STATE OF CONNECTICUT v. CHRISTOPHER CARRION
(SC 18960)
Supreme Court of Connecticut
Arguеd September 25, 2013—officially released September 30, 2014
Daniel J. Krisch, assigned counsel, for the appellant (defendant). Harry Weller, senior assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Amy Sedensky, senior assistant state’s attorney, for the appellee (state).
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Opinion
PALMER, J. A jury found the defendant, Christopher Carrion, guilty of four counts of sexual assault in the first degree in violation of
The opinion of the Appellate Court sets forth the following relevant facts that the jury reasonably could have found. ‘‘From January, 2005, to March, 2007, the defendant lived with his parents in [the town of] Prospect, and D.L. lived with her parents and siblings in [the city of] Waterbury. During this time, the defendant and D.L. regularly spent time together, as the two were cousins whose families would often gather [for] holidays, parties and other family occasions. On March 25, 2007, D.L., who was then seven years old, revealed to her mother . . . that the defendant previously had sexually abused her during visits in both Prospect and Waterbury. Soon thereafter, [D.L.’s mother] informed detectives of the Waterbury [P]olice [D]epartment of [D.L.’s] revelations, and a formal investigation of the alleged abuse was initiated.
‘‘On April 9, 2007, D.L. underwent a forensic interview [conducted by Jessica Alejandro, a forensic interviewer affiliated with the Child Guidance Clinic of Greater Waterbury, Inc.], during which [D.L.] recounted in detail the nature of the defendant’s sexually abusive behavior. This interview was [video-recorded] in its entirety, and the substance of D.L.’s statements during the interview were later confirmed by the defendant himself in a voluntary statement that he made to Waterbury police detectives on May 18, 2007. Additionally, on May 21, 2007, D.L. underwent a physical examination that corroborated further her account of the defendant’s sexually abusive behavior.
‘‘[When confronted with D.L.’s allegations, the defendant confessed to having had vaginal intercourse and oral sex with D.L. He then] was arrested and charged in two separate informations with four counts of sexual assault in the first degree in violation of
On appeal to the Appellate Court from the judgments of conviction, the defendant claimed that the trial court improperly had permitted the state to introduce into evidence the video recording of D.L.’s forensic interview for substantive purposes because the statements made by D.L. in that interview were ‘‘grievously unrеliable’’ within the meaning of State v. Mukhtaar, 253 Conn. 280, 306–307, 750 A.2d 1059 (2000).7 State v. Carrion, supra, 128 Conn. App. 49–50. The Appellate Court rejected this claim, concluding that, although, in some respects, the interview may not have comported with certain standards for interviews of child sex abuse victims, ‘‘there [was] nothing so unduly coercive or extreme about the circumstances of D.L.’s interview that would serve to grievously undermine the reliability generally inherent in such a statement, so as to render it, in effect, not that of D.L. herself.’’ (Internal quotation marks omitted.) Id., 53. For this reason, the Appellate Court concluded that the trial court did not abuse its discretion in permitting the state to use the video recording for substantive purposes. Id., 53–54.
The defendant also claimed that the trial court improperly had instructed the jury that ‘‘[t]he state . . . does not want the conviction of an innocent person . . . [as] [t]he state is as much concerned in having an innocent person acquitted as in having a guilty person convicted.’’ (Internal quotation marks omitted.) Id., 57. Relying on State v. Kitchens, supra, 299 Conn. 482–83, the Appellate Court determined that the defense implicitly had waived this unpreserved instructional claim.8 State v. Carrion, supra, 128 Conn. App. 60, 61.
On appeal to this court following our grant of certification, the defendant claims that the Appellate Court incorrectly concluded, first, that the trial court did not abuse its discretion in overruling defense counsel’s objection to the state’s use of the video recording of D.L.’s forensic interview as substantive evidence of the defendant’s guilt and, second, that the defense implicitly waived the defendant’s right to raise a claim on appeal challenging the trial court’s jury instruction that the state wants to see an innocent person acquitted no less than it wants to see a guilty person convicted. We reject the defendant’s evidentiary claim for the same reasons on which the Appellate Court relied, and, with respect to his claim of instructional impropriety, we conclude that the challenged instruction, viewed in light of the instructions as a whole, did not violate his constitutional right to a fair trial.9 Accordingly, we affirm the judgment of the Appellate Court.
