*1 ***********************************************
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STATE OF CONNECTICUT GEORGE MICHAEL LENIART (SC 19809) (SC 19811) Palmer, McDonald, Robinson, D’Auria, Mullins, Kahn and Vertefeuille, Js.*
Syllabus The defendant, who was convicted of capital felony and murder following the
disappearance of the victim, appealed from the judgment of conviction,
claiming, inter alia, that certain evidentiary rulings substantially affected
the jury’s verdict and that there was insufficient evidence to sustain his
conviction under the common-law corpus delicti rule. At trial, the state
presented testimony from A, who had been serving a ten year sentence
for a sexual assault involving another victim at the time of the defendant’s
trial. A testified that he and the defendant had sexually assaulted the
victim, a fifteen year old girl, after the three had driven to a secluded
wooded location in the defendant’s truck. A testified that he last saw
the victim in the defendant’s truck and that, when he met the defendant
the following day, the defendant, who was a lobster fisherman, had
confessed to killing the victim, placing her remains in a lobster trap,
and dropping the trap into a river. In order to impeach A’s credibility,
the defendant sought to admit a video recording depicting a police
officer interviewing A prior to the administration of a polygraph examina-
tion. The defendant claimed that the video was relevant because it
showed that A had been promised favorable treatment in exchange for
his cooperation. The trial court, however, excluded the video on the
ground that it constituted inadmissible polygraph evidence under
State
Porter
(
under this state’s common-law corpus delicti rule: the purpose, history, and scope of the corpus delicti rule, in this state as well as in other jurisdictions, supported this court’s conclusion that the rule both bars the admissibility of evidence of uncorroborated confessions and imposes a substantive due process requirement, and, therefore, contrary to the Appellate Court’s conclusion, the defendant’s corpus delicti claim was reviewable on appeal even though it was not properly preserved at trial; moreover, although this court declined the defendant’s invitation to specifically require the state to prove the fact of death by evidence independent of a defendant’s confession in a murder case under the modern formulation of the corpus delicti rule, in light of circumstances surrounding the victim’s disappearance, the testimony of A regarding the sexual assault of the victim and related events, the fact that the defendant had been convicted of sexually assaulting a thirteen year old girl in a separate case, S’s testimony, and the similarities between the defendant’s confessions as recounted by A, B, D, and C, this court concluded that there was sufficient, corroborating evidence, indepen- dent of the defendant’s confessions, of the victim’s death and of the credibility of those confessions for the jury to have found the defendant guilty beyond a reasonable doubt.
2. The Appellate Court incorrectly concluded that the trial court’s improper
exclusion of the video recording constituted harmful error: the trial court improperly excluded the video for all purposes under Porter , as that case defined inadmissible polygraph evidence to include only the results of a polygraph test and the willingness of a witness to undergo such a test, and, accordingly, Porter did not categorically preclude the admission of all evidence regarding the pretest interview process; never- theless, the defendant failed to meet his burden of demonstrating that the exclusion of the video substantially affected the verdict because the polygrapher had repeatedly emphasized the importance of telling the truth while making only infrequent, potentially troubling remarks, A’s own testimony on cross-examination by defense counsel provided strong evidence of the powerful incentives that he had to cooperate with the state by freely admitting his own participation in the underlying crimes and his desire for leniency in connection with the unrelated sexual assault conviction, and the state’s case against the defendant was other- wise strong.
3. The Appellate Court incorrectly concluded that the trial court had abused
its discretion in precluding N’s testimony regarding the credibility of
incarcerated informants; although the trial court incorrectly concluded
that N’s testimony would have invaded the exclusive province of the
jury by assessing the credibility of witnesses, as N explicitly testified
that she had no knowledge of this particular case and that she was not
familiar with and did not intend to comment on the testimony of any
particular witness, the trial court reasonably concluded that the relevant
information presented through N’s testimony was not beyond the ken
of the average juror, as the trial court could have credited N’s testimony
that any fundamental concerns regarding the reliability of informant
testimony have been exposed by the media and are well understood
outside of the jailhouse, and as any concepts relating to the credibility
of incarcerated informants that were directly and specifically applicable
to this case would have been made familiar to the jury through com-
mon sense, other information presented at trial, and the trial court’s
instructions.
Uretek, Inc
. (
corpus delicti claims do not implicate fundamental due process rights and, therefore, are not reviewable on appeal unless preserved at trial, *4 overruled.
( One justice concurring separately ; three justices concurring in part and dissenting in part in two separate opinions ) Argued May 2, 2018—officially released September 10, 2019
Procedural History Substitute information charging the defendant with three counts of the crime of capital felony and one count of the crime of murder, brought to the Superior Court in the judicial district of New London and tried to the jury before Jongbloed, J. ; thereafter, the court granted the state’s motion to preclude certain evidence; verdict and judgment of guilty, from which the defen- dant appealed; subsequently, the Appellate Court, Shel- don and Prescott , Js. , with Flynn , J. , concurring in part and dissenting in part, reversed the judgment of the trial court and remanded the case for a new trial, and the state and the defendant, on the granting of certification, filed separate appeals with this court. Reversed in part ; further proceedings .
Stephen M. Carney , senior assistant state’s attorney, with whom, on the brief, were Michael L. Regan , state’s attorney, and John P. Gravalec-Pannone , former senior assistant state’s attorney, for the appellant in Docket No. SC 19809 and the appellee in Docket No. SC 19811 (state).
Lauren Weisfeld , chief of legal services, for the appel- lee in Docket No. SC 19809 and the appellant in Docket No. SC 19811 (defendant).
Opinion
MULLINS, J. Following a jury trial, the defendant,
George Michael Leniart, was convicted of murder in
violation of General Statutes § 53a-54a (a) and three
counts of capital felony in violation of General Statutes
(Rev. to 1995) § 53a-54b (5), (7), and (9), as amended
by Public Acts 1995, No. 95-16, § 4.
[1]
The Appellate Court
reversed the judgment of conviction and remanded the
case for a new trial, holding that the trial court improp-
erly excluded (1) a videotape that depicted a police
officer interviewing a crucial prosecution witness prior
to the administration of a polygraph examination, and
(2) certain expert testimony proffered by the defendant
regarding the reliability of jailhouse informant testi-
mony. ,
In its certified appeal, the state challenges the conclu- sion of the Appellate Court that the videotape and expert testimony were improperly excluded. In his appeal, the defendant contends that he is entitled to a judgment of acquittal because, under the common-law corpus delicti rule, the state failed to set forth sufficient evidence, independent of the defendant’s own admis- sions, to establish that the alleged victim was, in fact, dead.
We reverse the judgment of the Appellate Court with respect to the state’s appeal and affirm the judgment with respect to the defendant’s appeal. Specifically, we conclude that (1) although the defendant’s corpus delicti claim is not merely evidentiary and, therefore, is reviewable on appeal, the Appellate Court correctly concluded that there was sufficient evidence to support the conviction, (2) although the Appellate Court cor- rectly concluded that the trial court’s exclusion of the videotape was improper, the exclusion of that evidence was harmless, and (3) the Appellate Court incorrectly concluded that the trial court had abused its discretion in precluding the expert testimony proffered by the defendant.
The following facts, which the jury reasonably could have found, and procedural history are relevant to the claims before us. On May 29, 1996, the victim, [2] who was then fifteen years old, snuck out of her parents’ home to meet Patrick J. Allain, a teenage friend also known as P.J., so that they could smoke marijuana, drink alcohol, and have sex. The two teenagers were picked up by the defendant, who at the time was thirty- three years old. They then drove to a secluded, wooded location near the Mohegan-Pequot Bridge in the defen- dant’s truck.
While parked, the victim and Allain kissed, drank beer, and smoked marijuana. At some point, the defen- dant, who had told Allain that he was in a cult, called Allain aside and told him that he wanted ‘‘to do’’ the victim and that he ‘‘wanted a body for the altar.’’
Allain, who feared the defendant, returned to the truck and informed the victim that he and the defendant were going to rape her. Allain then removed her clothes and had sex with her in the truck while the defendant watched through the windshield. After Allain and the victim finished having sex, the defendant climbed into the truck and sexually assaulted the victim while Allain held her breast. After the assault, the victim pretended not to be upset so that the defendant would not harm her further.
The defendant then drove the teenagers back to Allain’s neighborhood. The defendant dropped off Allain near his home, and the victim remained in the truck. The victim never returned home that night and was never seen again, despite a protracted nationwide search by law enforcement. The search also did not recover her body.
Allain subsequently implicated the defendant in the victim’s death. As a result, in 2008, the state charged the defendant with murder in violation of § 53a-54a, capital felony in violation of § 53a-54b (5) for murder in the course of a kidnapping, capital felony in violation of § 53a-54b (7) for murder in the course of a sexual assault, and capital felony in violation of § 53a-54b (9) for murder of a person under the age of sixteen. The case was tried to a jury.
The state’s case against the defendant included the testimony of four witnesses, who each testified that, at different times, the defendant had admitted, directly or indirectly, to killing the victim. Allain, the state’s key witness, was serving a ten year sentence for an unre- lated sexual assault at the time of trial. He testified that, on the afternoon following the previously described events, the defendant had asked to meet with him on a path behind the Mohegan School in Montville. At that meeting, the defendant admitted that ‘‘he had to do [the victim]—to get rid of her.’’ The defendant described to Allain how, after dropping Allain off the night before, he had pretended to run out of gas near the path. [3] He then ripped the license plates off his truck, dragged the frantic victim into the woods, and choked her. Later that evening, at a second meeting, the defendant further confessed to Allain that he had killed the victim and had ‘‘erased’’ her by placing her remains in a lobster trap and dropping them into the mud at the bottom of the Thames River. The defendant was a lobster fisher- man at the time.
