A statement that is not admissible under any of the foregoing exceptions is admissible if the court determines that (1) there is a reasonable necessity for the admission of the statement, and (2) the statement is supported by equivalent guarantees of trustworthiness and reliability that are essential to other evidence admitted under traditional exceptions to the hearsay rule.
Conn. Code. Evid. 8-9
Amended Dec. 14, 2017, to take effect Feb. 1, 2018.
COMMENTARY Section 8-9 recognizes that the Code's enumerated hearsay exceptions will not cover every situation in which an extrajudicial statement may be deemed reliable and essential enough to justify its admission. In the spirit of the Code's purpose, as stated in Section 1-2(a), of promoting "the growth and development of the law of evidence,'' Section 8-9 provides the court with discretion to admit, under limited circumstances; see State v. Dollinger, 20 Conn. App. 530, 540, 568 A.2d 1058, cert. denied, 215 Conn. 805, 574 A.2d 220 (1990); a hearsay statement not admissible under other exceptions enumerated in the Code. Section 8-9 sets forth what is commonly known as the residual or catch-all exception to the hearsay rule. E.g., Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 390-95, 119 A.3d 462 (2015). The exception traces its roots to cases such as State v. Sharpe, 195 Conn. 651, 664, 491 A.2d 345 (1985), and of more recent vintage, State v. Oquendo, 223 Conn. 635, 664, 613 A.2d 1300 (1992). See also Goodno v. Hotchkiss, 88 Conn. 655, 669, 92 A. 419 (1914) (necessity and trustworthiness are hallmarks underlying exceptions to hearsay rule). "Reasonable necessity'' is established by showing that "unless the hearsay statement is admitted, the facts it contains may be lost, either because the declarant is dead or otherwise unavailable, or because the assertion is of such a nature that evidence of the same value cannot be obtained from the same or other sources.'' State v. Sharpe, supra, 195 Conn. 665; accord State v. Alvarez, 216 Conn. 301, 307 n.3, 579 A.2d 515 (1990); In re Jason S., 9 Conn. App. 98, 106, 516 A.2d 1352 (1986). A minor child may be deemed unavailable under this exception upon competent proof that the child will suffer psychological harm from testifying. See In re Tayler F., 296 Conn. 524, 544, 995 A.2d 611 (2010). In determining whether the statement is supported by guarantees of trustworthiness and reliability, Connecticut courts have considered factors such as the length of time between the event to which the statement relates and the making of the statement; e.g., State v. Outlaw, 216 Conn. 492, 499, 582 A.2d 751 (1990); the declarant's motive to tell the truth or falsify; e.g., State v. Oquendo, supra, 223 Conn. 667; and the declarant's availability for cross-examination at trial. E.g., id., 668; O'Shea v. Mignone, 35 Conn. App. 828, 838, 647 A.2d 37, cert. denied, 231 Conn. 938, 651 A.2d 263 (1994). To date, the court has not confronted the question of whether an evidentiary proffer that comes close to but fails to fit precisely a hearsay exception enumerated in the Code ("near miss''), could nevertheless, be admitted under the residual exception. Compare State v. Dollinger, supra, 20 Conn. App. 537-42 (admissibility of statement rejected under spontaneous utterance exception; see Section 8-3 ; but upheld under residual exception) with Eubanks v. Commissioner of Correction, 166 Conn. App. 1, 15 and 15 n.12, 140 A.3d 402 (2016) (suggesting that residual exception would be unavailable to hearsay statement deemed inadmissible under Whelan exception; see Section 8-5 ); cf., e.g., State v. Outlaw, supra, 216 Conn. 497-500 (admissibility of statement rejected under hearsay exception for extrajudicial identifications; see Section 8-5 ; then analyzed and rejected under residual exception).