State of Connecticut v. Andrew Leduc
*That presented here has been slightly edited from the original brief to reduce its
size and redact names. The substantive content remains intact.
This brief was researched and written entirely by Attorney Miller for the attorney
of record in the case, Michael R. Hasse, Esq.
ARGUMENT
The defendant was denied his fundamental right to a fair trial pursuant to the provisions of the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.
I. THE TRIAL COURT DENIED THE DEFENDANT'S RIGHT TO DUE PROCESS BY NOT CONDUCTING AN IN CAMERA INSPECTION OF A DCF FILE.
When requested by defense counsel to examine evidence that is protected by General Statutes §17a-28, it is well-settled law that a trial judge must conduct an in camera inspection in order to determine if, in fact, there is evidence within the protected records that is exculpatory.
A criminal defendant has been held to have a right to exculpatory information. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Brady v. Maryland, 373 U.S. 83 at 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); State v. Quintana, 209 Conn. 34 at 37 (1988); General Statutes § 54-86c; Practice Book § 741 (1). It is a fundamental right which exists under the due process clause of the Connecticut constitution. Conn. Const. art. 1, § 8; State v. Simms, 201 Conn. 395 at 405, n. 8 (1986); State v. Jaynes, 36 Conn. App. 417 at 420 (1994).
The evidence in question must be "potentially exculpatory;" see Brady v. Maryland, supra, 373 U.S. 87. "Exculpatory has been defined to mean clearing or tending to clear, from alleged fault or guilt." State v. Bowden, 29 Conn.Sup. 86 at 89 (1970).
This right is not absolute. A defendant does not have a right to information that enjoys an absolute privilege. Pennsylvania v. Ritchie, 480 U.S. 39 at 57-58, 107 S.Ct. 989, 94 L.Ed.2d 50 (1987). However, there is a fundamental "right to any exculpatory information contained in records that enjoy[...] a qualified privilege under state statute." (Emphasis added.) State v. Harris, 227 Conn. 751 at 764 (1993), citing, Pennsylvania v. Ritchie, supra, 480 U.S. 57-58. Where information's confidentiality is not absolute, it must be disclosed to a criminal defendant.
The constitutional rights of a defendant extend only to that information that is exculpatory; there is no right to examine the entire contents of confidential files. "A criminal defendant does not have 'the right to conduct a general fishing expedition' into [DCF] records." State v. Harris, supra, 227 Conn 766, quoting State v. Janusewski, 182 Conn. 142 at 172 (1980). In order to balance the privacy interest in DCF records with the due process rights of a defendant, "an in camera review of the record by the trial court is necessary." (Emphasis added.) State v. Harris, supra, 227 Conn 764, citing Pennsylvania v. Ritchie, supra, 480 U.S. 57-58. A trial court is able to detect those materials in confidential records that must be disclosed. Pennsylvania v. Ritchie, supra, 480 U.S. 60; State v. Harris, supra, 227 Conn. 768; State v. Storlazzi, 191 Conn. 453 at 461 (1983). Due process rights of the criminal defendant require that an in camera inspection be conducted of confidential information.
A number of other states have adopted the in camera inspection procedure established in Pennsylvania v. Ritchie, supra, in order to balance competing interests of confidentiality and defendant's rights. see "State ex rel. Romley v. Superior Court, 836 P.2d 445 (Ariz.1992); People v. Foggy, 521 N.E.2d 86 (Ill.1988); State v. Perry, 552 A.2d 545 at 547 (Me.1989); State v. Cusick, 530 A.2d 806 (N.J.1987); Gale v. State, 792 P.2d 570 at 583 (Wyo.1990)." State v. Harris, supra, 227 Conn. 768, n.16. "Two states have determined that their state constitution requires that counsel be given access to privileged records with appropriate protective orders. See Commonwealth v. Stockhammer, 570 N.E.2d 992 (Mass.1991); Commonwealth v. Lloyd, 567 A.2d 1357 (Pa.1989)." State v. Harris, supra, 227 Conn. 768, n.16.
An in camera inspection is required when the issue of exculpatory information arises. It has been held that, when relying on the duty of the state to disclose exculpatory information, the obligation does not depend on the presence of a specific request. Pennsylvania v. Ritchie, supra, 480 U.S. 58, n.15. When invoking one's own right to disclosure under due process, this author has been unable to find an applicable standard for raising the issue. It would seem that, in order to claim a denial of a right on appeal, a defendant would have to have specifically raised the issue.
