author: NORCOTT, J. MCDONALD, C. J.,

text:
    STATE OF CONNECTICUT v. CESAREO HERNANDEZ
    (SC 16151)
    McDonald, C. J., and Borden, Norcott, Katz and Palmer, Js.

      (One justice dissenting)
    Argued April 18
    officially released October 10, 2000

      Carolyn K. Longstreth, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Carl E. Taylor, supervisory state’s attorney, for the appellant (state).

      Teri E. Bayer, for the appellee (defendant).
   Opinion

NORCOTT, J.

The defendant, Cesáreo Hernandez, was charged with possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b), conspiracy to sell narcotics by a person who is not drug-dependent in violation of General Statutes §§ 53a-48 (a) and 21a-278 (b), conspiracy to sell narcotics within 1500 feet of a school in violation of §§ 53a-48 (a) and 21a-278a (b), and possession of drug paraphernalia in violation of General Statutes § 21a-267 (a). Following the state’s failure to comply with the trial court’s order to disclose the identity of a confidential informant, the court dismissed the charges against the defendant. With the permission of the trial court, the state appealed to the Appellate Court, which concluded that the trial court properly had ordered disclosure. State v. Hernandez, 53 Conn. App. 706, 714-15, 736 A.2d 137 (1999). We granted certification limited to the following issue: “Did the Appellate Court properly affirm the trial court’s order requiring the state to disclose the identity of a confidential informant?” State v. Hernandez, 250 Conn. 909, 738 A.2d 653 (1999). We affirm the judgment of the Appellate Court.

The underlying facts are set forth by the Appellate Court as follows: “The signed affidavit, which the police submitted in support of their application for a search and seizure warrant for the defendant’s apartment, discloses that on February 18, 1995, at approximately 5 p.m., a confidential informant contacted Detectives Anthony Martinez and Stephen Grabowski of the Hartford police department. The informant stated that ‘Munie,’ whom the detectives recognized as Louis Rosario, would be packaging heroin in the first floor apartment of 94 Whitmore Street in Hartford. The informant also stated that Rosario drove a red Camaro. At approximately 6 p.m., the detectives observed Rosario and an unidentified Hispanic male exit the first floor apartment at 94 Whitmore Street and travel to Rosario’s home at 3 Mannz Street in Hartford.

“On that same day, at approximately 6:30 p.m., the detectives met with the informant. The informant stated that he had observed Rosario and another Hispanic male, whom he knew as Luis Martinez, bring a large amount of heroin into the first floor apartment at 94 Whitmore Street and that ‘as we speak they are packaging heroin . . . .’ The detectives returned to 94 Whit-more Street and observed that Rosario’s red Camaro was parked outside the apartment building.

“The detectives subsequently obtained a search and seizure warrant for the first floor apartment at 94 Whitmore Street. The police incident report discloses that on February 18, 1995, at approximately 8:30 p.m., the detectives executed the warrant. Several minutes after the police gained entry, the defendant and his wife, Andrea Hernandez, returned to the apartment. The police seized 100 glassine bags from a dresser drawer in the defendant’s bedroom, and the powder in these bags later tested positive for heroin.” State v. Hernandez, supra, 53 Conn. App. 708-709.

After being charged with the narcotics offenses, the defendant filed a notice of alibi in which he claimed that several witnesses would testify that, on February 18, 1995, he had not been in the apartment at 94 Whit-more Street during the period in question. Id., 709. The defendant filed a motion for disclosure of the identity of the state’s informant. Id. The trial court made a predicate factual finding, based on the warrant affidavit, that the informant had observed Rosario and Martinez from within the defendant’s apartment. Id., 710. After applying the test set forth in Roviaro v. United States, 353 U.S. 53, 62, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957), which requires the court to balance the public interest in the flow of information to the police against the individual’s right to prepare a defense, the trial court granted the defendant’s motion for disclosure. State v. Hernandez, supra, 53 Conn. App. 709. The state refused to disclose to the defendant the identity of the informant and, consequently, the trial court dismissed the case. Id. This appeal followed.

Before the Appellate Court, the state argued that: (1) there was no basis in the record for the trial court to find that the informant was inside the apartment when he observed Rosario and Martinez bringing the narcotics into the defendant’s apartment; (2) it was improper to order disclosure because the confidential informant had acted as a tipster rather than as a witness to or a participant in the offenses charged; (3) any testimony concerning the defendant’s absence from his home when the narcotics were delivered and packaged lacks probative value concerning the defendant’s knowledge, dominion and control over the narcotics found in his home; (4) the informant did not hear the disputed incriminating statements of the defendant and had nothing to offer on that issue; and (5) the defendant had other means of establishing his absence from his home immediately preceding his arrest.

The Appellate Court disagreed with the state and concluded that the trial court had not abused its discretion by ordering the state to disclose the identity of the confidential informant. Id., 714-15. Specifically, the Appellate Court upheld the trial court’s conclusion that the defendant had a legitimate assertion that, based on the informant’s presence inside the defendant’s apartment, he could testify that persons other than the defendant had introduced the narcotics into the defendant’s apartment and had packaged the narcotics into distinctive bags that matched those bags later found in the defendant’s bedroom. Id., 715.

On appeal to this court, the state claims that the Appellate Court applied an improper standard for disclosure and that, based upon the facts in the record, the defendant’s need for disclosure fails to outweigh the state’s strong interest in maintaining a necessary flow of information from confidential sources to the police. The defendant argues that the Appellate Court applied the proper standard for disclosure and that the facts of this case support the trial court’s disclosure order. We agree with the defendant.