I
We first address the defendant’s contention that the trial court incorrectly
The following additional facts and procedural history are necessary to our resolution of the defendant’s claim. Alejandro began the interview of D.L. by asking her general questions about school, and her pets and siblings. Next, Alejandro explained that their conversation was being recorded and that a social worker and two police officers were watching from the other side of a one-way mirror. Alejandro also informed D.L. that she should feel comfortable correcting Alejandro at any time and confirmed that D.L. understood this instruction by asking, ‘‘[s]o you’re in the second grade,’’ to which D.L. responded ‘‘[n]o, first.’’ Alejandro also instructed D.L. that, if she did not know the answer to a question, she should feel free to say so. In addition, Alejandro confirmed that D.L. understood the difference between a truthful statement and a lie, and D.L. expressed her understanding that people who tell lies ‘‘can get in trouble.’’
Thereafter, in response to a mix of leading, multiple-choice and open-ended questions, D.L. told Alejandro that the defendant did ‘‘something’’ to her multiple times over the previous few months. D.L., however, was reluctant to describe the details of the defendant’s conduct, stating that the defendant had instructed her that he would ‘‘get in trouble’’ if she told anyone about it.
Following this exchange, Alejandro showed D.L. two anatomically correct dolls, one male and one female, and confirmed that D.L. could properly identify the dolls’ various body parts. By reference to the anatomy of the female doll, Alejandro also elicited from D.L. that certain areas of the doll’s body were ‘‘private parts’’ and that only D.L., her mother, or a physician was permitted to touch D.L. in those places. Alejandro then asked D.L. if she knew ‘‘someone [who] has a touching problem and touches those parts when they’re not supposed to?’’ D.L. responded by identifying the defendant. Next, Alejandro asked D.L. to point both to the places on the female doll where the defendant had touched her and to the places on the male doll that corresponded to the
For the remainder of the interview, in response to a series of questions posed by Alejandro that were similar in form to the preceding questions, D.L. further described the circumstances surrounding her encounters with the defendant in the months preceding the interview. In addition, after D.L. revealed that the defendant’s two brothers also had sexually abused her, Alеjandro questioned D.L. regarding her interactions with the three men. Alejandro concluded the interview by asking whether D.L. had ‘‘anything else that [she] want[ed] to talk . . . about,’’ and D.L. answered in the negative.
As the Appellate Court explained, ‘‘[p]rior to trial, the defendant filed a motion in limine seeking to preclude the state from admitting as evidence the [video-recorded] interview of D.L. In support of this motion, the defendant argued, inter alia, that the coercive nature by which D.L.’s description of the sexual abuse was procured rendered the . . . interview grievously unreliable and, therefore, inadmissible.
‘‘[The trial court thereafter conducted] an evidentiary hearing . . . on the defendant’s motion, during which the defendant presented the expert testimony of a clinical psychologist, David M. Mantell. Mantell testified that, in his professional opinion, ‘the validity of the investigation techniques’ used during D.L.’s interview were ‘so seriously marked from the best practices that . . . they invalidate[d] the procedural integrity of the [entire] evaluation.’ More precisely, Mantell criticized the ‘suggestive techniques’ utilized by [Alejandro] during D.L.’s examination . . . [which] he found ‘produce[d] results оf a questionable memory . . . .’ ’’10 State v. Carrion, supra, 128 Conn. App. 50.
Mantell did acknowledge, however, that Alejandro properly took some steps to reduce the potentially coercive atmosphere of the interview, including (1) ques-tioning D.L. in a ‘‘child friendly environment,’’ (2) conducting a rapport building phase of the interview, and (3) taking time to explain the general rules for the interview. Mantell also conceded that certain statements made by D.L. during the interview possessed the indicia of reliability. For example, Mantell recognized that D.L.’s willingness to correct Alejandro, along with D.L.’s spontaneous utterances and use of appropriate language for a child, indicated that her statements reflected what D.L. actually recalled and believed and were not merely the product of what she thought Alejandro wanted to hear. Furthermore, Mantell stated that, although Alejandro never specifically confirmed that D.L. understood that the dolls used in the forensic interview were intended to represent real people, children over the age of five or six usually do appreciate that fact. Finally, Mantell testified that, although the forensic interview protocol that he designed forbids the use of multiple-choice questions, another such protocol, the RATAC protocol,11 permits the use of such questions.
