Preserving Golding Review and Refining Forensic Confrontation Doctrine: Commentary on State v. Bester

Preserving Golding Review and Refining Forensic Confrontation Doctrine: Commentary on State v. Bester

I. Introduction

The Connecticut Supreme Court’s decision in State v. Bester (SC 20858, officially released December 9, 2025) sits at the intersection of criminal procedure, constitutional confrontation rights, and prosecutorial conduct. While the judgment ultimately affirms the defendant’s convictions for murder and criminal possession of a firearm, the opinion is doctrinally significant in at least three respects:

  • It expressly rejects the State’s broad invitation to declare the Confrontation Clause “not self-executing” in a way that would bar all unpreserved confrontation claims from Golding review.
  • It applies Smith v. Arizona and prior Connecticut precedent to clarify when surrogate forensic testimony implicates the Confrontation Clause and demonstrates how inadequacy of the trial record can be outcome-determinative under State v. Golding’s first prong.
  • It delineates the boundary between confrontation violations and proper impeachment by questions on cross-examination, while also addressing when questions about facts not yet in evidence do or do not amount to prosecutorial impropriety.

This commentary provides a detailed, structured analysis of the opinion, highlighting the doctrinal choices the court made and their likely implications for future criminal litigation in Connecticut.

II. Case Background and Procedural Posture

A. Factual Background

On June 25, 2018, the defendant, Damond Bester, rear-ended a vehicle driven by the victim, William David Smalls, in downtown Hartford. The two men:

  • Agreed the defendant was at fault
  • Got an auto body estimate of $4,433.95
  • Exchanged contact information and agreed to meet later so Bester could pay cash and avoid involving insurance

Surveillance footage at the body shop captured a heavyset Black male in a red baseball cap, white T-shirt with red lettering, and khaki shorts—clothing later linked to the defendant.

That evening, they met on North Canaan Street in Hartford. The victim arrived in his white Acura; the defendant parked a block away and approached on foot. According to the state’s evidence:

  • Bester approached the passenger side and shot the victim twice while the victim sat in the driver’s seat.
  • The victim’s car crashed; he fell to the street and tried to crawl toward the passenger side, apparently reaching for a gun in the glove box.
  • Bester then went to the driver’s side, reached through the window, and shot the victim three more times as he reached into the car.
  • Bester fled to his own vehicle and eventually returned home. The victim died from multiple gunshot wounds to the head, neck, and torso.

A nearby witness, Robert Joseph, saw a heavyset Black male in a red cap, white T-shirt with red lettering, and khaki shorts shoot the victim multiple times. He later identified the defendant as resembling the shooter in build and clothing from a photo derived from auto body shop surveillance footage.

Police quickly learned from the victim’s fiancée, Natalie Fuller, that the victim was supposed to meet Bester that night about payment for the car damage, and that the victim had texted her a photograph of a napkin with Bester’s name and phone number.

Police located Bester at his Bloomfield home in the early morning after the shooting. A search yielded:

  • A red Nike hat
  • A white T-shirt with red lettering
  • Khaki cargo shorts

Gunshot residue (GSR) testing on these garments later became central to the confrontation issue on appeal.

Bester voluntarily spoke to police. He admitted:

  • His involvement in the earlier accident
  • That he had gone with the victim to the body shop
  • That he had agreed to meet the victim later in a neighborhood matching the shooting location
  • That he was wearing the red Nike cap, white T-shirt with red lettering, and khaki shorts

He claimed that, as he approached the victim’s vehicle that night, the brake lights were on, he felt “a little sketchy,” and when the victim aggressively asked “where’s the bread at” (slang for money), he turned away and then heard gunshots.

Cell phone evidence and usage patterns (calls and texts with the victim just before the shooting, deletion of certain data, and search queries about rentals, school security cameras, and “shootings today in Hartford”) tied the defendant to the time and place of the murder. Cell tower records showed both the victim’s and defendant’s phones connecting to the same tower in East Hartford after the shooting.

