*1 Finally, we conclude that the trial court did not abuse its discretion the evidence of the excluding alleged tattoo and the victim’s outburst in court because the attorney lay defendant’s had failed proper founda- tion that the victim had a mental health condition at the time he received the tattoo and had his outburst in court. to the evidence at According trial, the victim was paranoia not diagnosed with until after the first shooting Thus, 2005. the defendant’s claim that this evidence supported solely conjecture. his defense is based Because the trial court did not abuse its discretion in precluding attorney defendant’s from questioning the victim about these matters, the defendant’s sixth amendment to confrontation and rights present State King, supra, See, defense were not violated. e.g., Conn. 668. The are affirmed. judgments opinion justices
In this the other concurred. STATE OF CONNECTICUT v. J’VEIL OUTING
(SC 17707) Rogers, J., Norcott, Katz, Palmer, Vertefeuille, C. Zarella and McLachlan, Js.* * originally argued panel consisting This case was before a of this court Norcott, Katz, Palmer, Thereafter, of Justices Vertefeuille and McLachlan. court, pursuant (b), sponte, § to Practice Book 70-7 sua ordered Accordingly, Rogers the case be considered en banc. Chief Justice panel, they record, Justice Zarella were added to the have read the transcripts argument. briefs and of oral justices seniority listing The reflects their status on this court as of argument. the date of oral
Argued officially August 31, March released B. for the Streeto, James public defender, assistant appellant (defendant). attorney, Chupak, L. state’s
Nancy senior assistant Baran, whom were Beth senior assistant state’s with Dearington, state’s Michael and, brief, on the attorney, appellee for the attorney, (state). Siegel M. and Yvonne Chan Steele,
Lisa J. David Project as New Innocence England filed a brief for the amicus curiae.
Opinion directly defendant, Outing, J. The J’Veil KATZ, appeals1 conviction, from the trial court’s judgment jury trial, rendered after a of murder violation Statutes 53a-54a The defendant claims (a).2 General § his motion improperly: (1) that the trial court denied eyewitnesses suppress of two who had shooter; barred him (2) identified the defendant as the testimony at the presenting hearing from certain suppress eyewit- on his motion to on the *4 the defendant’s identifications; (3) prohibited ness providing trial; (4) from that same at disclosure mental health refused to order the of certain a witness; (5) records of state’s denied the defen- purported dant’s motion for a mistrial due to the state’s sequestration violation of the trial court’s order. In addi- directly appealed judg The defendant to this court from the trial court’s pursuant (b), provides § ment to General Statutes 51-199 which in relevant part: following directly Supreme “The matters shall be taken to the Court any (3) appeal involving felony ... an criminal action a . . . . . . for imposed twenty which the maximum sentence which be exceeds years . . . .” (a) provides part: person General § Statutes 53a-54a relevant “A guilty when, person, of murder with intent to cause the death of another person he causes the death of such . . . .” state’s the defendant claims that assistant tion, impropriety attorney prosecutorial during engaged during closing her examination of certain witnesses and thereby the defendant of his consti- argument, depriving reject process to a fair trial. We right tutional due affirm trial and, accordingly, claims we defendant’s judgment. court’s jury reasonably could have found the following
The p.m. 6:50 on June approximately facts. At northerly Crimley was in a direction walking Nadine infant Haven, pushing on Canal Street in New her son brother, Ray Caple, her left, in a stroller. To her she saw at porch on the of her residence 150 Canal standing Crimley up street, Street. As walked she saw the had seen in the defendant, previously neigh- whom she bicycle. borhood, pass her on his Another unidentified Crimley bicycle man rode a in front of the defendant. back to her son. When she then turned her attention noises, up she looked popping heard series of away defendant, saw the who was about ten feet from her, victim, at the Kevin The victim firing gun Wright. and the defendant ran from the scene. ground, fell Caple, high who had school with the defen- gone him years, dant and had known for three one-half bicycle up he rode also watched the defendant as his Caple watched, Canal Street. As defendant moved Caple his right his hand toward waist. believed that the for a and was reaching gun going defendant was him, Caple shoot but decided so because against doing year Caple’s holding daughter. was his two old mother and the victim were inside the residence at 150 Canal passed Just after the defendant the residence Street. on his the victim exited the back door bicycle, through bicycle backyard retrieved his from the residence, *5 easterly Gregory and walked with it in an direction on with Canal Street. As Street toward its intersection Caple porch, gunshot stood on the he heard a and the When he looked bicycle ground. a to the falling sound of Crimley he observed porch, the comer of the around and very defendant, close to the her son standing and from who had dismounted defendant, he also saw the The at the victim. his fire three more shots bicycle, bicycle his in the away, leaving then ran defendant unresponsive. who was Caple victim, street. ran to the a wound single gunshot The victim died from chest. day
Shortly, p.m. shooting, after 10 on the Crimley police a statement to the New Haven gave get that she had been able to a which she indicated identify at the shooter and would be able to good look days shooting, him. On June four after the detective, inter- Stephen Coppola, police a New Haven array Crimley presented and her with an of eight viewed Crimley one of the defendant. photographs, including and signed identified the defendant as the shooter and array. tape-recorded Coppola dated the photographic Crimley. day, Coppola same his interview of On the Caple pre- from tape-recorded also statement array. Caple him with photographic sented second also the shooter and signed identified defendant as array. photographic and dated the trial, Caple Crimley Prior to both recanted their police statements to the and their identifications of the defendant, they pressured by had been claiming police into the statements and giving making filed Thereafter, identifications. the defendant motions suppress the identification evidence, claiming product was unreliable and the of an the evidence unnecessarily police proce- identification suggestive motions, dure. At a on the defendant’s both hearing they did not know who Crimley Caple testified that they pressured by had been victim, had killed the the events police false statements about give police pres- had surrounding shooting, and that *6 40 falsely identify
sured them to the defendant as the Crimley Caple they shooter. and that acknowledged extremely were about called as wit- frightened being identifying nesses for the state and the defendant as the Coppola Vasquez, shooter. and Alfonso a New Haven Coppola’s police present during detective who had been Crimley Caple, interviews of and testified that each of the witnesses had identified the defendant as the by from selecting photograph shooter the defendant’s array spontaneously the and without hesi- photographic The two unequivocally tation. detectives denied they pressured Crimley had or influenced either or Caple any way. testimony,
At the conclusion of the detectives’
tape-recorded
state maintained that the
statements that
police
met the
Crimley
Caple
given
had
v.
admissibility
for
set forth in State
requirements
86,
denied,
Whelan,
743, 753,
200 Conn.
513 A.2d
cert.