Like Allain, the state’s three other confession wit- nesses either were inmates at the time of trial or pre- *7 viously had been incarcerated. Each of these three witnesses had, at some point, been incarcerated with the defendant while he was serving time for an unre- lated sexual assault charge. Kenneth S. Buckingham testified that the defendant confided in him that he accidentally had choked an intoxicated young girl to death while having sex with her and that he then dis- membered the body and disposed of it in lobster pots ‘‘in the sound.’’ Buckingham also testified that a person named P.J. had been with the defendant and that victim prior to the death. Michael S. Douton, Jr., testified that the defendant had told him that the victim ‘‘was in the river’’ and that ‘‘they would never convict him because they would never find [her] body,’’ which had been eaten by crabs. Buckingham and Douton, like Allain, each testified that they hoped to receive some consider- ation from the state in return for their testimony. Zee Y. Ching, Jr., unlike the other witnesses, was not incar- cerated or facing legal jeopardy at the time of trial. Ching testified that the defendant admitted that he had raped and killed a fifteen year old girl on his boat and that he had hidden the body in a well before ultimately dumping it in Long Island Sound.
The jury returned a verdict of guilty on all counts. The court merged the verdicts into a single conviction of capital felony and sentenced the defendant to a term of life imprisonment without the possibility of release. On appeal to the Appellate Court, the defendant raised various challenges to the trial court’s evidentiary rulings and also claimed, relying in part on the common-law corpus delicti rule, that the evidence was insufficient to sustain his conviction. State Leniart , supra, 166 Conn. App. 146–49. The Appellate Court rejected the defendant’s sufficiency claim but concluded that the trial court incorrectly had excluded the polygraph pre- test interview videotape, as well as expert testimony relating to the credibility of jailhouse informants. The Appellate Court then concluded that those evidentiary rulings substantially affected the verdict and, accord- ingly, remanded the case for a new trial. [4]
We granted the state’s petition for certification to
appeal, limited to the questions of whether the Appel-
late Court correctly concluded that the trial court had
erroneously excluded the polygraph pretest interview
videotape and expert testimony regarding jailhouse
informant testimony and that those rulings substantially
affected the verdict.
Leniart
,
I
CORPUS DELICTI RULE
We first consider the claim raised in the defendant’s
appeal. Before the Appellate Court, the defendant
argued, for the first time; see footnote 7 of this opin-
ion; that the evidence was insufficient to sustain his
conviction because, under the common-law corpus
delicti rule, the state had failed to establish beyond a
reasonable doubt each element of the crimes charged.
As we explain more fully hereinafter, the corpus delicti
rule, although defined and applied differently in other
jurisdictions, and even in our prior cases, generally
‘‘prohibits a prosecutor from proving the [fact of a trans-
gression] based solely on a defendant’s extrajudicial
statements.’’
[5]
Black’s Law Dictionary (7th Ed. 1999) p.
346. In the present case, the defendant argued that
there was no evidence, aside from his various alleged
admissions, that the victim actually was dead, which
is the corpus delicti of murder. See
Tillman
,
In order to identify the specific version of the rule
to be applied in the present case, the Appellate Court
reviewed the purpose and history of the corpus delicti
rule. Believing itself to be bound by cases such as
State
Uretek, Inc.
,
Judge Flynn, writing a separate opinion concurring in part and dissenting in part, concluded that the corpus delicti rule is a hybrid rule—it is an evidentiary rule, insofar as it provides that a defendant’s confession is inadmissible in the absence of some corroborating evi- dence that a crime has been committed, but it also is a substantive rule of criminal law providing that a defendant cannot be convicted of a crime when the only evidence that the crime has been committed is the defendant’s own uncorroborated confession. See id., 236–37. Judge Flynn also opined that the rule should *9 be applied more strictly with respect to murder than with respect to other crimes, in that the state should be required to set forth independent evidence of the victim’s death and not simply extrinsic evidence that tends to establish the credibility of the defendant’s con- fession. Id., 236. All three members of the Appellate Court panel agreed, however, that the state had, in any event, set forth sufficient, independent evidence of the victim’s death to satisfy the corpus delicti rule, regard- less of how that rule is defined. Id., 171–75; id., 237 ( Flynn, J. , concurring in part and dissenting in part).
In his certified appeal, the defendant asks us to clarify that (1) the corpus delicti rule is, at least in part, a substantive rule and, therefore, that his claim is review- able on appeal despite his failure to object to the admis- sion of testimony regarding the confessions at trial, and (2) the rule bars a murder conviction on the basis of a defendant’s confession in the absence of independent evidence that the alleged victim is dead. The defendant further contends that, in the present case, there was not sufficient extrinsic evidence to establish that the victim was dead. We agree with the defendant and Judge Flynn that our state’s common-law corpus delicti rule is a hybrid rule that has both substantive and evidentiary components, and that unpreserved corpus delicti claims are, therefore, reviewable on appeal. We agree with the Appellate Court majority, however, that the rule does not impose a higher standard of proof with respect to murder than with respect to other crimes. Finally, we conclude that there was sufficient, independent corrob- orating evidence both of the victim’s death and of the credibility of the defendant’s confessions for the jury to have found the defendant guilty beyond a reason- able doubt. [7] Accordingly, we affirm the judgment of the Appellate Court with respect to this claim.
A
Assuming, arguendo, that the state is correct that the
defendant’s corpus delicti claim was not preserved at
trial, we must determine as a threshold matter whether
the corpus delicti rule is merely evidentiary or whether
it encompasses a substantive component that invokes
the defendant’s due process rights. If it is merely an
evidentiary rule of admissibility, then the defendant’s
failure to raise his claim at trial precludes appellate
review. See, e.g.,
Gonzalez
,
The parties and the Appellate Court have identified four factors that are relevant to the question of whether our state’s corpus delicti rule has both evidentiary and substantive components: this court’s precedents, the approach followed by other jurisdictions, the rationales that underlie the rule, and issues regarding how the rule is applied in practice. Our review of these factors compels the conclusion that corpus delicti is a hybrid rule and, therefore, that the defendant’s corpus delicti claim is reviewable. [9]
1
The Appellate Court began by comprehensively
‘‘reviewing the purpose, history, and present scope of
the corpus delicti rule in Connecticut.’’
State
v. ,
supra,
Since this court decided
Doucette
, a number of our
decisions have stated or implied that the corpus delicti
rule encompasses both substantive and evidentiary
components and, therefore, that corpus delicti claims
are reviewable even if not raised at trial. See, e.g.,
State
*11
v.
Farnum
,
The Appellate Court majority, concluding that the
corpus delicti rule is purely evidentiary, understandably
believed itself to be bound by
State
v.
Uretek, Inc.
,
supra,
We agree with the defendant that
Uretek
must be
overruled to the extent that it suggested that corpus
delicti claims do not implicate fundamental due process
rights and, therefore, are not reviewable on appeal
unless preserved at trial. The decision provided no sup-
port for that conclusory proposition, which, as we have
discussed, was inconsistent with both our prior and
subsequent corpus delicti cases. Notably, none of the
three cases that
Uretek
cited in support of that proposi-
tion involved or even referenced the corpus delicti rule.
In addition,
Uretek
was decided prior to
Adams
,
supra,
2
It also is instructive to consider how the corpus delicti
rule has been construed and applied by our sister states
and the federal courts. Of those states that continue to
apply a corpus delicti rule, the vast majority treat the
rule as either substantive or a substantive and eviden-
tiary hybrid. See, e.g.,
Langevin State
,
In addition, although the United States Supreme
Court has not expressly resolved the question, several
federal circuit courts of appeals understand the high
court to have adopted a hybrid version of the rule. See,
e.g.,
United States
v.
Dickerson
,
3
We also agree with McCormick on Evidence, which
posits that the rationales that gave rise to and continue
to justify the corpus delicti rule support treating that
rule as substantive. See 1 K. Broun, supra, § 145, p. 805.
[13]
‘‘The rationale for the requirement is that inculpatory
confessions and admissions are frequently unreliable
for many reasons, including coercion, delusion, neuro-
sis, self-promotion, or protection of another person.
Jurors find such statements inherently powerful, how-
ever, and may vote to convict based upon such state-
ments alone. . . . The [corpus delicti] rule, which is
intended to prevent convictions of innocent defendants,
also encourages better law enforcement because police
and prosecutors cannot rely solely on a defendant’s
statements to prove a case.’’ (Citation omitted.)
United
States Bryce
,
Treating the corpus delicti rule as evidentiary is fully
consistent with the purpose of the rules of evidence,
which is to bar unreliable evidence offered to influence
the trier of fact. See, e.g.,
Pagano Ippoliti
, 245 Conn.
640, 656,
Furthermore, to the extent that a purpose of the rule
is to eliminate incentives for law enforcement to obtain
false confessions through coercive means, while at the
same time promoting more thorough investigative prac-
tices, corpus delicti fairly may be characterized as a
type of constitutional prophylactic rule. See T. Mullen,
‘‘Rule Without Reason: Requiring Independent Proof
of the Corpus Delicti as a Condition of Admitting an
Extrajudicial Confession,’’ 27 U.S.F. L. Rev. 385, 401
(1993) (describing purposes of rule); see also C. Rogers,
‘‘Putting Meat on Constitutional Bones: The Authority
of State Courts To Craft Constitutional Prophylactic
Rules Under the Federal Constitution,’’ 98 B.U. L. Rev.
541, 548, 555–56 (2018) (defining constitutional prophy-
lactic rules). We are not aware of any such rule the
alleged violation of which must be raised at trial in
order to be reviewable on appeal. See
Golding
,
4
We next consider several reasons offered by the state
and the Appellate Court majority as to why corpus
delicti should be treated solely as a rule of admissibility.
