Rules of Evidence-Constitutional Authority to Adopt

You asked whether the Judicial Branch has the authority to adopt or modify rules of evidence. Our office is not authorized to give legal opinions and this report should not be considered one.

As you know, the judges of the Superior Court adopted an evidence code in 1999 that became effective January 1, 2000. It has not been amended since its effective date.

It is not certain whether the Judicial Branch has the authority to adopt or amend an evidence code through its rule-making authority because (1) the constitution does not explicitly confer this authority; (2) the Supreme Court has not decided this precise issue in any case; and (3) the legislature has not explicitly conferred this authority by passing legislation.

But in light of how the code was adopted and the central role the courts have played historically in creating rules of evidence, it seems likely that the court would conclude, in a case challenging the code’s constitutionality, that the Judicial Branch has the constitutional authority to adopt such a code under its rule-making authority.

If such a case arose, it seems likely the court would consider several factors including:

1. the Judicial Branch, in its adjudicating rule, has long established rules of evidence;

2. the judges, in their rule-making role, unanimously voted to adopt the evidence code and the accompanying code commentary;

3. the code and its commentary specifies the adoption of amendments to the code by the judges in their rule-making capacity as well as by judicial interpretation as the means by which the code will change over time;

4. the Judiciary Committee chairmen asked the court to adopt the code, and no legislation has been introduced since the code’s adoption to repeal or amend the code, and

5. there does not appear to have been any court challenge to the Judicial Branch’s authority to adopt the code.

While not a holding, the Supreme Court stated in a recent case that the code of evidence was adopted by the judges of the Superior Court under their rule-making authority (State v. Whitford, 260 Conn. 610 at 638 (2002)).

Both the courts and the legislature have adopted evidence rules. The legislature has done so in specific statutes over the years such as establishing privileged communications. The courts have done so traditionally through case law and more recently through the evidence code.

In recent years, the courts have expressed the view that both the legislature and Judicial Branch have authority to adopt rules of evidence. In case law and various sections of the code itself, the judges seem to defer to the legislature’s authority, in the event of a conflict between rules established by the legislature and the courts. However, a serious constitutional issue might arise if the amendments adopted by the judges under their rule-making authority established rules that altered any of the various statutory evidence rules the legislature has established. The courts have not established a constitutional test that makes it easy to determine ahead of time whether a statutory rule of evidence might be ruled unconstitutional. Specifically, the court will overturn a statutory evidence rule if it concludes the rule

significantly interferes with the orderly conduct of the court’s judicial functions, or violates some other constitutional principle such as due process or equal protection.

One action the legislature might consider to safeguard against any broad constitutional challenge to the court’s authority to adopt or amend the code is to explicitly authorize the judges to adopt and amend the evidence code either with or without a provision that the legislature retains the right to overturn rules it disagrees with.

Although the legislature has enacted several laws regarding the authority or duty of the courts to adopt rules, the courts have not yet ruled whether these laws give the Judicial Branch the authority to adopt an evidence code.

In her 1984 biennial report, Chief Justice Ellen Peters encouraged the legislature to adopt an evidence code. She stated “. . . it would be of great benefit to judges and practitioners if the General Assembly, after a thorough study of the principles of evidence, enacted a code of evidence” (Biennial Report of the Connecticut Judicial Department: July 1, 1982 – June 30, 1984).

In 1991, the Judiciary Committee co-chairmen asked the Law Revision Commission to study the feasibility of the legislative enactment of an evidence code, and the preparation of a draft bill.

The Law Revision Commission appointed a committee to study the issue and prepare a draft. The committee was composed of judges, attorneys from the private and public sector, and legislators. (A list of committee members is provided in Attachment 1. ) Justice David Borden chaired the committee; Professor Colin Tait of the University of Connecticut law school served as committee reporter.

The committee decided that the draft code should be a restatement of the Connecticut common law of evidence. It also decided to restrict the code to rules of evidence and not to incorporate into the code the various rules of trial management concerning the admission of evidence (Handbook of Connecticut Evidence, Third Edition, Colin C. Tait, § 1. 1. 2 hereafter Tait).

The committee worked from 1993 until 1997. After a public hearing and public comment, it submitted its final draft to the commission in the fall of 1997. The commission approved it in December 1997, and submitted it to the General Assembly in 1998 (Tait § 1. 1. 3)

Before the 1998 legislative session, apparently the General Assembly leaders determined it would be preferable for the Judicial Branch rather than the legislature to adopt the code (Tait, §1. 1. 3). On March 3, 1998, the Judiciary Committee chairmen sent a letter to Chief Justice Robert J. Callahan asking that the code be adopted as court rules (see Attachment 2 for a copy of the letter).

