Conn. R. Evid. 4-5
Conn. Code. Evid. 4-5
COMMENTARY
(a) Evidence of other crimes, wrongs or acts generally inadmissible.
Subsection (a) is consistent with Connecticut common law. E.g., State v. Santiago, 224 Conn. 325, 338, 618 A.2d 32 (1992); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 332 (1982). Other crimes, wrongs or acts evidence may be admissible for other purposes as specified in subsections (b) and (c), Section 4-4(a) (4) and Section 4-5. Cf. State v. Hedge, 297 Conn. 621, 650-52, 1 A.3d 1051 (2010); see Section 4-4(a) (4), commentary. Although the issue typically arises in the context of a criminal proceeding; see State v. McCarthy, 179 Conn. 1, 22, 425 A.2d 924 (1979); subsection (a)'s exclusion applies in both criminal and civil cases. See, e.g., Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 191±92, 510 A.2d 972 (1986).
(b) When evidence of other sexual misconduct is admissible to prove propensity.
Subsection (a) specifically prohibits the use of other crimes, wrongs or acts evidence to prove a person's propensity to engage in the misconduct with which the defendant has been charged. However, the court may admit evidence of a defendant's uncharged sexual misconduct to prove that the defendant had a tendency or a propensity to engage in aberrant and compulsive sexual behavior. See State v. DeJesus, 288 Conn. 418, 953 A.2d 45 (2008); State v. Snelgrove, 288 Conn. 742, 954 A.2d 165 (2008); State v. Johnson, 289 Conn. 437, 958 A.2d 713 (2008); see also State v. Smith, 313 Conn. 325, 337-38, 96 A.3d 1238 (2014); State v. George A., 308 Conn. 274, 63 A.3d 918 (2013) (evidence of uncharged sexual misconduct committed by defendant against minor victim's mother held admissible); but see State v. Gupta, 297 Conn. 211, 998 A.2d 1085 (2010) (evidence that defendant physician had fondled other patients too dissimilar to be admissible). Although State v. DeJesus involved a sexual assault charge, later, the Supreme Court, in State v. Snelgrove, made it clear that the DeJesus propensity rule is not limited to cases in which the defendant is charged with a sex offense. In State v. Snelgrove, the court stated: "We conclude that this rationale for the exception to the rule barring propensity evidence applies whenever the evidence establishes that both the prior misconduct and the offense with which the defendant is charged were driven by an aberrant sexual compulsion, regardless of whether the prior misconduct or the conduct at issue resulted in sexual offense charges.'' State v. Snelgrove, supra, 760. The admission of the evidence of a defendant's uncharged sexual misconduct to prove that the defendant had a tendency or a propensity to engage in aberrant and compulsive sexual behavior should be accompanied by an appropriate cautionary instruction limiting the purpose for which it may properly be used. State v. DeJesus, supra 474; State v. George A., supra, 294-95.
(c) When evidence of other crimes, wrongs or acts is admissible.
Subsection (a) specifically prohibits the use of other crimes, wrongs or acts evidence to prove a person's bad character or criminal tendencies. Subsection (c) however, authorizes the court, in its discretion, to admit other crimes, wrongs or acts evidence for other purposes, such as to prove:
(1) intent; e.g., State v. Lizzi, 199 Conn. 462, 468-69, 508 A.2d 16 (1986);
(2) identity; e.g., State v. Pollitt, 205 Conn. 61, 69, 530 A.2d 155 (1987);
(3) malice; e.g., State v. Barlow, 177 Conn. 391, 393, 418 A.2d 46 (1979);
(4) motive; e.g., State v. James, 211 Conn. 555, 578, 560 A.2d 426 (1989);
(5) a common plan or scheme; e.g., State v. Randolph, 284 Conn. 328, 356, 933 A.2d 1158 (2007); State v. Morowitz, 200 Conn. 440, 442-44, 512 A.2d 175 (1986);
(6) absence of mistake or accident; e.g., State v. Tucker, 181 Conn. 406, 415-16, 435 A.2d 986 (1980);
(7) knowledge; e.g., State v. Fredericks, 149 Conn. 121, 124, 176 A.2d 581 (1961);
(8) a system of criminal activity; e.g., State v. Vessichio, 197 Conn. 644, 664-65, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986);
(9) an element of the crime charged; e.g., State v. Chyung, 325 Conn. 236, 263-64, 157 A.3d 628 (2017); State v. Torres, 57 Conn. App. 614, 622-23, 749 A.2d 1210, cert. denied, 253 Conn. 927, 754 A.2d 799 (2000);
(10) to corroborate crucial prosecution testimony; e.g., State v. Mooney, 218 Conn. 85, 126-27, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991); or
(11) third party culpability by defendant's proffer of third party's other crimes, wrongs or acts; State v. Hedge, supra, 297 Conn. 650-52.
Admissibility of other crimes, wrongs or acts evidence is contingent on satisfying the relevancy standards and balancing test set forth in Sections 4-1 and 4-3, respectively. For other crimes, wrongs or acts evidence to be admissible, the court must determine that the evidence is probative of one or more of the enumerated purposes for which it is offered and that its probative value outweighs its prejudicial effect. E.g., State v. Figueroa, 235 Conn. 145, 162, 665 A.2d 63 (1995); State v. Cooper, 227 Conn. 417, 425-28, 630 A.2d 1043 (1993). Although the Supreme Court has established no absolute time limit that would bar admissibility of uncharged misconduct, it has suggested that remote prior misconduct must bear a substantial similarity to the conduct at issue and be of an aberrant or compulsive nature to be admissible. See State v. Chyung, supra, 325 Conn. 263-64 (fourteen year gap between incidents of misconduct did not render prior misconduct irrelevant "given the strong similarities between the two incidents and the strongly aberrational nature of the defendant's conduct''); id., 264; cf. State v. Snelgrove, supra, 288 Conn. 761-62 (noting that "ordinarily, a gap of fourteen years would raise serious questions as to whether the prior misconduct was too remote in time''); id., 761. Concerns about remoteness are lessened if the defendant was incarcerated for a substantial period of the gap. See State v. Snelgrove, supra, 761-62; State v. Murrell, 7 Conn. App. 75, 89, 507 A.2d 1033 (1986).
The purposes enumerated in subsection (c) for which other crimes, wrongs or acts evidence may be admitted are intended to be illustrative rather than exhaustive. Neither subsection (a) nor subsection (c) precludes a court from recognizing other appropriate purposes for which other crimes, wrongs or acts evidence may be admitted, provided the evidence is not introduced to prove a person's bad character or criminal tendencies, and the probative value of its admission is not outweighed by any of the Section 4-3 balancing factors.
(d) Specific instances of conduct when character in issue.
Subsection (d) finds support in Connecticut case law. See State v. Miranda, 176 Conn. 107, 112, 365 A.2d 104 (1978); Norton v. Warner, 9 Conn. 172, 174 (1832).