3
S. Ct.
Thereafter, at a continuation
proof
an offer of
regarding
the defendant made
ing,
Dysart,
Jennifer
expert witness,
of his
supra,
[753],
Whelan,
this court determined that
“In
v.
200 Conn.
State
(1)
evidence if
statement
is admissible as substantive
an out-of-court
statement,
signed
declarant,
prior
(2) it is
is a
inconsistent
statement
therein,
personal knowledge
(3)
the facts stated
has
the declarant
subject
(4)
testifies at trial and is
to cross-examination.”
the declarant
535, 547-48,
(2008).
Holness,
concerning testimony, and the court sus- objected The state objection the state’s part part tained in and overruled testimony. Dysart thereafter Dysart’s proffered *7 procedures opinion offered her that the identification The trial court there- used were not reliable. generally suppress to after denied the defendant’s motions that had been made of the identifications photographic by Crimley Caple. defendant and Crimley police that the trial, Caple At and testified them false statements and to pressured give had falsely identify They the defendant as the shooter. fur- definitely ther testified that the defendant was not the they shooter and that did not know who had shot the pursuant Whelan, motion Upon victim. the state’s tape the trial court admitted redacted of the recordings Crimley Caple police statements had to the given prior as inconsistent statements.4 The trial court also copies arrays admitted as exhibits of the photographic Crimley Caple had and dated. The defen- signed Dysart at dant did not call as witness trial.
Thereafter, jury guilty found the defendant of murder, and the trial court judgment rendered accor verdict, dance with the the defendant to a sentencing term imprisonment fifty years. appeal This direct procedural history followed.5 Additional facts and will necessary. be set forth as
I We first turn to the defendant’s claims regarding eyewitness testimony. The defendant contends that the
4The trial court’s decision to admit those statements under Whelan is not at
appeal,
purposes
suppression
issue
this
either for
of their admission at the
hearing or at trial.
appeal,
granted permission
After the defendant had filed this
we
Project
England
support
New
Innocence
to file an amicus brief in
Dysart’s
defendant’s claim that the trial court should have
all
admitted
proposed testimony.
supplemental
We also allowed the state to file a
brief
response.
suppress
his motion to
improperly denied
trial court
because, con-
by Crimley
Caple
the identifications
evidence estab-
conclusions,
trary to the court’s
was
procedure
identification
lished
and unreliable. He further con-
unnecessarily suggestive
him
precluded
from
improperly
that the trial court
tends
testimony at
Dysart’s proffered
certain of
presenting
unreliability
suppression
regarding
hearing
that the
Finally,
identification.
he contends
him from
improperly precluded
introducing
court
trial
reject
We
Dysart’s testimony
subject
on that
at trial.
unnecessary
it
merits,
claim on the
we find
the first
claim, and we conclude that the third
reach the second
review.
preserved
appellate
was not
for
claim
*8
necessary
facts are
to our
following
The
additional
notified the
claims. The defendant
resolution of these
present
the
that he intended to
court and the state
psychol-
testimony Dysart,
professor
an associate
and an
Jay
of Criminal Justice
College
at the John
ogy
By
eyewitness
identifications.
expert on the issue
Dysart
that,
opinion,
in her
way
proffer,
of a
testified
resulting
an undue risk of misidentification
there is
in the
procedure if, as occurred
from the identification
the
are shown
present
(1)
photographs
case:
simultaneously
sequentially;
than
(2)
witness
rather
may
perpetrator
that the
advising
after
the
police
array,
be in the photographic
or
not
does not contain
the witness with a form that
provide
array
may indicate that the
a line on which the witness
do
perpetrator;
police
(3)
does not include
procedure,
identification
not use a “double-blind”
procedure
person administering
in which the
is, one
Dysart
identity
suspect.
also
not know the
does
perpe-
testify
(1)
intended to
that:
explained that she
ability
impair the
of a
disguise
of a
can
trator’s use
(disguise
an
identification
witness to make
accurate
of “unconscious trans-
principle
under the
effect);6 (2)
likely
identify ference,”
person
a witness is more
person
if that
looks familiar to the
perpetrator
as the
witness;
perpetrator’s
a witness tends to focus on the
(3)
thereby
weapon
perpetrator,
reducing
instead of on the
of an
(weapons
the likelihood
accurate identification
little
correlation between
effect); (4)
focus
there is
or no
reliability
of an identification and the witness’ confi-
identification;
dence in the
a witness who is under
(5)
while
observing
stress
commission of the crime is
likely
less
to make an accurate identification of the
perpetrator;
(6) witness
collaboration
can
adversely
affect the
of an identification. The
objected Dysart’s proffered
state
testimony, claiming,
alia,
inter
that it was
in light
inadmissible
of this court’s
determination in
v. Kemp,
199 Conn.
476-77,
McClendon,
and State
The trial court with the state agreed as to certain testimony,7 but that, concluded “out of an abundance Dysart of caution,” testify could on the issues of the *9 presentation simultaneous of photographs, police instructions to the witness, double-blind administration of the identification procedure theory and the of uncon- 6Crimley wearing proffer, testified that the shooter had been a hat. In her Dysart opined trigger disguise that a hat could the effect. Kemp McClendon, precluded Dysart In reliance on the trial court testifying adversely from that the of the identification can be stress, collaboration, perpetrator’s affected witness witness the use of disguise perpetrator’s weapon, and the use of a and that the witness’ accuracy confidence in the of the identification bears little or no relation accuracy support ruling, to the of the identification. In of its the court explained unnecessary that such was because it was “within the experience.” realm of . . . common . . . sense and that it emphasized trial court transference. The
scious hearing at the limiting ruling was its the court is both suppress, “where the motion to issues,” legal . . . ruler on the fact and the the finder of defendant seek to open should the and left the issue testimony at trial. Dysart’s introduce suppression at the hear- Dysart testified Thereafter, array photographic that a simultaneous ing using to the witnesses photographs displaying instead of they compare that would created the risk sequentially indi- photograph and choose photographs perpetrator. like the She testi- vidual who looked most that, has shown when fied that research and the witness displayed one at a time photographs are many will be dis- photographs not know how does decrease the occurrence played, there is dramatic of false identifications.