As a threshold matter, we set forth the standard by which an appellate court may review the propriety of a trial court’s decision to order disclosure. It is a basic tenet of our jurisprudence that we afford deference to the trial court and assess the trial court’s conclusions pursuant to an abuse of discretion standard. In the present case, we conclude that the Appellate Court utilized the proper standard in its review of the trial court’s order of disclosure. “[T]he determination of whether an informer’s identity shall be revealed is reviewed as a matter involving the exercise of discretion by the court.” State v. McDaniel, 176 Conn. 131, 132-33, 405 A.2d 68 (1978); State v. Johnson, 162 Conn. 215, 229, 292 A.2d 903 (1972); State v. Kiser, 43 Conn. App. 339, 347, 683 A.2d 1021, cert. denied, 239 Conn. 945, 686 A.2d 122 (1996), cert. denied, 520 U.S. 1190, 117 S. Ct. 1478, 137 L. Ed. 2d 690 (1997). “In determining whether the trial court [has] abused its discretion, this court must make every reasonable presumption in favor of [the correctness of] its action.” (Internal quotation marks omitted.) Mazziotti v. Allstate Jas. Co., 240 Conn. 799, 809, 695 A.2d 1010 (1997); E.M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 612, 153 A.2d 463 (1959). “Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” Burke v. Avitabile, 32 Conn. App. 765, 771, 630 A.2d 624, cert. denied, 228 Conn. 908, 634 A.2d 297 (1993); Timm v. Timm, 195 Conn. 202, 210, 487 A.2d 191 (1985).

I

The state first claims that the Appellate Court improperly focused on the materiality of the informant’s probable testimony in its determination that his identity should have been disclosed. We disagree.

“The United States Supreme Court’s decision ia Roviaro v. United States, [supra, 353 U.S. 53], provides a starting point for our analysis of how courts should balance the state’s interest in protecting informants against the defendant’s interest in obtaining information useful in conducting his defense. Courts have recognized an informant’s privilege. ‘What is usiially referred to as the inform[ant’s] privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. . . . [T]he purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.’ ” State v. Richardson, 204 Conn. 654, 657-58, 529 A.2d 1236 (1987), quoting Roviaro v. United States, supra, 59. The privilege, however, must yield “[w]here the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause . . . .” (Emphasis added.) Roviaro v. United States, supra, 60-61. The defendant bears the burden of demonstrating such a need for disclosure. State v. West, 178 Conn. 444, 446, 423 A.2d 117 (1979).

We are unpersuaded that the Appellate Court employed an improper standard in its review of the trial court’s order of disclosure.* * First, contrary to the state’s suggestion, the Appellate Court did not set forth a new rule that if any material testimony can be elicited from a confidential informant, his identity must be revealed. Instead, the Appellate Court properly responded to the state’s argument that the informant had not witnessed anything of consequence, distinguished those cases relied upon by the state that upheld refusals to order disclosure, and refuted the state’s assertion that the testimony would be irrelevant. State v. Hernandez, supra, 53 Conn. App. 711-18. Thus, in the present case, rather than basing the propriety of the disclosure order on the materiality of the confidential informant’s probable testimony, the Appellate Court merely rejected the state’s arguments against disclosure that were predicated on the alleged immateriality of such testimony.

Second, the Appellate Court agreed with the trial court’s conclusions, which went far beyond a materiality threshold. “The trial court concluded that disclosure of the informant’s identity was necessary because ‘[t]he informant’s information as may be inferred from the affidavit directly relates to the defenses asserted by the defendant. The information, and potentially the informant’s testimony in court, could be highly exculpatory of the defendant. Indeed, that information and testimony could potentially exonerate him.” Id., 712. Accordingly, the Appellate Court properly considered the degree to which the confidential informant’s testimony would be relevant and helpful to the defendant. See Roviaro v. United States, supra, 353 U.S. 60-61. We conclude, therefore, that the Appellate Court applied the proper standard for disclosure.

II

Having concluded that the Appellate Court applied the proper standard for disclosure of a confidential informant’s identity, we next consider whether the facts in the record support the trial court’s disclosure order. The state claims that the Appellate Court failed to recognize that the confidential informant in this case acted as a mere “tipster,” overstated the importance of his probable testimony to the theory of the defense, and overlooked the cumulative nature of that testimony. We disagree.

Roviaro “suggests that the question of disclosure should be determined on a case by case basis, and advocates the use of a balancing test. ‘We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.’ ” State v. Richardson, supra, 204 Conn. 658-59, quoting Roviaro v. United States, supra, 353 U.S. 62. Defenses that may merit disclosure include entrapment, mistaken identity, and lack of knowledge. Roviaro v. United States, supra, 64.

We begin by applying these standards to the present case. The defendant was charged with possessory narcotics offenses. “To prove either actual or constructive possession of a narcotic substance, the state must establish beyond a reasonable doubt that the accused knew of the character of the drug and its presence, and exercised dominion and control over it. State v. Brunori, 22 Conn. App. 431, 435-36, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990) . . . .” (Citation omitted.) State v. Cruz, 28 Conn. App. 575, 579, 611 A.2d 457 (1992). Thus, the defendant’s defense— that he had no knowledge, dominion or control over the narcotics—would be a complete defense to the charged offenses. The confidential informant’s potential testimony—that other people brought the narcotics into the defendant’s house while he was away and that the defendant was not present when the narcotics were packaged at his home—is offered as circumstantial evidence of the defendant’s lack of knowledge, dominion and control over the narcotics and, therefore, merits disclosure of the informant’s identity.

Absent an explanation of how and when the narcotics came into the defendant’s apartment—information that arguably could be provided only by means of the confidential informant’s potential testimony—the jury could draw the inference that the defendant either brought the narcotics there himself, or that the narcotics had been there long enough for the defendant to have seen or otherwise known about them. The confidential informant’s potential testimony, coupled with the testimony of the defendant’s alibi witnesses, reasonably could provide an explanation that negates these inferences. Because this could be invaluable to the defense, disclosure was required.

The state makes several arguments to support its claim that, based on the facts in the record, it was an abuse of discretion for the trial court to have ordered disclosure. First, the state argues that the trial court improperly failed to recognize that the confidential informant was a mere tipster. In this regard, the state argues that the informant fits the classic description of a “tipster”—one who provides information leading to the issuance of a search warrant, but is neither an eyewitness to, nor a participant in, the alleged crimes charged. We disagree.

The state relies on several Connecticut cases that hold that disclosure is not required where the confidential informant is a tipster. State v. Richardson, supra, 204 Conn. 665; State v. Conger, 183 Conn. 386, 392-93, 439 A.2d 381 (1981); State v. West, supra, 178 Conn. 445; State v. McDaniel, supra, 176 Conn. 133; State v. Johnson, supra, 162 Conn. 227-29; State v. Harris, supra, 159 Conn. 526-29. We have not said, however, that a confidential informant’s status as a tipster precludes disclosure on that basis alone, where there are other valid means for ordering disclosure. The present case is distinguishable from the cases upon which the state relies in that it involves review of a trial court’s discretionary decision to grant, rather than to deny, a defendant’s motion for disclosure. Most importantly, however, the trial court’s decision was based on the importance of the confidential informant’s testimony to the defendant, not the status of the confidential informant.