B. Trial and Conviction

The defendant was charged with:

  • Murder, in violation of General Statutes § 53a-54a (a)
  • Criminal possession of a firearm, in violation of General Statutes § 53a-217 (a) (1)

The murder charge went to a jury; the weapons charge was tried to the court. The jury found the defendant guilty of murder, and the court found him guilty of criminal possession of a firearm. A total effective sentence of 50 years’ imprisonment was imposed.

The defendant appealed directly to the Connecticut Supreme Court pursuant to General Statutes § 51‑199 (b) (3).

C. Issues on Appeal

All three appellate claims were unpreserved at trial and therefore presented under the Golding doctrine. Specifically, the defendant argued:

  1. Confrontation – forensic expert / surrogate testimony: His Sixth and Fourteenth Amendment rights were violated when the State’s GSR expert, Alison Gingell, relied on the data and notes of non-testifying analyst Fan Kwak, who had actually performed the GSR testing.
  2. Confrontation – cross-examination hearsay: His confrontation rights were violated when, on cross-examination, the prosecutor elicited testimonial hearsay in questions referencing out-of-court statements by his girlfriend, Selena Hampton, and cousin, Russell Smith.
  3. Due process – prosecutorial impropriety: The prosecutor violated his federal fair trial rights by asking questions that introduced facts outside the record (about the weather, and about statements by Hampton and Smith).

III. Summary of the Court’s Decision

The Connecticut Supreme Court (D’Auria, J.) affirmed the defendant’s conviction and, in doing so, held:

  1. Golding review preserved for confrontation claims: The court declined the State’s request to adopt a blanket rule that the Confrontation Clause is not self-executing such that all unpreserved confrontation claims are forfeited and categorically nonreviewable under State v. Golding.
  2. Forensic analyst’s notes and data – record inadequate: The court held that the defendant’s confrontation claim regarding Gingell’s reliance on Kwak’s materials failed under the first prong of Golding (inadequate record). Because no GSR report was admitted and the testimony did not sufficiently describe the nature and content of Kwak’s “data and notes,” the court could not determine whether those materials were testimonial within the meaning of the Confrontation Clause.
  3. Cross-exam questions referencing non-testifying declarants – no confrontation violation: The court held that the prosecutor’s cross-examination questions regarding what Hampton “said” or what Smith allegedly said in a phone call did not introduce their statements into evidence and thus did not trigger the Confrontation Clause. Questions are not evidence, and the defendant’s “no” answers meant no hearsay was actually admitted. Moreover, the questions were posed to impeach the defendant and therefore, even assuming such statements existed, would not have been offered for their truth.
  4. No prosecutorial impropriety shown; cautionary guidance given: Applying the standard prosecutorial impropriety framework, the court held that the challenged cross-examination (about the weather and about Hampton’s and Smith’s supposed statements) was not shown to be improper—there was no objection, no showing that the prosecutor lacked a good faith basis, and the questions were neither inflammatory nor disobedient of any court order. The court nevertheless cautioned prosecutors about implying facts not in evidence and explained how impeachment should properly be handled under the Connecticut Code of Evidence (especially § 6‑10 and § 6‑6).

IV. Detailed Analysis

A. Golding Review and the “Self-Executing” Status of the Confrontation Clause

1. The State’s Proposed Rule

The State advanced a sweeping procedural argument: because, in its view, the Confrontation Clause is “not self-executing,” a defendant who fails to invoke it at trial thereby forfeits any confrontation claim on appeal, making it categorically ineligible for Golding review.

The State relied on a passage from Melendez‑Diaz v. Massachusetts, 557 U.S. 305 (2009), in which the U.S. Supreme Court stated that “[t]he defendant always has the burden of raising his Confrontation Clause objection,” and emphasized that states may adopt “procedural rules governing objections.”

2. The Golding Framework

Under State v. Golding, 213 Conn. 233 (1989), as modified by In re Yasiel R., 317 Conn. 773 (2015), an unpreserved constitutional claim may be reviewed on appeal if:

  1. The record is adequate for review.
  2. The claim is of constitutional magnitude, alleging violation of a fundamental right.
  3. A constitutional violation clearly exists and clearly deprived the defendant of a fair trial.
  4. If the violation is subject to harmless error analysis, the State fails to prove harmlessness beyond a reasonable doubt.