Dysart testified that studies have demonstrated also perpetrator that the when a witness has been told that, array, the num- may may photographic or not be in the that, decreases. She testified ber of false identifications Crimley Caple had present case, in the both them that it was no advising received written forms identify people innocent as to important less to clear array persons in the photographic guilty, “may exactly they as did on the date of the not look hair can features like facial or head incident, because person you may may saw or not change,” that “[t]he police will photographs,” be in these “[t]he incident, you whether iden- continue to this investigate The forms tify (Emphasis original.) someone or not.” “I a line understand the instruc- stating: also contained and have identi- tions, [photographs], have viewed the _.” Dysart’s opinion, the latter fied [number] because preceding nullified the instructions statement option stating it did not allow the witnesses array. was not in the perpetrator’s photograph *10 that has shown research also Dysart, According when the of misidentification reduced risk there is a array procedure photographic person administering when is, that identity suspect, of the know the does not person When the is “double-blind.” procedure suspect’s iden- knows the procedure administering unintentionally, intentionally or that, risk tity, there is a feedback provide will influence or person that witness. identifying theory of under the Dysart explained that,
Finally, likely to witness is more transference, a unconscious person if that perpetrator as the misidentify person that She further testified to the witness. looks familiar wit- likely when the transference is more unconscious photographic with a simultaneous presented ness is array. On cross-examina- sequential with a array than the theories about tion, Dysart acknowledged terms and general were cast in she had testified which say they whether invalidated could not that she case. particular in this identifications at issue at testimony, Coppola testified Dysart’s Following mur- that, day on the after the suppression hearing the defendant anonymous tip an der, he received Thereafter, he created and killed the victim. had shot array photograph containing a photographic photo- All eight his schoolmates. defendant and seven of school high the defendant’s were taken from graphs persons array, including in the yearbook, eight and all black ties shirts, white defendant, wearing were that, showing after Vasquez testified jackets. and suit it array Caple showing and before the photographic photograph he had moved the defendant’s Crimley, row of position in the bottom from the number seven top row. position four array to the number portion Dysart’s considering After pur- admissible for had found to be previously that it *11 poses suppress, of the motion to the trial court con- procedures cluded that the identification were not unnecessarily suggestive because there was “a total lack of credible evidence to make the theories of simul- taneous relative showing, judgment process, instruc- bias, tional administration, [double-blind] unconscious transference anything more than theoreti- cal or unrealized biases in this In support case.” of this conclusion, the trial court found that: the individual photographs photographic array were “remark- ably and, identical” to each other therefore, it was improbable that both witnesses had chosen the defen- by dant comparing his photograph others; uncon- scious transference was unlikely Caple because had known the defendant for years three and one-half had attended high persons school with the other in the photographic array; both witnesses had had a “good hard look” at the defendant at the time of the shooting; both witnesses had been observers rather than victims and, therefore, were stress; not under undue and both witnesses had identified the defendant as the shooter confidently, promptly and without hesitation after hav- ing been told that the shooter’s photograph might not array. be in the In addition, Crimley and Caple had given their days statements within four of the when shooting, their memories still were fresh. The trial court further found that the they witnesses’ had been pick coached to the defendant’s was photograph not credible tape and that the recordings of their statements did not reveal any the existence of pressure or threats police. The court further that, concluded even if procedures the identification had been unnecessarily suggestive, the identifications nonetheless were reliable under the totality of these circumstances.
A We first address the defendant’s challenge to the trial court’s denial of his suppress motion to admitted the evidence basis of on the identifications the defendant Specifically, hearing. suppression at the was unneces- procedure identification that the claims a simultane- police used because the sarily suggestive procedure the identification array, photographic ous from photographs double-blind, the use not was risk increased the yearbook school high the defendant’s *12 form and the instruction transference of unconscious array inadequately photographic accompanying they obligated were not the witnesses instructed contends He further photographs. choose one because was not reliable evidence that the identification brief, was the defendant observation of witnesses’ each conflicted with were descriptions general their after made the identifications and the witnesses other, defendant Accordingly, had faded. their memories his improperly denied the trial court contends We con- identification evidence. suppress the motion to the motion to denied properly the court clude that suppress. , our principles guide with the begin legal
We
[eyewitness] identifi
requires that
process
review. “Due
only they
if
are rehable
at
[may be admitted
cations
trial]
unnecessarily suggestive
product
not the
and are
Kemp, supra, 199
Conn.
State v.
police procedures.”
linchpin
determining
“reliability is the
478. Because
testimony”; Manson
admissibility
identification
L. Ed.
Brathwaite,
2243,
97 S. Ct.
53
432 U.S.
v.
to make
developed
has
part
a two
test
2d 140 (1977);
address
recent case to
In our most
that determination.
Marquez,
122, 141-42,
Conn.
State
issue,
this
237, 175
895, 130 S. Ct.
denied, 558 U.S.
56,
A.2d
cert.
with
we noted the “consensus
L. Ed. 2d 163 (2009),
framework
analytical
overah
[following]
regard
‘In
this sort:
a claim of
considering
to be used
violate
procedures
whether identification
determining
inquiry
required
process rights,
due
a defendant’s
is made on an ad hoc basis and is two-pronged: first,
it must be determined whether the
proce
identification
unnecessarily
dure was
suggestive;
second,
it is
if
so,
to have been
it must be determined whether
found
the identification was nevertheless reliable based on
totality
examination of the
of the circumstances.’
. . .
v. Theriault,
Conn. 366, 371-72,
Therefore,
question
critical
...
is what
“[t]he
makes a particular
procedure
identification
‘suggestive’
require
to
enough
proceed
the court to
to the second
prong
reliability
and to consider the overall
of the identi-
fication.” Id. In deciding
question,
that
we
stated
Marquez that “the entire procedure, viewed in
light
the factual circumstances of the
.
individual case .
.
must be examined
particular
to determine if a
identifica-
tion
by unnecessary
is tainted
suggestiveness. The indi-
vidual components
procedure
of a
cannot be examined
piecemeal
placed
but must be
in their broader context
procedure
ascertain whether the
is so
suggestive
it requires the court to
consider the
of the
identification
itself
order to determine whether
it
origi
(Emphasis
ultimately
suppressed.”
should be
the court
determination,
146. In
this
Id.,
making
nal.)
first
concerns
“The
factor
focus
two factors.
should
In this
array itself.
composition
photographic
of the
photographs
whether
analyzed
have
courts
regard,
as to
in such manner
displayed
used were selected or
police
the individual whom the
emphasize or highlight
factor,
suspect.”
142-43. “The second
Id.,
is the
believe
broader,
conceptually
is related to the first but
which
law enforce
the court
examine the actions of
requires
whether
the witness’
personnel
to determine
ment
police
suspect
was
to a
because
attention
directed
[factor,
...
this
the court
considering
conduct.
of the
look to the
of the circumstances
should]
effects
whether
enforcement
identification, not
law
pretrial
It
...
prejudice
intended to
defendant.
officers
police
administering
reason
officers
stands to
poten
procedure have the
photographic identification
process by
atten
drawing
tial to taint the
the witness’
This
occur either
particular suspect.
tion to a
could
array
through
or
through the construction
itself
provided
(Cita
or verbal
an officer.”
physical
cues
emphasis
marks
omitted;
added;
quotation
tion
internal
Id.,
of a
officer to
police
143-44. The failure
omitted.)
provide
warning
“an affirmative
witnesses that
may may
choices in
perpetrator
or
not be
among
procedure”
the identification
is one circumstance
may increase
likelihood of a mistaken identification.
