Introduction

In State v. Jacques, the Supreme Court of Connecticut addressed three recurrent and consequential criminal procedure questions arising on retrial after an appellate reversal:

• Must the trial court conduct a second probable cause hearing when a conviction is reversed for the erroneous admission of evidence? The Court answered no.
• Does a witness’s medical memory loss render the witness “unavailable” under the Confrontation Clause and Connecticut’s Whelan rule so as to bar admission of a prior testimonial statement? The Court answered no on the facts presented.
• What constitutes a sufficient prima facie showing of reliability for jailhouse informant testimony under General Statutes § 54-86p? The Court affirmed the trial court’s reliability determination.

The case stems from the 2015 murder of Casey Chadwick. After the defendant Jean Jacques’s 2016 conviction, the Supreme Court reversed and remanded for a new trial in 2019 due to the erroneous admission of evidence from a warrantless apartment search. On remand, Jacques sought (1) a new probable cause hearing; (2) exclusion of prior testimonial statements by his former cellmate Tywan Jenkins, who had since suffered a stroke and asserted memory loss; and (3) exclusion of testimony by jailhouse informant Danny Vazquez under the 2019 Connecticut informant reliability statutes. The trial court denied all three requests; a jury again convicted Jacques of murder, and the Supreme Court affirmed.

Summary of the Judgment

• No second probable cause hearing required: The Court held that neither article first, § 8 of the Connecticut Constitution nor General Statutes § 54-46a requires a new probable cause hearing after an appellate reversal that does not dismiss the charges. Illegally obtained evidence later excluded at trial does not taint or undo an earlier probable cause determination.
• Confrontation Clause satisfied notwithstanding medical memory loss: Because Jenkins appeared at trial, took an oath, understood it, and answered all questions, he was “available” for cross-examination. The admission of his 2015 written statement to police as a prior inconsistent statement did not violate the Sixth Amendment.
• Whelan and Code § 8-5(1): The trial court did not abuse its discretion in admitting Jenkins’ written statement as substantive evidence. A denial of recollection can constitute inconsistency; authentication was effectively conceded; and Jenkins was available to be cross-examined.
• No prophylactic or supervisory rule adopted: The Court declined to craft a state constitutional prophylactic rule deeming witnesses with medical memory loss categorically “unavailable,” and declined to modify § 8-5(1) through supervisory authority to carve out medical memory loss cases.
• Jailhouse informant reliability affirmed: The trial court reasonably found a prima facie showing of reliability for Vazquez under §§ 54-86o and 54-86p, emphasizing corroborated, specific, non-public details, unprompted contact with prosecutors, and absence of a cooperation agreement.

Analysis

A. Precedents Cited and Their Influence

1) Probable Cause Hearings

• State v. Mitchell, 200 Conn. 323 (1986): A constitutionally compliant probable cause hearing is a jurisdictional prerequisite to prosecution for life-imprisonment crimes; an “invalid” finding undermines trial jurisdiction.
• State v. McPhail, 213 Conn. 161 (1989): An invalid probable cause finding can arise from insufficient evidence or undisclosed exculpatory material that taints prosecution, but the category is narrow.
• State v. White, 229 Conn. 125 (1994): Reversal for failure to disclose exculpatory impeachment of the only witness at the probable cause hearing; remanded for a new probable cause hearing. White is materially distinct from Jacques because Jacques involved trial-level suppression, not nondisclosure that tainted the probable cause hearing.
• State v. Kane, 218 Conn. 151 (1991): § 54-46a’s bar on suppression motions at probable cause hearings is constitutional; suppression questions are reserved for trial. This underpins the Court’s view that later suppression does not undo the earlier probable cause finding.
• State v. Conn, 234 Conn. 97 (1995); State v. Rollinson, 203 Conn. 641 (1987): Probable cause hearings are not mini-trials; scope is limited.
• State v. Oquendo, 223 Conn. 635 (1992); State v. Duntz, 223 Conn. 207 (1992): Reversals for trial-level admission of unlawfully obtained evidence did not require a new probable cause hearing; cited to show consistent practice.