After receiving the letter, the chief justice appointed a committee, chaired by Justice Joette Katz, and composed of seven other judges, Colin Tait, and two other attorneys. The committee reviewed it, made minor changes, and recommended it for adoption to the Rules Committee of the Superior Court judges. The Rules Committee approved the code and commentary in December 1998. After a public hearing, the judges unanimously adopted it on June 28, 1999, with an effective date of January 1, 2000.

That same year the chief justice appointed an oversight committee chaired by Justice Katz. It met in October, 1999 and recommended several changes to the proposed code based primarily on cases decided since the code was adopted in June. The Rules Committee approved the changes in October 1999, and the judges adopted them in December 2000 (Tait, §1. 1. 4).

The code’s stated purposes are to 1) adopt Connecticut case law regarding rules of evidence as court rules, and (2) promote the growth and development of evidence law through interpretation of the code and through judicial rule-making so that the truth may be ascertained and proceedings justly determined (Code §1-2)

One of the code’s stated goals is to place common law rules of evidence into a readily accessible body of rules to which the legal profession conveniently may refer (code commentary §1-2). The commentary specifies that future definition of the code will be effected primarily through interpretation of the code by courts and by judicial rule-making (Code Commentary §1-2).

According to the code commentary, the code was intended to maintain the status quo; that is to preserve the common-law rules of evidence as they existed before the code was adopted, including the common-law interpretation of certain incorporated statutory rules of evidence as it existed before the code’s adoption (Code Commentary § 1-2). Thus, the code codified the Connecticut common law of evidence as of the code’s effective date.

The code does not cover all evidence rules. It expressly excludes from its coverage certain areas such as presumptions and privileges (see §§ 3-1, 5-1, Code). With a few exceptions, it does not incorporate the numerous statutes relating to evidence. Finally, the code does not integrate the trial rules managing the admission of evidence, leaving such rules to the Practice Book or judicial discretion (Code § 1-2(a); Tait §1. 3. 2).

The code attempts to state the law as stated in case law. But such direct translation into black letter code provisions wasn’t always possible. Thus, it was sometimes necessary to use different language in the few instances when case law was “indeterminate. ” Thus, code provisions in those areas had to be drafted based on common practices in Connecticut’s trial courts, and the policies underlying common law in other areas (Tait, § 1. 3. 4; Code Commentary § 1-2(a)). ).

Each code section is followed by commentary containing citations to the case law upon which the section is based. The cases are representative; not all relevant cases were necessarily cited (Tait, § 1. 5. 1).

The commentary discusses the rule in its various applications. It also notes the few instances where because the drafters could not find Connecticut case law, they filled in the blanks with their understanding of the Connecticut practice (Tait, § 1. 5. 2). The judges adopted the commentary as well as the code. Thus, the commentary apparently must be considered in interpreting the code (Tait, § 1. 5. 2).

The principal constitutional question is whether the Connecticut Constitution gives the Judicial Branch or the legislative branch the exclusive or shared authority to adopt a code of evidence. Unfortunately, this precise question has not been explicitly answered by the language of the constitution. But the branches have acted as if they have shared authority.

The legislative branch has enacted numerous statutory rules of evidence, which the courts routinely construe and apply to court proceedings (for example, see CGS §§ 52-143 to 52-184c). The Judicial Branch in its adjudicatory function has established numerous common-law evidence rules. But it is not clear whether the Legislative Branch or the Judicial Branch has the ultimate authority in the event of a conflict between a judicially and legislatively created evidence rule.

In recent years, the branches have worked cooperatively in this area. Generally, the courts have acquiesced to the legislative branch when there is a conflict. For example, Section 51-15a of the General Statutes require the Senate and House Judiciary Committee chairmen to appoint six committee members who, with the chairmen, must meet, on the call of the Chief Justice, but not less frequently than annually, with the rules committee of the Superior Court to confer and consult with respect to (1) the rules of practice, pleadings, forms, and procedure for all courts of record of this state and (2) legislation affecting the courts pending before or to be introduced in the General Assembly.

According to Carl Testo, director of legal services for the Judicial Branch, the rules committee normally meets with legislators in March of each year. He indicated the committee meets monthly from September to June. Legislators who have suggestions or concerns regarding court rules may also send them to the current rules committee chairperson, Justice Peter T. Zarella.

The only exception to this practice of cooperation and acquiescence regarding rules of evidence is when a court concludes that a statute violates (1) the constitution’s separation of powers provision by significantly interfering with the orderly conduct of an essential judicial function or (2) another constitutional provision such as the due process or equal protection clause.