Conn.
A simultaneous is not unnecessar- photographic per even if not admin- ily suggestive se, however, it was See State v. procedure. in a istered double-blind Marquez, supra, unnecessarily (“to Conn. 143 be array photographs high- must suggestive, variations point affects light defendant that it [the] [the] [the] id., procedure witness’ selection”); (“[a] is unfair suggests which in advance of identification the wit- identity ness the person suspected by of the police” quotation marks omitted]); see also State [internal Ledbetter, supra, 275 Conn. (“the trial courts should continue to determine whether individual identification procedures are unnecessarily suggestive on the basis totality of the circumstances surrounding the procedure, rather than replacing inquiry per with a se rule”).
Finally, we note that a challenge to a trial court’s
conclusion regarding
pretrial
whether the
identification
procedure
unnecessarily
was
suggestive presents a
question
mixed
of law and fact.
State Marquez, supra,
We therefore first consider whether the trial court present properly case found that the identification procedure was not unnecessarily suggestive. We con- clude that the trial court’s finding that the simultaneous array photographic emphasize did not or highlight defendant as the person police believed to be the suspect clearly was not erroneous. Our review of array satisfies us that the trial accurately court described the eight photographs “remarkably as identi- cal . . . .” All of the individuals in the photographs appear to be approximately the same age, appear to be *15 hairstyles are wearing have race, similar the same shirts, black bow ties black clothing similar —white are the the same jackets. addition, photographs all of points defendant out the Although size and format. in which the individual only is one two
his photograph not note that this feature was mustache, has a small we in preidentification the their mentioned witnesses not police. Indeed, the the record does statements to had mustache at the reveal the whether defendant conclude, therefore, that the time of the murder. We have concluded that this reasonably trial court could the in did not defen- photograph highlight feature the Marquez, supra, (proce- 291 Conn. dant. See State in unnecessarily dure is when “variations suggestive . defendant to array highlight . . photographs [the] point selection”). that it affects witness’ [the] [the] persuaded by argu- We also are not the defendant’s all taken from photographs, ment that the use of similar yearbook, necessarily high the defendant’s school risk of transference. Under increased the unconscious theory transference, the a witness is of unconscious likely misidentify perpetra- more an individual as the if or if tor the witness has seen individual before case, present Caple looks In the individual familiar. in the presumably photo- had seen all of the individuals he array high before because attended school graphic it Thus, with them. is reasonable to conclude that array in the persons photographic of other inclusion not reduced, who were familiar witness risk of unconscious transference. increased, Crimley, With there was evi- respect conflicting knew before dence as to whether she the defendant evidence, however, had the murder. There was she familiarity with individuals some some other had Crimley recog- testified that she photographs. photographs nized from many of individuals and from neighborhood having them her having seen *16 yearbook Caple’s high school, looked at a from from which photographs had been taken. Accordingly, say required we the trial was cannot that court to find Crimley’s that selection of the defendant’s photograph product was the of unconscious transference.
To the that the extent defendant contends that the inclusion of similar individuals in photographic array Crimley the chances Caple increased that and is, would in relative that engage judgment, they that person closely would select the who most resembled explained the shooter, why the defendant has not inclusion of similar individuals would increase this risk id., rather than it. See (procedure reduce is unneces- sarily array when suggestive photo- “variations . . . graphs point defendant to highlight that [the] [the] it affects witness’ [emphasis selection” added]). [the] We that the risk will recognize that witness use relative inherent in of judgment be the use a simultaneous array. As photographic previously we have indicated herein, however, recently we have reaffirmed that that array unnecessarily fact does not render the suggestive per se. id., See 156.
We also conclude that the trial court reasonably found that failure of police to use a double- blind procedure unnecessarily was not suggestive. In making determination, this the trial court required was to consider conflicting testimony by Crimley and Caple, on the hand, Coppola one and Vasquez, and on the Crimley other. Both Caple they and testified had been pressured Coppola and Vasquez influenced and to identify the as In defendant the shooter. contrast, Coppola Vasquez and testified that both witnesses had identified the defendant as the shooter without hesita- tion they pressured and that had not or influenced either witness. The trial court found that the of Crimley Caple and was not credible and that the defen- produce dant any had failed to credible other evidence Crirnley and Vasquez had influenced Coppola any way. Caple hear- transcripts suppression review the
Our Caple Crirnley and ing reveals that addition, both witnesses inconsistent. vague was as state’s witnesses expressed testifying fear about tape nothing in the reluctantly. Finally, did so police witnesses’ statements recordings these had been the statements supports finding *17 we that the trial court conclude Accordingly, coerced. police reasonably their that the discredited identify and influenced them to the pressured had Lawrence, shooter. See as defendant the well (“[i]t Conn. 920 A.2d estab- (2007) court, the of the trial province lished that is within [i]t flnder, weigh as fact to the evidence sitting when the credibility effect presented and determine the to quotation be the evidence” marks omit- given [internal Coppola’s Vasquez’ unequivocal light of ted]). they pressured that had not or influenced any way, any the witnesses in and in the of absence contrary, we conclude that the credible evidence police not finding pressured court’s the had or clearly the witnesses not influenced was erroneous. Furthermore, the court say we cannot trial was the police bound to conclude that failure of the use procedure, more, double-blind without rendered the procedure unnecessarily suggestive.
Finally, we reasonably conclude that the trial court accompanying determined that the instruction form the array did photographic also not render the identification procedure unnecessarily The form suggestive. perpetrator instructed the witnesses that the or might array not be in the and that the might photographic police would continue to the crime investigate “whether or Although someone not.” [the witnesses] identified] the form that the statement “I portion the contained [photo- viewed the instructions,
understand the have graphs], [number]_,” and have identified did not con- tain a the comparable statement witness could choose if the perpetrator the witness determined that array, was not in we have no basis conclude that necessarily this omission would cause witness who expressly perpetrator had been instructed that might array or not be in might conclude that perpetrator array. must be in Accordingly, we unnecessarily conclude that form was not sug- gestive.8
In light of our determination that trial court prop- erly found that none of the components the identifica- procedure tion unnecessarily were suggestive, we must further conclude that the trial properly court found that procedure, identification considered its entirety, unnecessarily was not suggestive. Because this conclu- sion the reliability establishes pro- the identification cedure for purposes process the defendant’s due claim, the court properly trial denied the defendant’s *18 motion to suppress the State Mar- See v. identifications.
quez, Conn. supra, 291 168 (concluding that, because trial court had abused its when it discretion determined procedure identification as whole was unnecessar- ily suggestive, process inquiry due was satisfied).