2) Confrontation Clause and Memory Loss

• California v. Green, 399 U.S. 149 (1970): When a witness testifies and is subject to cross-examination, prior statements can be admitted; loss of memory does not itself defeat confrontation.
• Delaware v. Fensterer, 474 U.S. 15 (1985): Confrontation ensures an opportunity for effective cross-examination, not success. Forgetfulness does not violate the Clause if cross-examination can expose weaknesses.
• United States v. Owens, 484 U.S. 554 (1988): No Confrontation Clause violation where the witness cannot recall the basis for an earlier identification; availability turns on presence and opportunity to cross-examine, not the witness’s memory strength.
• Crawford v. Washington, 541 U.S. 36 (2004): Bars admission of testimonial hearsay unless the declarant appears for cross-examination or is unavailable and previously cross-examined. Crawford did not disturb the preexisting memory-loss jurisprudence on “availability.”
• Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009): Reiterates witness-appearance-or-prior-cross-examination framework for testimonial statements.
• Connecticut decisions: State v. Pierre, 277 Conn. 42 (2006) (post-Crawford, memory loss does not create functional unavailability when witness appears and answers questions); State v. Simpson, 286 Conn. 634 (2008); State v. Cameron M., 307 Conn. 504 (2012); State v. Lebrick, 334 Conn. 492 (2020) (availability is a mixed question subject to plenary review).

3) Whelan Prior Inconsistent Statements

• State v. Whelan, 200 Conn. 743 (1986): Prior written, signed statements by a witness with personal knowledge are admissible as substantive evidence when the witness testifies and is subject to cross-examination. Inconsistency includes denials of recollection and omissions. Codified at Conn. Code Evid. § 8-5(1).

4) Jailhouse Informant Reliability

• Statutes: General Statutes §§ 54-86o and 54-86p (disclosure and reliability hearing regime for jailhouse informants).
• State v. Bember, 349 Conn. 417 (2024): § 54-86p factors are nonexclusive; no factor is dispositive or mandatory.
• State v. Arroyo, 292 Conn. 558 (2009): Recognizes the “systemic reality” that informants often expect benefits, which requires caution but is not per se disqualifying.

B. The Court’s Legal Reasoning

1) No Second Probable Cause Hearing After Appellate Reversal

The Court grounded its holding in the constitutional and statutory design of § 54-46a hearings: they are limited-scope, jurisdictional screenings that expressly do not entertain suppression motions. Because suppression issues are trial questions, the later exclusion of evidence at trial does not retroactively invalidate the earlier probable cause finding. The Court underscored that the 2019 reversal in Jacques did not dismiss the charge; it remanded for a new trial without the illegally seized evidence. Thus, the “case” does not start from scratch—even if the trial does. Absent a jurisdictional defect such as insufficiency of the probable cause record or Brady-type nondisclosure that taints prosecution (as in White), a second hearing is unnecessary. The Court also surveyed its own reversals in unlawful search/seizure cases (e.g., Oquendo, Duntz) and noted none required a new probable cause hearing.

2) Confrontation and Medical Memory Loss: Jenkins Was “Available”

Applying Green, Fensterer, and Owens, as synthesized post-Crawford in Pierre, the Court reaffirmed that the Sixth Amendment guarantees an opportunity to cross-examine—not a guarantee of effective cross-examination in the defense’s preferred manner. Jenkins appeared, took and understood the oath, and answered questions. The defense could, and did, cross-examine him, including by:

• Pressing his asserted inability to recall the events, prior statements, and interactions.
• Highlighting his discomfort with the “jailhouse snitch” label and his reluctance to testify, to show bias and motive.
• Using his prior testimony from the probable cause hearing and first trial as fodder to expose inconsistencies, communication challenges (accent, nonlinear speech), the multiplicity of defendant’s versions, and omissions from the written statement.