Golding is explicitly described as a “narrow exception” to the default rule against review of unpreserved claims, designed to balance:

  • The need to prevent “trial by ambuscade,” and
  • The need to correct serious constitutional errors that implicate fundamental rights when the record permits review.

3. Why the Court Rejected the State’s Proposal

The court refused to create a confrontation-specific carve-out from Golding. It reasoned:

  • Melendez‑Diaz does not mandate such a rule: It merely recognizes that a defendant must raise objections and that states may adopt procedural rules; it does not forbid a state appellate court from reviewing unpreserved confrontation claims under a doctrine like Golding.
  • Consistency with prior practice: After Melendez‑Diaz, Connecticut appellate courts have routinely applied Golding to unpreserved confrontation claims, often rejecting them on record-adequacy or waiver grounds.
    Examples cited include:
    • State v. Iverson, 352 Conn. 422 (2025)
    • State v. Robles, 348 Conn. 1 (2023)
    • State v. Johnson, 345 Conn. 174 (2022)
    • State v. Holley, 327 Conn. 576 (2018)
    In many such cases, claims failed either for inadequate record or because the right was affirmatively waived.
  • The purpose of Golding review: A blanket rule would “eliminate a narrow class of unpreserved but not affirmatively waived confrontation clause claims even when a constitutional violation is apparent from an adequate record.” The court pointed to cases where Golding review had led to relief or a finding of error, such as:
    • State v. Walker, 332 Conn. 678 (2019) (reversal and new trial after Golding review of confrontation claim)
    • State v. Calvin N., 122 Conn. App. 216 (2010) (same)
    • State v. Smith, 289 Conn. 598 (2008) (violation found but deemed harmless)
    • State v. Vega, 181 Conn. App. 456 (2018) (similar)

In short, the court concluded that Golding must remain available for confrontation claims when the record and circumstances support such review. Denying that avenue categorically would undermine the role of Golding in “protect[ing] the rights of the defendant and the integrity of the judicial system.”

This is a key doctrinal holding: unpreserved confrontation claims remain reviewable under Golding in Connecticut, subject to the usual prongs.

B. Forensic Evidence, Surrogate Experts, and the Adequacy of the Record

1. The Confrontation Framework for Forensic Evidence

The opinion weaves together U.S. Supreme Court confrontation jurisprudence to frame the analysis of forensic evidence:

  • Crawford v. Washington, 541 U.S. 36 (2004): Bars admission of testimonial hearsay from unavailable witnesses absent prior cross-examination.
  • Smith v. Arizona, 602 U.S. 779 (2024) (extensively quoted):
    • Confrontation Clause applies only to testimonial hearsay.
    • “Testimonial” turns in part on whether the declarant reasonably expected statements to be used for prosecution.
    • Only statements offered for their truth are “hearsay”; statements admitted for other purposes (e.g., impeachment) are outside the Clause.
    • When courts assess whether a statement is testimonial, they must identify the specific statement and determine the “principal reason” it was made under all the circumstances.
    • Forensic context: a state cannot introduce testimonial out-of-court statements of a forensic analyst absent unavailability and prior cross-exam; nor may it do so through a “surrogate” analyst, even under the guise of “basis of expert opinion,” because those underlying statements enter the record for their truth.
    • Some lab records may be non-testimonial (e.g., created for accreditation, internal quality control, or as “reminders to self”) if their “primary purpose” is not evidentiary or “focus[ed] on court.”
  • Bullcoming v. New Mexico, 564 U.S. 647 (2011): Admission of a forensic certificate showing blood alcohol concentration, through a different analyst, violated confrontation where the certifying analyst did not testify.
  • Melendez‑Diaz v. Massachusetts, 557 U.S. 305 (2009): Laboratory affidavits certifying a substance as cocaine were testimonial; admission without the analysts’ live testimony violated confrontation.

Connecticut precedents like State v. Lebrick, 334 Conn. 492 (2020), echo these principles, warning that expert testimony cannot be used as a mere “conduit” for testimonial hearsay by others.

