You asked for a summary of the Connecticut Supreme Court's ruling on the Evidence Code in State v. DeJesus (288 Conn. 418 (2008)).

SUMMARY

State v. DeJesus involved a defendant charged with sexual assault and kidnapping. The court addressed a number of issues in this case, including whether the Supreme Court has the authority to change rules of evidence contained in the Evidence Code adopted by the Superior Court judges. Our summary focuses on this Evidence Code issue.

Six of the seven justices in this case concluded that the Supreme Court retains the power to change rules of evidence. Three justices reached this conclusion by interpreting the Evidence Code's language and history. They also questioned whether the Superior Court judges had the constitutional authority to divest the Supreme Court of this power. Three justices decided the issue based on the state constitution and concluded that the Superior Court judges could not have removed the Supreme Court's powers over evidentiary law.

Chief Justice Rogers wrote a plurality opinion, joined by Justices Norcott and Vertefeuille, concluding that the adoption of the Evidence Code by the Superior court judges did not divest the Supreme Court of its inherent common law adjudicative authority to develop and change evidence rules on a case-by-case basis. The justices found ambiguity in the code's text about how evidence law would change and develop after the code's adoption. They looked at the code's history and purpose to conclude that it was intended as a concise and authoritative restatement of the state's common law and identified statutory rules of evidence and it was not intended to divest the Supreme Court of its inherent authority to change the law of evidence through case-by-case common-law adjudication.

The justices stated that their construction was consistent with their duty to interpret statutes to avoid placing them in constitutional jeopardy. They also stated that it was questionable whether the Superior Court judges had the constitutional authority to adopt a code that would strip the appellate courts of their common law adjudicative function.

Justice Palmer wrote a concurring opinion, agreeing that the court retains it authority to modify the law of evidence but he reached the result in a different way. He states that even though the Superior Court judges adopted the code, they do not have the power to replace the Supreme Court as the body ultimately responsible for determining the law of evidence.

Justice Zarella wrote a concurring opinion, joined by Justice Sullivan, also agreeing that the Supreme Court had authority to change the law of evidence but stating that it was unnecessary to interpret the code's language. He concluded that the Superior Court judges do not have the constitutional authority to eliminate the Supreme Court's inherent authority to change and develop evidentiary law. He stated that the majority placed too much emphasis on the intent of the Superior Court judges, indicating that their intent could be dispositive. This and the repeated reference to the court's inherent and constitutional authority created unnecessary ambiguity as to the scope of the Superior Court's authority over the law of evidence.

Justice Katz wrote a dissenting opinion. Justice Katz concluded that the Evidence Code was a judicial codification of general rules, which are the functional equivalent of laws. She stated that the Superior Court judges adopted the code through their rulemaking authority in procedural matters. She argued that by concluding that the appellate courts retain the authority to change the rules of evidence through case-by-case common-law adjudication, the majority eviscerates the force of the code and crowns itself “evidentiary monarch. ” She concluded that it is the exclusive role of the evidence code oversight committee, the Superior Court Rules Committee, and ultimately the Superior Court judges to make changes to the Evidence Code.

PLURALITY OPINION BY CHIEF JUSTICE ROGERS

The specific issue in the case involved the admissibility of uncharged misconduct evidence in sex crimes cases. Under § 4-5 of the Evidence Code, evidence of someone's other crimes or acts is not admissible to prove the person's bad character or criminal tendencies. But it is admissible for other purposes, such as to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony.

The code does not articulate a particular standard to determine whether uncharged misconduct evidence is probative of the existence of a common scheme or plan.

Code as a Codification of the Common Law

The justices first considered whether the code codified the common law standards of admissibility for uncharged misconduct evidence. Using principles of statutory interpretation, the justices (1) first looked at the code's text, its commentary, and the relationship between code sections and (2) used extra-textual evidence only if the meaning remained ambiguous or yielded absurd or unworkable results.

The code does not articulate a standard and to understand the code provision at issue, the justices looked at the code's purpose as stated in § 1-2(a).

● This provision states that one of the code's purposes is “to adopt Connecticut case law regarding the rules of evidence as rules of court . . . ” Unlike other court rules, the judges formally adopted commentary when they adopted the code. The official commentary states that the code was intended to maintain the status quo by preserving common law rules of evidence as they existed before adopting the code and the code was not intended to modify any interpretations of those rules.

● Thus the code codified the common law on the admission of uncharged misconduct evidence, including the liberal standard used in sex crime cases and the stringent standard used in other cases.