The disclosure analysis involves balancing competing interests. The informant’s privilege exists to promote the flow of information to law enforcement. The exception to the privilege exists because the privilege may, at times, infringe on the rights of criminal defendants. The balancing involves not merely the form in which the confidential informant gives aid to law enforcement, but also the substance of the information that the confidential informant can offer. For the state, the confidential informant’s role here ended in obtaining the search warrant: he has nothing to offer to the state’s prosecution of the defendant. For the defendant, however, the confidential informant almost certainly would be an important witness in his effort to establish a lack of knowledge defense. To limit the disclosure to those confidential informants who have witnessed elements necessary to the state’s case would ignore the principle that the nature of the defense may be a significant factor in the determination of whether disclosure is appropriate. See Roviaro v. United States, supra, 353 U.S. 62. Therefore, we conclude that, regardless of whether the confidential informant may be characterized as a “tipster,” if the substance of the potential testimony otherwise supports disclosure, then disclosure is proper.

The state’s second argument addresses the substance of the confidential informant’s testimony. The state contends that the confidential informant’s testimony would not be probative of any critical issues in the case because the actual presence of the defendant in the apartment was not required for proof of the charged offenses. The defendant counters that the confidential informant’s potential testimony would be probative of the critical question of whether the defendant had knowledge of, and dominion and control over, the narcotics because it could establish the time frame during which the narcotics entered the defendant’s apartment, as well as the identity of those who brought the narcotics there. We agree with the defendant.

Although the state correctly contends that the confidential informant’s testimony would not be conclusive regarding the question of the defendant’s knowledge, dominion and control of the narcotics because the defendant’s presence is not an essential element of the charged possessory offenses, we have never limited disclosure to situations in which the known content of the confidential informant’s testimony would certainly or very likely exonerate a defendant. The issue is whether the confidential informant’s testimony would be highly probative and important, if not critical, to his defense. We conclude that the informant’s potential testimony in this case meets that threshold.

The state’s final argument is that the confidential informant’s testimony would be cumulative because the defendant has other means of proving that he was not at his apartment when the confidential informant allegedly witnessed the packaging of the narcotics. We disagree. The informant can potentially testily when the drugs were brought into the defendant’s home, who brought them there, and whether the defendant was present at that time. Additionally, it is arguable that the testimony of the alibi witnesses would not be useful to the defendant without the evidence that could be provided only by the informant: the time in which the narcotics were brought to the defendant’s apartment and who was present at that time. Therefore, we conclude that the confidential informant’s testimony would not be cumulative.

The judgment of the Appellate Court is affirmed.

In this opinion BORDEN, KATZ and PALMER, Js., concurred.

MCDONALD, C. J.,

dissenting. I do not agree that the interest of the defendant, Cesáreo Hernandez, in obtaining the identity of the confidential informant outweighs the state’s interest in protecting the informant and in maintaining the flow of valuable information to law enforcement agencies. I would therefore reverse the judgment of the Appellate Court.

I agree with the majority that “ ‘ [w]here the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.’ ” State v. Richardson, 204 Conn. 654, 658, 529 A.2d 1236 (1987), quoting Roviaro v. United States, 353 U.S. 53, 60-61, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957). The “danger to an informant’s life must be given significant weight in striking the Roviaro balance”; (internal quotation marks omitted) United States v. Jackson, 990 F.2d 251, 255 (6th Cir. 1993); between the state’s interests in protecting the informant and the defendant’s interest in disclosure. I would hold, therefore, that “defendants face ‘a heavy burden ... to establish that the identity of an informant is necessary to [the] defense.’ . . . Speculation as to the information the informant may provide is insufficient.” (Citation omitted.) United States v. Warren, 42 F.3d 647, 654 (D.C. Cir. 1994).

In applying this test to this or any case, we must start with the nature of the case brought against the defendant. In this case, the evidence would be that at 8:30 p.m. on February 18, 1995, the Hartford police broke into the defendant’s apartment at 94 Whitmore Street in Hartford, found no one there and seized 100 bags of packaged heroin. Within a few minutes, while the officers were still searching his apartment, the defendant returned there. The defendant explained to the officers that just prior to the detectives’ arrival Luis Santiago had left the apartment with a number of bags of narcotics. The defendant continued to explain that the 100 bags were dropped off for him by Santiago.

The officers had observed Louis Rosario and another man leave the apartment at 94 Whitmore Street at about 6 p.m. that same day. The officers also observed Rosario’s vehicle parked at the apartment again at 6:30 p.m. Thereafter, the officers prepared a search warrant affidavit and obtained the search warrant used to conduct the raid.

With respect to the nature of the informant’s need to testify, the facts were that the informant had called the officers at about 5 p.m. that day and reported that Rosario was packaging heroin at the apartment since Rosario had been arrested with a large amount of heroin at Rosario’s home on February 10, 1995. Thereafter, the officers went to the premises at 6 p.m., observed Rosario’s vehicle there and saw Rosario and another man leave the premises for Rosario’s home. At 6:30 that evening, the officers met with the informant, who told them that Rosario had returned to the apartment and, with Luis Martinez, was packaging heroin at the apartment as the officers were speaking to the informant. The officers returned to the apartment and observed Rosario’s vehicle parked there.

The charges against the defendant were, among other things, possession of narcotics with intent to sell by a person who is not drug-dependent and conspiracy. As the majority observes, the issue in this case was whether the defendant knew of the character of the heroin and its presence at the apartment and exercised dominion and control over it. The state would offer the defendant’s statement that he knew that Santiago had left the 100 bags of heroin at the defendant’s apartment after leaving with some other drugs just before the raid. The defendant would contest making such a statement and would prove that he was somewhere else just before the raid occurred.

The majority concludes that the informant might testify that Rosario and Martinez had left the drugs at the apartment and that the defendant was not present there when this occurred. The issue, however, concerns not whether the defendant was present when the drugs were brought to his apartment, but the defendant’s state of mind—his knowledge that he had a large amount of narcotics in his apartment.