2. The Specific Forensic Issue in Bester

At trial, the State’s forensic examiner, Alison Gingell, testified about GSR tested on:

  • A red hat
  • A white T-shirt with red lettering
  • Khaki cargo shorts

She explained:

  • How GSR is collected (using adhesive “stubs” and a scanning electron microscope (SEM)).
  • That another analyst, Fan Kwak, was actually assigned the testing.
  • That she had reviewed Kwak’s “data” and photographs and reached her own conclusions that the samples contained particles characteristic of GSR (lead, barium, and antimony).
  • That no GSR report was introduced into evidence; she identified the clothing and the stubs, and defense counsel expressly stated “No objection” to their admission.

On redirect, she also testified that Kwak’s “notes” indicated that the defendant’s cell phone was not tested because under lab procedure, once three or more GSR characteristic particles are found, there is no need to test additional items.

The defendant argued on appeal that Gingell’s testimony violated confrontation by effectively introducing testimonial statements of Kwak, a non-testifying analyst.

3. Golding Prong One: Adequate Record?

The court focused on the first Golding prong—adequacy of the record—to determine whether it could meaningfully decide if Kwak’s statements were testimonial. The key points:

  • No written forensic report was in evidence: Unlike cases such as Walker, there was no admitted document showing what Kwak did or concluded, or how Gingell built her opinion on Kwak’s work.
  • “Data” and “notes” were not described with any specificity: The court had no detail about:
    • Whether “data” meant raw SEM output (e.g., images, numerical readings) versus interpretive summaries.
    • Whether “notes” were:
      • Internal working notes;
      • Quality control documentation;
      • Formal analytical conclusions intended for use in prosecution.
  • Testimonial status depends on content and purpose: If Kwak’s materials were merely machine-generated data or internal compliance records, they might be non-testimonial. If they embodied his analytic conclusions intended for use in the criminal case, they would likely be testimonial. Without knowing what the materials actually contained, the court could not apply the “principal purpose” test required by Smith v. Arizona.

The court stressed that confrontation analysis in the forensic context is statement-specific and content-dependent. It refused to assume that all lab analyst documentation is necessarily testimonial simply because it is produced in a forensic lab that often serves prosecutions.

4. Comparison with Prior Connecticut Cases

The court contrasted the record here with other cases:

  • State v. Walker, 332 Conn. 678 (2019): There, the testifying DNA expert’s report and testimony clearly identified the exact DNA profiles created by other analysts that she relied on. The court could see from the record that those profiles were created at the request of law enforcement in an active investigation and were plainly testimonial.
  • State v. Rodriguez, 337 Conn. 175 (2020): Golding’s first prong failed because the record was insufficient and ambiguous as to whether another analyst had retested certain samples.
  • State v. Johnson, 345 Conn. 174 (2022): Again, ambiguous testimony prevented the court from determining the role of a particular analyst in generating DNA samples; the confrontation claim failed at Golding’s first prong.

Relying on this line, the court held in Bester that the confrontation claim based on Gingell/Kwak could not be reviewed and thus failed at Golding’s first prong. The court essentially said: no matter how serious the theoretical constitutional issue, the appellate tribunal cannot guess at the content and purpose of un-described forensic materials.

C. Cross-Examination, Impeachment, and the Confrontation Clause

1. The Hampton and Smith Questions

Two lines of cross-examination were challenged:

  1. Hampton (girlfriend) – insurance disclosure
    On direct, the defendant testified that he was driving Hampton’s insured vehicle, that he was at fault in the collision, and that he told Hampton about the accident. On cross, the prosecutor:
    • Asked whether the victim, not the defendant, wanted to avoid contacting police or insurance.
    • Then asked: “Did you know that [Hampton] was here the other day?” When the defendant answered no, the prosecutor asked: “Did you know that she said you never told her about the accident?” The defendant again answered no.
    Hampton did not testify; defense counsel did not object.
  2. Smith (cousin) – post-shooting phone call
    The defendant denied calling Smith after the shooting using his new phone. The prosecutor then asked: “Didn’t you say, I’m in some trouble, and [Smith] said, I don’t want to know, but I’m here for you?” The defendant replied, “No. I didn’t.” Again, there was no objection and Smith did not testify.