Ambiguity in How the Evidence Code Can be Changed

The justices next addressed whether the Supreme Court could reconsider this standard. The justices found ambiguity in how evidence law was to develop and change after the code's adoption.

● Code § 1-2(a) states that another purpose is “to promote the growth and development of the law of evidence through interpretation of the code and through judicial rule making to the end that the truth may be ascertained and proceedings justly determined. ” The meanings of the terms “interpretation” and “judicial rule making” are unclear.

● “Interpretation” is commonly understood to mean explaining or construing and it could be intended to limit the courts' authority to explaining and construing the code. Because “interpretation” is intended “to promote the growth and development of the law of evidence,” and “growth” and “development” denote change, the term may have been intended to be construed broadly to mean the court's common law adjudicative function under which evidentiary law historically developed. The commentary also states that “case-by-case adjudication is integral to the growth and development of evidentiary law and, thus, future definition of the code will be effected primarily through interpretation of the code and through judicial rule making. ” This supports a broad construction of the term “interpretation. ”

● “Judicial rule making” could be construed to refer to court rules adopted by the Superior Court judges but the commentary indicates that it should be construed broadly to include all evidentiary law developed by the Judicial Branch, whether from an administrative or adjudicative source. Because the commentary refers to evidentiary law developed by case-by-case adjudication as “rules of evidence,” it appears that “judicial rule making” was intended to include case-by-case common-law adjudication. At the least, it is unclear whether it was intended to eliminate the appellate courts' authority to change the law through case-by-case adjudication.

Code's History and Purpose

To resolve the ambiguity, the justices looked at the code's history and purpose.

● Before the code, the law of evidence was found in court decisions, court rules, and legislation. Disputes about evidentiary rules led to time consuming arguments and appeals.

● The code was adopted in the following way.

○ Former Chief Justice Ellen Peters suggested in the courts' 1984 biennial report that “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. ”

○ The Judiciary Committee co-chairmen requested that the Connecticut Law Revision Commission study “the feasibility of the legislative enactment of an evidence code” and draft a bill.

○ Then Supreme Court Justice David Borden chaired the committee that drafted the proposed Evidence Code. The committee completed its work in September 1997, received public comment, and submitted its work to the Law Revision Commission.

○ The commission adopted the proposed code and commentary in December 1997 and submitted them to the Judiciary Committee.

○ Before the 1998 session began, certain legislators suggested that the judges adopt the code under their rulemaking authority. The Judiciary Committee urged then Supreme Court Chief Justice Robert Callahan to have the Superior Court judges consider adopting the code. Their thought, with which the Superior Court Rules Committee ultimately agreed, was that the code could be amended more easily by rule rather than legislation and it would insulate changes from politics (citing D. Borden, “The New Code of Evidence: A (Very) Brief Introduction and Overview,” 73 Conn. B. J. 210 (1999)).

○ Then Chief Justice Callahan appointed a committee which reviewed the code and commentary from June to September 1998. It made changes and submitted the code to the Rules Committee. The Rules Committee unanimously approved the proposed code and commentary. A public hearing was held in June 1999 and the judges adopted the code and commentary on June 28, 1999.

○ The judges created an oversight committee to monitor the code and recommend changes. The oversight committee convened in October 1999 and recommended minor changes based primarily on recent developments in the law. The Rules Committee and the judges adopted the changes which were included in the code when it took effect January 1, 2000.

The justices concluded that the code's history shows that it was “intended to provide the bench and bar with a concise and authoritative restatement of the state's common law and identified statutory rules of evidence so that disputes over the application of evidentiary rules could be resolved quickly and efficiently. ” But it did not show that the code was intended to divest the Supreme Court of its inherent authority to change the law of evidence through case-by-case common-law adjudication.

● At the judges meeting when the code was adopted, Justice Borden explained that its purpose was to make the litigation process more efficient by having a code in a concise and familiar form. There was no discussion of the code's effect on the Supreme Court's authority to change evidentiary law, an inherent authority it has enjoyed since the 17^th century. Anecdotal evidence shows that the judges may have had conflicting understandings of the code's impact, which supports the conclusion that the judges did not express a clear intent to divest the Supreme Court of its authority.

● The only reference to the way the code would affect future changes in evidentiary law was in the creation of the oversight committee to recommend revisions and clarifications. It is unclear whether the judges intended the committee to recommend substantive revisions, limited changes, or changes to reflect developments made through case-by-case adjudication.