The issue in this case, therefore, is not the truth of the defendant’s statement that Sa/ntiago had just brought the drugs to his apartment, but whether he made the incriminating statement revealing his knowledge that the drugs were at his apartment and under his control. The informant could not by any stretch of the imagination give testimony as to what the defendant told the officers. There was simply no evidence or claim that the informant was present at the time of the drug raid.

Furthermore, if the defendant required evidence that he was not present when the heroin was brought to the apartment, the officers could simply be asked if they observed the defendant at the apartment when the drugs were delivered there. There is nothing in the record indicating that the state claimed to have any evidence that the defendant was so present.

Finally, the informant should be required to testify if he could be helpful to the defendant. I fail to see how evidence from the informant that Rosario was in and out of the defendant’s apartment packaging heroin there and leaving behind valuable drugs in the apartment regularly occupied by the defendant would be helpful to the defendant, even if the defendant had not been present on one occasion while the drugs were being packaged. I would conclude that the state’s interest in protecting the safety of the informant and preserving the flow of valuable information to law enforcement agencies, which is vital to effective narcotics enforcement, clearly outweighs the defendant’s interest in disclosure. This case sets a precedent that will permit those who allow drug dealers to use their houses to escape prosecution, and that does not bode well for Connecticut cities struggling to overcome the scourge of narcotic drugs.

       General Statutes § 21a-278 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       General Statutes § 21a-278a (b) provides: “Any person who violates section 21a-277 or 21a-278 by manufacturing, distributing, selling, prescribing, dispensing, compounding, transporting with the intent to sell or dispense, possessing with the intent to sell or dispense, offering, giving or administering to another person any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school, a public housing project or a licensed child day care center, as defined in section 19a-77, that is identified as a child day care center by a sign posted in a conspicuous place shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondaiy school, a public housing project or a licensed child day care center, as defined in section 19a-77, that is identified as a child day care center by a sign posted in a conspicuous place. For the puiposes of this subsection, ‘public housing project’ means dwelling accommodations operated as a state or federally subsidized multifamily housing project by a housing authority, nonprofit corporation or municipal developer, as defined in section 8-39, pursuant to chapter 128 or by the Connecticut Housing Authority pursuant to chapter 129.”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 21a-267 (a) provides: “No person shall use or possess with intent to use drug paraphernalia, as defined in subdivision (20) of section 21a-240, to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain or conceal, or to inject, ingest, inhale or otherwise introduce into the human body, any controlled substance as defined in subdivision (9) of section 21a-240. Any person wiio violates any provision of this subsection shall be guilty of a class C misdemeanor.”

       General Statutes § 54-96 provides: “Appeals from the rulings and decisions of the Superior Court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the Supreme Court or to the Appellate Court, in the same manner and to the same effect as if made by the accused.”

       “The trial court determined that [i]t may reasonably be inferred from the [warrant] affidavit that the informant told the police that he had been in the apartment while Rosario and Martinez were packaging the drags. . . . The signed affidavit, which the detectives submitted in support of their application for a search and seizure warrant for the defendant’s apartment, slates that the affiants on 2-18-95 at approximately 1830 hours met with the informant who stated that he observed [Rosario] and another Hispanic male who he knows as Luis Martinez bring a large amount of heroin into the apartment at 94 Whitmore Street, first floor apartment. . . . The informant stated that Rosario . . . had returned to 94 Whitmore Street and that as we speak they are packaging heroin in the targeted location. . . .
      “On the basis of our review of the record, we conclude that the trial court’s finding that the informant was in the apartment when Rosario and Martinez arrived with the heroin and then packaged it was not clearly erroneous.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Hernandez, supra, 53 Conn. App. 710-11.

       Although Roviaro addresses federal evidentiary law, it has nonetheless been influential in our consideration of the disclosure of the identity of confidential informants. See, e.g., State v. Jackson, 239 Conn. 629, 632, 687 A.2d 485 (1997); State v. Richardson, supra, 204 Conn. 657-58; State v. West, 178 Conn. 444, 445, 423 A.2d 117 (1979); State v. Harris, 159 Conn. 521, 527-28, 271 A.2d 74 (1970), cert. dismissed, 400 U.S. 1019, 91 S. Ct. 578, 27 L. Ed. 2d 630 (1971).

       The state argues that the proper standard for reviewing a disclosure order is that the confidential informant’s testimony must be “essential to the defense.” See State v. Jackson, 239 Conn. 629, 636, 687 A.2d 485 (1997); State v. West, supra, 178 Conn. 445. To the extent that the state presents these cases as representative of a more restrictive disclosure standard than that set forth in Roviaro, the state misreads them. On the issue of whether a confidential informant’s testimony was sufficiently important to outweigh competing concerns, both cases merely affirmed the trial courts’ determinations that the defendants had failed to meet their burden of justifying disclosure. In State v. West, supra, 445-46, we applied Roviaro and upheld the trial court’s decision not to order disclosure of the informant’s identity because the defendant did not articulate any basis for needing to know this information. In State v. Jackson, supra, 631-32, although the trial court had determined that the informant’s participation in the criminal transaction was not significant enough to warrant disclosure, the trial court had ordered disclosure because it had concluded that the evidence had not demonstrated that the informant’s identity was, in fact, confidential. This court reversed, based on confidentiality grounds, and left undisturbed the trial court’s determination that the defendant otherwise fell short of demonstrating a need for disclosure sufficient to overcome the informant’s privilege. Id., 636.


source: Caselaw Access Project

author: NORCOTT, J.

license: Public Domain

text:
    IN RE DAVID W.

    (SC 16113)
    Norcott, Katz, Palmer, Vertefeuille and Ronan, Js.

      Argued May 30
    officially released October 10, 2000

      Benjamin Zivyon, assistant attorney general, with whom were Susan T. Pearlman and Bette L. Paul, assistant attorneys general, and, on the brief, Richard, Blumenthal, attorney general, for the appellant (petitioner).

      Bradford J. Chaucer, for the appellee (respondent mother).

      William R. Kinloch, for the appellee (respondent father).

      Mary S. Chromik, for the minor child.