At the conclusion of Mantell’s testimony, the trial court denied the defendant’s motion in limine. The court concluded that grievous unreliability ‘‘is a very high standard that might . . . be met in a case [in which] there was police misconduct and a statement was forcibly taken from a suspect . . . . But, here, we have a different situation, where a statement is taken in a clinical environment, and we have a seven year old girl who . . . ultimately told . . . her own story. Certainly, there is enough . . . for the jury to consider whether [it] should credit it or not, and the information and testimony [adduced] by the defendant is really more grist for the cross-examination mill than matter that goes to the admissibility of the statement. . . . Mantell’s review, with the benefit of twenty-twenty hindsight and with a fine tooth comb, does show that some questions could be better worded or [that] the interview could be done in a better way, but not that the child’s testimony was coerced. Some of this criticism—and I’ve reviewed it carefully—of the questions, I find to be somewhat picky or trifling. And any failurе to . . . comply with protocols or prevailing standards does not necessarily connote grievous unreliability.’’
As the Appellate Court explained, ‘‘[d]uring the state’s case-in-chief, D.L. testified as to the defendant’s sexually abusive behavior; however, her testimony in this regard was often inconsistent with the details [that] she [had] provided during her [video-recorded] interview.12 [In light of these inconsistencies], following D.L.’s testimony, the state [sought] to introduce the portions of the [video-recorded] interview
The following principles guide our analysis of the defendant’s claim. ‘‘It is well settled that . . . [a]n out-of-court statement offered to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception to the general rule applies. . . . In State v. Whelan, supra, 200 Conn. 753, however, we adopted a hearsay exception allowing the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination. This rule has also been codified in
‘‘[The] Whelan . . . hearsay exception [applies to] a relatively narrow category of prior inconsistent statements . . . [and is] carefully limited . . . to those prior statements that carry such substantial indicia of reliability as to warrant their substantive admissibility. As with any statement that is admitted into evidence under a hearsay exception, a statement that satisfies the Whelan criteria may or may not be true in fact. But, as with any other statement that qualifies under a hearsay exception, it nevertheless 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. Thus, as with all other admissible nonhearsay evidence, we allow the fact finder to determine whether the hearsay statement
A party seeking to exclude a Whelan statement, however, may make a preliminary showing of facts demonstrating that the statement was ‘‘made under circumstances so unduly coercive or extreme as to grievously undermine the reliability generally inherent in such a statement, so as to render it, in effect, not that of the witness.’’ Id. If a party makеs such a showing, the court should hold a hearing to determine whether, ‘‘in light of the circumstances under which the statement was made . . . the statement is so untrustworthy that its admission into evidence would subvert the fairness of the fact-finding process.’’ Id., 307 and n.27. Because this is a demanding standard, ‘‘it will be the highly unusual case in which a statement that meets the Whelan requirements nevertheless must be kept from the jury.’’ Id., 307.
‘‘[T]he trial court’s decision [on the admissibility of a Whelan statement] will be reversed only [when] abuse of discretion is manifest or [when] an injustice appears to have been done. . . . On review by this court, therefore, every reasonable presumption should be given in favor of the trial court’s ruling.’’ (Internal quotation marks omitted.) State v. Pierre, 277 Conn. 42, 56, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006). ‘‘Of course, the trial court’s factual findings on this issue will not be disturbed on appeal unless they are clearly erroneous.’’ State v. Mukhtaar, supra, 253 Conn. 307 n.26.