First, the Appellate Court decision starts with the prem-
ise that, if the rule implicates the sufficiency of the
evidence, then the jury must be involved in some way in
resolving corpus delicti questions. See ,
supra,
We are not persuaded that the Appellate Court’s start-
ing premise is correct. Many of the courts that treat
the corpus delicti rule as a substantive rule that impli-
cates the sufficiency of the evidence do not involve
the jury in its application. See, e.g.,
United States
v.
McDowell
, supra,
In
United States Dickerson
, supra,
The Appellate Court majority also was of the view
that, because ‘‘the rule itself is not constitutional in
nature and jurisdictions are free to abandon it alto-
gether . . . it makes little sense to characterize it as
an implicit element of the state’s case that is subject
to appellate review like all other unpreserved suffi-
ciency of the evidence claims.’’
State
v. , supra,
We do not agree that the question of whether the
corpus delicti rule is substantive in nature and, thus,
implicates the defendant’s constitutional rights, hinges
on whether it has been formally codified. It is true that
‘‘[t]he adoption of the comprehensive Penal Code in
1969 abrogated the common-law authority of Connecti-
cut courts to impose criminal liability for conduct not
proscribed by the legislature.’’
Luurtsema
v.
Commis-
sioner of Correction
,
Finally, the state argues that it would be fundamen-
tally unfair to review unpreserved corpus delicti claims
because prosecutors will not have been put on notice
at the time of trial that there may be a corpus delicti
problem and, therefore, will not have the opportunity
to identify and introduce the additional evidence neces-
sary to corroborate a defendant’s naked confession.
We trust that the present opinion will serve as adequate
notice. See
Burks United States
,
For all of these reasons, we conclude that the corpus delicti rule is a hybrid rule that not only governs the admissibility of confession evidence but also imposes *16 a substantive requirement that a criminal defendant may not be convicted solely on the basis of a naked, uncorroborated confession. Accordingly, the defen- dant’s corpus delicti claim is reviewable even though it was not properly preserved at trial.
B Having established that our corpus delicti rule has a substantive component that implicates the defendant’s due process rights and, therefore, that his claim is reviewable, we now turn our attention to the merits of his claim. To resolve the claim, we first must address another dispute between the parties, and among the Appellate Court panel, regarding how the rule applies in murder cases.
1 The defendant contends, in essence, that the corpus delicti rule imposes different, more stringent standards with respect to murder than with respect to less serious crimes. Before we set forth the defendant’s argument, it will be helpful briefly to review the evolution of the corpus delicti rule in Connecticut.
Although our cases contain earlier references to the
rule; see, e.g.,
State Carta
,
‘‘The overwhelming weight of authority and of rea- son, however, recognizes that such a confession or admission may be considered in connection with other evidence to establish the corpus delicti, and that it is not necessary to prove it by evidence entirely indepen- dent and exclusive of the confession. . . . In order to warrant a conviction in a given case, it must be shown (1) that a crime has been committed, and (2) that the person charged therewith was the active agent in the commission thereof. But, while it is necessary that both of said essential facts should be proved beyond a rea- sonable doubt, it does not follow that each must be proved independently of, and apart from, the other, or that either must be proved independently of, and with- out regarding the confession of the person charged with the crime. The confession is evidence tending to prove both the fact that the crime was committed and the defendant’s agency therein. . . . But it is not sufficient of itself to prove the former, and, without [independent] *17 evidence . . . of facts also tending to prove the corpus delicti, it is not enough to warrant a conviction. There must be such extrinsic corroborative evidence as will, when taken in connection with the confession, estab- lish this fact in the minds of the jury beyond a reason- able doubt.
‘‘The independent evidence must tend to establish
that the crime charged has been committed and must
be material and substantial, but need not be such as
would establish the corpus delicti beyond a reasonable
doubt apart from the confession. . . . [T]his evidence
should be introduced and the court satisfied of its sub-
stantial character and sufficiency to render the confes-
sion admissible, before the latter is allowed in evi-
dence.’’ (Citations omitted; internal quotation marks
omitted.)
State
v.
LaLouche
, supra,
In the decades since we decided
LaLouche
and
Doucette
, and consistent with the modern trend, we
have reduced in several respects the burden that the
corpus delicti rule imposes on the state in prosecuting
a crime.
[14]
First, in
State
v.
Tillman
, supra, 152 Conn.
20, we joined a small handful of jurisdictions to have
departed from the traditional rule that the state must
establish, by independent evidence,
[15]
both that an injury
or loss occurred and that the loss was feloniously
caused.
[16]
In
Tillman
, we held that the corpus delicti
that must be established by independent evidence
encompasses only the former element, namely, the spe-
cific kind of loss or injury embraced in the crime
charged. Id. ‘‘Under [this definition], in a homicide case,
the corpus delicti is the fact of the death, whether or
not feloniously caused, of the person whom the accused
is charged with having killed or murdered.’’ Id.; but see
State
v.
Courchesne
, supra,
Next, in
State
v.
Harris
,
Most recently, in Hafford , supra, 252 Conn. *18 317, we held that this trustworthiness rule set forth in Harris , also known as the corroboration rule, now ‘‘applies to all types of crimes, not only those offenses that prohibit conduct and do not result in a specific loss or injury.’’ In other words, post- Hafford , a confession is now sufficient to establish the corpus delicti of any crime, without independent extrinsic evidence that a crime was committed, as long as there is sufficient reason to conclude that the confession is reliable.
In Hafford , we justified this departure from our estab- lished corpus delicti jurisprudence by observing that the corroboration rule (1) has been embraced both by the federal courts and by an increasing number of state courts, (2) is favored by a number of respected com- mentators, and (3) is more reasonable and more work- able than the traditional corpus delicti rule. Id., 316–17. At the same time, we expressed confidence that the corroboration rule, as applied in Harris , would con- tinue to ‘‘fulfill the avowed purpose and reason for the existence of the corpus delicti rule [by] protect[ing] accused persons against conviction of offenses that have not in fact occurred . . . and prevent[ing] errors in convictions based upon untrue confessions alone.’’ (Internal quotation marks omitted.) Id., 316.
The defendant does not deny that, under Hafford , the state may rely, in most instances, on the accused’s statements to establish all of the elements of a charged crime, as long as there is sufficient, independent evi- dence to establish the trustworthiness of those state- ments. The defendant emphasizes, however, that, in Hafford , we left open the possibility that extrinsic evi- dence of the corpus delicti still might be required before a defendant can be convicted of murder on the basis of a confession. Specifically, he draws our attention to a footnote in which this court noted that ‘‘proving the trustworthiness of a defendant’s confession to a crime resulting in injury or loss often will require evidence of that injury or loss. For example, a confession to a homicide likely would not be trustworthy without evidence of the victim’s death.’’ Id., 317 n.23. The Appel- late Court majority in the present case dismissed the importance of that statement, concluding that the ‘‘cryp- tic footnote,’’ which was merely dictum, was too conclu- sory and equivocal to indicate that we intended to carve out an exception to the corroboration rule for murder prosecutions. , supra, 166 Conn. App. 156–58. Judge Flynn disagreed, writing that, in his view, independent proof of death should be required in any murder case. Id., 229–32 ( Flynn, J. , concurring in part and dissenting in part).
At first blush, requiring the prosecution to prove the fact of death by extrinsic evidence in a murder case would seem to be consistent with the history of the corpus delicti rule, which was inspired by two cases— centuries and continents apart—in which defendants *19 were wrongly convicted of the murders of victims who were still very much alive. [17] See D. Moran, supra, 64 Ohio St. L.J. 829–30; T. Mullen, supra, 27 U.S.F. L. Rev. 399–401; R. Perkins, ‘‘The Corpus Delicti of Murder,’’ 48 Va. L. Rev. 173, 173–75 (1962). The first, known as Perry’s Case, arose from the disappearance of William Harrison from his home in Chipping Campden, England, in 1660. See generally J. Paget, Legal Recreations: Judi- cial Puzzles (1876) pp. 37–67. When the septuagenarian Harrison failed to return from his regular two mile walk to collect rents for the Viscountess Campden, a servant, John Perry, was sent to search for him. Id., p. 39. A bloodied band, a torn hat, and a comb belonging to Harrison were found, and Perry was arrested. Id., p. 40. After several interrogations, however, John Perry confessed that he had conspired with his mother and brother to rob Harrison, that his brother had choked Harrison to death, and that he had disposed of the body in a swamp. Id., p. 41. The three Perrys were tried, convicted of Harrison’s murder, and hanged within the week. Id., p. 43. Several years later, a haggard Harrison mysteriously reappeared in Campden, claiming to have been captured by men on horseback, transferred to a Turkish ship, and sold into slavery, from which he had ultimately escaped. [18] Id., pp. 44–49.
The second case centers on equally incredible but somewhat less tragic events that took place in Manches- ter, Vermont. See E. Borchard, Convicting the Innocent: Sixty-Five Actual Errors of Criminal Justice (1932) pp. 14–21. Two brothers, Stephen Boorn and Jesse Boorn, were known to be ill-inclined toward Russel Colvin, their eccentric brother-in-law. Id., p. 14. Colvin vanished one day in May, 1812, while his wife was away, and, after a time, suspicion of foul play fell on Stephen and Jesse. Id., pp. 14–15. Seven years and many rumors and superstitions later, after a dog had dug up some animal bones near the Boorn property, Jesse was interrogated by a justice of the peace and implicated Stephen in Colvin’s ‘‘murder.’’ Id., pp. 15–16. A jailhouse informant, Silas Merrill, subsequently informed a grand jury that Jesse had confessed to him that both Stephen and Jesse had been involved in Colvin’s death. Id., p. 17. Stephen subsequently confessed to killing Colvin and disposing of his remains in a river and under an old tree stump. Id., pp. 17–18. Stephen then was tried, convicted, and sentenced to hang. Id., p. 18.