● It is “illogical to conclude that, by adopting the code for the purposes of ease and convenience, the judges intended to divest this court of its long-standing inherent common-law adjudicative authority over evidentiary law. ” Such “a radical departure” would have generated discussion and the silence of the record speaks volumes.

● Rules limiting the common law must also be strictly construed.

● The judges did not intend the oversight committee to recommend substantive changes but instead to recommend revisions based on common-law developments in evidentiary law, clarifications to resolve ambiguities, and new rules where common-law rules do not exist.

In a footnote, the justices recognized that the court stated in dicta and without analysis in State v. Sawyer (279 Conn. 331 (2006)) that since the code's adoption the Superior Court judges had the authority to change the rules of evidence through rulemaking while before that date, changes were made by the courts through their common-law authority. The justices in Sawyer stated that to the extent that evidentiary rules implicate substantive rights, it is unclear whether those rules properly are the subject of judicial rulemaking rather than the subject of common law adjudication. They stated that this question is “left for another day. ” The justices stated that because the language in Sawyer was dicta, it did not bind the court.

Constitutional Authority

The justices also stated that their construction of the code was consistent with their duty to interpret statutes to avoid placing them in constitutional jeopardy. They stated that it was questionable whether the Superior Court judges had the constitutional authority to adopt a code that would strip the appellate courts of their common law adjudicative function.

● The 1818 constitution did not create a new judicial system but instead gave permanence to the existing Supreme Court as the state's highest court and the Superior Court as the trial court.

● Under the common law before 1818, as under the common law of England, the highest court had the ultimate authority over the rules and standards for the admissibility of evidence.

● The Superior Court possessed broad discretion in admitting evidence in each case, constrained by the law of evidence the Supreme Court developed.

● Because the Supreme Court had final and binding authority over the law of evidence before 1818 and the 1818 constitution codified the common law authority of the Supreme Court and the Superior Court, it is questionable whether the Superior Court judges have the constitutional authority to adopt an evidence code that is inconsistent with the legal principles promulgated by the Supreme Court or to divest the Supreme Court of its power to change the law of evidence through case-by-case adjudication.

● Evidentiary rules are subject to change by the Supreme Court in exercising its constitutional and common law adjudicative authority. The code is not, and was not intended to be, anything more than a concise, authoritative, and accessible body of rules for reference.

● It is also questionable whether the Superior Court judges have the constitutional authority to adopt a code that is inconsistent with legal principles promulgated by the Appellate Court, to the extent those principles are consistent with the Supreme Court's decisions, or to divest the Appellate Court of its power to develop the law of evidence by case-by-case adjudication. Evidentiary rules in the code can be changed by the Appellate Court through its constitutional and common law adjudicative authority.

The justices also stated in a footnote that the dissent speculates that the legislature may be motivated to bring the rules of evidence under its supervision but stated that there is no reason why the legislature would seek to preempt the code which was adopted by the Superior Court judges and is binding authority in that court. The justices stated that the Judiciary Committee cochairmen noted it was more appropriate to adopt the code as rules of court than legislation and it must remain responsive to judicial concerns. The justices stated that their decision comports with the legislature's and the Superior Court judges' intent.

Comparison to Practice Book Rules

The justices stated that the unique procedural and factual history of the code should not be construed to extend to the practice rules codified in the Practice Book.

● The Supreme Court has exercised final and binding adjudicative authority over evidence law since its inception more than 200 years ago but, before 1818, the Superior Court judges had authority to adopt rules governing pleading, practice, and procedure in the trial courts.

● Rules of evidence “facilitate the court's core judicial truth-seeking function. ” They necessarily are, and have been, subject to the Supreme Court's oversight and supervision both under the common law and the constitution.

In footnote 31, the justices state that the rules of evidence have never been exclusively within the judicial domain and the legislature has enacted statutes modifying common law rules of evidence. The courts have accepted these and they have not been challenged as violating the separation of powers (citing State v. James, 211 Conn. 555 (1989)).

CONCURRING OPINION BY JUSTICE PALMER

Justice Palmer agreed with the plurality that the Supreme Court retains authority to change the law of evidence as embodied in the code but he reached the result in a different way.

Disagree with the Finding of Ambiguity in the Code

Justice Palmer states that the majority opinion concludes that the code's language is ambiguous as to whether the Superior Court judges intended to remove the Supreme Court from its historic role with respect to evidence law. Justice Palmer does not agree that the terms “interpretation” and “judicial rulemaking” in how evidence law is to change under the code are ambiguous.