In evaluating the reliability of statements made by a child who is the subject of a forensic interview, this court has recognized that, because ‘‘[y]oung children are sensitive to the status and power of their interviewers and as a result are especially likely to comply with the implicit and explicit agenda of such interviewers . . . [c]hildren . . . are more willing to go along with the wishes of adults and to incorporate adults’ beliefs into their rеports. . . . A critical finding of psychological research is that young children, particularly preschool age children, appear to be more suggestible as a basic psychological characteristic than older children and adults.’’ (Citation omitted; internal quotation marks omitted.) State v. Aponte, 249 Conn. 735, 750–51, 738 A.2d 117 (1999); see also Washington v. Schriver, 255 F.3d 45, 57 (2d Cir. 2001) (improper interviewing techniques ‘‘can create a significant risk that the interrogation itself will distort the child’s recollection of events, thereby undermining the reliability of the statements and subsequent testimony concerning such events’’ [internal quotation marks omitted]); State v. Michaels, 136 N.J. 299, 309, 642 A.2d 1372 (1994) (‘‘[T]he ‘investigative interview’ is a crucial, perhaps determinative, moment in a child-sex-abuse case. . . . If a child’s recollection of events has been molded by an interrogation, that influence undermines the reliability of the child’s responses as an accurate recollection of actual events.’’ [Citations omitted.]). Courts have identified the following nonexclusive factors, among others, as particularly salient in determining the threshold reliability of a child’s disclosure of sexual abuse during a forensic interview: (1) the child’s age; (2) the child’s actions or use of words outside the normal behavior or lexicon of a child of a similar age; (3) the spontaneity of the child’s statements; (4)
Although some aspects of Alejandro’s questioning of D.L. may have been unnecessarily or unduly suggestive, we agree with the Appellate Court that the trial court reasonably concluded that any shortcomings in the manner in which the interview was conducted did not render D.L.’s responses so unreliable that their admission into evidence subverted the fairness of the defendant’s trial. For several reasons, we conclude that the trial court reasonably determined that, under Whelan, the state was entitled to have the jury view the video recording of the interview. First, notwithstanding Alejandro’s periodic use of leading questions, sоme of her questioning was open-ended and nonleading, and D.L. provided important information that was highly incriminating of the defendant in response to that neutral questioning. For example, in response to questions that were not leading, D.L. stated that the defendant (1) had his pants off during one encounter in which he took off her clothes and touched her inappropriately, (2) warned D.L. that he would ‘‘tell on [her] back’’ if she ever revealed to others what he had done, (3) touched her mouth with his ‘‘private,’’ (4) touched her ‘‘private’’ with his mouth, and (5) touched her mouth with his tongue.
Second, D.L. made multiple spontaneous assertions during the interview, which belies the claim that her responses were the product of Alejandro’s suggestive interview techniques. For example, after Alejandro asked, ‘‘[s]o, [the defendant] and his other brother would do the same thing that you’re telling me about,’’ D.L. replied ‘‘[u]m-hum,’’ but then continued: ‘‘They did this like four times, maybe.’’ Similarly, in response to a question as to where the abuse occurred, D.L. volunteered: ‘‘My sister and me used to be together, but I didn’t like it.’’ Furthermore, while Alejandro was explaining that it was important for D.L. to talk about anything new or strange that she had observed with her ‘‘private’’ so ‘‘that we can make an appointment with a doctor,’’ D.L. responded by stating: ‘‘I did that already.’’
Third, D.L. corrected Alejandro’s impressions of the events in question on several occasions during the interview, further demonstrating that she was not simply providing answers that she thought Alejandro was seeking. Instances in which D.L. did not confirm the facts as framed by Alejandro, despite Alejandro’s use of leading questions, included the following: (1) when Alejandro asked D.L. whether the defendant’s ‘‘pants were all the way off,’’ D.L. responded that they were ‘‘[m]ostly off’’; (2) when Alejandro asked, ‘‘[a]nd then it happened another time when there was no party,’’ D.L. responded, ‘‘[n]o . . . [i]t happened . . . at Christmas and fall’’; (3) when Alejandro asked, ‘‘[n]ow, did [the defendant] ever want you to touch his private with some other part of your body besides your
Mantell’s opinion that Alejandro used suggestive techniques that рroduced results of a questionable memory was undermined by his own concessions and D.L.’s testimony. As we previously indicated, Mantell identified each of the foregoing three considerations as a factor tending to establish the reliability of a child’s statements in response to questioning by a forensic interviewer. Furthermore, although Mantell criticized Alejandro’s use of multiple-choice questions, he conceded that the RATAC protocol, which is used in many jurisdictions and by some forensic interviewers in this state, permits the use of such questions. Finally, D.L.’s response to a number of questions in which she explained that she did not know or could not remember the answer further supports the conclusion that her statements were her own and not a mere reflection of what she believed Alejandro wanted to hear.
