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Univ. of South Carolina School of Law

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Wednesday, November 6, 2013

28 Days Later: Connecticut Court Finds Photos Taken 28 Days After Assault Irrelevant To Prove Lack of Serious Physical Injury

A defendant in Connecticut is charged with second-degree assault, which requires the prosecution to prove that the victim suffered a "serious physical injury." Connecticut law does not define the phrase "serious physical injury," but its courts have concluded that "[i]t is entirely possible to cause serious physical injury without causing disfigurement or a permanent injury." The defendant has photographs of the victim's face and profile taken 28 days after his assault, both seemingly unmarred by any visible facial injuries. Are these photos relevant? According to the recent opinion of the Appellate Court of Connecticut in State v. Lewis, 2013 WL 5798962 (Conn.App. 2013), the answer is "no." I disagree.

In Lewis, the facts were as stated above. According to the court,

"'Relevant evidence' means evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.” Conn.Code Evid. § 4–1. "Evidence that is not relevant is inadmissible." Conn.Code Evid. § 4–2. "Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter." 

According to the defendant, his proffered photos were relevant under this language on the issue of "serious physical injury." The Appellate Court of Connecticut disagreed, concluding as follows:

Here, the defendant posits that the photographs were relevant because their depiction of the absence of some permanent injuries, twenty-eight days after the fact, rendered the absence of any serious injuries to be certain or more probable. The defendant thus has not established that the court abused its discretion in excluding the photographs on relevancy grounds.
We also note that the defendant's claim is inconsistent with the principle that “[i]t is entirely possible to cause serious physical injury without causing disfigurement or a permanent injury.”...We previously have commented that we do not know of any authority for the “proposition that the word permanent is linguistically identical to the term serious loss”;...as used in our assault statutes and Penal Code. The defendant...nonetheless insists that impermanency is one factor that a jury may consider in deciding whether any injury is a “serious physical injury” for purposes of our assault statutes. The cases to which the defendant cites for support are distinguishable, however, not only because of their individual facts but also because they all involved permanent, not impermanent, injuries....The defendant has not provided and we have not found any authority for the proposition that impermanency can correlate with a lack of seriousness for purposes of defining a physical injury as “serious”....

I simply don't understand the court's conclusion. According to the court, photographs taken 28 days after an assault showing no visible injuries don't have "any tendency" to prove an absence of "serious physical injury." That's what the court needed to find to conclude that the photographs were irrelevant. I don't see it. Certainly, the lack of visible injuries was some evidence that there was no serious physical injury, which is all that is required. Now, I could understand the court finding that the minimal probative value of the photos was substantially outweighed by the dangers of unfair prejudice or misleading the jury, but that's not what the court found. 

-CM

http://lawprofessors.typepad.com/evidenceprof/2013/11/a-defendant-in-connecticut-is-charged-with-second-degree-assault-which-requires-the-prosecution-to-prove-that-the-victim-suf.html

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