      Keely Magyar and Martha Stone filed a brief for the Center for Children’s Advocacy, Inc., as amicus curiae.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

NORCOTT, J.

The dispositive issue in this certified appeal is whether ex parte contact between a court-appointed expert witness and the party on whose behalf that witness testifies requires the per se exclusion of the expert witness’ testimony. We conclude that it does not and, accordingly, we reverse the judgment of the Appellate Court.

The petitioner, the commissioner of the department of children and families (department), appeals from the decision of the Appellate Court, reversing the judgment of the trial court. The respondents, the mother and father of David W., claim that the trial court improperly denied the respondent father’s motion to strike the testimony of David Mantell, a clinical psychologist, who had been appointed by the court to evaluate the rehabilitation progress of the parents, but who also had ex parte contacts with the department and testified as an expert for the department. The trial court, Foley, J., determined that the appropriate remedy for a party who claims that an ex parte communication has compromised a court-appointed witness’ neutrality is to impeach the witness in order to affect the weight given to the witness’ testimony. Accordingly, the trial court declined to strike Mantell’s testimony. The Appellate Court reversed the trial court, holding that “the court should have granted the motion to strike the testimony of its appointed expert because of the conflict created by his agreement to testify on behalf of the department and also because of the ex parte contacts with counsel for the department.” In re David W., 52 Conn. App. 576, 590, 727 A.2d 264 (1999). We granted the department’s petition for certification to appeal limited to the following issues: (1) “Under the circumstances of this case, was the trial court required as a matter of law to strike all of the testimony of David Mantell, the court-appointed expert witness?”; and (2) “If the answer to question one is yes, was the error harmful?” In re David W., 249 Conn. 907, 733 A.2d 225 (1999).

The following facts are properly set forth by the Appellate Court. “The child was bom to the respondents on July 12, 1993. He was bom three months premature, weighing only three pounds nine ounces and remained in the hospital for eighteen days. He was discharged on August 1, 1993, and lived with his parents until September 5, 1993. On that date, he was brought to the hospital after having sustained multiple life threatening injuries: four fractures of the left ribs; a fracture showing interval healing of the right femur; a spiral fracture of the left femur; a distal fracture of the left femur, which appeared to have healed; two recent fractures of the right tibia and fibula; a collapsed lung and multiple bruises and petechiae on the face, neck and chest, probably caused by the child screaming in pain according to the testimony of a physician. The parents had exclusive control and custody of the child immediately preceding his injuries. They offered no reasonable explanation for the injuries sustained by their child.

“On September 8,1993, the child was discharged from the hospital and placed in the care of the department, which obtained an order of temporary custody on the same date. After a study by the department foster care unit, he was placed with a couple known to the respondents. The child has resided with the couple since December 24, 1993, but the respondents have visited him, as permitted by the department, since that time, either at their home or at the home of the foster parents. On January 11,1994, the respondents pleaded nolo contendere to the neglect petition that the department had filed. The court, Barnett, J., adjudicated the child to be a neglected child pursuant to General Statutes (Rev. to 1993) § 46b-129 (d) [now codified at § 46b-129 (j)] and committed him to the department in accordance with that statute.” In re David W., supra, 52 Conn. App. 580. After the child was committed, the department initiated proceedings to terminate permanently the parental rights of both respondents.

The following additional facts are pertinent to the resolution of this appeal. Sometime before November, 1993, the trial court appointed Mantell to evaluate the suitability of the respondents as parents in the event that their child was returned to them. The appointment was made pursuant to an agreement of both parties.

Mantell testified that he was asked “ ‘to see a group of four adults and one child, perform psychological assessments and offer an opinion about the psychological character restrictions of the people involved in connection with an infant that had been seriously injured multiple times in order to assist the [department] and the court with the major child protection issue, which was where would it be safe for this child to live and did any of the four adults possess characteristics that potentially endangered the child.’ ” Id., 592 (Schaller, J., dissenting). Mantell initially received a “ ‘package of materials from the court, and it consisted of the evaluation order, a motion for evaluation by agreement of the parties, the petition, the summary of facts and the social study.’ ” Id. When asked at trial, “[w]ho contacts you [when acting as a court-appointed evaluator]?” Mantell replied: “ ‘Well, usually it’s the court service officer. Sometimes it’s the social worker. On rare occasions, it’s the attorney. On rare occasions, it’s the attorney general. But whoever does it, it’s the person that’s agreed upon is going to do the job of contacting the evaluator who’s to do the court-ordered study and to inform that person that that person has been asked to do this.’ ” Id. The record does not indicate whether any specific instructions were given to Mantell or who in fact initiated the contact in this case.

Mantell was asked by the court to prepare reports on four occasions. The reports were dated November 27, 1993, March 7, 1994, July 17, 1995, and February 26, 1996. Id. The first three reports preceded the ex parte contact. All four reports were introduced into evidence without objection and neither respondent made a motion to strike the reports. Id.

In September, 1995, Bette Paul, the assistant attorney general assigned to this case, contacted Mantell and asked to meet with him. Id., 593. Mantell testified that he was contacted by Paul and asked to complete a developmental assessment of the child, not of the parents. Mantell stated that “ ‘[i]t was [Paul] who called and asked me to do the home study. It was the [department’s] social worker who called and asked me to do the follow-up developmentals and collateral contacts.’ ” Id. There was no evidence offered at trial indicating that the social worker or Paul made any additional requests beyond the home study and developmental contacts. Mantell testified that with respect to the January, 1996 evaluation he conducted, he knew that he was not acting as a court-ordered evaluator. Id. Upon the department’s request for an evaluation, Mantell prepared a report of the developmental assessment of the child dated January 23, 1996. This report was marked as an exhibit solely for identification purposes and not introduced as evidence. Id.

At the termination hearing, Mantell testified on direct examination that the option of returning the child to the parents’ custody and care was “intolerably risky.” He explained that the need to identify who injured the child and a meaningful parental acknowledgment of responsibility for those injuries were priorities for safe reunification. Mantell’s testimony mirrored the conclusions of the four reports he had prepared over the course of three years. These reports consistently reflected his concerns regarding the manner in which the multiple serious injuries were inflicted on the child and the crucial need to identify the perpetrators of the child’s injuries. The reports also expressed concern that the parents’ inability to acknowledge responsibility for the injuries presented ongoing risks for the child. Id., 594-95.