We conclude, therefore, consistent with the determination of the Appellate Court, that this is not one of those ‘‘highly unusual’’ cases in which a statement that otherwise satisfies the Whelan criteria nevertheless is so inherently unreliable that it must be kept from the jury. State v. Mukhtaar, supra, 253 Conn. 307. Although Mantell identified what he characterized as the coercive еffects of Alejandro’s forensic interviewing techniques, the Appellate Court correctly concluded that the trial court did not abuse its discretion in determining that D.L.’s interview responses were not so grievously unreliable that the jury should be precluded from conducting its own assessment of their trustworthiness. See, e.g., id., 308 (declarant’s statement to police identifying defendant was admissible under Whelan despite his ‘‘assertions that he was under the influence of narcotics and felt pressured by the police to make both the statement and the identification’’); State v. Hopkins, 222 Conn. 117, 125–26, 609 A.2d 236 (1992) (declarant’s statement to police identifying defendant was sufficiently reliable and admissible under Whelan, even though, at time of declarant’s statement, she was under influence of pain medication, reminded of criminal charges pending against her, and told that defendant was suspect in case); State v. Hersey, 78 Conn. App. 141, 147, 151–52, 826 A.2d 1183 (declarant’s claims of being under influence of alcohol and ‘‘a myriad of psychiatric and other medications’’ when making statement were insufficient to demonstrate unreliability for purposes of admitting statement under Whelan), cert. denied, 266 Conn. 903, 832 A.2d 65 (2003); cf. State v. Simpson, supra, 286 Conn. 644 and n.13 (trial court admitted statements in video recorded forensic interview of сhild victim of sexual assault under Whelan even though interviewer used leading questions and victim had ‘‘mental health problems that required medication and . . . [resulted in her] manipulative and occasionally violent behavior’’).
Nonetheless, the defendant asserts that, as a general matter, the state should not be permitted to use forensic interviews of children under Whelan because there is no effective way to cross-examine the child or otherwise establish the unreliability of the child’s statements. Although it may be challenging for a defendant to effectively cross-examine a child witness concerning the extent to which the child’s statements to a forensic interviewer were the product of unduly suggestive questioning, the defendant
II
The defendant also claims that the triаl court improperly instructed the jury that ‘‘[t]he state . . . does not want the conviction of an innocent person. The state is as much concerned in having an innocent person acquitted as in having a guilty person convicted.’’ Although the defendant raised this unpreserved claim in the Appellate Court, that court did not reach the merits of the claim because it concluded that the defendant had waived it under State v. Kitchens, supra, 299 Conn. 482–83. State v. Carrion, supra, 128 Conn. App. 60; see footnote 5 of this opinion. In the present appeal, the defendant challenges that determination and further argues that the charge was improper and deprived him of a fair trial. We need not address the Kitchens waiver issue, however, because, even if we assume, without deciding, that Kitchens does not bar the defendant’s claim, we conclude that the charge did not implicate the fairness of his trial.
In support of his claim, the defendant asserts that there is a reasonable likelihood that the instruction improperly led the jury to believe that the court was suggesting that the state would not have brought charges against the defendant unless it strongly believed that the defendant was guilty. In particular, the defendаnt argues that the instruction ‘‘improperly bolster[ed] the state’s credibility in the eyes of the jur[ors] by placing the trial court’s imprimatur on . . . the state’s case’’ and that ‘‘the probable effect of the . . . charge was to dilute the presumption of innocence, lower the burden of proof and invite the jury to judge the defendant [on the basis of] the state’s supposed good faith, rather than the evidence.’’ We are not persuaded that the challenged instruction entitles the defendant to a new trial.
