the hearsay rule does not preclude a party from objecting to portions of statements made during forensic interviews that are either inadmissible for the purpose they

are offered or are otherwise unduly prejudicial. Under

such circumstances, the [trial] court, particularly during

a jury trial, may exercise its discretion to redact portions

of a forensic interview.’’ Id., 829–30 n.7.

We note that many of the issues that the defendant

now points to as reasons why the video recording of

the victim’s forensic interview was more prejudicial

than probative could have been addressed by redacting

the video. For instance, the defendant asserts that the

video recording was unduly prejudicial because the victim’s credibility was enhanced when ‘‘[Vidro Madigan]
indicated through her statements to [the victim] that she

believed her allegations.’’ Furthermore, the defendant

claims that the victim’s discussion in the video recording about a favorite picture that she had drawn with

her and her mother’s favorite colors also generated

sympathy for the victim. The defendant also relies on

the fact that the victim discussed and detailed the physical abuse that the defendant allegedly had engaged in,

including beating the victim with an extension cord,

hitting her with a belt, punching her in the jaw and

leaving bruises on her body.

Although, on appeal, the defendant points to these

portions of the video recording as creating undue prejudice, at trial, there was no request to redact the video

or to identify with particularity those portions of the

video that the defendant found particularly prejudicial.

Instead, the defense challenged the admission of the

video recording in its entirety. Without such a request,

we cannot conclude that the Appellate Court incorrectly

concluded that the trial court had not abused its discretion in admitting the video recording of the victim’s

forensic interview into evidence.

The judgment of the Appellate Court is affirmed.

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 use the defendant’s full name or to identify the victim or others through

whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3)

(2018), as amended by the Violence Against Women Act Reauthorization

Act of 2022, Pub. L. No. 117-103, § 106, 136 Stat. 49, 851; we decline to

identify any person protected or sought to be protected under a protection

order, protective order, or a restraining order that was issued or applied

for, or others through whom that person’s identity may be ascertained.

1 The trial court imposed a sentence of twenty years of incarceration, five

of which are mandatory, execution suspended after sixteen years, followed

by fifteen years of probation. The jury found the defendant not guilty of

two counts of sexual assault in the first degree in violation of General

Statutes § 53a-70 (a) (1).

2

‘‘In reciting the facts that the jury reasonably could have found in reaching

its verdict, we are mindful that, as we noted in footnote 1 of this opinion,

the jury found the defendant not guilty of two counts of sexual assault in

the first degree. One count of sexual assault required a finding that the

defendant had penetrated the victim’s anus, and the other count of sexual

assault required a finding that the defendant had penetrated the victim’s

vagina. See General Statutes § 53a-70 (a) (1).

‘‘The jury found the defendant guilty of risk of injury to a child in violation

of § 53-21 (a) (2), which did not require a finding that penetration had

occurred but required a finding that the defendant had contact with the

intimate parts of the victim in a sexual and indecent manner that was likely

to impair her health or morals.’’ State v. James K., 209 Conn. App. 441, 445

n.2, 267 A.3d 858 (2021).

3 We note that the questions, as certified, focus on the actions of the trial

court, but it is well established that, in ‘‘a certified appeal, our focus is on

the judgment of the Appellate Court . . . .’’ (Citation omitted.) State v.

Nunes, 260 Conn. 649, 658, 800 A.2d 1160 (2002); see also, e.g., Burton v.

Browd, 258 Conn. 566, 570, 783 A.2d 457 (2001).

4 We acknowledge that, in 1908, in State v. McGee, 80 Conn. 614, 69 A.

1059 (1908), this court explained that, ‘‘[u]nder our practice the [defendant]

was not entitled, as a matter of strict right, to examine each [prospective]

juror individually as to his qualifications. It was within the discretion of the

trial court, and unless it appears that the discretion was improperly exercised, or that the defendant was injured by the refusal, it is not [a] ground
for a new trial.’’ Id., 618–19. However, cases citing to McGee have applied

the conjunctive iteration of the standard. See, e.g., Duffy v. Carroll, 137

Conn. 51, 56, 75 A.2d 33 (1950) (‘‘[t]he extent to which parties should be

allowed to go in examining [prospective] jurors as to their qualifications is

a matter largely resting in the sound discretion of the trial court, the exercise

of which will not constitute reversible error unless clearly abused, and

[when] harmful prejudice appears to have been caused thereby’’ (internal

quotation marks omitted)); accord Sherman v. William M. Ryan & Sons,

Inc., supra, 126 Conn. 578.

5 Defense counsel herself framed the inquiry as one involving parental

affection. She initially informed the trial court that she planned to ask,

‘‘do [the prospective jurors] have opinions about how parents might show

affection to their children and . . . might they have opinions about whether

parents kiss their children . . . as part of showing affection, and might they

also have any strong opinions one way or another about whether . . . it’s

okay for parents to kiss their children on the lips, in terms of . . . is that

a common thing in their mind in terms of showing affection?’’ (Internal

quotation marks omitted.) State v. James K., supra, 209 Conn. App. 447–48.

6 The defendant does not assert that the trial court improperly admitted

the video recording of the victim’s forensic interview under the medical

diagnosis and treatment exception to the hearsay rule but, rather, limits

his claim to an allegation that the probative value of that video recording

outweighed its prejudicial effect. Therefore, we do not consider whether

the video recording of the forensic interview was properly admitted under

the medical treatment exception.

7 The defendant does not assert that the evidentiary impropriety is of

constitutional magnitude.

8

In support of his claim that admission of the video recording of the

forensic interview was unduly prejudicial, the defendant cites to a number

of out-of-state cases in which those courts have concluded that video

recordings of forensic interviews are not admissible. To the extent that the

defendant asks us to adopt a per se rule, we decline to do so.

9 We disagree with the defendant’s claim that the fact that the video

recording showed the victim describing these incidents to a stranger at the

age of twelve would unduly arouse sympathy for the victim. The victim

testified to many of these same facts at trial. Without more, the approximately

three year age difference between the video recording and the trial is not

enough for us to conclude that the video recording in this respect would

unduly arouse the sympathies of the jurors. See, e.g., State v. Sandoval,

supra, 263 Conn. 545 (‘‘[i]t is unlikely that the proffered evidence . . . would

have improperly arouse[d] the emotions of the jur[ors] . . . in light of the

victim’s previous testimony’’ (citation omitted; internal quotation marks

omitted)).