Article Second of Connecticut’s Constitution provides in relevant part: “The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another…. ”

The primary purpose of this provision is to prevent the commingling of different powers of government in the same hands. The constitution achieves this purpose by prescribing limitations and duties for each branch that are essential to its independence and performance of assigned powers. The separation of powers provision serves a dual function: it limits the exercise of power within each branch, yet ensures the independent exercise of that power (State v Kinchen 243 Conn. 690 (1998)).

In deciding whether one branch’s actions violate this constitutional provision, courts consider if the action constitutes: (1) an assumption of power that lies exclusively under another branch’s control or (2) a significant interference with the orderly conduct of the essential functions of another branch (Massameno v. Statewide Grievance Committee, 234 Conn. 539, 551-553 (1995)). They have recognized, however, that governmental powers can overlap. Thus, they have concluded that the separation of powers provision cannot always be rigidly applied to render mutually exclusive the roles of each branch of government (Massameno, at 576 and 577).

In 1974, the Supreme Court held that the legislature had no power to establish procedural rules for the courts unless the courts acquiesced. It held unconstitutional a statute authorizing a criminal defendant to demand certain exculpatory information from the prosecutor. There was no specific court rule, but under the common law the defendant had to ask the court to exercise its discretion to order prosecutors to turn over their information (State v. Clemente 166 Conn. 501, (1974)). (Also see State et rel. Kelman v. Schaeffer, 161 Conn. 522 (1971), and Adams v. Rubinow, 158 Conn. 150 (1968)). The court reaffirmed Clemente in 1982 holding that a court rule rather than a statute on joinder of indictments or informations in a criminal trial against the same defendant or different defendants would be followed (State v. King, 187 Conn. 677).

In 1989, the Supreme Court held that statutory rules of evidence do not fall within the Clemente holding of exclusive judicial jurisdiction over matters of court administration, practices, and procedure (State v. James, 211 Conn. 555 (1989)). The main issue in James was the competency of a child to testify in certain criminal proceedings without prior qualification. A statute made them competent to testify. The defendant claimed that the statute violated the separation of powers clause because it removed the court’s traditional authority to determine a child witness’s competence to testify.

The court upheld the statute’s constitutionality. It pointed out that rules of evidence have never been regarded in Connecticut as exclusively within the judicial domain. The court noted that the legislature had enacted many statutes modifying the common law rules of evidence the courts had established. Connecticut courts applied these laws and until the James case no one had challenged the constitutionality of these statutory rules of evidence based on the separation of powers clause. (James, pages 560 and 561).

The court had invalidated statutory rules of evidence that it concluded required courts to apply factually unsupportable presumptions (see Motts Super Markets, Inc. v. Frassinelli, 148 Conn. 481 91961); Ducharme v. Putnum, 161 Conn. 135 (1971)). But the court pointed out that these decisions were based on constitutional provisions such as due process and equal protection, and not on separation of powers.

The court noted that Connecticut courts had not yet tried to create a code of evidence as some other states had done. It stated “ we leave to another time the question whether the court’s constitutional authority to make rules governing court administration, practice, or procedure extends also to the creation of a code of evidence and the resolution of possible conflicts between its provisions and statutes affecting the same matters” (James, at 562).

In a subsequent case, the court upheld a statute, (CGS § 52-216b) that authorized counsel to suggest an appropriate monetary recovery in his closing argument to the jury (Bartholomew v. Schweizer, 217 Conn. 671 (1990)). The statute overturned two Supreme Court decision -Carchidi v. Rodenhiser, 209 Conn. 526 (1989), and Pool v. Bell, 209 Conn. 536 (1989)), which held that as a matter of judicial policy, in their closing arguments to a jury, counsel would not be allowed to suggest the amount of damages by specifying a lump-sum amount or by presenting a mathematical formula.

In upholding the statute the court pointed out that it retained significant power regarding closing arguments. For example, the statute did not affect the court’s power to discipline attorneys or to control their statements during oral argument as justice may require. Nor did the statute affect the court’s power to monitor closing arguments, comment on the propriety of counsel’s arguments, give curative instructions as necessary, or to declare a mistrial or set aside a verdict if counsel’s comments were so prejudicial that no curative instruction could preserve the parties’ right to a fair trial (680 and 681).

Because the courts have not yet decided in any reported case whether the Judicial Branch has the authority to adopt an evidence code in their rule-making authority, the legislature could consider legislation authorizing the courts to adopt and amend such a code to safeguard against possible constitutional challenge to the code based on the separation of power clause. Such legislation would seem to have solid constitutional footing since Article Fifth, § 1 of Connecticut’s Constitution provides that the legislature has the authority to define the powers of the Supreme, Appellate, and Superior Courts by law.