2. Why There Was No Confrontation Violation

The court’s reasoning is straightforward but important:

  • Questions are not evidence: The prosecutor was not under oath; his questions are not testimony. The court cited:
    • State v. McCoy, 331 Conn. 561, 572 (2019): “It is axiomatic that questions are not evidence.”
    • State v. Grant, 154 Conn. App. 293, 317 (2014): “a question from counsel is not evidence of anything.”
    Because neither Hampton nor Smith testified, and because the prosecutor’s questions were not evidence, their supposed statements were never actually admitted into the record.
  • The defendant’s answers nullified any hearsay risk: In each instance, the defendant answered “no.” Thus:
    • No out-of-court statement was adopted or confirmed by a witness.
    • The supposed content did not become substantive evidence before the jury.
  • Impeachment use is non-hearsay: Even if Hampton or Smith had testified, statements introduced solely to impeach a witness are not offered for their truth and are therefore non-hearsay. The court drew explicitly on Smith v. Arizona’s explanation that the Confrontation Clause is not implicated when a statement is admitted for a non-truth purpose (e.g., impeachment).

On this basis, the court concluded that there was no confrontation violation and that the claim failed under Golding’s third prong because no constitutional deprivation was shown.

D. Prosecutorial Impropriety and Due Process

1. The Prosecutorial Impropriety Framework

Connecticut employs a two-step inquiry for claims of prosecutorial impropriety that allegedly violate due process:

  1. Did prosecutorial impropriety occur?
  2. If so, did it deprive the defendant of a fair trial?

The burden is on the defendant to satisfy both steps. The court cited its recent discussion in State v. Dabate, 351 Conn. 428 (2025).

2. The Three Challenged Lines of Questioning

The defendant identified three areas of alleged misconduct:

  1. Weather questioning
    To counter the defendant’s explanation that his GSR-positive clothes were contaminated from fireworks use the evening before the shooting, the prosecutor asked whether the defendant knew it had been raining that day. The defendant said he did not recall rain. Weather had not otherwise been placed into evidence, and defense counsel did not object.
  2. Hampton statements
    The same Hampton-related questions addressed in the confrontation claim: whether she had been to court and had said the defendant never told her about the accident.
  3. Smith post-shooting conversation
    Likewise, the question about the defendant allegedly telling Smith, “I’m in some trouble,” with Smith responding “I don’t want to know, but I’m here for you.”

3. The “Good Faith Basis” Requirement

The court reiterated general rules of cross-examination:

  • A prosecutor may ask questions on cross that go beyond the scope of direct to rebut, impeach, or explain the defendant’s testimony, if there is a “good faith belief” that a factual predicate exists.
  • A prosecutor “should not ask a question which implies the existence of a factual predicate for which a good faith belief is lacking.” (State v. Salamon, 287 Conn. 509, 556 (2008)).

The court compared:

  • Dabate, 351 Conn. 428 – where the prosecutor lacked a good faith basis for asking the defendant if he had planned to murder the victim on an earlier trip; versus
  • State v. Diaz, 348 Conn. 750 (2024) – where the defendant failed to show any lack of good faith concerning questions about threats to witnesses and inconsistencies in a prior police statement.

4. Application to the Cross-Examination in Bester

The court found no prosecutorial impropriety, emphasizing:

  • No objections, no record of bad faith: Defense counsel did not object to any of the challenged questions and did not claim that the prosecutor lacked a good faith basis. The defendant also did not demonstrate that the prosecutor made the inquiries knowing them to be false or unsupported.
  • No inflammatory or unduly prejudicial content: The questions about rain, insurance disclosure, and a cousin’s comment that he was “here for you” were not of the sort that are inherently inflammatory or likely to stir irrational prejudice.
  • No court orders violated: The questions did not contravene evidentiary rulings or any other limitations imposed by the trial court.

Because the defendant did not meet his burden at the first step (showing impropriety), the court did not proceed to step two (whether any improprieties deprived him of a fair trial).