B
The
also
defendant
trial
challenges the
court’s denial
of
suppress
his motion
the
identifications
8Undoubtedly,
preferable
police
it
be
would
for the
to use a form con
taining
photograph
the
line on which
witness
the
indicate that
of the
perpetrator
appear
array. Additionally,
previously
does
in
not
we
have
utilizing
taken note of the “theoretical and
value of
commonsense
a blind
Marquez, supra,
practical.”
State administrator whenever
First and our conclusion properly this that the court found that the opinion trial procedure unnecessarily not sugges- identification was dispositive process tive is the defendant’s due claim. is no to reach the law, Under well settled there need part inquiry once defen- two-pronged second dant has failed to meet the first See Manson prong.9 supra, inquiry U.S. 107 first Brathwaite, (“[T]he [is] *19 impermissibly police suggestive whether the used an ... procedure so, . the second [identification] If 9 propriety acknowledges The of this framework in his defendant analysis process claim, stating that must his due the court “determine reliability it has been tobe unneces of the identification once determined sarily suggestive (Emphasis added.) . . .” . 56 all
inquiry whether, under the circumstances procedure rise to a substantial likeli suggestive gave irreparable [Emphasis hood of misidentification.” Mitchell, see also State v. 204 added.]); Conn. 1168, denied, 484 S. 927, 108 293,
527 A.2d
cert.
U.S.
Ct.
State
L.
2d 252 (1987)
approach);
98 Ed.
same
(stating
Hinton,
v.
196
289, 292-93,
Conn.
57
by vir-
purely
in
academic
fore, was,
essence, rendered
determination that
tue
trial court’s reasonable
unduly
procedure
suggestive.
was not
the identification
prepared
if
to deviate from
even we were
Second,
framework, the nature of the excluded
this established
the
case makes
present
in
facts of
light
to reconsider
appropriate
it
it is not an
case
clear that
in
the law. That
jurisprudence
this area of
evolving
court’s failure
is
of whether the trial
because, regardless
testimony constituted an
to entertain the excluded
particular
under the
circumstances
abuse of discretion
possible
flowed from that decision.
case,
of this
no
harm
A.2d
485,
Conn.
1101
DeJesus,
466,
See State
in
to exclusion of
(stating
challenge
context
(2002)
that,
witness
the current
“[ujnder
defendant’s
Connecticut,
of the law in
long-standing state
improper
the harmfulness of an
prove
burden to
[non-
evidentiary
is borne
the defen-
ruling
constitutional]
quotation marks
State v.
omitted]);
dant” [internal
Conn.
We are aware of concerns raised juris- defendant the amicus regarding evolving prudence regarding admissibility testi- mony eyewitness on the identifications. twenty-five This court first issue nearly addressed that Kemp, supra, State years ago. Conn. this court determined trial properly pre- that the court had expert testimony impeach cluded at trial to the reliabil- ity eyewitnesses who had identified the defendant reliability of eye- that “the reasoning perpetrator, as the jurors knowledge is within witness identification assist would not them and expert generally . . question . testi- determining [s]uch [and that] ... it invades the mony . . . because disfavored or jury weight what effect province of the to determine testimony.” (Citation give it wishes to This court quotation omitted.) internal marks omitted; McClendon, supra, reaffirmed that view in State Conn. 572.10 point that, amicus out since
The defendant and the
more extensive studies
McClendon, there have been
*22
indicate,
evidence, which
on the issue of identification
memory
eyewitness
is more malleable
alia,
inter
that:
been
susceptible
generally
and
to error than
has
real-
adversely
many
factors can
affect the
ized; and
different
reliability
eyewitness
and the
identifications,
average
of
of
factors or does
person either is not aware
those
a
they play
the
to which
role in
appreciate
not
extent
The
accuracy
of identifications.
defen-
undermining
that
dant and the amicus contend
these studies show
proffered
testimony
experts’
in those cases
not
We note that the
was
present
substantially
Dysart’sprecluded
in the
different than
case.
jury
expert
Kemp
prepared
explain
“(1)
to
The
witness
was
that:
by weapon,
stress,
involving
particularly
during
a
stress
an incident
violence
memory
identification; (2)
is not a
decrease the
accurately
recording
change
which
an
does not
device
records
event and
by
time;
process
post-event
(3)
over
is affected
information
identification
by witness;
certainty
person
(4)
of
a
learned
a
and the level
demonstrated
quotation
accuracy.” (Internal
corresponding
level of
does not reflect
Kemp, supra,
McClendon,
omitted.)
marks
This sea change
persuaded
has
jus-
the concurring
tices in
present
case that it is appropriate in the
present case
Kemp
to overrule
McClendon,
despite
the fact that
any
the effect of
such ruling would be
present
academic in the
case. In addition to the reasons
we previously have
*23
forth,
set
however, we have more
fundamental concerns
why
as to
it is
appropriate
not
to reach this
present
issue in the
First,
case.
McClendon
Kemp
both involved the trial court’s exclusion of
expert testimony
jury,
the
not
proffered
evidence
before
for the trial court’s consideration at a suppression hear-
ing. State v. McClendon, supra,
61
question
process
the due
required only to determine
is
lacking
axe so
whether the
identifications
of
See State Ram
reliability as to be inadmissible.