In that case, however, fortune, together with the slower and more cautiously moving wheels of justice in nineteenth century Vermont, spared Stephen the same fate as the Perrys. Two months before the sched- uled execution, one of Stephen’s attorneys published an article in the New York Evening Post in an attempt to locate Colvin. Id., p. 18. Through an unlikely conflu- ence of events, Colvin, who may have been mentally ill, was found to be living in New Jersey under a different identity, and Stephen was exonerated. Id., pp. 14, 20–21.
Returning to the question before us, courts and com- mentators have articulated several rationales for the corpus delicti rule: ‘‘(1) protecting the mentally unstable from the consequences of their false confessions, (2) avoiding reliance on repudiated confessions out of con- cern for voluntariness, and (3) promoting better police work by requiring the prosecution to prove its case without the aid of confessions.’’ T. Mullen, supra, 27 U.S.F. L. Rev. 401. As the Perry and Boorn cases demon- strate, however, the rule originated in response to, and was most powerfully justified by, ‘‘a narrow, practical problem: how to ensure that after a murderer was exe- cuted the supposed murder victim did not show up to cast doubt on the propriety of the execution.’’ Id., 399.
Those cases also reveal, we think, why it is not neces- sary to apply the rule more stringently in murder cases than with regard to other crimes. Already, from the time of Perry’s Case to that of the Boorns, social prog- ress was such that Stephen Boorn was able to evade the gallows. The longer delay between conviction and execution in nineteenth century Vermont gave Ste- phen’s attorneys a reasonable opportunity to investigate Colvin’s disappearance after the condemned repudiated his earlier confession. At the same time, newspapers of mass circulation, such as the New York Evening Post, allowed for a broad and efficient search for the missing ‘‘victim.’’
Now consider modern Connecticut. The horrible that first inspired the rule—a disturbed individual executed after confessing to an imaginary murder—is no longer a concern following the repeal of the death penalty in this state. Although false conviction remains a tragic and ever present possibility, it is no longer a completely irreparable one.
Further, the technological tools that are now avail-
able to locate missing persons are truly impressive.
When the Internet was still in its infancy, the United
States Court of Appeals for the Third Circuit recognized
that ‘‘[w]orldwide communication and travel today are
so facile that a jury may properly take into account the
unlikelihood that an absent person, in view of his health,
habits, disposition and personal relationships would
voluntarily flee, go underground, and remain out of
touch with family and friends. The unlikelihood of such
a voluntary disappearance is circumstantial evidence
entitled to weight equal to that of bloodstains and con-
cealment of evidence.’’ (Internal quotation marks omit-
ted.)
Virgin Islands Harris
,
In addition, the same general considerations that have led courts and commentators [20] to question the ongoing vitality of the corpus delicti rule—mostly the fact that the Miranda warnings [21] and related constitu- tional protections have curtailed the use of coercive interrogation techniques by law enforcement—apply to murder no less than to other crimes. Those considera- tions counsel against carving out a special exception for murder.
Finally, we note that, unlike with many other crimes, in any murder prosecution there necessarily will be at least some modicum of extrinsic evidence to support a defendant’s confession, namely, a missing person. We are not aware of, and we doubt that due process would permit, any prosecution charging the murder of a wholly unspecified victim. A person charged with murder must be charged with the murder of some specific victim who must, at the very least, have gone missing for some not insignificant period of time. Accordingly, we decline the defendant’s invitation to carve out a special excep- tion to the rule set forth in Harris , supra, 215 Conn. 193–94, for the crime of murder.
2
We now turn our attention to the defendant’s claim
that the state failed to set forth sufficient evidence at
trial to corroborate his alleged confessions and estab-
lish that the victim was, in fact, dead. As previously
discussed, the corpus delicti rule, as most recently clari-
fied by this court in
Harris
and
Hafford
, required that
the state introduce ‘‘substantial independent evidence
[that] tend[s] to establish the trustworthiness of the
[defendant’s] statement[s].’’ (Emphasis omitted; inter-
nal quotation marks omitted.)
Hafford
, supra,
First, although it was not required under the rule that we have articulated today; see part I B 1 of this opinion; substantial circumstantial evidence was introduced at trial, wholly independent of the defendant’s alleged con- fessions, tending to show that the victim died around the time of the alleged murder. The fifteen year old victim disappeared suddenly and without warning on May 29, 1996. She left home that night without taking any money, clothing, or personal belongings, despite the fact that nearly $1000 was available in the house. The jury also reasonably could have found, on the basis of the evidence presented at trial, that she enjoyed her family, friends, life, and routines in Montville and had no desire to run away from home or to commit suicide.
At the time of trial, she had been missing for more
than thirteen years, without having made any known
contact with family or friends, and a nationwide search
had failed to locate her or to flag any use of her social
security number.
[22]
See
Virgin Islands
v.
Harris
, supra,
In addition, aside from relating several of the defen- dant’s alleged confessions, Allain provided other inde- pendent support for the conclusion that the victim had been killed. Allain testified that both he and the defen- dant had raped the victim on the evening in question, and that he had left the victim alone in the defendant’s company. That testimony, if credited, established that the defendant already had assaulted the victim that night and that he had both the motive and the opportu- nity to kill her. See, e.g., Farnum , supra, 275 Conn. 34 (evidence of motive deemed corroborative of confession).
Allain also testified that the defendant, prior to sexu-
ally assaulting the victim, had stated that he ‘‘wanted
to do her’’ and that ‘‘we need a body.’’ The corpus delicti
rule generally does not apply so as to bar statements
that an accused made prior to committing the alleged
crime. See
Warszower United States
,
Moreover, at the time of trial, the defendant already
had been convicted of sexually assaulting a thirteen
year old girl. That victim testified in the present case
that the defendant, six months prior to the victim’s
disappearance, had choked her into unconsciousness
while raping her. She further testified that the defen-
dant, after raping her in his trailer, threatened that, if
she tried to leave, he would hunt her down, find her,
and kill her. Where, as here, there is a question as
to whether a crime has been committed and of the
improbability of alternative, innocuous explanations for
a loss, the fact that the accused has committed other,
similar crimes may help to establish the corpus delicti
of the charged offense.
United States Woods
, 484
F.2d 127, 136 (4th Cir. 1973), cert. denied,
Second, aside from this independent evidence that
tends to establish that the victim was dead (and that the
defendant was her killer), the Appellate Court identified
various facts and factors that corroborate the defen-
dant’s inculpatory statements. See ,
supra,
The jury may have found Ching’s testimony to be
especially credible insofar as that witness was no longer
in prison, on probation or parole, and had no charges
pending against him when he came forward to relate the
defendant’s confession to law enforcement. In addition,
the fact that the defendant’s most significant and sub-
stantial confessions were volunteered to Allain, an
accomplice to the sexual assault of the victim, rather
than to an investigating officer, endows those confes-
sions with ‘‘a strong inference of reliability . . . .’’
[24]
(Internal quotation marks omitted.)
Kaneshiro
v.
United States
,
Finally, the defendant’s ex-wife, Vicki Staplins, testi- fied that, when she asked the defendant whether he was involved in the victim’s disappearance, ‘‘[h]e told *24 me the less I knew, the better off I was.’’ The jury reasonably may interpret statements of this sort as evi- dence of the defendant’s consciousness of guilt. See, e.g., People Ortiz , Docket No. B257413 (LDR), 2016 WL 1178972, *16 (Cal. App. March 25, 2016), review denied, California Supreme Court, Docket No. S234113 (July 13, 2016).
Considered in the light most favorable to sustaining the verdict, this evidence was more than sufficient to corroborate the defendant’s various confessions and, when viewed in tandem with those confessions, to sus- tain the conviction.
II EXCLUSION OF PRETEST INTERVIEW VIDEOTAPE
We next consider the state’s appeal, in which it claims
that the Appellate Court improperly held that the defen-
dant is entitled to a new trial because the trial court’s
exclusion of Allain’s polygraph pretest interview video-
tape constituted harmful error. The Appellate Court
concluded that (1) a recording of a polygraph pretest
interview does not qualify as ‘‘polygraph evidence’’ for
purposes of
Porter
,
We begin by briefly summarizing the procedural his- tory relevant to this issue, which was set forth in full by the Appellate Court. Prior to trial, the state filed a motion in limine seeking to exclude all testimony or evidence pertaining to the polygraph examination of any witnesses. Defense counsel opposed the motion, arguing that he intended to offer, among other things, a ninety minute videotape showing the standard pretest interview that the polygrapher, state police Trooper Tim Madden, had conducted with Allain prior to performing Allain’s polygraph test in 2004. Defense counsel stated that he would seek to offer the videotape on the ground that it showed Madden giving Allain numerous assur- ances that Allain would receive favorable treatment if he cooperated with the police, which, defense counsel argued, ‘‘raises questions . . . about whether this young man is coming into this courtroom with the inten- tion to do anything other than save himself.’’
The trial court ruled that the videotape was inadmissi- *25 ble. The court’s oral ruling appeared to adopt the state’s argument that a recording of a pretest interview or, indeed, any reference to the fact that a polygraph exami- nation has been conducted, constitutes polygraph evi- dence and is, therefore, per se inadmissible. The court did, however, indicate that it would permit defense counsel to cross-examine Allain regarding ‘‘any prom- ises or benefits that were made to him during the course of that interview.’’
A
We first consider whether the trial court properly
determined that the videotape of Allain’s pretest inter-
view was not admissible for any purpose because it
constituted ‘‘polygraph evidence,’’ which we have held
to be per se inadmissible. See
State
v.