5. Important Cautionary Guidance

Even though it found no reversible impropriety, the court expressly cautioned the State:

  • By asking whether the defendant knew that Hampton said he never told her about the accident, the prosecutor “placed before the jury facts for which there was no evidentiary basis” at that point.
  • The proper method, had the State wished to impeach the defendant’s testimony that he told Hampton about the accident, would have been:
    1. Ask the defendant the foundational question (which the prosecutor did).
    2. Seek a ruling under § 6‑10(c) of the Connecticut Code of Evidence regarding impeachment by prior inconsistent statements through extrinsic evidence.
    3. If permitted, call Hampton in rebuttal and have her testify to the inconsistency, complying also with § 6‑6 governing impeachment by specific instances of conduct (and the limits on use of extrinsic evidence).

The court underscored that its finding of no impropriety in this case should not be read as broad approval of the prosecutor’s phrasing or approach. It is better practice to avoid questions that “imply facts not yet in evidence” when those facts can be proven (if admissible) through proper witnesses and impeachment procedures.

V. Simplifying Key Doctrinal Concepts

A. The Confrontation Clause and “Testimonial” Hearsay

  • The Sixth Amendment gives criminal defendants the right “to be confronted with the witnesses against” them. This generally means:
    • If the State wants to use someone’s out-of-court statement as evidence of guilt, that person must:
      • Testify in court, where the defendant can cross-examine, or
      • Be unavailable and have been subject to prior cross-examination.
  • The Clause applies to “testimonial” hearsay—statements made in circumstances where the declarant reasonably expects they could be used in a criminal prosecution (e.g., formal lab reports, sworn affidavits, police interviews about past events).
  • Statements admitted for other purposes (such as impeachment) are not hearsay and generally do not trigger confrontation concerns.

B. “Self-Executing” Rights vs. Preservation

  • A “self-executing” right in this context is one that does not need to be expressly invoked at trial to exist and be enforceable.
  • The State argued that because the Confrontation Clause is not self-executing, failing to raise a confrontation objection at trial should completely bar appellate review.
  • The court rejected this, preserving the ability to review unpreserved confrontation claims under Golding when the record allows.

C. Golding Review in Plain Terms

Golding allows appellate courts to correct serious, unpreserved constitutional errors when:

  • The trial record is detailed enough to decide the issue.
  • The claim involves a fundamental constitutional right.
  • An actual violation clearly occurred and clearly affected the fairness of the trial.
  • The State cannot prove the error was harmless (if harmless-error doctrine applies).

If any one of these prongs is not met, the claim fails.

D. Surrogate Forensic Testimony

  • A “surrogate” expert is someone who did not personally perform or observe the critical portions of a forensic test but testifies about the test results, often relying on another analyst’s work.
  • Under cases like Melendez‑Diaz, Bullcoming, and Smith v. Arizona, the State cannot avoid confrontation by having a surrogate present another analyst’s testimonial conclusions:
    • If the surrogate simply transmits or endorses the absent analyst’s conclusions, those original statements are being used for their truth and cannot be shielded from cross-examination.
  • However, an expert may rely on non-testimonial data (like raw machine prints) or on materials used solely for internal quality control without triggering confrontation problems.

E. “Good Faith Basis” for Questions in Cross-Examination

  • Lawyers cannot freely invent factual premises in questions. A “good faith basis” means the lawyer has some rational, factual reason to believe the suggested facts may be true (e.g., a prior statement, document, or proffered testimony).
  • If a prosecutor asks a question that implies an untrue fact with no such basis, that can be improper and, in extreme cases, prejudicial enough to warrant reversal.

VI. Impact and Broader Significance

A. Preservation of Golding Review for Confrontation Claims

Perhaps the most important doctrinal holding is negative in form but positive in effect: the court refused to narrow Golding by exempting confrontation claims. As a result:

  • Defendants retain the ability to seek appellate review of unpreserved confrontation issues when the record is adequate and no waiver occurred.
  • Trial counsel still must be vigilant in making timely objections. The court emphasized that unpreserved confrontation claims “face significant hurdles” under Golding, notably record adequacy and waiver.
  • Appellate counsel can continue to raise serious confrontation violations that were not properly flagged at trial, but must be prepared to show precisely which statements were admitted, their testimonial nature, and how the record clearly supports the claim.