● The code identifies two ways for it to be modified: through the construction of the code's terms and through the Superior Court judges rulemaking authority.

● In adopting the code, the Superior Court judges were not attempting to strip the Supreme Court of its traditional common law role regarding the development of evidence law.

● The code establishes the manner that the Superior Court judges can modify it but it does not occupy the field by displacing the Supreme Court as the ultimate authority for evidence law. The purpose of the code is “plain and reasonable. ” The Superior Court judges interpret the code and can modify it through rulemaking to clarify terms or fill gaps. Nothing in the code limits the Supreme Court's power concerning evidentiary law.

Power of Superior Court Judges

Justice Palmer states that the Superior Court judges do not have the power to replace the Supreme Court as the body ultimately responsible for determining the law of evidence.

● The Supreme Court has exercised this common law authority since its creation, prior to adoption of the 1818 constitution. The Supreme Court is a constitutional court and its common law authority, including over evidence law, is constitutionally rooted. The Superior Court judges cannot possess the power to divest the Supreme Court of a significant measure of that authority.

● The Supreme Court has inherent supervisory authority over the administration of justice. This includes the power to supervise and control proceedings on appeal and supervise the manner of proceedings in trial courts. Although the court uses its supervisory authority sparingly, it has adopted rules to guide lower courts in the administration of justice in all aspects of the criminal and civil cases.

● The Supreme Court's inherent supervisory authority over the administration of justice in the trial courts is generally reserved for matters of the greatest seriousness that implicate the fairness and integrity of the judicial system as a whole.

● If the Superior Court judges had the power to trump the Supreme Court's supervisory authority, then the Supreme Court does not truly possess supervisory power. If the Supreme Court's power is limited to when the trial courts acquiesce, the Supreme Court's authority would be advisory rather than supervisory.

● Supervisory authority over the administration of justice is inherent in appellate courts generally, including the U. S. Supreme Court. In this state, the Supreme Court has been the ultimate authority on evidence law since its inception and no persuasive reason has been offered supporting the contention that the Superior Court judges can assert that power. It cannot be presumed that the Superior Court judges purported to do so when they adopted the code. If they did, it is extremely unlikely that they would have done so without any public discussion. The code was presented to the judges as a compilation of the existing common law. This strongly supports the conclusion that the judges treated the code as representing the status quo and not creating a dramatically different set of procedures to determine the law of evidence.

Comparison to Practice Book Rules

Justice Palmer stated that although it could be argued that the Superior Court judges assert a similar authority when promulgating rules of procedure in the Practice Book, it was not apparent that those rules are binding on the Supreme Court.

● It is very unlikely that the Supreme Court would alter a rule of practice through its supervisory authority, but the Supreme Court does not lack the power to do so.

● This is the position the U. S. Supreme Court has taken about its authority with the lower federal courts on rules of procedure.

● The rules of practice can be viewed in the same way as the Evidence Code: rules adopted by the Superior Court judges to govern the way cases proceed in the trial courts.

● Under its common law adjudicative authority, the Supreme Court is the final arbiter of disputes between parties on the interpretation of those rules. Similarly, the Supreme Court through its inherent authority retains the power to establish rules governing the administration of justice in the courts.

● The language in certain opinions appears to support the contention that the Supreme Court does not have the ultimate authority to modify a rule of practice adopted by the Superior Court judges. A closer analysis shows they are not persuasive authority for that proposition. Three of the four decisions were brief summary, per curiam opinions without analysis of the relative authority of the Supreme Court and the Superior Court. At most, these decisions show the court's reluctance to override rules of practice. In the fourth case, the Supreme Court stated that the defendant's claim was a policy argument “more properly directed” to the Superior Court Rules Committee (State v. Jennings, 21 Conn. 647 (1990)). The defendant did not request that the Supreme Court invoke its supervisory authority.

● The history of the rules of practice and the law of evidence are not identical.

● The history of the practice rules, including the 1807 legislative delegation of rulemaking authority to the courts as they were constituted before 1818, does not show that the Supreme Court is subordinate to the Superior Court. From the late 18^th century until 1818, the judges of the Supreme Court of Errors and the Superior Court judges were the same and distinctions between their authority over the administration of justice were of little practical significance. The 1808 statute is ambiguous with respect to the division of authority, if any, between the judges of the Supreme Court of Errors and the Superior Court. Without a “reasonably clear historical record” limiting the Supreme Court's inherent power as the state's highest court, there is no persuasive reason to conclude that the Supreme Court's authority is subordinate to Superior Court judges' authority.

