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             STATE v. GRISWOLD—CONCURRENCE

   FLYNN, J., concurring. The defendant, Jody Gris-
wold, was charged with commission of the crimes of
sexual assault in the fourth degree in violation of Gen-
eral Statutes § 53a-73a (a) (1) against each of two young
girls, aged thirteen and eleven at the time of trial, and
also with risk of injury to a child as to each of the girls
in violation of General Statutes § 53-21. All of these
offenses were alleged to have been committed on or
about July 5, 2010. After each victim had testified at
trial on both direct and cross-examination, in open
court, under oath, and in the presence of the defendant,
and after the court had permitted defense counsel to
recall each child to the witness stand later, if he elected
to do so, the state sought to introduce videotapes of
the forensic interviews of each child conducted by a
social worker. The police were present at the pretrial
videotaping and were consulted by the social workers
during a break in each of the interviews to determine
if additional questions should be asked about the defen-
dant’s conduct.
   The defendant objected to the introduction of the
videotapes on several grounds through a motion in
limine, claiming that the statements on the videotapes
were hearsay and unfairly prejudicial. He also objected
orally at trial that these unsworn statements were inad-
missible hearsay and unnecessary because both chil-
dren had already testified.1 The court denied the
defendant’s motion in limine and overruled his oral
objection. The court held that the videotapes were
admissible under the hearsay exception found in § 8-3
(5) of the Connecticut Code of Evidence, permitting
the admission of statements where the declarant was
seeking medical diagnosis or treatment. Section 8-3 (5)
provides that ‘‘[a] statement made for purposes of
obtaining a medical diagnosis or treatment and describ-
ing medical history, or past or present symptoms, pain,
or sensations, or the inception or general character of
the cause or external source thereof, insofar as reason-
ably pertinent to the medical diagnosis or treatment,’’
is admissible. These statements are considered ‘‘inher-
ently reliable because the patient has an incentive to
tell the truth in order to obtain a proper medical diagno-
sis and treatment.’’ State v. Cruz, 260 Conn. 1, 10, 792
A.2d 823 (2002). The court also permitted the introduc-
tion of written summaries of the videotaped statements
under the same exception, despite the same objections.
   The questions before us as to these disputed admis-
sions come down to whether the court abused its discre-
tion by admitting the videotapes and written summaries
under § 8-3 of the Connecticut Code of Evidence and,
if so, whether the admission was so harmful that it
reasonably affected the verdict. I part from the majority
in that I would conclude that the admission of the video-
tapes and written summaries was improper, but I con-
cur in the affirmance on the basis that the admission
was not harmful.
   I agree with the majority’s conclusion that the pri-
mary purpose of the participation of law enforcement
personnel in the forensic interviews ‘‘appears to be,
from an objective viewpoint, primarily for the purpose
of assisting the interviewers in obtaining evidence to
use in prosecuting the defendant,’’ and that the purpose
of the interviews was not primarily medical. Neither
child’s testimony or statement indicates that they were
seeking medical diagnosis or treatment, as § 8-3
requires for admissibility of any such declarant’s out-
of-court statements.2 Additionally, both children were
asked numerous questions during the interviews
addressing what, if any, sexual acts the defendant com-
mitted, and only one question, asked at the end of each
interview, touched vaguely on any medical issues or
concerns the children might have.3 The social worker
who conducted the interview with the younger child
explained that the people observing the interview from
behind a one-way mirror, namely, the police, were there
to ‘‘make sure’’ that she asked ‘‘the right questions.’’
   I agree that those factors militate against admissibil-
ity under the tender years exception to the hearsay
rule provided for in § 8-10 of the Connecticut Code of
Evidence, which permits the admission of statements
by children under the age of thirteen concerning physi-
cal or sexual abuse, unless such statements were made
in preparation for a legal proceeding.4 Where I disagree
is that those same factors should, in my opinion, militate
against the admission of the videotapes and written
summaries, not just under the tender years exception,
but also under the medical diagnosis or treatment
exception. It is a cardinal principle of our law that we
should aim to create a consistent body of law. See In
re John C., 20 Conn. App. 694, 698, 569 A.2d 1154 (1990)
(creating consistent body of law is general principle);
see also State v. Morgan, 86 Conn. App. 196, 205 n.2,
860 A.2d 1239 (2004) (legal principles enunciated in
prior case on same issue must be applied ‘‘to provide
a consistent body of law and fair and equal justice’’),
cert. denied, 273 Conn. 902, 868 A.2d 746 (2005).
