STATE v. BELLAH KEMAH, SC 18148
Judicial District of Windham at G.A. 11
Discovery Orders; Disclosure of Confidential Records; Whether Complaining Witness' Consent to Review of Confidential Records by Police and Prosecuting Authorities Automatically Extended to Permit Disclosure of Same Records to Defense Without Necessity For Prior In Camera Review by Trial Court. During a criminal investigation into a complaint of sexual assault and the ensuing prosecution of the defendant, the complaining witness signed authorizations for the release of specified confidential medical and psychological records to the police and prosecuting authorities. The defendant, who was charged with one count of second degree sexual assault and one count of fourth degree sexual assault, filed a motion to disclose and produce these confidential records. He asserted that because of the witness' waiver of her right to confidentiality, it was not necessary, pursuant to State v. Esposito, 192 Conn. 166 (1984), for the court to conduct an in camera inspection of the records prior to their disclosure to the defense. With respect to the documents that already had been turned over to the prosecuting authorities, the court, relying on State v. Palladino, 69 Conn. App. 639 (2002); State v. Sells, 82 Conn. App. 332, cert. denied, 270 Conn. 911 (2004); and State v. Boyd, 89 Conn. App. 1, 13 (2005), granted the motion. The court determined that because the witness waived her right to confidentiality and the documents were directly turned over to the prosecutor's office, there was no need for an in camera inspection prior to disclosure of these records to the defense. Pursuant to General Statutes § 52-265a, the state filed the instant appeal. The state claims that the waiver of confidentiality provided to law enforcement does not automatically warrant disclosure of these records to the defense. It maintains that the trial court, in ordering the disclosure, departed from the Supreme Court's analysis in Esposito and its progeny.