Porter
, supra,
In granting the state’s motion in limine to exclude the pretest interview videotape, the trial court relied solely on Porter , concluding that the videotape consti- tuted polygraph evidence. Accordingly, we shall confine our analysis to the question of whether the per se ban on the admission of polygraph evidence articulated in Porter extends to evidence of the conduct of the polyg- rapher and the witness during the pretest interview process.
The Appellate Court concluded, and we agree, that
the phrase ‘‘polygraph evidence,’’ as used in
Porter
, does
not encompass documentation of the pretest interview
process. , supra,
We also are not persuaded by the state’s argument that, because the pretest interview is an integral compo- nent of a polygraph examination, evidence of what tran- spired during the interview must be subject to the same per se rule as are examination results. Rather, we agree with the Appellate Court that we used the term ‘‘poly- graph evidence’’ narrowly in Porter , as a shorthand reference only to the specific types of evidence the admission of which was at issue in that case, namely, evidence showing test results and a witness’ willingness *26 to submit to a polygraph test.
Thus, we agree with the Appellate Court that poly- graph pretest interview evidence does not constitute ‘‘polygraph evidence’’ for purposes of Porter and is not, therefore, per se inadmissible. Accordingly, it was for the trial court, in the exercise of its discretion and in light of the facts of this particular case, to determine whether admission of part of Allain’s pretest interview would have been more probative than prejudicial. To the extent that the trial court failed to make such a determination, exclusion of the entire videotape was improper.
B Having concluded that the trial court incorrectly determined that the videotape of Allain’s pretest inter- view constituted inadmissible polygraph evidence, we must consider whether the Appellate Court correctly concluded that that error was harmful. [25] The Appellate Court recognized that, during his cross-examination of Allain, defense counsel was able to establish both that Allain had powerful incentives to cooperate with the state in implicating the defendant and that Allain had changed or augmented various aspects of his story on a number of occasions. , supra, 166 Conn. App. 195–96. Nevertheless, the Appellate Court found that the failure to admit the videotape substan- tially affected the verdict because (1) the videotape would have provided more direct evidence of Allain’s motive and bias to implicate the defendant, including ‘‘the subtle but significant pressure placed on Allain by law enforcement,’’ and (2) the jury was deprived of the opportunity to understand that the pretest interview was conducted in the context of a polygraph examina- tion, which was significant to the defendant’s claim. Id., 196–97. Although it is a close call, we are not per- suaded that the defendant has met his burden of demon- strating that exclusion of the videotape substantially affected the verdict.
1
We begin by setting forth the well established stan-
dards that guide our review. ‘‘When an improper eviden-
tiary ruling is not constitutional in nature, the defendant
bears the burden of demonstrating that the error was
harmful. . . . [A] nonconstitutional error is harmless
when an appellate court has a fair assurance that the
error did not substantially affect the verdict.’’ (Internal
quotation marks omitted.)
Rodriguez
, 311 Conn.
80, 89,
2 The following additional facts and procedural history are relevant to this issue. Madden’s pretest interview of Allain lasted for approximately ninety minutes. For the first thirteen minutes or so, Madden and Allain dis- cussed Allain’s reasons for submitting to the polygraph. *27 Specifically, a question arose as to whether Allain was taking the test voluntarily, because he believed that assisting the state was the right thing to do or, rather, because he was facing a potential five year sentence for having violated his probation through a failed drug test and had been led to believe that the state might not pursue a conviction if he cooperated in this matter. Allain initially indicated that he had consented to the polygraph primarily to avoid the conviction for violating his probation. Madden promptly explained, in no uncer- tain terms, that he could not perform the polygraph on those terms. Thus, before proceeding, Madden obtained from Allain a statement that he was participating freely.
The remainder of the pretest interview consisted of Madden’s asking Allain a series of background ques- tions, reviewing the statements that Allain had given to the police and Allain’s accounts of the events sur- rounding the victim’s disappearance, and explaining the questions that Allain would be asked during the poly- graph. During that time, Madden repeatedly emphasized how ‘‘unbelievably important’’ it was for Allain to give completely truthful answers during the examination.
Moreover, Madden consistently equated truthfulness with successfully passing the test, doing ‘‘the right thing,’’ and being a reliable witness. He emphasized in this respect that the state would consider Allain to be a useful witness, and Allain would qualify for potentially favorable treatment, only if the polygraph results dem- onstrated that Allain was being completely truthful and forthcoming. Madden referred several times during the interview to the investigation of the 1997 gang rape and murder of Maryann Measles. He informed Allain that suspected participants in that crime who truthfully con- fessed their roles and then passed polygraph examina- tions were let off with ‘‘a slap on the wrist,’’ whereas suspected participants who failed polygraph tests were aggressively prosecuted.
At several points during the interview, Madden made comments indicating that the police were interested in obtaining Allain’s cooperation. In particular, Madden explained that the police were interested in having Allain on their ‘‘team’’ rather than on the defendant’s team, and in procuring Allain’s assistance in ‘‘getting’’ the defendant, whom Madden described as the ‘‘bigger fish.’’ In each instance, however, he made clear that Allain could provide such assistance only by giving com- pletely truthful testimony and passing the polygraph test. Madden indicated, for example, that, if Allain failed the polygraph, then he would be on the ‘‘other team,’’ aligned with the defendant, rather than ‘‘on our team.’’ In other words, Madden made clear that only truthful statements would help Allain.
Throughout the interview, Madden made comments
that gave the impression that he believed that Allain
had not been completely forthcoming in his prior state-
*28
ments to the police and that Allain still had something
to ‘‘get off [his] chest.’’ In a few instances, Madden
speculated that Allain felt intimidated or frightened by
the defendant. In most instances, however, Madden
appeared to believe that what Allain was withholding
was the extent of his own involvement in the crime.
Madden even suggested that this might be a cause of
Allain’s diagnosed clinical depression and speculated
that Allain, by telling the complete truth, might find
some relief. It is clear to us, then, that introduction of
the videotape into evidence would not have significantly
weakened the state’s case. See
Rodriguez
,
supra,
After the trial court ruled the videotape inadmissible, the state called Allain to testify. The prosecutor began his direct examination by eliciting that Allain was then serving a ten year sentence for felony sexual assault involving a different victim, and that Allain was hoping for ‘‘leniency’’ in connection with that sentence in exchange for his cooperation with the state and testi- mony against the defendant in the present matter. Allain acknowledged that ‘‘it would be nice’’ to receive some consideration in exchange for his testimony.
On cross-examination, defense counsel effectively developed all of the basic facts and themes that the defendant sought to establish through use of the pretest interview videotape. Defense counsel was able to dem- onstrate that Allain was generally unreliable as a wit- ness. For example, defense counsel repeatedly returned to the theme that Allain had two powerful incentives to cooperate with the state in convicting the defendant, namely, to divert attention from himself as a suspect in the victim’s murder and to obtain a reduction of the sentence that he was then serving for sexual assault. With respect to the former, Allain admitted to having raped the victim on the night she disappeared and to having concealed that information from the police until after the statute of limitations for rape had expired. He also understood, however, that the statute of limitations for a felony murder never runs.
Allain also acknowledged that he had found and con- cealed the victim’s shoe the day after she disappeared, and that this could make him an accessory to her mur- der. He also admitted to telling the police that he had previously indicated to the defendant that he was will- ing to kill the victim, and that he later told his father that he was involved in the victim’s murder and that he needed help moving her body. [26] Allain admitted that he was concerned because, if the police believed that he had anything to do with the victim’s death, he still could be charged with capital felony, and he believed that he would face a likely death sentence if convicted. At the same time, Allain, without expressly mentioning the pretest interview, testified that Madden had repeat- *29 edly told him that even someone who had been involved in rape and murder ‘‘could walk away . . . with a slap on the hand’’ if they cooperated with the police. [27] Accordingly, the jury was aware that Allain was a poten- tial suspect in the victim’s murder, that he had impli- cated himself in the murder, and that he understood that he could be charged with the crime if the defendant were exonerated.
The jury also heard testimony suggesting that there was an implicit agreement between Allain and the state that he would receive leniency on his sexual assault sentence if he fully cooperated with the state in this matter and if his cooperation proved sufficiently help- ful. Allain twice acknowledged that, at the time he was sentenced on that conviction, the state’s attorney had indicated that the state would not oppose a motion for sentence modification at a later date if Allain met cer- tain unstated requirements. Allain testified that he understood that to mean that he might be allowed to serve less time if he ‘‘played ball’’ and cooperated in the defendant’s case.
At several points, Allain expressed hope that the state would believe that he had provided substantial assis- tance in the case against the defendant and that, if his cooperation was sufficiently valuable, he would be released from prison early. Indeed, Allain complained that he had been ‘‘blackmailed’’ by the state and that an especially long sentence had been imposed for the sexual assault conviction specifically to ensure that he assisted the state in the defendant’s case.
Accordingly, the jury learned through cross-examina-
tion that Allain felt pressured to cooperate and that he
hoped that the state would deem his help sufficiently
valuable that he would obtain a sentence modification.
See
Rodriguez
, supra,
3 The conclusion of the Appellate Court was based on the dual determinations that (1) viewing the videotape would have given the jury a more direct and persuasive impression of Allain’s bias and motives, and of the pres- sures he was under to implicate the defendant, than could have come out through during cross-examination, and (2) the fact that the interview took place in the specific context of a polygraph examination was criti- *30 cally important to the ability of the jury to assess the credibility of the state’s key witness. Id., 196–97. We consider each point in turn.
a
Our analysis is guided by the principle that ‘‘[t]he
credibility of a witness may be impeached by evidence
showing bias for, prejudice against, or interest in any
person or matter that might cause the witness to testify
falsely.’’ Conn. Code Evid. § 6-5. ‘‘Because evidence
tending to show a witness’ bias, prejudice or interest
is never collateral . . . impeachment of a witness on
these matters may be accomplished through the intro-
duction of extrinsic evidence, in addition to examining
the witness directly.’’ (Citation omitted.) Conn. Code
Evid. § 6-5, commentary. ‘‘However, otherwise [r]ele-
vant [impeachment] evidence may be excluded if its
probative value is outweighed by the danger of unfair
prejudice or surprise, confusion of the issues, or mis-
leading the jury, or by considerations of undue delay,
waste of time or needless presentation of cumulative
evidence.’’ (Emphasis omitted; internal quotation marks
omitted.)