● This case does not require a decision on which court possesses ultimate authority over the practice rules.

CONCURRING OPINION BY JUSTICE ZARELLA, JOINED BY JUSTICE SULLIVAN

Justice Zarella agreed with the majority's conclusion that the Supreme Court had authority to change the law of evidence but did not believe it necessary to interpret the code's language. He concluded that the Supreme Court's authority to review evidentiary rulings by the Superior Court existed at common law and was incorporated in the 1818 constitution. He stated that the majority placed too much emphasis on the intent of the Superior Court judges, indicating that their intent could be dispositive. This and the repeated reference to the Supreme Court's inherent and constitutional authority created unnecessary ambiguity about the Superior Court's authority over the law of evidence. Justice Zarella reasoned as follows:

● The majority devotes significant attention to whether the code's purpose is clear and whether the Superior Court judges intended to eliminate the appellate courts' authority to develop the law of evidence by case-by-case common law adjudication. This unnecessarily clouds the fact that the Superior Court judges do not have the constitutional authority to eliminate the Supreme Court's inherent authority to change and develop evidentiary law.

● The majority accurately observes that before 1818, under the common law of the state as under the common law of England, the state's highest court was the ultimate authority for rules and standards of evidence.

● After noting that the Supreme Court was the final authority on the law of evidence before 1818 and that the common law authority of the Supreme Court and the Superior Court was codified in the 1818 constitution, the majority stops short of concluding that the Superior Court judges do not have the constitutional authority to alter this relationship. Instead, the majority questions whether the Superior Court judges have the constitutional authority to adopt a code that is inconsistent with the legal principles promulgated by the Supreme Court or to divest it of the power to change the law of evidence.

● The majority's failure to declare that the lack of constitutional authority is clear is puzzling.

Comparison to Practice Rules

Justice Zarella also stated that the code should not be analogized to the Practice Book rules. He argued as follows:

● Justice Palmer suggests that the Supreme Court has ultimate authority over the practice rules as well as evidence law because of its inherent supervisory powers. Justice Katz states that there is “no principled rationale” for treating the practice rules and the evidence code differently. Justice Katz states that the Superior Court judges adopted the Evidence Code under their rulemaking authority in matters of procedure.

● These positions do not recognize the different evolution of the practice rules and evidentiary law. The Superior Court's authority with each is separate and distinct.

● As the majority states, unlike evidentiary law where the Supreme Court has exercised final adjudicative authority since its inception, the Superior Court judges had the authority to adopt rules governing pleading, practice, and procedure before 1818.

● In 1807, the General Assembly provided for adoption of practice rules by the Superior Court judges “when constituting a Supreme Court of Errors, or met for any purpose. ” This was in effect when the 1818 constitution was adopted. No similar statutory history exists regarding evidentiary law. From the time of the Connecticut colony's adoption of the common law of England until the code's adoption, evidence law was a product of common law adjudication subject to the appellate authority initially of the General Assembly and, since 1784, the Supreme Court of Errors and the Supreme Court. These are historically significant differences in the origins of each body of rules and important differences in determining the judicial body with ultimate authority.

● Justice Palmer's conclusion that the Supreme Court has authority to change or enact a practice rule is premature in light of the 1808 statute and because this case does not present a challenge to the Supreme Court's authority over practice rules. Unlike the clear constitutional authority of the Supreme Court to be the final arbiter of evidence law, the 1808 statute presents an ambiguity as to what court possesses final authority over practice rules.

● In 1808 and after the 1818 constitution, Superior Court judges sat as trial judges and also as judges of the Supreme Court of Errors. The practice rules promulgated by the Superior Court judges under the 1808 statute could have been promulgated in their capacity as trial judges or appellate judges. Also, the phrase "or met for any purpose" could be construed broadly to encompass the authority of the Superior Court judges to promulgate practice rules generally regardless of whether they were sitting as judges of the Supreme Court of Errors.

● These ambiguities must be resolved another day.

DISSENTING OPINION BY JUSTICE KATZ

Justice Katz disagreed with the majority opinion. Justice Katz stated that the Evidence Code is a judicial codification of general rules, which are the functional equivalent of laws. She stated that the Superior Court judges, a title also held by Supreme Court justices and Appellate Court judges, adopted the code through their “unquestioned rulemaking authority” in procedural matters. Justice Katz argued that by

concluding that the appellate courts retain the authority to change the rules of evidence through case-by-case common law adjudication, the majority “eviscerates the force of the code” and crowns itself “evidentiary monarch. ” She stated that it is the exclusive role of the evidence code oversight committee, the Superior Court Rules Committee, and ultimately the Superior Court judges to make changes to the Evidence Code.