B. Forensic Practice and Trial Records

The opinion sends a clear message regarding forensic evidence and appellate review:

  • Precision at trial is critical: Prosecutors, defense counsel, and trial courts should ensure that:
    • The scope of a forensic expert’s reliance on others’ work is clearly delineated in testimony.
    • If written reports or notes are central, they should either be marked as exhibits or described with sufficient specificity to permit later review.
  • Not all lab documents are equal: Some lab documentation may be purely mechanical or administrative; others reflect the analyst’s formal conclusions intended for litigation. Only the latter category is likely to be “testimonial.”
  • Defense strategy implications: If defense counsel suspects a confrontation problem with surrogate forensic testimony:
    • They should object and seek to identify/explore on the record:
      • What documents exist,
      • Their contents, and
      • Their intended use.
    • Absent such clarity, appellate courts may find the record inadequate to review, as in Bester.

C. Cross-Examination Boundaries and Prosecutorial Practice

The decision also refines the line between permissible impeachment and improper insinuation:

  • Questions vs. evidence: The court reiterates that questions are not evidence. This somewhat tempers confrontation challenges based on prosecutorial questions alone, particularly when the witness denies the implied statement.
  • But caution remains: The court’s explicit warning about the Hampton questions functions as a practice advisory:
    • Prosecutors should avoid embedding factual assertions in questions when those facts are not yet supported (or supportable).
    • Where impeachment by contradiction or prior inconsistent statements is sought, established procedures (e.g., calling the declarant, laying proper foundation, complying with evidentiary rules) should be followed.

Future defendants facing similar questions on cross will likely cite this opinion to argue that:

  • Repeated insinuations of damaging facts via questions, even if technically non-evidentiary, can cumulatively prejudice the jury; and
  • Trial courts should intervene—either sua sponte or upon objection—to require either:
    • A proper evidentiary foundation, or
    • Curative instructions emphasizing that questions are not evidence.

D. Integration of Smith v. Arizona into Connecticut Law

This decision is among the early Connecticut applications of the U.S. Supreme Court’s 2024 opinion in Smith v. Arizona, explicitly incorporating its key teachings:

  • The “two-word limits” of the Confrontation Clause: testimonial + hearsay.
  • The “principal reason”/primary purpose test for determining testimonial status.
  • The reiteration that using a non-testifying forensic analyst’s statements as the basis of another expert’s opinion does not avoid confrontation; those underlying statements still come in for their truth.

Though the court did not decide the ultimate confrontation question on the merits in Bester (due to record inadequacy), the opinion provides the analytic map that future Connecticut cases will follow when the record is better developed.

VII. Conclusion

State v. Bester is significant less for its ultimate disposition—affirmance of a murder conviction—than for its careful doctrinal work in three key areas:

  1. It preserves the availability of Golding review for unpreserved Confrontation Clause claims, rejecting a categorical forfeiture rule that would have insulated many confrontation errors from appellate scrutiny.
  2. It clarifies the importance of a robust, specific record in forensic cases, especially where surrogate experts rely on another analyst’s “data and notes.” Without detail about content and purpose, appellate courts cannot meaningfully apply the “testimonial” analysis demanded by Crawford and Smith v. Arizona.
  3. It refines the line between confrontation violations and proper impeachment questioning, as well as between legitimate cross-examination and potential prosecutorial impropriety. While questions alone are not evidence, prosecutors are admonished not to smuggle unproven facts before the jury through suggestive questions that bypass proper evidentiary safeguards.

Taken together, these holdings reinforce Connecticut’s commitment to balancing finality, trial efficiency, and the protection of fundamental rights. They also put practitioners on notice: success or failure of sophisticated confrontation and due process claims often turns not on abstract doctrine alone, but on what the record precisely shows—or fails to show—about what was said, by whom, for what purpose, and how it reached the jury.

Case Details

Year: 2025
Court: Supreme Court of Connecticut

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