But, as noted before, it seems extremely unlikely any constitutional challenge to the evidence code based on the separation of powers clause would be successful in light of the way in which the code was adopted. The judges unanimously adopted the code. Presumably the judges believed they had the constitutional authority to adopt the code when they voted to do so. Moreover legislative leaders asked the judges to adopt a code, and since the judges adopted it there has been no legislation proposed to challenge the judge’s authority to do so. Also, it seems unlikely that a challenge will be mounted because the code restates the common law; it does not change it. Even if the code were declared unconstitutional, the law would presumably remain the same since the common law rules on which the code is based would presumably be controlling. Thus, there appears to be no reason to mount such a challenge.

A more serious constitutional challenge could arise if judges amend the code in a way that either changes the common law or conflicts with a statutory evidence rule. In recent years courts generally have deferred to the legislature when conflicts arose between legislation and court rules. But courts have not deferred when they conclude a statute significantly interferes with the orderly conduct of a judicial function. Using existing statutory procedures that require cooperation and dialogue between the judicial and legislative branches can minimize if not eliminate such conflicts (See CGS § 51-15a).

The legislature has enacted numerous laws regarding the authority or duty of the courts to adopt rules. Following is a summary of those statutes. It should be noted that the courts adopted their evidence code and the practice book under their constitutional authority and not statutory authority.

CGS § 51-14. The law directs the judges of the Supreme Court, Appellate Court, and Superior Court to adopt, modify, or repeal rules and forms regulating pleading, practice, and procedure in judicial proceedings in courts in which they have the constitutional authority to make rules, to simplify proceedings in the courts, and promote the speedy and efficient determination of litigation. It is not clear whether this authorization encompasses an evidence code. Appellate Court rules must be as consistent as feasible with Supreme Court rules to promote uniformity in taking appeals and may dispense, so far as justice to the parties will permit while affording a fair review, with the necessity of printing records and briefs. The rules may not abridge, enlarge, or modify any substantive right or the jurisdiction of any of the courts.

The law requires that the rules become effective on the date the judges specify but not in any event until 60 days after the judges adopt them.

CGS §51-14 (b). The law requires that all statutes relating to pleading, practice, and procedure in existence on July 1, 1957, be deemed to be rules of court and requires that they remain in effect until modified, superseded, or suspended by rules the judges adopt. The law requires the Chief Justice to report any such rules to the General Assembly for study at the beginning of each regular session. The law requires the House Speaker or by the Senate President to refer them to the judiciary committee for its consideration and requires the committee to schedule hearings on them. Any rule or any part of a rule the General Assembly disapproves by resolution is void and a copy of the resolution must be published once in the Connecticut Law Journal.

1. hold public hearings with reasonable notice given in the Connecticut Law Journal and otherwise as they deem proper, upon any proposed new rule or any change in an existing rule that is to come before them for action;

2. publish each such proposed new rule or rule change in the Connecticut Law Journal as a part of this notice; and

3. hold a public hearing at least once a year, with reasonable notice at which anyone may bring to the attention of the judges any new rule or change in an existing rule that he deems desirable.

CGS § 51-15. The law requires that, in accordance with the provisions of CGS § 51-14, the judges of the Superior Court make such orders and rules as they deem necessary or advisable concerning the commencement of process and procedure in certain types of proceedings such as paternity proceedings, summary process, and habeas corpus.

The law requires Superior Court judges to adopt orders and rules for the hearing and determination of small claims that include certain things including notice by mail, and the elimination of any and all fees or costs, except a fee for small claims procedure as prescribed in CGS §52-259. It also requires that the orders and rules permit the institution of a small claims action against a nonresident defendant who owns real or personal property in this state and against an out-of-state corporation.

The law specifies that upon the taking effect of such orders and rules, all provisions of statute, both public and private, and the provisions of any orders or rules adopted by the judges of the Superior Court before July 1, 1957, inconsistent with or superseded by them, are deemed to be repealed, to the extent necessary to render the orders and rules effective.

CGS § 51-15a. The law requires the Judiciary Committee chairmen to appoint committee members to meet, at least annually on the call of the Chief Justice, with the rules committee of the Superior Court to confer and consult regarding the rules of practice, pleadings, forms, and procedure for all courts and legislation affecting the courts pending before or to be introduced in the General Assembly.


December 14, 2005		2005-R-0866
RULES OF EVIDENCE-CONSTITUTIONAL AUTHORITY TO ADOPT OR AMEND AN EVIDENCE CODE

By: George Coppolo, Chief Attorney