Brown
,
Our impression of the videotape, and what the jury likely would have gleaned therefrom, differs from that of the Appellate Court. It is true that the first portion of the pretest interview does not cast the polygrapher in an especially favorable light. One could view the videotape and conclude that Madden disregarded Allain’s clear statement that he believed that he was being coerced into taking the polygraph test, and that Madden coaxed Allain into saying the magic words that would allow the interview to proceed while permitting Allain to obtain the benefits that he sought.
Equally apparent, though, is the diligence with which Madden conducted the remainder of the interview. At the outset, having ascertained that Allain suffers from depression, Madden offered Allain numerous opportu- nities to terminate the interview if Allain believed that it might exacerbate his condition. More importantly, although Madden repeatedly encouraged Allain to coop- erate with the state, cooperation was never framed in terms of implicating the defendant, inventing stories, or testifying falsely for the state. Rather, Madden repeat- edly, consistently, and expressly instructed Allain that cooperation consists of telling the truth . In fact, on more than one dozen occasions, Madden emphasized to Allain the importance of telling the complete truth and that only truthful testimony would be of assistance to the state or advantageous to Allain. Likewise, two other officers who briefly questioned Allain during the interview encouraged Allain to be completely truthful, at one point telling him that ‘‘we don’t want you to tell us what you think we want to hear.’’
Although this point is not discussed in the Appellate Court opinion, it is critically important. Although Allain’s motivation for participating in the state’s inves- tigation and prosecution of the defendant may have been of some interest to the jury, jurors’ primary con- cern must have been his veracity—whether he had been pressured or induced to fabricate his account of the defendant’s confessions. Allain’s trial testimony itself provided the strongest evidence that he might have reason not only to cooperate with the state but also to actively help the state to convict the defendant. During cross-examination, for example, Allain conceded that he hoped ‘‘that the state believes that [he] provided substantial assistance in [its] case against [the defen- dant] . . . .’’ He also expressed his hope that ‘‘the state agrees that [his] cooperation in this case was valuable enough’’ to obtain a sentence modification.
By contrast, even defense counsel, in arguing to the trial court the importance of the videotape, emphasized that the polygrapher’s primary focus was to encourage Allain to testify truthfully: ‘‘Insofar as this witness was taken, isolated for a period of ninety minutes, badgered in my view into being told about all the benefits of cooperation, about the need to be truthful , about every- thing he stood to gain up to and including a potential walk—that . . . rate[s] a powerful argument that this young man may have been promised more than a year or two off if he tells the truth .’’ (Emphasis added.)
For this reason, we disagree with the Appellate Court that the videotape provided the most compelling evi- dence that Allain had an undisclosed bias against or motive to implicate the defendant. At trial, Allain him- self freely admitted that he had powerful incentives to cooperate with the state and to assist in convicting the defendant. If anything, the videotape, with its constant emphasis on the importance of truthfulness, undercuts that narrative. The themes that the Appellate Court found most troubling—Madden’s desire to keep Allain on his team so as to catch ‘‘the big fish’’—are embodied in just a few brief comments made in the course of a ninety minute interview, all of which are expressly linked to the ‘‘unbelievably important’’ need for Allain to be completely truthful.
We also do not share the Appellate Court’s concern
that ‘‘the jury could reasonably conclude from the video-
tape that Madden attempted to shape Allain’s story
about the defendant’s actions on May 29, 1996, in order
to make it more plausible.’’ , supra,
b We also do not share the Appellate Court’s concern that cross-examination in this case was an inadequate substitute for the videotape. The Appellate Court took issue with the fact that, although the jury was able to learn some of what had transpired during the interview and was made aware of Allain’s incentives to falsely implicate the defendant, the jury was not informed that these events occurred in the specific context of a poly- graph examination. , supra, 166 Conn. App. 196.
Although the Appellate Court frames the importance of the videotape in terms of having occurred in the context of a polygraph examination, the court’s expla- nation primarily addresses the content of the videotape rather than the context. But, as we already have dis- cussed, the handful of potentially troubling statements that the Appellate Court highlights were made by Mad- den over the course of a ninety minute interview in which he consistently emphasized that Allain would be of assistance to the state, and eligible for the benefits attendant to that assistance, only if he were completely truthful. Moreover, all of Madden’s statements to that effect either were, or could have been, elicited by defense counsel on cross-examination.
Unlike the Appellate Court, we fail to see the signifi- cance of the fact that the pretest interview took place in the specific context of a polygraph examination. If anything, that context would appear to undermine the defendant’s position. At the time of the polygraph, Allain already had implicated the defendant in the victim’s murder on several occasions. Madden’s clear purpose in the interview was not to encourage Allain to implicate the defendant, which he already had done, but, rather, to impress on Allain the importance of fully disclosing all details, including his own role in the victim’s disap- pearance. Madden repeatedly indicated that the state would be able to depend on Allain’s credibility as a witness only if Allain was completely forthcoming dur- ing the polygraph test. Accordingly, we do not think the jury reasonably could have gleaned from the video- tape that the police were pressuring or incentivizing Allain either to falsely implicate the defendant in the *33 victim’s murder or to hew to the inculpatory statements that he previously had given.
To summarize, all of the themes that the defendant
sought to develop by way of the videotape were ade-
quately brought out during cross-examination and, if
anything, viewing the videotape in context would have
undermined the defendant’s theory that Allain had been
pressured to implicate the defendant falsely. See
State
Rodriguez
, supra,
III EXCLUSION OF EXPERT TESTIMONY We next consider whether the Appellate Court cor- rectly concluded that the trial court had abused its discretion in precluding the testimony of Alexandra Natapoff, a law professor whom the defendant offered as an expert on the use, and questionable credibility, of incarcerated informants as witnesses in criminal prosecutions. The state contends, and we agree, that the trial court did not abuse its discretion when it deter- mined that Natapoff’s testimony would not have assisted the jury in this case. We therefore conclude that the Appellate Court incorrectly determined that the trial court had abused its discretion in precluding that testimony.
A The following procedural history is relevant to this issue. Prior to trial, the state filed a motion in limine seeking to preclude Natapoff’s testimony. The state argued that expert testimony regarding the dubious credibility of jailhouse informants would (1) address matters within the common knowledge of the jury, (2) be more prejudicial than probative, and (3) invade a core function of the jury, namely, assessing the credibil- ity of witnesses. At trial, the state renewed its objection, and Natapoff proffered the testimony outside the pres- ence of the jury.
After establishing her bona fides as an expert on the subject of jailhouse informants, [29] Natapoff testified that the use of such informants in criminal prosecutions is pervasive, with prosecutors and the police offering, and inmates seeking, an array of benefits in exchange for incriminating testimony. She explained that the informant testimony acquired in this ‘‘marketplace’’ is ‘‘sometimes’’ untruthful and, in fact, is a significant source of wrongful convictions. Natapoff further tes- tified that informants can be quite ‘‘entrepreneurial,’’ *34 using various methods to obtain information about another inmate’s case and to fabricate believable, incriminating stories. For example, inmates may rely on jailhouse gossip, steal files from other inmates, obtain case information from newspapers and media reports, or simply cooperate with other inmates to invent and validate each other’s stories. Natapoff also expressed doubts as to whether the usual methods used to instruct and warn juries to be cautious about infor- mant testimony are effective in preventing false convic- tions arising from the use of criminal informants.
Natapoff further described the marketplace for jail- house informant testimony as ‘‘secretive’’ and testified that the public learns little about how the criminal jus- tice system uses informants. She opined that the public is not familiar with jailhouse culture and is unaware of how infrequently dishonest informants are prosecuted for perjury. She also acknowledged, however, that sev- eral magazines have done expose´ s on the abuses associ- ated with the use of jailhouse informants and that the practice is now well understood ‘‘outside’’ of correc- tional facilities.
On cross-examination, Natapoff conceded that stud- ies regarding the use of jailhouse informants are largely limited to capital cases and that, even in those cases, it is impossible to know how many wrongful convictions have occurred as a result. The most she could say by way of quantification is that estimates of the share of wrongful convictions in capital cases range from 1 to 10 percent and that informant testimony was a factor in 20 to 45 percent of those cases—so between 0.2 and 4.5 percent of all capital convictions. She also described one study that concluded that criminal infor- mant testimony was responsible for approximately 20 percent of all wrongful convictions in California. Natapoff acknowledged, however, that the problems associated with criminal informant testimony are not uniform throughout the country and that she had not studied Connecticut and was not aware of any particu- lar customs and practices in Connecticut or, specifi- cally, in New London. At no time did she opine as to what percentage of criminal informants testify untruth- fully, either in Connecticut or elsewhere.
Natapoff further conceded that she had never testi- fied before a jury. In fact, she was aware of only two cases in the country in which experts had been per- mitted to testify regarding the use of criminal infor- mants, one in Wyoming and one in Louisiana. Moreover, although she wrote a book on the subject of criminal informants in which she offered various proposals for reforming the system and preventing the abuses associ- ated with dishonest informants, Natapoff admitted that she had not recommended the use of expert testimony as a prophylaxis. She also could not say whether stricter regulation of the use of criminal informants had reduced *35 the number of wrongful convictions in Los Angeles, a city that is closely associated with the use and abuse of jailhouse informant testimony.