in
exclusion
sundar,
(“[t]he
204
Second, expert testimony use of calls proper the this question by the test set forth the into the soundness of in Neil Biggers, Supreme United States Court L. which 2d 401 (1972), U.S. S. Ct. Ed. can trial courts determine whether an identification despite unnecessary finding deemed rehable be Biggers test, the trial court suggestiveness. Under ‘totality under circum- considers “whether reliable .... fac- stances’ identification was [T]he be the likelihood evaluating tors to considered include of the witness opportunity misidentification crime, witness’ to view the at time of the criminal accuracy prior of the witness’ degree attention, *24 description criminal, certainty demon- the level by at and the confrontation, strated the witness length time between the crime and the confronta- self-evident, tion.” As Id., 199-200. is several of these considerations relate to the that assumptions the stud- ies question. Therefore, have called into the studies necessarily question raise the whether as to this frame- work continues to have merit. State v. See, e.g., Dubose, 143, 163-66, 285 Wis. 2d 699 N.W.2d (2005) (con- that, light reliability cluding studies that undermine Diggers Manson, factors under examined and court no analyze longer would after prong determining unnecessarily that show-up procedure was suggestive only would procedure consider whether was neces- see State v. sary); Ledbetter, supra, also 275 Conn. 564-69 studies relied on defendant that criti- (noting Biggers cize factors fact that other states had aban- constitutions, doned test under their state but declining under constitution). abandon test our These serious concerns to be when need considered determining properly whether the on this issue presented can be in suppression court hearing. we Therefore, open Kemp while are to reconsidering case, in an appropriate present McClendon case, question which purely academic to the legal outcome and arises than different context those cases, is not such a case. v. Samuels, See State Conn. A.2d 1005 (2005) (rejecting state’s argument, literature, based academic that this court should adopt constancy different accusation rule child; when victim is issue was not relevant court’s determination of narrower before it issue as whether reports based on postcomplaint victim constancy had made to witnesses should be admitted evidence). into
C We next address defendant’s claim the trial improperly court barred him adducing from that same *25 to review this claim trial. We decline testimony at preserved. it was not because are to our additional facts relevant
The following noted, have when the of claim. As we resolution this cer- it would not allow ruling issued its that trial court hear- Dysart’s testimony suppression at the parts tain only applied it clear its ruling the court made that ing, Thereafter, trial, the defendant made hearing.11 to at Dysart provide to permitted be requesting motion factors to the pertaining the four concerning procedures identifications testify to Dysart which trial court had allowed about the suppression hearing. granted at The trial court the the With five fac- respect motion. other defendant’s Dysart’s precluded about which the trial court testi- tors however, mony suppression hearing, at Dysart request renewed his be defendant never respect factors. permitted testify to at trial with to those Dysart as a did not call trial fact, defendant all. not seek a witness at Because defendant did Dysart permitted to as to whether would be tes- ruling tify at trial, about the five additional factors court and, consequently, issue there is did not address that for admissibility no on the of those factors this ruling to review. It is axiomatic that the defendant is court unpreserved to appellate not entitled review this See, King, claim. 289 Conn. e.g., not to review (defendant A.2d 731 entitled (2008) unpreserved claim); nonconstitutional see also Practice 60-5 “shall be bound to (appellate Book court not § record, it The trial court stated that it wanted “to make clear for the admissibility ruling respect topics whatever court here with or [the is] only suppress respect . ... is . . with to the motion where court legal . . . the finder of and the ruler on the issues.” The court both fact “Obviously, arguments stated: there . . . some that need further be repeated, if But not be and when that is offered at trial. [the point only just ruling the record to be clear that at this is] court] want[s] [it admissibility, hearing as before [it].” distinctly claim was at consider a unless it raised trial”).
Moreover, it is reasonable to conclude that the defen Dysart dant’s not as a witness decision to call trial was *26 predicated a one tactical on the concern that to do so Crimley detract from the claim might defendant’s that and had a Caple good not made faith but mistaken identification of the defendant as the but, shooter rather, police had been the coerced into identifying procedure the “Our of defendant. rules do not allow a pursue to at defendant one course of action trial and later, appeal, argue path rejected on that a he should now to him. . open [Moreover, appellant be . . can an] not a appellate create reviewable claim because his disagrees counsel with the of strategy his trial counsel.” quotation (Internal marks omitted.) Reynolds, 264 Conn. 611 denied, A.2d cert. (2003), U.S. 124 S. Ct. 158 L. Ed. (2004). 2d 254 support of his claim he that should not be denied appellate claim, review of his the defendant maintains reasonably that, that he believed when trial the court Dysart’s testimony ruled on admissibility pur- of for poses suppression hearing, the court intended for to ruling controlling that be at trial. The defendant points to the facts repeatedly that the trial court referred jury in its ruling suppression at the and hearing12 that that, may the trial court stated “there . . . be some that arguments need not if when repeated, be that testimony is offered at trial.” We The record disagree. indicates the trial jury court’s references to the “juries example, general For the trial that: court stated are not without a understanding principles”; jury opportunity of these must have “[t]he credibility presented to assess the witness’ on basis of what is ... at trial”; beyond something scope . “unconscious transference . . be knowledge average juror”; of of an and “the of [identification testimony by collaborating something jury analyze that a can witnesses] experience on basis common and common [the] sense.” law from the court’s reliance case ruling its resulted an admissibility testimony, concerning admissibility such issue that involves the generally jury Moreover, at a trial. court’s clear be to unequivocal willing statement that it would reconsider if the were make such ruling its defendant footnote 11 of this request trial; in advance see opinion; parties reflects that its statement required to all of their repeat arguments would not be request Dysart if the defendant was renew his call first, simply indicated, as a trial that the witness at second, need to defendant did not make identical second, offer of a full on the proof, hearing might necessary. issue not be any
To the asserts that such extent that defendant *27 futile the renewed motion would have been because already trial had how it would rule on court indicated also The fact that trial request, disagree. the we the its to the expressly ruling court limited initial admissibil- ity testimony the at the suppression hearing reflects the recognition the court’s the difference between we have suppression explained trial. As hearing IB at part opinion, suppression hearing, of this only process rule on the due required court was to question identifications were of whether inadmissible; trial, as be at so to lacking weight to what to jury required give was decide determination the identifications. Because the former proffered expert likely dependent upon is less to be determination, might the latter the court than permit despite at trial have decided to purposes suppression its refusal so for to do we hearing. any event, presume will not that it would have been futile for the to have renewed his defendant motion in view of the fact that the trial suppress to essentially invited the to do court defendant so. Accord- reject we this claim. ingly,
II We next address the defendant’s claim that the trial court improperly failed to disclose all relevant materials Crimley’s contained in psychiatric records, which the trial corut had reviewed in camera. disagree. We
The following procedural additional facts and history are relevant to this claim. suppression At the hearing, defendant filed motion for an in camera review Crimley’s psychiatric records for the purpose of whether the determining any records contained infor- mation probative Crimley’s that would be capacity to observe, recollect and relate the events surrounding the murder. The trial court granted the motion and, upon reviewing records, determined that several Crimley’s documents relating intellectual status argu- ably impeachment were relevant for purposes. The court marked those documents as a court exhibit and disclosed them defendant, after the state had Crimley’s obtained consent to do so. The court also determined that the remainder of the documents were Crimley’s not relevant competence testify they ordered that be preserved sealed and appel- for late review.
We with the begin applicable standard of review. *28 52-146e spreads § a veil of secrecy “[General Statutes] over communications and records to the relating diag- nosis or patient’s treatment of a mental condition. With exceptions certain not pertinent present to the discus- sion, the provides statute that person may no disclose any or transmit communications and records ... to any person, corporation or governmental agency with- out the patient consent of the or repre- his authorized sentative. Statutes 52-146e The (a)]. § broad [General sweep of only the statute covers not disclosure to a counsel, defendant or his but also disclosure to a court of an examina- purpose the limited camera even for . . . tion. to right has a constitutional
“A criminal defendant
may
which
witnesses, however,
cross-examine state
by attempting
discrediting them
impeaching
include
or
biases, prejudices
jury
to the
the witnesses’
to reveal
the witnesses’
bearing
or facts
motives,
or ulterior
.