The ex parte contact regarding the developmental assessment was raised during Mantell’s direct examination. No motion to strike Mantell’s testimony was made by either of the respondents’ counsel at that time. Id., 593. During cross-examination, however, the respondent father’s counsel questioned Mantell regarding his contact with the department and subsequently moved to strike Mantell’s testimony because “ ‘he cannot simultaneously be a neutral person who works for the court and also a witness who works for the state.’ ” Id., 593-94. The trial court denied the motion to strike, ruling that such conflicts “ ‘[go] to the weight of his testimony.’ ” Id., 594. The respondent father’s counsel subsequently continued his cross-examination, attempting to impeach Mantell by specifically questioning him regarding the dual roles he allegedly undertook.

Additionally, based on the record before this court, it appears Mantell was not given unequivocal instructions concerning contacts with the parties or the court. No evidence was produced in this case indicating that ex parte communications with the court or the parties were prohibited. Id., 595 n.4. In fact, it appears that both parties were unclear as to whether it was permissible to communicate with Mantell. Mantell testified that at some unidentified time, he received a request from the respondent father’s counsel for information concerning the case. Id., 593. Mantell indicated this communication occurred while both were working on a different case. Furthermore, the developmental assessment Mantell conducted at the request of the department concerned only the child, not the parents, and was not offered into evidence, but merely was marked for identification. Id. It appears that Mantell may have been told not to talk to the respondents’ counsel without direction or consent from Paul. When asked whether he told the respondent father’s counsel that he would not speak to him until he received consent from Paul, Mantell replied he did not recall, but stated, “ ‘It’s something that I could have said.’ ” Id. Specifically, the department should have disclosed to the court and the respondents the nature and extent of its ex parte communications prior to the trial.

Based on the evidence presented, the trial court terminated both the respondent mother’s and the respondent father’s parental rights to the child. Specifically, the court relied on the following two grounds set forth in General Statutes (Rev. to 1995) § 17a-112 (b) for terminating the parental rights: “(2) the parent of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child; [and] (3) the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights . . . .”

The trial court concluded that the respondents’ inability to acknowledge and accept responsibility for the injuries, despite years of therapy, was a deficiency that “goes to the very issue of safety and well-being of the child. This is not an issue that can be carefully skirted in therapy.” The court accepted and adopted Mantell’s observations concerning the failure of the respondents to acknowledge or accept responsibility for their actions in seriously injuring their own child. The court also ruled that the acts of parental omission and commission were the “most applicable” ground for termination.

On appeal to the Appellate Court, the respondent father claimed that the trial court should have stricken Mantell’s testimony because Mantell had had ex parte contacts with counsel for the department and testified as its expert witness concerning the rehabilitation of the parents. The Appellate Court concluded that the trial court “should have granted the motion to strike the testimony of its appointed expert because of the conflict created by his agreement to testify on behalf of the department and also because of the ex parte contacts with counsel for the department.” In re David W., supra, 52 Conn. App. 590. The Appellate Court applied a rule of per se exclusion to Mantell’s testimony because of the apparent compromise of neutrality. Id. The case was remanded to the trial court for a new trial.1 **

On appeal to this court, the department claims that the trial court was not required as a matter of law to strike all of Mantell’s testimony. Specifically, the department asserts that there was no impropriety or evidence of bias inherent to Mantell’s testimony or to his relationship with both the court and the parties involved. Additionally, the department claims that the Appellate Court improperly adopted an absolute exclusionary rule for court-appointed experts who engage in ex parte contacts. The department argues that the proper remedy for this type of situation is to allow the respondents to impeach the credibility of the expert through cross-examination and by calling their own witnesses. Conversely, both respondents argue that because court-appointed psychologists hold a unique place in cases concerning the termination of parental rights and are often relied on by judges in their determinations, any deviation from the court-appointed expert’s role as a neutral expert requires exclusion of the testimony. We agree with the department that the trial court properly held that, rather than a per se exclusion, the remedy for a party who claims that an ex parte communication has compromised a court-appointed witness’ neutrality is to impeach the witness in order to affect the weight and credibility of the witness’ testimony. Accordingly, we reverse the judgment of the Appellate Court.

As a threshold matter, we note that the Appellate Court’s conclusion regarding ex parte contacts with a court-appointed witness is a question of law and, therefore, our review is plenary. “[W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . . . .” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). Thus, where the “issues present questions of law, [they are] subject to our plenary review.” Commission on Human Rights & Opportunities v. Sullivan Associates, 250 Conn. 763, 786, 739 A.2d 238 (1999).

The dispositive question that we must decide is whether improper ex parte contact between a court-appointed expert witness and the party on whose behalf that witness testifies requires a per se exclusion of the expert’s testimony. The Appellate Court’s per se exclusion rests on the apparent conflict between Man-tell’s role as a court-appointed expert and his ex parte contacts with the department. No state or federal statutes or case law, however, support the application of a per se exclusion for court-ordered witnesses who make ex parte communications with one of the parties. Contrary to the respondents’ contention, there is no precedent that suggests that because court-appointed experts are supposed to remain unbiased and impartial, they are not allowed to testify as witnesses for a party or have ex parte contacts with that party.

We do not condone the ex parte communications that occurred in this case. The ex parte communications in this case were improper. We agree with the department’s acknowledgment at oral argument before this court that it should have received approval from the trial court prior to initiating an ex parte contact with Mantell. We are confident that this situation will not arise in the future, especially in light of the fact that the judicial branch recently issued guidelines concerning ex parte contacts between court-appointed experts and the parties and their respective counsel. We conclude, however, that because the trial judge is in the best position to neutralize whatever prejudice or misconduct may arise in these situations, a per se exclusion is not required.