Justice Katz stated that the reasons offered by the majority for the Supreme Court's authority to overrule or modify a rule in the code were “unsupported and untenable. ”

Justice Katz stated that the result in this case may motivate the legislature to follow through on previously contemplated action to bring the rules of evidence under its supervision, which the majority acknowledges has authority to adopt rules of evidence that would bind the Supreme Court.

Purpose of the Code

Justice Katz disagreed with the majority's conclusions on the purpose of the code.

● The code began as a cooperative effort between the judiciary, legislature, and bar under the Law Revision Commission. It was initially contemplated as a legislative enactment with a joint judicial and legislative oversight committee. Ultimately, at the urging of legislative leaders, it became a set of judicial rules adopted under the judges' rulemaking authority to insulate future changes from politics.

● Adopting case law without modifications in the code was determined to be the best course as a matter of expediency, not as a matter of deference.

● It is undisputed that the code was intended to codify the law of evidence as it existed. The code was not designated a handbook of evidence, which would have accomplished this general purpose but not constitute binding law. There was no need for a nonbinding compilation of rules since one already existed. For the Superior Court judges to have intended to produce something that was handy but not binding would have been a waste of time and resources. And the formal process of adoption would seem unnecessary.

● There was a need for an authoritative, binding statement of rules. Thus, a “code” of evidence like the Federal Rules of Evidence. Unlike a handbook, a code is the functional equivalent of legislation, a set of generalized rules. The codification of certain statutory rules of evidence along with the common-law rules shows this intended effect.

How Evidence Law Develops After the Code and Relationship to Practice Rules

Justice Katz disagreed with the majority's conclusion that the terms “interpretation” and “rulemaking” were ambiguous in determining how evidence law would develop after adoption of the code. She also argued that the Evidence Code was similar to Practice Book rules. She reasoned as follows.

● The language of the code makes it clear that evidence law was to grow and develop through “interpretation” and “judicial rulemaking. ”

● “Interpretation” can readily be understood by its common meaning applied in scores of cases. When a court interprets, it cannot change the meaning of words or supply additional terms to change the meaning of a provision. The code recognizes that evidence law will grow by construing ambiguities and filling gaps in the rules. Case-by-case adjudication is one way interpretation occurs.

● “Rulemaking” is generally a legislative type function where a body prescribes general rules unconnected to a particular matter. Judicial rulemaking is the legislative type function exercised by the Judicial Branch when it adopts rules of practice and procedure.

● The code's savings clause states the authority that the courts have in their adjudicative capacity after the code's adoption. It states that when the code “does not prescribe a rule governing the admissibility of evidence, the court shall be governed by the principles of the common law as they may be interpreted in the light of reason and experience, except as otherwise required by the constitution of the United States, the constitution of this state, the General Statutes or the Practice Book. The provisions of the code shall not be construed as precluding any court from recognizing other evidentiary rules not inconsistent with such provisions. ”

● The drafting committee chairman explained when the code was introduced that this provides a “degree of flexibility and common law creativity” for a court dealing with an evidentiary question not covered by the code. “Thus, this section of the code provides the courts with our full panoply of traditional powers in interpreting the code and our full common law powers in fashioning new rules of evidence for instances that are not covered by the code either explicitly or implicitly” (State v. Sawyer, supra, 374 (Borden, J. , concurring and dissenting)).

● The express language of the code makes it clear that the courts cannot overrule or modify a rule unless some statutory or constitutional conflict arises. The Supreme Court previously acknowledged that it cannot construe the code to make a substantive change to the common law rules codified in it.

● It is also significant that the Superior Court judges created an oversight committee when adopting the code. The committee recommends revisions and clarifications to the Superior Court Rules Committee. The judges “decided to treat the code as a component to, and a corollary of, the rules of practice, as proposed rules of evidence cannot be submitted for adoption by the judges of the Superior Court unless they are approved by the rules committee that oversees the rules of practice. ”

● The legislature delegated authority to adopt practice and procedure rules to the Superior Court judges under CGS § 51-14(a). The Supreme Court has recognized that the practice rules and codes adopted by the Superior Court judges have the force of law. The Supreme Court has recognized that the appellate courts cannot amend, disregard, or overrule rules of practice because that authority is vested in the Superior Court judges.