In the case at bar, the issue was properly preserved for appeal. The defendant invoked his independent right of due process by demanding exculpatory information. Through counsel, the defendant specifically requested that the trial court conduct an in camera review of DCF records. Transcript at 296, 301-2. He suggested the specific information that he thought would be exculpatory; specifically, that DCF concluded two investigations of allegations made against the defendant by closing their files without finding cause to continue an investigation and noting the Leduc's divorce proceeding and custody battle for the purported victim. T. at 297-300. The defendant properly subpoenaed the DCF investigator and all records of the investigation. He laid a basis for his claim by the foundational questions allowed of the DCF investigator and those questions which the trial court prohibited the investigator from answering. T. at 305-6. A complete record was laid of the raising of the issue, the specific information thought to be contained in the confidential file, the foundation for that information and specific questions that the defendant would have asked the DCF witness. The record is clear that this issue was preserved for appeal.
Turning now to the substance of the defendant's claim, it is obvious that the procedures that have been specifically articulated were not followed. This failure deprived the defendant of his constitutional right to due process. The trial court should have conducted an in camera inspection of the DCF records.
The information sought by the defendant is exculpatory. While the defendant never examined the DCF file, he had a reasonable belief as to its contents and conclusions. He specifically stated that he believed that it concluded his innocence on the alleged charge. T. at 297-300. The information in the DCF file was known to be exculpatory and was represented as such to the court.
A conclusion by a state agency that a criminal defendant did not commit an alleged charge falls under the definition of exculpatory. It is asserted that such information clears the defendant from alleged guilt; if the court does not agree, certainly, at a minimum, such information would "tend" to do so. See State v. Bowden, supra, 29 Conn.Sup. 89. The speculated information within the DCF file is exculpatory.
Because the DCF file could have and was reasonably expected to contain information that was exculpatory, it had the potential of being such. If the information that was potentially within the file is as it was suspected, it is exculpatory. As such, the defendant has a constitutional right to its disclosure.
The defendant's request for in camera inspection and disclosure included more than the mere conclusion of the DCF. The defendant specifically requested that the trial court examine the DCF file for any exculpatory material that would be properly disclosed: the defendant requested "material contained in such a record as may be disclosed through a disclosure order." T. at 301-302. The in camera inspection that the trial court should have conducted would have extended to any material within the DCF file that was exculpatory.
The case at bar is nearly identical to that addressed by the United States Supreme Court in Pennsylvania v. Ritchie, supra, 480 U.S. 39. The facts of that case were that neither the prosecution nor the defense had seen the confidential file and the trial judge had only made a partial inspection of it. Ibid. The record in question was a Children and Youth Services file of the Commonwealth of Pennsylvania which enjoyed qualified privilege from disclosure. Ibid. The Supreme Court examined the construction of the confidentiality statute; 42 Pa.Cons.Stat. § 5945.1 (b) (1982); noting that information could be disclosed in certain circumstances, "including when CYS is directed to do so by court order." Id. at 58, quoting Pa.Stat.Ann., Title 11, § 2215 (a) (5) (Purdon Supp.1986). It reasoned that because the Pennsylvania legislature contemplated some use of the confidential records in judicial proceedings, disclosure in criminal prosecutions is allowable in certain circumstances. Pennsylvania v. Ritchie, supra, 480 U.S. 58. The Supreme Court concluded that, "in the absence of any apparent state policy to the contrary, [there is] no reason to believe that relevant information would not be disclosed when a court of competent jurisdiction determines that the information is 'material' to the defense of the accused." Ibid.
The case at bar involves a similar statute. The relevant statute establishing the confidentiality of DCF records is General Statutes § 17a-28. Identical to that of Pennsylvania, the Connecticut statute provides for disclosure "upon the order of a judge of the superior court . . .". General Statutes § 17a-28 (c); see also General Statutes § 17a-28 (i). The Connecticut DCF confidentiality law is qualified, not absolute.
There is no Connecticut state policy disallowing disclosure of qualified confidential information. To the contrary, other policies provide for its disclosure. The DCF statute also provides for disclosure without a court order by a state's attorney when the material within the DCF file is exculpatory information. Id. at § 17a-28 (c). In addition, Practice Book § 741 requires disclosure of exculpatory information or materials to a criminal defendant.
The Connecticut confidentiality statute falls within the Pennsylvania v. Ritchie, supra, holding of the Supreme Court. In Connecticut, there is a constitutional right to an in camera inspection of confidential information protected by General Statutes § 17a-28.
A criminal defendant's constitutional right to due process creates an entitlement to disclosure of exculpatory information. Where that information is contained in a confidential file, due process requires that an in camera inspection be conducted to determine whether it should be disclosed. Where an in camera inspection has been denied, the requesting defendant has been denied his constitutional right to due process. The defendant in the case at bar requested an in camera inspection and specified what the trial judge should look for. However, the trial court refused his request and, by doing so, did not even provide him his constitutionally-protected procedural right to have the file examined by the trial court. Without such an in camera inspection, the defendant has been denied due process of law.
(c) 1996, Richard Hustad Miller, All Rights Reserved