Previously, we held that “[t]he credibility of expert witnesses and the weight to be accorded their testimony are within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible.” (Internal quotation marks omitted.) Transportation Plaza Associates v. Powers, 203 Conn. 364, 378, 525 A.2d 68 (1987). Furthermore, it is well settled that the trial court possesses discretion in ruling, not only on the qualifications of expert witnesses, but on the admissibility and weight of their opinions and testimony. State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). “As the witness qualified as an expert, any objection to his testimony would go to its weight rather than to its admissibility.” (Emphasis added; internal quotation marks omitted.) State v. Avila, 166 Conn. 569, 576, 353 A.2d 776 (1974). “It is rare for this court to find that a trial court has erred in a ruling permitting expert testimony.” State v. John, 210 Conn. 652, 677, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989). While we emphasize that court-appointed witnesses should remain neutral and impartial in conducting their evaluations, we conclude that the remedy of impeaching the expert through cross-examination and calling other witnesses in order to challenge the weight and credibility of the expert’s testimony is a sufficient remedy when that neutrality is breached.

Previously, we have held that even when the state violates a sequestration order by allowing its expert witnesses, prior to their testimony, to review a transcript of the defendant’s expert’s testimony, “[t]he remedy for such a violation rests in the trial court’s discretion, guided by a primary concern for the fairness of the trial, not the culpability of the prosecution.” (Internal quotation marks omitted.) State v. Falby, 187 Conn. 6, 27, 444 A.2d 213 (1982); see Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982); State v. Cosgrove, 186 Conn. 476, 488-89, 442 A.2d 1320 (1982). In denying the defendant’s proposed remedy of disqualification of the expert witness, this court in Falby held that the trial court’s remedial measures of allowing cross-examination of the state’s expert, informing the jury that it should weigh and consider that the defense experts did not have access to the state expert’s testimony, and preventing any other state experts from having access to the defense expert’s transcript were sufficient to neutralize any prejudice or harm. State v. Falby, supra, 26-27.

Recently, we addressed the issue of the trial court’s discretion with regard to conducting an initial inquiry. “[W]e cannot say that the trial court abused its discretion in not conducting, sua sponte, an evidentiary hearing for the purpose of inquiring further into the facts and circumstances that gave rise to the prosecutor’s allegations. The trial court was entitled to credit the truth of defense counsel’s assertions . . . and, therefore, to rely on them in support of its finding that the sequestration order had been violated. . . . Accordingly, to require an evidentiary showing to support representations of counsel concerning such matters would impugn the veracity of counsel and impose a staggering burden of time and effort on our already overburdened court system. . . . Indeed, given defense counsel’s explanation of events, it is highly doubtful that an evidentiary hearing on the factual underpinnings of the prosecutor’s allegations would have been of any value whatsoever.” (Citations omitted; internal quotation marks omitted.) State v. Nguyen, 253 Conn. 639, 657-58, 756 A.2d 833 (2000).

The trial court’s remedy in the present case was equally sufficient. The trial court allowed cross-examination of Mantell, permitted both respondents throughout the trial to call their own expert witnesses, and, properly acting as the trier of fact, acknowledged on the record that evidence of the ex parte contact would go toward the weight of the testimony. These remedial measures, coupled with the fact that Mantell’s testimony was consistent with his findings, conclusions, and recommendations made prior to the ex parte contact, make absolute exclusion of his testimony an unnecessarily draconian remedy. We emphasize, however, that the trial court’s choice of cross-examination as the proper remedy in this case is but one factor that a trial court may consider within the bounds of its sound discretion.

The limited case law in other jurisdictions regarding ex parte communications with court-appointed experts supports our own state precedents and our conclusion in the present case. For example, in United States v. Green, 544 F.2d 138, 146 (3d Cir. 1976), the Third Circuit Court of Appeals held that no reversible error occurred despite the fact that the trial judge engaged in an ex parte communication with the court-appointed examiner and refused to appoint a new evaluator. The Court of Appeals noted that “every ex parte communication to the trial court does not require reversal, especially when there has been a subsequent opportunity to cross-examine the declarant concerning such communication . . . .” Id., 146 n.16. The Court of Appeals noted that because disclosure of the judge’s communications with the expert occurred in open court, ample opportunity existed for the defendants to cross-examine the court-appointed examiner and call its own experts. Thus, the court concluded that impeachment through cross-examination, not absolute exclusion, was the appropriate remedy. Id., 146.

Similarly, with regard to the respondents’ claim in the present case that court-appointed experts are not allowed to testify on behalf of one of the parties, the remedy of impeachment of the expert is sufficient. In United States v. Theriault, 440 F.2d 713, 714 (5th Cir. 1971), the issue was whether the court-appointed evaluator’s position as a prison psychiatrist and, therefore, a government employee of the department, compromised his neutrality, thereby adversely impacting the defendant’s interest in having a neutral evaluator. The Fifth Circuit Court of Appeals held that although a court-appointed evaluator should remain neutral and impartial throughout the proceedings, an “objection to the prison psychiatrist based on alleged adverse interest is not tenable. The doctor was subject to cross-examination on possible interest and bias, but he was not incompetent to testily.” Id., 715. Furthermore, rule 706 (a) of the Federal Rules of Evidence provides that a court-appointed expert witness “may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.”

In the present case, excluding Mantell’s testimony because he testified on behalf of the department would be an improper remedy. There is no evidence of bias or prejudice by Mantell to discount his testimony. Additionally, Mantell’s fourth report in February, 1996, made after the ex parte contact, is consistent with his earlier reports from the preceding three years.* **** Mantell initially raised his concerns regarding the lack of acknowledgment of responsibility for the child’s serious injuries in his first report in 1993, and continued to emphasize these concerns in subsequent reports, articulating them during his testimony. Examining all four of the reports in conjunction with his testimony reveals complete consistency among his findings, recommendations, and conclusions. In fact, Mantell’s fourth report, issued after the ex parte contact, is the most positive of the four reports, although acknowledgment of personal responsibility by the parents still had not occurred. The reports, themselves, indicate that Mantell remained impartial.

Additionally, the respondents’ counsel had ample opportunity to impeach Mantell in order to affect the weight of his testimony. In fact, the respondent father’s counsel did attempt to impeach Mantell. Both the Appellate Court and the respondents conclude that a violation occurred because Mantell agreed to testify on behalf of the department. Both parties, however, had listed Mantell as an expert witness and, therefore, had notice that Mantell was to testify at trial. Moreover, the respondent mother’s counsel indicated in his disclosure of expert witnesses to the court that he intended to call Mantell if the department chose not to, and to ask him about his continual visits with the parents over three years. Thus, a per se exclusion preventing any party from allowing a court-appointed expert to testify on behalf of that party would effectively mean that only the court, and not the parties, could call a court-appointed expert to testify. Our rules of practice, however, do not provide any procedures for the court to call witnesses.