The Court emphasized that these were “realistic weapons” of cross-examination that align with Owens. Although the Court left open the possibility that, in rare cases, a medical condition could so frustrate the opportunity for cross-examination as to render a witness functionally unavailable, it instructed trial courts to hold, when requested, a pretrial evidentiary hearing to evaluate medical evidence on that question. On this record—particularly given the limited voir dire into the nature and extent of the stroke and memory impairment—the trial court correctly found availability.

3) Whelan Admission of Jenkins’ Written Statement

The Whelan requirements were met:

• Inconsistency: A witness’s denial of recollection is a recognized inconsistency under Whelan and § 8-5(1). Jenkins repeatedly said “I don’t recall.”
• Authentication/Signature: Defense counsel effectively conceded that a detective typed the statement and Jenkins signed it. That satisfied authentication; Jenkins’s inability to recall signing did not defeat admissibility.
• Availability: For the same reasons that the Confrontation Clause was satisfied, Jenkins was “available” under Whelan.

The Court rejected two broader defense invitations: (a) adopt a prophylactic state-constitutional rule deeming witnesses with medical memory loss “unavailable,” and (b) modify § 8-5(1) via supervisory authority to exclude prior inconsistent statements when the witness’s memory loss is medically genuine. The Court found no high-risk, unmanageable, systemic problem warranting such extraordinary measures and stressed that trial courts already possess—and must exercise—discretion to assess inconsistency and availability case by case.

4) Jailhouse Informant Reliability: Prima Facie Showing Under §§ 54-86o, 54-86p

The trial court’s threshold reliability finding for Vazquez was upheld under abuse-of-discretion review. The court reasonably relied on several statutory considerations:

• Corroboration and specificity: Details that the defendant admitted to Vazquez—blood on shoes/shoelaces, use of a mop for cleanup, concealment of the phone in a bathroom wall, and removal of a card from the phone to avoid tracking—were corroborated by police testimony and exhibits and were specific.
• Non-public nature: The SIM/SD card detail was reasonably viewed as non-public; even if Vazquez misnamed the card, the inference that the defendant spoke about removing the phone’s storage/tracking card supported reliability.
• Source of information: There was no evidence that Vazquez could have gleaned these specific details from public sources while incarcerated; the defense did not prove publicity or access.
• Circumstances of initial disclosure: Vazquez initiated contact with prosecutors via letter without prompting, had no cooperation agreement or promised benefit, and had not previously testified as a jailhouse informant or recanted in other matters, though he acknowledged hoping for help—a “systemic reality” per Arroyo that is not dispositive.

The defendant’s challenges (public availability of facts; inconsistencies in dates; expectation of benefit) did not render the trial court’s overall reliability determination unreasonable, particularly given that § 54-86p’s factors are permissive and non-dispositive.

C. Impact and Practical Implications

1) Probable Cause Hearings After Reversal

• Settled practice: Defense requests for a second § 54-46a hearing based solely on an appellate reversal for trial-level suppression should be denied. The original probable cause determination stands unless there is a jurisdictional defect in the hearing itself (e.g., insufficiency; Brady-type nondisclosure that taints the prosecution).
• Strategic refocus: Defense efforts should center on trial motions in limine and suppression, not relitigation of probable cause, after remand.

2) Confrontation Clause and Whelan in Memory-Loss Cases

• Availability standard reinforced: Witness presence, oath, and willingness to answer questions typically satisfy the Sixth Amendment and Whelan availability, even where the witness cannot recall events or prior statements.
• Medical hearing guidance: The Court’s instruction to conduct pretrial evidentiary hearings on medical impairment when requested is significant. Counsel who claim “functional unavailability” should build a medical record (diagnoses, neuropsychological assessments, scope/duration/nature of impairment, impact on testimonial capacities).
• Cross-examination playbook: Defense should exploit prior transcripts, police reports, and prior statements to expose inconsistencies and build narratives of bias, motive, suggestibility, or police overreach. Courts will look for whether such “realistic weapons” exist and were used.
• No categorical bar: The Court’s refusal to adopt a prophylactic rule means case-by-case adjudication remains the default. Exceptional cases may still result in findings of functional unavailability where medical evidence shows cross-examination is effectively impossible.