.
.
perception.
credibility, or sense
reliability,
privilege
instances,
patient’s psychiatric
Thus,
some
way to
defendant’s constitutional
give
must
a criminal
about
mental
jury
reveal to
facts
a witness’
the
right
credi-
may reasonably
affect that witness’
condition
bility. . . . The
of cross-examination
right
defendant’s
impeach
him to discredit and
not, however,
does
allow
defense
way,
extent,
whatever
to whatever
.
.
trial
wish.
. We have therefore directed
might
specific procedure designed
engage
courts to
in a
tension.
. . .
accommodate this inherent
Esposito,
“In Conn.
471 A.2d
[192
following procedure
we set
for
forth
(1984)],
If
.
claimed
of confidential records.
. .
disclosure
must be a
impeaching
privileged
information is
there
ground
reasonable
to believe that
showing
there is
produce
likely
impair
the failure to
the information is
the defendant’s
of confrontation such
right
be
such
Upon
witness’ direct
should
stricken.
oppor-
afford
an
the court
then
the state
showing
tunity to secure the consent of the witness for the court
inspection
an in
claimed infor-
to conduct
camera
and, if
to turn over
defendant
necessary,
mation
any
purposes
of cross-exami-
relevant material for
If the
does make
showing
nation.
defendant
such
may be
is
then the court
forthcoming
such consent
not
testimony of
If the
to strike
the witness.
obliged
inspection
limited
in camera
and such
consent is
to an
not
in the
of the trial
does
inspection,
opinion
judge,
then the
record
disclose relevant material
resealed
*29
inspection
appellate
to be made available for
review.
If
inspection
the in camera
does reveal relevant material
opportunity
then the witness should be
an
given
decide whether to consent to release of such material to
the defendant or to
face
her
stricken in
having
the event of refusal. Id., 179-80.” (Citations omitted;
quotation
internal
marks
State v.
omitted.)
Kemah, 289
Conn. 411, 424-26,
Our in camera review of Crimley’s psychiatric records satisfies us that the trial court did not abuse its discre- tion in concluding that the records that it did not dis- close to the defendant either were not relevant Crimley’s capacity to observe, recollect or narrate the events surrounding the murder or were cumulative of the records that the court disclosed to the defendant. reject we Accordingly, this claim.
Ill We next address the defendant’s claims that the trial court improperly denied the defendant’s motion for a mistrial on the ground that the purportedly state vio- lated sequestration the trial court’s order. The defen- dant also contends that the improperly court denied his motion to strike the of the state’s witness who violated that order. We disagree with these claims.
The following procedural additional facts and history are necessary to our resolution of this claim. At the beginning suppression the state hearing, moved for “sequestration of all witnesses during sup- pression hearing and the trial . . . .” during The trial *30 to Practice Book pursuant the motion granted court Shortly thereafter, brought the defendant 42-36.13 § a motion for that he also had filed the court’s attention then stated: The trial court sequestration of witnesses.14 No direct or the motion is ways, granted. “It cuts both witnesses.” any between indirect communication to raise that he intended trial, At the defendant stated made defense. The defendant party culpability a third acquain- that an proof in which he indicated an offer testify that Darrell his, Outlaw, tance of Shaniah would had shot the victim. Mayes had admitted to her that he acquaintance that an addition, the defendant asserted testify Caple that had Ricky Freeman, would Caple, Mayes and him on the of the murder that night told murder. Mayberry responsible were for the Lawrence Vasquez as a Thereafter, the state called Detective that cross-examination, Vasquez witness. On testified Mayes Mayberry that he had received information had written had been involved the murder and that he February report about the information on 2006. examination, Vasquez On redirect testified that he had received the information from Freeman. On recross- examination, Vasquez investigation testified that only respect into the murder was but with ongoing, Crimley an had person unidentified whom seen with the defendant at the time of the murder. day
On the next the defendant filed a motion trial, Vasquez’ testimony. for a mistrial and a motion to strike Counsel for the defendant stated that she had learned Vasquez had interviewed Outlaw after the court judicial authority provides: upon § Practice Book 42-36 “The motion of authority any prosecuting or of the defendant shall cause witness to be any sequestered during hearing any during part issue or motion or testifying.” of the trial which such witness is not provided entirety: The defendant’s motion in its “Pursuant to Practice 42-36], captioned § Book now the defendant the above matter [§ sequester moves all witnesses.” this [c]ourt Vasquez order and before had sequestration granted Vasquez had Defense counsel claimed testified. thereby sequestration order and that his violated the Vasquez because prejudiced conduct had the defendant testify and because his had Outlaw not encouraged testimony. shaped Vazquez’ interview of Outlaw had Vasquez had Specifically, argued defense counsel *31 of the murder ongoing investigation testified that the only person accompanied who had related day murder, Vasquez defendant on the when Mayes knew from interview of Outlaw that had his admitted to the shooter. being response, attorney the assistant state’s that argued
Vasquez testimony, had not mentioned Outlaw in his Vasquez shaped that there was evidence that had no with his as a result of his interview Outlaw and that there was no evidence that he had encouraged testify. In fact, argued, Outlaw not to the state Outlaw Vasquez had denied to that she had ever stated that someone other than the defendant had been involved comply in the murder and she had refused to with a subpoena Vasquez interviewed her. Moreover, before Vasquez prepared report had a written of his interview provided promptly of Outlaw and had it defendant.