● There is no principled reason for treating the code differently. The attempt to distinguish the two because the rules of evidence “facilitate the court's core judicial truth-seeking function” is undermined by the Supreme Court's previous recognition that practice rules are essential to that same function. The opinion of the court in State v. Sawyer, joined by every member of the majority in this case except Chief Justice Rogers who had not yet been appointed to the Supreme Court, expressly “acknowledged that, since 2000, the year in which the code was adopted, the authority to change the rules of evidence lies with the judges of the Superior Court in the discharge of their rulemaking function. ”

● The majority in Sawyer questioned only whether the code constrains the Supreme Court's ability to reconsider a “substantive” rule of evidence adopted in a case, but clearly conceded that such a constraint would operate if a rule was “procedural. ” The majority's attempt to relegate this to dicta appears to be result oriented, given the fact that the Supreme Court requested briefs on this issue and two justices wrote vigorous challenges to the majority opinion directed specifically at these statements. Although the statement was dicta in the sense that it was not essential to the holding, it is disingenuous to imply that the Sawyer majority's statement was made without deliberate reflection. Prior to Sawyer, two members of the majority in this case joined or wrote opinions stating that the Supreme Court has no authority to change rules of practice because that authority is vested in the Superior Court judges.

● Based on the text, the Supreme Court cannot change a matter covered by a rule in the code (that is for the oversight committee, Rules Committee, and the Superior Court judges) but the Supreme Court can interpret the code as applied to the facts in a case. When the code is silent, the courts in their adjudicative function have their common law powers to fashion new rules of evidence.

● The majority dismisses as irrelevant the code's clear language. Their rationale is extraordinary: because the commentary states that the code governs evidentiary issues “that might arise during trial,” the saving clause applies exclusively to the Superior Courts. But evidentiary rulings are made in the trial court and appellate courts have no authority to render advisory opinions unconnected to a contested issue that arises in the trial courts. The commentary's acknowledgment of the context in which evidentiary issues arise does not make the saving clause inapplicable to appellate courts.

● Ignoring this clear mandate, the majority concludes that the methods for developing the law of evidence are ambiguous.

● The majority rejects the common and universally applied meaning of “interpretation” which would limit the court's authority to explaining or construing the code.

● The majority ignores the well understood meaning of “interpretation” and “judicial rulemaking” and the express limitation that new rules of evidence through common law adjudication only be fashioned when the matter is not covered by the code. They then reach their conclusion that the code is silent on the court's ability to change the rules of evidence by case-by-case common law adjudication.

● With manufactured ambiguities, the majority then looks at the judges' meeting for express evidence about the code's effect on the Supreme Court's authority to change evidentiary law. Silence on this issue in the minutes of that meeting is not dispositive. As chair of the evidence code drafting committee and the Practice Book rules committee, Justice Borden spent many hours at judges' association meetings explaining the code before his official presentation. His statements at the official meeting should be viewed as a summation and not a comprehensive discussion of all the code's ramifications. The majority also improperly assumes that the judges, many of whom served on one of the committees, had no understanding of what it means to adopt a code as opposed to a handbook, failed to understand the meaning of the saving clause setting the scope of the courts' authority, and had no knowledge of case law recognizing similar constraints on the courts' authority with respect to practice rules. Because these facts are evident, despite Justice Borden's failure to spell it out, it can be assumed the Superior Court judges were aware that they would have power over both the rules of practice and the code, thus relieving the appellate courts of authority to change the rules. Had it not been clear, one would have expected some response to Justice Borden's law review article, published before the code's effective date, explaining that the saving clause was modeled on the saving clause of the Penal Code which judges understood to limit the appellate courts' authority to change common law crimes or defenses previously set in case law and codified into that code.

● The majority's reliance on anecdotal evidence is questionable. That a trial judge did not fully appreciate his or her vote does not mean that the code is not what it expressly purports to be. The Supreme Court generally gives special weight to statements of intent by legislators who sponsor or draft a bill. The interpretations by Justice Borden, as chair of the committee charged with drafting the code, and Professor Colin Tait, as one of the original members of the drafting committee, should carry greater weight. Other anecdotal evidence includes a letter to Justice Katz as chair of the oversight committee from Justice Borden that reflects that the code's text clearly conveyed that it foreclosed the majority's conclusion in this case.

Constitutional Conflicts

Justice Katz also argued that the majority inappropriately relies on the maxim that statutes should be construed to avoid constitutional infirmities because the majority did not demonstrate that a constitutional threat existed. She reasoned as follows.