After permitting additional argument by the parties, the trial court granted the state’s motion in limine and precluded Natapoff’s testimony. The court articulated three rationales for its decision.
First, the trial court concluded that allowing testi-
mony as to the credibility of jailhouse informants would
be improper because credibility determinations are
within the exclusive province of the jury. Second, the
court found that, although Natapoff referenced certain
research about which the jury might not be aware, her
central conclusions—the marketplace for information
and informants’ incentives to testify falsely—were not
outside the ken of the average juror. Third, the court
emphasized that it had given the defense wide latitude
in cross-examining the state’s witnesses regarding any
consideration they might receive for their testimony
and that it intended to instruct the jury regarding the
credibility of incarcerated witnesses in accordance with
State Arroyo
,
B
We begin by setting forth the well established legal
principles that govern this claim. ‘‘The trial court has
wide discretion in ruling on the qualification of expert
witnesses and the admissibility of their opinions. . . .
The court’s decision is not to be disturbed unless [its]
discretion has been abused, or the error is clear and
involves a misconception of the law. . . . Generally,
expert testimony is admissible if (1) the witness has a
special skill or knowledge directly applicable to a mat-
ter in issue, (2) that skill or knowledge is not common
to the average person, and (3) the testimony would be
helpful to the court or jury in considering the issues.’’
(Internal quotation marks omitted.)
Taylor G.
,
We also have explained that ‘‘[t]he determination of the credibility of a witness is solely the function of the jury. . . . It is the trier of fact [that] determines the credibility of witnesses and the weight to be accorded their testimony. . . . Expert witnesses cannot be per- mitted to invade the province of the jury by testifying as to the credibility of a particular witness or the truth- fulness of a particular witness’ claims.’’ (Internal quota- tion marks omitted.) State v. Taylor G. , supra, 315 Conn. 760–61.
C
As previously noted, the trial court precluded Nata-
poff’s testimony on several different grounds. We agree
with the Appellate Court that the trial court incorrectly
concluded that Natapoff’s testimony would have
invaded the exclusive province of the jury by assessing
the credibility of the state’s witnesses.
State
v. ,
supra,
1
We have had a number of opportunities to consider
whether the admission of expert testimony as to the
credibility and tendencies of a certain class of witnesses
would improperly usurp the role of the jury. See, e.g.,
State
v.
Taylor G.
, supra,
In the present case, Natapoff intended to testify only
with respect to the general characteristics of the mar-
ketplace for criminal informant testimony and the aca-
demic research indicating that unreliable informant
testimony contributes to many wrongful convictions.
During argument on the state’s motion, defense counsel
represented to the trial court that Natapoff had no
knowledge about this particular case and that she was
not familiar with, and did not intend to comment on,
the testimony of any of the state’s witnesses. Expert
testimony about the behavior of jailhouse informants
as a class is not per se inadmissible.
[31]
For this reason,
we agree with the Appellate Court that the trial court
incorrectly concluded that Natapoff’s testimony would
have invaded the province of the jury.
State
v. ,
supra,
2
We next consider whether the trial court abused its
discretion when it determined that Natapoff’s primary
conclusions were not of assistance to the jury. We have
explained that expert testimony is required only when
a disputed matter is ‘‘
manifestly
beyond the ken of the
average trier of fact, be it judge or jury.’’ (Emphasis
added.)
McClary
,
We are not aware of any studies supporting Natapoff’s testimony that the typical juror may not be familiar with the full scope of the marketplace for jailhouse informant testimony, the specific means by which inmates can fabricate believable incriminating stories, the panoply of incentives that the state is able to offer in exchange for such testimony, and the lack of any meaningful deterrent for an inmate who is willing to commit perjury. However, even if we were to assume, for the sake of argument, that Natapoff is correct that the typical juror is not aware of the full spectrum of risks that attend to the use of jailhouse informants, we would conclude for the following three reasons that the trial court did not abuse its discretion in precluding *38 her testimony.
First, the trial court was free to credit Natapoff’s own testimony that, although jurors may not be familiar with all of the nuances of the academic research in this field, the fundamental concerns regarding the reliability of criminal informant testimony have been exposed by the media and are well understood outside of the jailhouse. Natapoff’s testimony in this regard is consistent with our own understanding of the issue. Although we dis- agree with the Appellate Court that the state was obliged to provide ‘‘empirical studies’’ to demonstrate that Natapoff’s opinions are within the knowledge of the average layperson; State v. , supra, 166 Conn. App. 224; we observe that the potential abuses associated with jailhouse informant testimony have been explored by investigative journalists and are gen- erally engrained throughout the popular culture. [32]
Indeed, one federal court facing a similar question
recently cited to the Appellate Court’s decision in this
case, finding it unpersuasive for precisely this reason.
See
United States
v.
Noze
,
U.S.
,
Moreover, in the cases in which we have allowed experts to testify as to the credibility of a class of witnesses, the experts did not merely testify that certain witnesses are, generally, of dubious credibility. Rather, the experts provided the jury with a useful template, describing patterns of behavior typical of such wit- nesses so that jurors could better assess whether partic- ular conduct or statements demonstrated veracity or mendacity. In Guilbert , for instance, the state’s expert presented various factors that jurors could use to assess the accuracy of an eyewitness identification: the degree of stress to which the witness was exposed, the witness’ prior familiarity with the person, ‘‘the length of time during which the eyewitness was able to observe the person, lighting, distance, and whether the eyewitness was paying attention.’’ State v. Guilbert , supra, 306 Conn. 227.
Similarly, in our cases addressing the credibility of
victims of domestic abuse, experts explained how such
victims tend to delay reporting to the police, recant or
provide inconsistent accounts of the abuse, and feel
powerless to leave an abusive relationship. See, e.g.,
State
v.
Taylor G.
, supra,
In the present case, by contrast, Natapoff did not provide any template by which jurors could evaluate the testimony of jailhouse informants. She opined that some informants testify truthfully and others do not but did not offer any practical guidance as to how a jury might distinguish the former from the latter.
One could imagine a case in which Natapoff’s testi- mony might prove helpful to a jury. If, for example, an informant witness claimed that a defendant had revealed details about a crime that would appear to be knowable only by the perpetrator, then learning that inmates often glean such information by reading their cellmates’ legal files or from outside sources could be illuminating. Importantly, however, there is no sugges- tion in the present case that the state’s witnesses testi- fied as to any details of the crime that, while appearing *40 to be knowable only by the perpetrator, could in fact have been obtained via media reports or other means. Rather, Allain’s statements and testimony were the only source of detailed information about the alleged crime, and he obtained that information from the defendant at the time of the murder, rather than during his later incarceration. [33] Moreover, as the defendant himself emphasizes, the testimony of Buckingham, Ching, and Douton, while confirming the general outlines of Allain’s account, differed with respect to certain details of the alleged crime.
Ultimately, then, all a jury reasonably could glean
from Natapoff’s testimony is that it should be especially
skeptical of any jailhouse informant, given the abun-
dant opportunities and incentives to fabricate confes-
sion stories and the fact that jailhouse informants some-
times do in fact testify falsely, which results in wrongful
convictions. But that is precisely how the trial court
instructed the jury, and we must assume that the jury
followed the court’s instructions.
[34]
See, e.g., v.
Booth
,
Third, agreeing with the Appellate Court that expert
testimony such as Natapoff’s
must
be admitted in any
case in which it is relevant—presumably any case in
which the testimony of an informant plays more than
a minimal role—would set a costly and troubling prece-
dent. As one court has recognized, if defendants are
allowed to put on experts who will testify as to the
questionable credibility of criminal informants, then,
surely, the state will want to parry with experts of its
*41
own. These counter experts would, undoubtedly, tell
the jury about the critical and generally reliable role
that informants play in many criminal prosecutions.
United States
v.
Noze
, supra,
For these and other reasons, although Natapoff has
been permitted to testify in one civil trial subsequent
to the defendant’s conviction; see
Larson
v.
State
, 194
Wn. App. 722, 731 n.5,
By contrast, in other instances in which we have
allowed or required expert testimony as to the reliability
of a class of witnesses, we relied on the fact that sister
states routinely admit such evidence. See, e.g.,
State
v.
Guilbert
, supra,
The judgment of the Appellate Court is reversed with respect to the evidentiary claims at issue in the state’s certified appeal and the case is remanded to that court with direction to consider the defendant’s remaining claims on appeal; the judgment is affirmed in all other respects.
In this opinion ROBINSON, KAHN and VERTE- FEUILLE, Js., concurred.
* The listing of justices reflects their seniority status on this court as of the date of oral argument.
[1] For the sake of simplicity, we note that all references in this opinion to § 53a-54b are to General Statutes (Rev. to 1995) § 53a-54b, as amended by Public Acts 1995, No. 95-16, § 4.
[2] In accordance with our policy of protecting the interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
[3] Although Allain’s testimony was unclear on this point, the jury reasonably could have concluded that the path on which Allain and the defendant spoke is the same path to which the defendant confessed having taken the victim.
[4] Judge Flynn, writing separately, concluded that the Appellate Court
majority had, in some respects, improperly articulated and applied the cor-
pus delicti rule, but he agreed that the defendant could not prevail on his
corpus delicti claim. See
State
v.
Leniart
, supra,
[5] For the reasons discussed in part I B of this opinion, some courts and commentators refer to Connecticut’s version of the corpus delicti rule as the corroboration rule.
[6] For brevity, subsequent references to ‘‘confessions’’ are intended to refer to the alleged extrajudicial confessions or admissions of a criminal defendant.