As we frequently have stated, in evaluating a claim of instructional impropriety, we must view the court’s jury instructions as a whole, without focusing unduly on one isolated aspect of the
In its instructions to the jury at the conclusion of closing arguments, the trial court stated: ‘‘My actions during the trial in . . . setting forth the law in these instructions are not to be taken by you as any indication of my opinion as to how you should determine the issues of fact. The court is neutral and, in making rulings, is merely trying to enforce the rules of evidence and trial procedure.’’ The trial court next instructed the jury on the various types of evidence, as well as the testimony of expert witnesses, the defendant, and police officers.
The court thereafter explained the presumption of innocence and the state’s burden of proof: ‘‘In this case, as in all criminal prosecutions, the defendant is presumed to be innocent until proven guilty beyond a reasonable doubt. This presumption of innocence was with this defendant when he was first presented for trial in this case. It continues with him throughout this trial, unless and until such time as all evidence produced here in the orderly conduct of the case, considered in the light of these instructions of law, and deliberated on by you in the jury room, satisfies you beyond a reasonable doubt that he is guilty of an offense. If and when the presumption of innocence has been overcome by evidence proving beyond a reasonable doubt that the accused is guilty of a crime charged, then it is the sworn duty of the jury to enforce the law and to render such a verdict. . . . The burden to prove the defendant guilty of the crimes with which he is charged is on the state. The defendant does not have to prove his innocence. This means that the state must prove beyond a reasonable doubt each and every element necessary to constitute a crime charged.’’
The court subsequently explained the concept of reasonable doubt and stated in relevant part: ‘‘[I]f there is something in the evidence or lack of evidence that leaves in the minds of the jurors, as reasonable men and women, a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted.’’ Following its explanation of these general principles, the court instructed the jury on the elements of the specific charges. In doing so, the court reminded the jury more than twenty times that, to find the defendant guilty of a crime, the jury must determine that the state had proven the existence of every element of the crime beyond a reasonable doubt. The trial court then stated: ‘‘Please understand that, if I pointed out certain evidence during the course of these
Only after instructing the jury in this manner did the trial court state as follows: ‘‘The defendant justly relies on you to consider carefully all of the evidence and to find him not guilty if the facts and law require such a verdict. The state as well does not want the conviction of an innocent person. The state is as much concerned in having an innocent person acquitted as in having a guilty person convicted. At the same time, the state does look to you to uphold the law and to render a verdict of guilty if the facts and law require such a verdict.’’ (Emphasis added.)
A fair reading of the trial court’s entire jury charge reveals that, contrary to the defendant’s claim, it is not reasonably possible that the challenged language improperly led the jury to believe that the court was vouching for the state. The trial court did not instruct the jury that the state only prosecutes guilty people; the court asserted, rather, that the state does not desire the conviction of an innocent person. When viewed in the context of the entire charge, it is likely that the contested instruction merely served to underscore the state’s burden of proving the defendant guilty beyond a reasonable doubt and that only if the state did so could the jury find the defendant guilty. Consequently, the defendant has not demonstrated that the charge deprived him of a fair trial.16
We do agree with the defendant, however, that the challenged language, when viewed in isolation or unsupported by instructions such as those given in the present case, potentially could be misconstrued to suggest that the state does not bring charges against innocent individuals and, therefore, that the defendant must be guilty. Insofar as the instruction may be interpreted as informing the jury of the subjective beliefs of the state, those beliefs are not a proper consideration for the jury. We therefore share the view, expressed repeatedly by the Appellate Court, that, because the charge ‘‘possibly is susceptible of an unacceptable interpretation . . . [it should] be omitted from all jury instructions in the future.’’ State v. Wilson, 71 Conn. App. 110, 120–21, 800 A.2d 653, cert. denied, 262 Conn. 905, 810 A.2d 272 (2002).17 We think that this admonition is
Finally, we take this opportunity to address the concerns expressed by Justice Zarella in his concurring opinion with respect to the use of our supervisory authority in the present and similar future cases. As Justice Zarella acknowledges, in State v. Elson, 311 Conn. 726, 91 A.3d 862 (2014), we recently explained that the cases in which this court has invoked its supervisory authority ‘‘can be divided into two different categories. In the first category are cases [in which] we have utilized our supervisory power[s] to articulate a procedural rule as a matter of policy, either as holding or dictum, but without reversing convictions or portions thereof. In the second category are cases [in which] we have utilized our supervisory powers to articulate a rule or otherwise take measures necessary to remedy a perceived injustice with respect to a preserved or unpreserved claim on appeal. Although we recеntly have noted that, ‘[o]ur cases have not always been clear as to the reason for this distinction’; State v. Diaz, 302 Conn. 93, 107 n.11, 25 A.3d 594 (2011); a review of the cases in both categories demonstrates that, in contrast to the second category, the first category consists of cases [in which] there was no perceived or actual injustice apparent on the record, but the facts of the case lent themselves to the articulation of prophylactic procedural rules that might well avert such problems in the future.’’ State v. Elson, supra, 768–69 n.30. Of course, the present case falls into the first category.