We conclude that the Appellate Court improperly held that the trial court was required as a matter of law to strike Mantell’s testimony. Having established that no per se exclusion was required, it is not necessary to remand this case to the trial court. It is well settled that a trial court’s evidentiary rulings “will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice . . . .” (Internal quotation marks omitted.) State v. Hoffler, 55 Conn. App. 210, 215, 738 A.2d 1145, cert. denied, 251 Conn. 923, 742 A.2d 360 (1999). The trial court did not abuse its discretion in allowing Mantell’s testimony, despite the ex parte communications, because neither the transcript nor the record reveal any indication of bias by Mantell or any harm or prejudice to the respondents. Although the respondents correctly note that courts often do rely heavily on court-appointed experts in parental termination proceedings, the trier is entitled to accept in part, disregard in part, or even reject in whole, the uncontradicted testimony of a witness. Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981); In re Cesar G., 56 Conn. App. 289, 297, 742 A.2d 428 (2000); In re Tricia A., 55 Conn. App. 111, 114-15, 737 A.2d 974 (1999); see Anonymous v. Norton, 168 Conn. 421, 428-31, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975). We emphasize that the determination of the proper remedy for such a conflict is within the sound discretion of the trial court. Thus, exclusion may be appropriate in some instances and not in others, depending upon the facts presented. As we have explained, the trial court in the present case did not abuse its discretion by refusing to strike the expert’s testimony. That is not to say, however, that that is necessarily always the proper remedy to be adopted.

We conclude that ex parte contact between a court-appointed expert witness and a party or its counsel on whose behalf that witness testifies, does not require the exclusion of the expert witness’ testimony as a matter of law. When the neutrality of a court-appointed expert is questioned in parental termination proceedings, the trial court should allow the opposing party to explore the extent of any contacts, bias or prejudice through cross-examination of the expert. Further, the opposing party should be given the opportunity to have its own witnesses testify on its behalf. These steps eliminate the need for an absolute bar of the testimony.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1993) § 46b-129 (d), as amended by Public Acts 1993, No. 93-91, provides in relevant part: “Upon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit him to the commissioner of children and families for a maximum period of eighteen months, unless such period is extended in accordance with the provisions of subsection (e) of this section, provided such commitment or any extension thereof may be revoked or parental rights terminated at any time by the court, or the court inay vest such child’s or youth’s care and personal custody in any private or public agency which is permitted by law to care for neglected, uncared-for or dependent children or youth or with any person found to be suitable and worthy of such responsibility by the court. ...”

       The record indicates that the department also had contact with Mantell in January, 1996. Having completed the three reports he had been asked to prepare at that point, Mantell was not conducting a court-ordered evaluation at either time.

       The trial court explained: “Here the child has been clearly exposed to nonaccidental or inadequately explained serious physical injury. The father has obliquely suggested that he possibly did something harmful. The mother has, at a minimum, failed to protect the child. After nearly four years, the parents are only marginally able to deal with their responsibility for, if not participation in those injuries. The court finds that this ground has been proven by clear and convincing evidence.”

       The attorney for the respondent mother did not join in the motion to strike the testimony on appeal to the Appellate Court. The Appellate Court’s order for a new trial, however, applied to both the respondent father and the respondent mother because both were affected adversely by the trial court's ruling. In re David W., supra, 52 Conn. App. 588 n.5. On appeal to this court, both respondents filed separate briefs, each arguing that the Appellate Court’s holding was proper.

       The department did acknowledge at oral argument before this court that it should have received approval from the trial court prior to initiating ex parte contact with Mantell.

       Since we answer the first certified question in the negative, we need not address the second certified question.

       The chief administrative judge for juvenile matters, Judge Christine Keller, in a memorandum to all Superior Court judges and judge referees for juvenile matters dated May 10,1999, set forth new guidelines to be followed regarding contacts between counsel and court-appointed evaluators. The new procedures provide that all court-ordered evaluations, regardless of the status of the case in court, will be scheduled by court services officers. Further, any and all communications, written, oral or otherwise, with the court-appointed evaluators must be between the court services officer and the evaluator only, until the evaluation is filed with the court. Also, no information is to be provided to any court-appointed evaluator unless the parties have sought and received the court’s permission.

       Judge Schaller’s dissenting opinion in the Appellate Court notes that the majority’s position was weakened by the fact that the respondent father failed to move to strike the reports Mantell made, moving to strike only his testimony. Mantell’s testimony mirrored his written reports. In re David W., supra, 52 Conn. App. 595 (Schaller, J., dissenting).

       After the trial court overruled the respondent father’s counsel’s motion to strike, counsel did in fact engage in cross-examination in an attempt to impeach Mantell.
      “[Respondent Father’s Counsel]: So when you were talking before that unlike the hired gun we’re going to be bringing in, you can be trusted because you work for the court, that’s only true in part of the case?
      “[Mantell]: I don’t think I used that language.
      “Q: No, you didn’t. I’m sorry.
      “A: I don’t think I made any reference to a hired gun who was more trustworthy.
      “Q: I think that you called somebody working for the court more trustworthy than someone hired by the parties because there is no specific ax to grind.
      “A: No, I said that’s an issue that should or could be considered.
      “Q: So then the court can also consider that you work part-time for the state’s attorney in this case?
      “A: I think that the court can ask itself is there any reason to have less faith in the later work that I did when the attorney general’s office asked me to follow up on the child than it does in the other work that I was asked to do that preceded those requests that had to do with the evaluations of the parents.
      “Q: So then by the same token any person we bring in also gets the same questions?
      “A: I don’t follow that.
      “Q: Well, his work is not necessarily less reliable because we asked him to do it?
      “A: Well, I don’t believe that you can automatically exclude expert evaluations and testimony just because of who asked you to do it, but you may ask about the nature of the task, you may inquire about, and surely, as you just have, attempt to impeach the credibility and impartiality of any expert witness on any ground that you consider to be reasonable and to persuade a court of that, and then it becomes a matter of whether there’s anything there that you find that lends credence to your concern about impartiality and accuracy.”