II A criminal defendant has a constitutional right to cross-examine the state's witnesses, which may include impeaching or discrediting them by attempting to reveal to the jury the witnesses' biases, prejudices or ulterior motives, or facts bearing on the witnesses' reliability, credibility, or sense of perception. Delaware v. Fensterer, 474 U.S. 15, 19, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985); Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); State v. Storlazzi, 191 Conn. 453, 457, 464 A.2d 829 (1983). Thus, in some instances, otherwise privileged records, like the ones in this case, must give way to a criminal defendant's constitutional right to reveal to the jury facts about a witness' mental condition that may reasonably affect that witness' credibility.
After the trial court has conducted an in camera inspection, our threshold of review is limited to examining whether the trial court abused its discretion in failing to disclose the complainant's psychiatric records. State v. Kelly, 208 Conn. 365, 545 A.2d 1048 (1988); State v. Storlazzi, 191 Conn. 453, 464 A.2d 829 (1983). The record reveals sufficient facts from which the trial court could have determined that details as to the victim's fantasy were not relevant to impeach her credibility.
The issue of whether a trial court or a criminal defendant should be permitted to inspect confidential records of a state's witness to discover whether the records contain relevant impeaching evidence has recently received much scrutiny in our courts. See, e.g., In re Robert H., 199 Conn. 693, 509 A.2d 475 (1986); State v. Bruno, 197 Conn. 326, 497 A.2d 758 (1985), aff'd 1 Conn. App. 384, 473 A.2d 311 (1984); State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984); State v. Storlazzi, 191 Conn. 453, 464 A.2d 829 (1983).
State v. Toste, supra, however, held that, without a court order requiring a psychiatrist to examine a defendant any communications between a state psychiatric witness and the defendant were privileged under the statute, unless waived. State v. Storlazzi, 191 Conn. 453, 455-63, 464 A.2d 829 (1983), was the logical culmination of the holdings in the White and Toste cases. Another exception to the disclosure of psychiatric records was found to be present in General Statutes 52-146e.
It is well established that "[a] criminal defendant has a constitutional right to cross-examine the state's witnesses, which may include impeaching or discrediting them by attempting to reveal to the jury the witnesses' biases, prejudices or ulterior motives, or facts bearing on the witnesses' reliability, credibility, or sense of perception. Delaware v. Fensterer, 474 U.S. 15, 19, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985); Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Storlazzi, 191 Conn. 453, 457, 464 A.2d 829 (1983). Thus, in some instances, otherwise privileged records, like the ones in this case, must give way to a criminal defendant's constitutional right to reveal to the jury facts about a witness' mental condition that may reasonably affect that witness' credibility.
"We recently have reiterated that [a]ccess to confidential records should be left to the discretion of the trial court which is better able to assess the probative value of such evidence as it relates to the particular case before it . . . and to weigh that value against the interest in confidentiality of the records. . . . State v. Slimskey, 257 Conn. 842, 856, 779 A.2d 723 (2001). . . . Once the trial court has made its inspection, the court's determination of a defendant's access to the witness' records lies in the court's sound discretion, which we will not disturb unless abused. . . . [Id.] On appeal, the appellate tribunal reviews the confidential records to determine whether the trial court abused its discretion in concluding that no information contained therein is especially probative of the victim's ability to know and correctly relate the truth so as to justify breaching their confidentiality in disclosing them to the defendant. State v. Storlazzi, 191 Conn. 453, 460, 464 A.2d 829 (1983). We are mindful that the restriction of a defendant's access to a witness' confidential records implicates the defendant's constitutional right to impeach and discredit state witnesses. . . . State v. Bruno, 236 Conn. 514, 532, 673 A.2d 1117 (1996).
We note that, to the extent possible, the court's disclosure order should be tailored to the time periods that are directly relevant to this case — i.e. , the time period around the original incident and the time period before trial. See State v. Storlazzi , 191 Conn. 453, 464 A.2d 829, 833 (1983) (holding that defendant should be granted access to records bearing on "the mental unsoundness of a witness (i.e., relating to a trait importing in itself a defective power of observation, recollection or communication), at or around the time of trial or of the occurrence about which he is to testify" (quoting State v. Piskorski , 177 Conn. 677, 419 A.2d 866, 895 (1979) )). Additional records should only be disclosed if the records from the relevant time periods cannot be understood without them.
"The use of the word must in such an instruction has passed scrutiny in our Supreme Court. See State v. Storlazzi, 191 Conn. 453, 466 n. 9, 464 A.2d 829 (1983); Crawford v. Warden, 189 Conn. 374, 382 n. 2, 456 A.2d 312 (1983). While the court did not consider this exact issue, it did hold that [t]he instructions, read in their entirety, did not direct or advise the jury how to decide the matter.
(Internal quotation marks omitted.) State v. Storlazzi, 191 Conn. 453, 461, 464 A.2d 829 (1983). Consequently, "[a]fter performing an in camera inspection, the trial court is required to release only information that is material and favorable to the defense."
The use of the word "must" in such an instruction has passed scrutiny in our Supreme Court. See State v. Storlazzi, 191 Conn. 453, 466 n. 9, 464 A.2d 829 (1983); Crawford v. Warden, 189 Conn. 374, 382 n. 2, 456 A.2d 312 (1983). While the court did not consider this exact issue, it did hold that "[t]he instructions, read in their entirety, did not direct or advise the jury how to decide the matter . . . ."