According to Justice Zarella, ‘‘the invocation of supervisory authority in [these two types] of cases should be governed by the same limiting principles. That is, in every case in which this court considers whether to invoke its supervisory authority, the court should consider (1) whether traditional protections are adequate to ensure the fair and just administration of the courts, and (2) whether the issue presented affects the perceived fairness of the system as a whole.’’ Consistent with this assertion, Justice Zarella also expresses the view that the use of our supervisory authority in both categories of cases constitutes an ‘‘extraordinary remedy,’’ to be invoked only in rare circumstances, ‘‘regardless
We disagree with Justice Zarella that the same stringent standard applies both to cases, like the present one, in which we adopt a prophylactic rule for future cases only, and to cases in which we reverse a convic-tion in the exercise of our supervisory authority in order to avoid an injustice. For purposes of the second category of cases—cases in which we reverse a conviction—the defendant must establish that the invocation of our supervisory authority is truly necessary because ‘‘[o]ur supervisory powers are not a last bastion of hope for every untenable appeal.’’ (Internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 215, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004). In such circumstances, the exercise of our supervisory powers is ‘‘an extraordinary remedy to be invoked only when circumstances are such that the issue at hand, while not rising to the level of a constitutional violation, is nonetheless of [the] utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole.’’ (Emphasis in original; internal quotation marks omitted.) Id. Because ‘‘[c]onstitutional, statutory and procedural limitations are generally adequate to protect the rights of the defendant and the integrity of the judicial system,’’ this court will invoke its supervisory powers to reverse a conviction ‘‘only in the rare circumstance [in which] these traditional protections are inadequate to ensure the fair and just administration of the courts.’’ (Internal quotation marks omitted.) State v. Coward, 292 Conn. 296, 315, 972 A.2d 691 (2009). This demanding standard is perfectly appropriate when we are asked to reverse a conviction under our supervisory powers.
The first category of cases, however, presents an entirely different set of circumstances. We invoke our supervisory authority in such a case, as we do here, not because the use of that authority is necessary to ensure that justice is achieved in the particular case. Rather, we have determined that the defendant in that case received a fair trial and therefоre is not entitled to the extraordinary remedy of a new trial. Nevertheless, it may be appropriate, in such circumstances, to direct our trial courts to conduct themselves in a particular manner so as to promote fairness, both perceived and actual, in future cases. As we tacitly have recognized by invoking our supervisory authority in such cases, because we are not imposing any remedy in the case—let alone the extraordinary remedy of a new trial—there is no need for this court to justify the use of extraordinary measures prior to exercising its supervisory authority. Rather, as we explained in Elson, we are free to invoke our supervisory authority prospectively when prudence and good sense so dictate. See State v. Elson, supra, 311 Conn. 769 n.30 (explaining that this court’s exercise of its supervisory authority to articulate prophylactic procedural rule for future cases is appropriate when such rule ‘‘might well avert . . . problems in the future’’).
Thus, we frequently have invoked our supervisory authority to direct our trial courts to follow certain procedures in the future, and many of these cases involvе jury instructions. We did so most recently in State v. Medrano, 308 Conn. 604, 65 A.3d 503 (2013), in which we invoked our supervisory authority to ‘‘direct our trial courts in the future to refrain from instructing jurors, when a defendant testifies, that they may specifically consider the defendant’s interest in the outcome of the case and the importance to him of the
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C. J., and EVELEIGH and McDONALD, Js., concurred.