   Our Supreme Court in State v. Maguire, 310 Conn.
535, 569, 78 A.3d 828 (2013), recognized that, while §§ 8-
3 and 8-10 of the Connecticut Code of Evidence relate
to the admissibility of statements made, respectively,
for medical purposes and statements on other issues by
children of tender years, when they result from forensic
interviews, they are ‘‘similar . . . .’’ In Maguire,
although passing on § 8-10, the tender years exception
to the hearsay rule, our Supreme Court commented on
the state’s likelihood of success in introducing evidence
from forensic interviews when the case was retried
after reversal: ‘‘We finally note that we are skeptical
that the state will be able to satisfy [State v.] Arroyo’s[,
284 Conn. 597, 935 A.2d 975 (2007),] stringent standard
for the admission of forensic interview evidence. In
marked contrast to Arroyo, there is nothing in the pre-
sent record of this case to suggest that the primary or
overriding purpose of [the forensic] interview was to
provide the victim with assistance in the form of medi-
cal or mental health treatment.’’ State v. Maguire, supra,
570. Similar to Maguire, in the present case, the primary
purpose of the forensic interviews was not to provide
the children with medical assistance or mental health
treatment.
   Additionally, in reviewing rule 803 (4) of the Federal
Rules of Evidence, which provides a hearsay exception
allowing the admission of out-of-court statements made
to medical providers, Jones on Evidence tells us that
a child’s statements to a law enforcement investigator
are outside the scope of that hearsay exception.5 C.
Fishman, Jones on Evidence (7th Ed. 2000) § 30:11 (b),
pp. 746–48. The same is true if the statements are solic-
ited for investigative purposes, rather than for medical
treatment, by a health care professional or social
worker.6 Id., p. 747.
   The Connecticut Code of Evidence was designed to
capsulize the common-law rules of evidence, not to
express them all.7 Our common-law rules of evidence
require that any hearsay statement admitted under any
of the exceptions to the rule against hearsay be suffi-
ciently trustworthy. See State v. Maguire, supra, 310
Conn. 573 (‘‘any statement that is admitted into evi-
dence under [the recognized hearsay] exceptions is
admissible to establish the truth of the matter asserted
because it falls within a class of hearsay evidence that
has been deemed sufficiently trustworthy to merit such
treatment’’ [internal quotation marks omitted]). ‘‘This
assurance of trustworthiness may be found in any fac-
tual circumstances where a sincere and accurate state-
ment would naturally be uttered, and no plan of
falsification be formed.’’ (Internal quotation marks
omitted.) In re Sean H., 24 Conn. App. 135, 142, 586 A.2d
1171, cert. denied, 218 Conn. 904, 588 A.2d 1078 (1991).
   Where we have concluded that the police participated
in the forensic interviews in order to gather evidence
against the defendant and that the purpose of the social
worker’s questions was not primarily medical, the relia-
bility of the children’s statements is questionable. The
rationale for the admission of statements made to health
care providers is that the statements are likely to be
both reliable and trustworthy because the declarant is
motivated to speak truthfully by his or her desire to
receive proper and effective treatment. See State v.
Cruz, supra, 260 Conn. 10. ‘‘When the declarant is a
young child who allegedly was sexually assaulted or
otherwise physically abused, on the other hand,
determining the purpose of the statement raises both
definitional and factual problems. A young child may
have no particular purpose for relating what happened,
other than to satisfy an adult who asked a question.’’
C. Fishman, supra, § 30:11 (a), p. 744. I would hold,
therefore, that, under the circumstances of this case,
the videotapes and written summaries were improperly
admitted under the medical diagnosis and treatment
exception to the rule against hearsay.
   The majority acknowledges that there is an anomaly
in its interpretation of §§ 8-3 and 8-10, but determines
that that anomaly is not for this court to address. Rather,
the majority concludes that it is for our Supreme Court
to resolve this issue either through its adjudicative func-
tion or its role as overseer of the Connecticut Code of
Evidence. I disagree. Our Supreme Court has addressed
both sections in Maguire and, by inference, has given us
the ‘‘primary purpose’’ guide for the medical treatment
exception. We all agree that that primary purpose did
not exist in this case.