[7] Because we agree with the defendant that the corpus delicti rule is a hybrid rule that implicates his due process rights and, therefore, that his failure to object to admission of his alleged confessions does not preclude appellate review, we need not consider his alternative arguments that his corpus delicti claim is properly preserved or should be reviewed for plain error.
The defendant contends that there also is insufficient evidence to prove that he sexually assaulted, kidnapped, and intentionally killed the victim. Although those issues are not encompassed within the certified question, we note that Allain’s testimony, if credited by the jury, and as corroborated by independent evidence, was sufficient to establish the essential elements of all of the charged crimes.
[8] Aside from the question of reviewability, the distinction determines the
remedy that would be available to the defendant should he prevail on his
corpus delicti claim. If the confession testimony were found to have been
improperly admitted, then he would be entitled to a new trial, assuming
that the error was not deemed harmless, whereas a finding that the state’s
evidence was insufficient to sustain a conviction would require his acquittal.
See
Burks
v.
United States
,
[9] We note that it is not uncommon for substantive rules to have evidentiary
implications as well. See, e.g.,
Manderson
v.
Chet Morrison Contractors,
Inc.
,
[10] As we discuss subsequently in this opinion, the nature of the burden
imposed on the prosecution under the corpus delicti rule was later refined
by this court in
State
v.
Tillman
, supra,
[11] The Appellate Court believed that it was bound by
Uretek
, notwithstand-
ing our subsequent decision in
State
v.
Farnum
, supra,
[12] See, e.g.,
Langevin State
, supra,
[13] We note that McCormick on Evidence favors treating the rule as exclu- sively substantive. See 1 K. Broun, supra, § 145, p. 805. Other scholars, however, adopt the hybrid approach. See, e.g., T. Mullen, ‘‘Rule Without Reason: Requiring Independent Proof of the Corpus Delicti as a Condition of Admitting an Extrajudicial Confession,’’ 27 U.S.F. L. Rev. 385, 386 and n.5 (1993).
[14] See D. Moran, supra, 64 Ohio St. L.J. 818 (‘‘[t]he corpus delicti rule has fallen into disfavor in recent decades’’); id., 835 (‘‘the last half of the twentieth century has produced a distinct trend away from the corpus delicti rule’’ *43 [internal quotation marks omitted]); T. Mullen, supra, 27 U.S.F. L. Rev. 389 (noting modern trend ‘‘reducing the quantum of evidence necessary to establish the corpus delicti’’); T. Mullen, supra, 418 (‘‘[m]ost courts have acted with [half measures] to unburden themselves of the corpus delicti rule’’).
Unless otherwise noted, we use the term ‘‘independent evidence’’ to refer to evidence independent of any purported admissions, confessions, or related extrajudicial statements of the accused.
See T. Mullen, supra, 27 U.S.F. L. Rev. 389 and n.17 (listing Connecticut
as one of only four states to adhere to narrower version of rule); see also
United States
v.
Woods
,
We note that, although the term corpus delicti, which literally translates
to ‘‘body of the crime,’’ has led to some confusion, it never has been the
rule that a victim’s body must be produced before the state can secure a
murder conviction. See D. Moran, supra, 64 Ohio St. L.J. 828 and n.68; R.
Perkins, ‘‘The Corpus Delicti of Murder,’’ 48 Va. L. Rev. 173, 182 (1962). As
has been long recognized and frequently remarked, such a rule would serve
only to incentivize gangland style murders in which victim’s bodies are
incinerated, dissolved, or dumped in the sea. See
Virgin Islands
v.
Harris
,
Although the Perry tale apparently boasts sufficient indicia of historical
reliability to not be deemed apocryphal; see P. Clifford, The Campden Won-
der, available at http://www.campdenwonder.plus.com/Sources.htm (last
visited September 4, 2019); details of the story vary from one account to
another. Compare v.
Bishop
,
M. Sullo, ‘‘Adult Missing Persons in Connecticut: Advocate Says Police Aren’t Doing Enough,’’ Middletown Press (December 18, 2011), available at https://www.middletownpress.com/news/article/Adult-missing-persons-in- Connecticut-Advocate-11876085.php (last visited September 4, 2019).
See, e.g., D. Moran, supra, 64 Ohio St. L.J. 818–19.
See
Miranda
v.
Arizona
,
We recognize that the record contains some troubling testimony and exhibits regarding James Butler, a former Marine and family friend of the victim, who claimed to have spoken with the victim at a video rental store in Virginia, some three years after her disappearance. However, Butler did not testify at trial, some questions were raised regarding his competence, and the police were unable to verify key elements of his story. Accordingly, and in light of the standard of review that governs this claim, we agree with the Appellate Court that we must assume that the jury declined to credit Butler’s statement.
We caution that the mere fact that more than one witness testifies that
the accused has confessed to a crime is not, by itself, sufficient corroboration
to satisfy the corpus delicti rule. See
Wong Sun
v.
United States
, 371 U.S.
471, 489–90 n.15,
We note that the corpus delicti rule, as applied in Connecticut, governs
confessions made to and reported by laypersons as well as law enforcement
officers. See
Farnum
, supra,
Because we conclude that exclusion of the videotape was not harmful error, we need not address the state’s alternative argument that the trial *44 court also made a reasonable, discretionary determination that the prejudi- cial impact of the videotape outweighed its probative value.
[26] Allain had previously repudiated that confession during his direct exami- nation.
[27] Allain initially testified that he did not recall discussing that subject with Madden but ultimately acknowledged that, although he could not remember exactly what Madden had said, he did recall the discussion.
[28] Prior to asking Allain to review and verify his prior statements to the police, for example, Madden instructed him as follows: ‘‘[L]et’s assume worst case scenario, worst case scenario you go look, [the defendant] was choking her and I was holding her feet. Not only did I witness him kill her, I helped restrain her. . . . [A]s long as it comes out prior to, you’re going to pass the polygraph.’’
[29] The state does not dispute that Natapoff qualifies as an expert on these matters.
[30] Shortly after the trial court’s ruling in this case, this court decided
State
Guilbert
,
[31] Although we conclude in part III C 2 of this opinion that, to the extent that Natapoff’s testimony was directly applicable to the present case, it was not beyond the ken of the average juror, we do not foreclose the possibility that testimony on the practices and procedures governing criminal informant testimony in Connecticut could be presumptively admissible under other cir- cumstances.
[32] See, e.g., N. Yarris, The Fear of 13 (Arrow Books 2017) c.4; 60 Minutes: Informant Says He Was Planted in Orange County Jail To Snitch (CBS tele- vision broadcast May 21, 2017), available at https://www.cbsnews.com/news/ informant-says-he-was-planted-in-orange-county-jail-to-snitch (last visited Sep- tember 4, 2019); Frontline: Snitch, How Informants Have Become a Key Part of Prosecutorial Strategy in the Drug War (PBS television broadcast January 12, 1999), available at https://www.pbs.org/wgbh/pages/frontline/shows/snitch/ etc/script.html (last visited September 4, 2019); G. Cothran, ‘‘Trial by Liar,’’ SF Weekly, January 14, 1998, available at https://www.sfweekly.com/news/trial- by-liar (last visited September 4, 2019); R. Reinhold, ‘‘California Shaken over an Informer: He Shows How To Fabricate a Prisoner’s Confession,’’ N.Y. Times, February 17, 1989, pp. A1, A17; see also Goldstein Long Beach , 715 F.3d 750, 758 (9th Cir. 2013) (referencing 60 Minutes broadcast from 1988).
[33] For this reason, among others, we are not persuaded by Justice Palmer’s
attempt to distinguish
United States Noze
, supra,
[34] The court instructed the jury as follows: ‘‘In weighing the testimony of an accomplice who is a self-confessed criminal, you should consider that fact. It may be that you would not believe a person who has committed a crime as readily as you would believe a person of good character.
‘‘In weighing the testimony of an accomplice who has not yet been sen- tenced or whose case has not yet been disposed of or who has not been charged with offenses in which the state has evidence, you should keep in mind that he may in his own mind be looking for some favorable treatment in the sentence or disposition of his own case or hoping not to be arrested.
‘‘Therefore, he may have such an interest in the outcome of this case that his testimony may have been colored by that fact. Therefore, you must look with particular care at the testimony of an accomplice and scrutinize it very carefully before you accept it.
‘‘There are many offenses that are of such a character that the only persons capable of giving useful testimony are those who are themselves implicated in the crime. It is for you to decide what credibility you will give to a witness who has admitted his involvement in criminal wrongdoing; whether you will believe or disbelieve the testimony of a person who by his own admission has committed or contributed to the crime charged by the state here. Like all other questions of credibility, this is a question you must decide based on all the evidence presented to you.
‘‘Witnesses testified in this case as informants. An informant is someone who has information regarding the crime and agrees to testify in exchange for some benefit from the state. In evaluating an informant’s testimony, you should consider the benefits that the state has promised the informant in *45 exchange for his cooperation.
‘‘It may be that you would not believe a person who is receiving benefits in exchange for testimony as well as you might believe other witnesses. An informant may have such an interest in the outcome of this case that his testimony may have been colored by that fact.
‘‘Therefore, you must look with particular care at the testimony of an informant and scrutinize it very carefully before you accept it. You should determine the credibility of that witness in the light of any motive for testifying falsely and inculpating the accused.
‘‘If you find that the witness is an informant who has been promised a reduction in his sentence or other valuable consideration by the state in return for his testimony or who hopes for or expects consideration by the state in return for his testimony, you must decide whether you will believe or disbelieve the testimony of a person who is testifying in exchange for some benefit from the state. Like all other questions of credibility, this is a question you must decide based on all the evidence presented to you.’’
[35] Because the Appellate Court reversed the defendant’s conviction on
evidentiary grounds, it did not consider various constitutional challenges
that he raised. , supra,