● The Supreme Court has held in numerous cases that the appellate courts cannot change rules of practice, which repudiates the notion that the binding effect of the code violates the constitution. The practice rules are adopted in the same way the evidence code was adopted. If the code's binding effect is unconstitutional, so too is the binding effect of the Practice Book. The Supreme Court has considered constitutional challenges that the legislature violated the separation of powers by intruding on the court's authority to adopt rules of practice without suggesting that the procedure within the judicial branch may be unconstitutional.

● To the extent that cases recognize inherent rulemaking authority independent of statutes or a constitutional grant, the authority is not vested exclusively in the Supreme Court and the cases have never suggested that the lower courts' inherent authority is subservient to the Supreme Court's adjudicatory authority.

● The majority also overlooks the circumstances leading to the code's adoption and the effect of CGS § 51-14. Former Chief Justice Peters requested that the legislature adopt a code of evidence. If the legislature had done so, the Supreme Court could not assert that its adjudicatory authority was unconstitutionally abridged because it could not change common law rules codified by the legislature. The court would be limited to its traditional function of interpreting those rules. The Judiciary Committee chairmen chose to leave the code's adoption to the Judicial Branch. To the extent that a formal delegation of authority to the Judicial Branch was required, the legislature already provided it in CGS § 51-14.

● The majority admits that rules of evidence have never been considered exclusively within the judicial domain, which belies their contention that only the Supreme Court can be the final arbiter.

● Chief Justice Callahan could have initiated a rulemaking process governed exclusively by the Supreme Court. But he initiated a process governed by the Superior Court judges, which is consistent with CGS § 51-14. Such a procedure has been in statute since the mid-1800s and the legislature directed the Superior Court to promulgate numerous procedural rules under CGS § 51-14.

● Our state constitution, unlike those of many states, does not confer express authority on the state's highest court to make rules of practice and procedure, including rules of evidence, or confer express rulemaking authority specifically over lower courts. Looking at other states, several have constitutions conferring rulemaking power on their highest court subject to legislative disapproval or requiring that rules be consistent with the law. In some states without an express constitutional provision or when the constitution vests authority in the legislature, the legislature may delegate its rulemaking authority to the state's highest court.

● Our legislature has addressed rulemaking but delegated authority to all of the courts. In the absence of any express and exclusive constitutional grant of rulemaking authority to the Supreme Court and in light of the variety of constitutional schemes for rulemaking and the delegation of authority under CGS § 51-14, nothing indicates that a constitutional conflict would arise by construing the code to allow the Superior Court judges to make rules that bind the Supreme Court. The fact that before the constitution the Supreme Court set rules of evidence in the context of an adjudication simply demonstrates what is undisputed, that the Supreme Court has authority to do so. It does not answer the question whether another judicial body can adopt rules that the Supreme Court cannot overrule.

● Justice Palmer acknowledges that the code precludes changes except by the rulemaking process of the Superior Court judges. But he states that this applies only to the Superior Court because a conflict would arise if the appellate courts were bound by it. Justice Palmer concludes that this would be inconsistent with the Supreme Court's inherent supervisory authority over the administration of justice.

● The Supreme Court's supervisory powers are invoked only in rare circumstance when traditional protections are inadequate to ensure the fair and just administration of the courts. This does not provide a basis for authority to overrule code provisions for any reason the court deems proper. The Supreme Court's supervisory authority extends to adopting rules to guide the trial courts in civil and criminal matters. But it is exercised in the absence of a rule, when there are gaps in a rule, or to supplement procedures under a rule. The appellate courts still have these powers under the code. No Supreme Court case has determined that it has inherent authority to adopt a rule that contravenes an existing rule adopted by statute, regulation, or judicial rulemaking when there is no conflict with another law. The Supreme Court previously recognized the limits of its inherent supervisory authority when a conflict would arise with an existing rule.

● It is entirely appropriate for the Superior Court judges to have this authority. Rules of evidence are rules guiding the process of a trial, not appellate procedure. It may be many years since some appellate judges presided over trials and some may have had little time as trial advocates or trial court judges before appointment to the appellate bench. Trial court judges are in the best position to discern the practical problems of evidentiary issues and offer practical solutions. Because evidentiary rules, other than those necessary to address constitutional concerns, often reflect a balancing of policy considerations, crafting them through a legislative type process by judicial rulemaking, guided by an advisory committee that includes members of the bar and evidentiary experts, makes more sense than an adjudicative process in which the parties before the court do not necessarily advance broader concerns.

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