3) Jailhouse Informants Under §§ 54-86o and 54-86p

• Threshold—not conclusive—reliability: § 54-86p hearings ensure a prima facie reliability showing; juries retain the ultimate credibility call. Trial courts may consider corroboration, specificity, non-public details, and how/why the informant came forward, along with disclosures under § 54-86o.
• Prosecution practice: To meet the threshold, prosecutors should marshal corroborating forensic or investigative evidence and show the details were likely not public or accessible to the informant while confined.
• Defense practice: Defense should create a record of publicity and access (news archives, internet access policies, discovery leaks), stress benefit-seeking, and probe date/place inconsistencies. Without evidence of publicity/access, arguments that details were public will carry limited weight.

4) Standards of Review and Preservation

• Confrontation availability: Mixed question; plenary review of legal availability, deference to factual findings unless clearly erroneous.
• Whelan admissibility and informant reliability: Abuse of discretion. Preservation matters: counsel’s concessions (e.g., authentication) can be outcome-determinative.

D. Complex Concepts Simplified

• Probable cause hearing: A preliminary, limited-scope proceeding required for serious offenses to ensure there is enough evidence to proceed to trial. It is not a mini-trial and does not adjudicate suppression.
• Confrontation Clause “availability”: The Constitution requires that the accused have the chance to confront (cross-examine) witnesses. If the witness appears, takes an oath, and answers questions, the Clause is generally satisfied even if the witness cannot remember key facts.
• Whelan prior inconsistent statement: In Connecticut, a witness’s prior written, signed statement can be used as substantive evidence if the witness testifies and is subject to cross-examination. “Inconsistency” includes “I don’t remember.”
• Prima facie reliability (jailhouse informants): Before such testimony reaches the jury, the court must find enough indicia of reliability—often through corroboration and non-public, specific details—to justify admission.
• Testimonial statement: A formal statement to law enforcement intended for use in prosecution. Admissible at trial only if the declarant appears for cross-examination or is unavailable and there was prior cross-examination.
• SIM vs. SD card: A SIM card connects a phone to a cellular network; an SD card stores data. Confusion between them did not undercut the inference that the defendant discussed removing a phone card to thwart tracking.

Conclusion

State v. Jacques delivers three notable clarifications in Connecticut criminal practice:

• Stability of probable cause determinations: An appellate reversal for trial-level suppression does not reopen or require redoing the § 54-46a probable cause hearing, absent a jurisdictional flaw in that hearing.
• Confrontation and Whelan in the face of memory loss: The Court fortifies the rule that a witness’s appearance and willingness to answer questions satisfies constitutional and evidentiary availability, even with medical memory loss, while encouraging pretrial medical hearings when warranted.
• Measured gatekeeping for informant testimony: The Court affirms the statutory reliability screen as a practical, flexible threshold that looks to corroboration, specificity, and non-public details, without requiring proof that eliminates all motives for benefit.

Collectively, the decision emphasizes adherence to longstanding doctrinal boundaries: probable cause is a limited, jurisdictional screen; confrontation protects an opportunity for cross-examination rather than a particular outcome; and evidentiary gatekeeping remains entrusted to trial judges under clear but flexible statutory and common-law standards. The Court resists categorical prophylactic expansions, opting instead for targeted, case-by-case management—particularly where medical impairments potentially threaten the integrity of confrontation. For practitioners, Jacques underscores the importance of building robust records—medical, factual, and forensic—so that availability, inconsistency, and reliability are resolved on concrete evidence rather than abstractions.