but those revealing facts about birth, death, marriage and the
Connecticut Code of Evidence
Rule: 8-7
Jurisdiction: CT
Bluebook Citation: Conn. Code Evid. 8-7
like. See Chapman v. Chapman, supra, 349. Dicta in cases suggest that forms of unavailability besides death may qualify a declarant’s statement for admission under this exception. See Carter v. Girasuolo, 34 Conn. Supp. 507, 511, 373 A.2d 560 (1976); cf. Ferguson v. Smazer, supra, 151 Conn. 230 n.2. The declarant’s relationship to the family or person to whom the hearsay statement refers must be established indepen- dently of the statement. Ferguson v. Smazer, supra, 151 Conn. 231. (8) Forfeiture by wrongdoing. This provision has roots extending far back in English and American common law. See, e.g., Lord Morley’s Case, 6 How. St. Tr. 769, 770–71 (H.L. 1666); Reynolds v. United States, 98 U.S. 145, 158–59, 25 L. Ed. 244 (1878). ‘‘The rule has its foundation in the maxim that no one shall be permitted to take advantage of his own wrong . . . .’’ Reynolds v. United States, supra, 159; see also State v. Henry, 76 Conn. App. 515, 533–37, 820 A.2d 1076, cert. denied, 264 Conn. 908, 826 A.2d 178 (2003). Section 8-6 (8) represents a departure from rule 804 (b) (6) of the Federal Rules of Evidence, which provides a hearsay exception for statements by unavailable witnesses when the party against whom the statement is offered ‘‘wrongfully caused—or acquiesced in wrongfully causing—the declarant’s unavailability as a witness, and did so intending that result.’’ Section 8-6 (8) requires more than mere acquiescence. The preponderance of the evidence standard should be employed in determining whether a defendant has procured the unavailability of a witness for purposes of this exception. See State v. Thompson, 305 Conn. 412, 425, 45 A.3d 605 (2012), cert. denied, 568 U.S. 1146, 133 S. Ct. 988, 184 L. Ed. 2d 767 (2013). A defendant who intentionally procures the unavailability of a witness in order to prevent the witness from testifying forfeits any confrontation clause claims with respect to statements made by that witness. See Giles v. California, 554 U.S. 353, 361, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008).
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