   I would concur in the affirmance of the trial court’s
judgment, however, because the disputed evidence was
merely duplicative of the testimony from the two vic-
tims and the two social workers who conducted the
forensic interviews. ‘‘It is well established that if errone-
ously admitted evidence is merely cumulative of other
evidence presented in the case, its admission does not
constitute reversible error.’’ Swenson v. Sawoska, 215
Conn. 148, 155, 575 A.2d 206 (1990); see also Kortner
v. Martise, 312 Conn. 1, 29, 91 A.3d 412 (2014) (citing
Swenson v. Sawoska, supra, 148).
  1
     The availability of the declarant is immaterial to the medical exception
to the rule against hearsay. See Conn. Code Evid. § 8-3. There is a distinction,
however, between the availability of a witness to testify in futuro and actual
testimony that has already occurred in tempore acto.
   2
     ‘‘An analysis of the traditional hearsay exceptions indicates that they
are primarily based on indicia of reliability with some consideration of
necessity.’’ C. Tait & E. Prescott, Tait’s Handbook of Connecticut Evidence
(4th Ed. 2008) § 8.4.2, p. 465. Although necessity is but one consideration,
defense counsel’s objection on the lack of any necessity was persuasive
because both children had already testified under oath.
   The state did not seek to admit the challenged evidence under the con-
stancy of accusation doctrine. Nonetheless, Tait’s Handbook of Connecticut
Evidence, in addressing this related subject, comments on the questionable
trustworthiness of the admission of complaints made to investigative agen-
cies. Id., § 6.37.5, p. 391. The treatise comments that ‘‘complaints made to
those in investigative agencies or law enforcement officials should be care-
fully reviewed, particularly responses made during official inquiries or inter-
rogations. Such complaints may be less than voluntary or may be motivated
by the incentive to generate evidence.’’ Id.
   3
     One of the social workers testified that, when conducting forensic inter-
views, she ‘‘will often ask if the child has any worries about their body and
let them know that we have medical providers that will meet with the child.’’
   4
     The language of § 8-10 of the Code of Evidence mirrors that found in
Public Act 07-143, known as Jessica’s Law.
   5
     Rule 803 (4) of the Federal Rules of Evidence provides that an out of court
statement is admissible if it (a) is made for—and is reasonably pertinent to—
medical diagnosis or treatment; and (b) describes medical history; past or
present symptoms or sensations; their inception; or their general cause.
Section 8-3 (5) of the Connecticut Code of Evidence provides that an out
of court statement is admissible if it is ‘‘made for purposes of obtaining a
medical diagnosis or treatment and describing medical history, or past or
present symptoms, pain, or sensations, or the inception or general character
of the cause or external source thereof, insofar as reasonably pertinent to
the medical diagnosis or treatment.’’
  6
    Similarly, McCormick on Evidence notes that statements made by chil-
dren regarding sexual abuse ‘‘have been received when made in a number
of different situations and to a rather broad array of professionals, although
some courts have developed limitations where non-physicians are involved.
These uses of the expanded hearsay exception challenge the wisdom of its
extension to cover statements made without any treatment purpose, and a
number of states have modified their rule or have restricted its application
through judicial interpretation so as to require treatment motivation or other
evidence of reliability.’’ (Footnotes omitted.) 2 K. Broun, McCormick on
Evidence (7th Ed. 2013) § 278, pp. 413–14.
  7
    Section 1-2 (a) of the Connecticut Code of Evidence provides that ‘‘[t]he
purposes of the Code are to adopt Connecticut case law regarding rules of
evidence as rules of court and to promote the growth and development of
the law of evidence through interpretation of the Code and through judicial
rule making to the end that the truth may be ascertained and proceedings
justly determined.’’
  Furthermore, the commentary to § 1-2 (a) similarly notes that ‘‘[o]ne of
the goals of drafting the Code was to place common-law rules of evidence
and certain identified statutory rules of evidence into a readily accessible
body of rules to which the legal profession conveniently may refer. . . .
Because the Code was intended to maintain the status quo, i.e., preserve
the common-law rules of evidence as they existed prior to adoption of
the Code, its adoption is not intended to modify any prior common-law
interpretation of those rules.’’