The trial court denied the defendant’s motion for a Vasquez’ testimony. mistrial and strike his motion to sequestration The court that stated order here “[t]he means that there should be no contact between wit- they present nesses and should not be in the courtroom. Sequestration preclude prosecution does not from potential any to a more than it talking witness, does the defendant.” The trial court also noted that Outlaw yet any had not testified as a witness and that contact Vasquez explored testimony. with could be her during Finally, any that claim that Outlaw had court stated Vasquez had inter- uncooperative become because speculation.” “rank viewed her was Mayes Outlaw testified at trial that she had overheard victim. denied that that he had shot the Outlaw stating anyone never Vasquez she had told that she had told Mayes Thereafter, that had admitted the shooter. being Vasquez contradicted Outlaw when he testified on rebuttal that Outlaw had told him that she had never anyone Mayes told admitted the victim. The killing requested present then he be allowed to defendant testimony by in the form evidence, surrebuttal Out- mother, present during Vasquez’ law’s who had been Outlaw, Vasquez interview of that Outlaw had told Mayes she had overheard that he had shot admitting objected the victim. The state to the admission of this testimony, objection. and the trial court sustained the appeal,
On the defendant claims that the trial court improperly denied his motion for a mistrial and his *32 Vasquez’ testimony Vasquez motion to strike because by had violated sequestration interviewing order impro- Freeman and Outlaw. He further claims that the priety Vasquez was harmful because had tailored his testimony testimony. rebuttal to Outlaw’s The state responds Vasquez that the defendant’s claims that vio- sequestration by lated the order interviewing Freeman Vasquez’ and that rebuttal was tailored to the statements that Outlaw made the interview during are not reviewable because the defendant did not raise them at trial. Vasquez The state further contends that sequestration by did not violate the order interviewing yet Outlaw because Outlaw had not testified at the time of the interview. the state if Finally, that, contends even Vasquez sequestration order, violated the the defendant has prejudice. failed to show
We
with the state that
claim
agree
the defendant’s
Vasquez
sequestration
by
violated the
order
inter-
preserved
Freeman was not
because he failed
viewing
and, therefore,
at
we decline to
to raise the claim trial
King,
See,
60-5;
review it.
Practice Book
e.g.,
§
supra,
respect
We
standard of
review. “The standard for review of an
a
upon
action
motion for a mistrial is well established. While the rem-
edy
permitted
of a mistrial is
under the rules of practice,
only
it is not favored.
mistrial should be
as
granted
[A]
upon
a result of some occurrence
the trial of such a
apparent
character that it is
to the court that because
party
of it a
cannot have a fair trial . . . and the whole
are vitiated.
...
If curative action
proceedings
can
remedy
obviate the prejudice,
the drastic
of a mistrial
appeal,
should be avoided.
... On
we hesitate to dis-
turb decision not to declare mistrial. The trial judge
many
is the arbiter of the
circumstances which
arise
the trial in which his function is to assure
during
just
. . .
a fair and
outcome.
The trial court is better
*33
positioned than we are to evaluate in the first instance
prejudicial
whether a certain occurrence is
to the defen-
remedy
necessary
if
is
and,
so,
dant
what
to cure that
prejudice.
. . . The decision whether to
a mis-
grant
within
of the trial court.”
trial is
the sound discretion
Ortiz,
State v.
quotation
marks
280
(Internal
omitted.)
686, 702,
Conn.
In
Book
42-
§
to Practice
granted pursuant
tration order
statutory interpre
of
principles
we are
36,
guided
Hartford,
Pitchell v.
247 Conn.
See, e.g.,
tation.
statutory
of
construction
(rules
apply practice of is to objective interpreting a rule mental the drafters.” effect to the intent of give ascertain and Assn., Guarco, Inc. v. Dartmoor Condominium interpre “The App. 566, 569, 960 (2008). Conn. A.2d 1076 a of practice presents question rules of tation of the ” Gilbert Beaver plenary. review is law, over which our Stratford, Inc., Dam Assn. App. 663, 671, 85 Conn. 912, 866 denied, A.2d 860 cert. 272 Conn. (2004), A.2d 1283 (2005). 42-36, scope application construing § previously write on a blank slate. This court
we do not
“
seques-
have witnesses
explained
right
has
[t]he
truth-
important
right
tered is an
that facilitates the
.
.
functions of a trial.
.
seeking
fact-finding
Sequestration
purpose.
procedural
serves a broad
It is a
prevent
device that serves to
witnesses from tailoring
testimony
witnesses;
their
to that of earlier
it aids
testimony that is less than candid and assures
detecting
testify
that witnesses
on the basis of their own knowl-
omitted;
quotation
internal
marks
edge.” (Citations
v. Nguyen,
State
253 Conn.
756 A.2d
omitted.)
Falby,
also
(2000);
6, 26-27,
see
187 Conn.
purpose
seques-
74 v. Nguyen, State marks ted; quotation omitted.) internal supra, 650. Brown, A.2d
In State App. 339, v. 33 Conn. 635 861 A.2d 232 Conn. 656 grounds, rev’d on other (1993), that, held when a Appellate Court (1995), pursuant has been to Gen- sequestration granted order of which is sub- 54-85a,15 language eral Statutes § 42-36; Book see stantially identical to Practice § “only was opinion; 13 of this a witness who footnote any present ‘during hearing in the courtroom any part prosecu- or motion or of the trial of such issue he is not would violate the testifying’ tion which Brown, supra, sequestration order.” State 347-48. Appellate concluded that “no Accordingly, Court when a sequestration violation of the order occurred pictures, even if the detective showed a witness some Id., case, a 348. In a later detective was also witness.” of Brown expanded upon holding this court primary objective sequestration that “the of a concluded to Practice Book now pursuant order [granted § undermined, only prospective not when a § 42-36] prior firsthand, witness hears the of a witness effectively through disingenuous strategy but also prospective to a transmitting prior witness’ Nguyen, supra, party.” via a witness third Conn. 651. sequestration
“A violation of a
order does not auto-
matically require a new trial.
. . . The
con-
controlling
prejudiced
sideration is whether the defendant has been
party
. . .
burden rests on the
by the violation.
The
sequestration to show that the violation
requesting the
prejudicial.
prejudice
was
...
If the
from the
resulting
likely
jury’s verdict,
to have affected the
violation is
provides:
any
prosecution,
Statutes 54-85a
“In
criminal
§
General
any
court, upon
defendant,
motion of the state or the
shall cause
witness
any
sequestered
any
part
during
hearing on
issue or motion or
to be
prosecution
testifying.”
in which
is not
the trial of such
he
*35
State
(Citations omitted.)
new trial must be ordered.”16
Robinson,
599,
We conclude
a
when it denied the defendant’s motion for
discretion
Vasquez
that
had violated the
ground
mistrial on the
interviewed Outlaw. As
sequestration
order when he
primary purpose of a
herein,
we have indicated
“pre-
42-36 is to
sequestration
pursuant
order issued
to §
testimony
that
tailoring
vent witnesses
from
their
to
of earlier witnesses
. . . .” (Emphasis added;
internal
Nguyen, supra,
State
v.
quotation
marks
253
omitted.)
Thus,
sequestration
only
Conn. 649.
order is violated
prospective
when a
witness is in the courtroom during
Brown,
see State v.
testimony
witness;
of another
supra,
App. 347-48;
prospective
33 Conn.
or when a
a prior
witness learns of the
witness from
Nguyen, supra,
party.
a third
651. Although
recognize
prospective
we
that discussions between
wit-
prior
testimony may
nesses
to their
allow the witnesses
testimony,
sequestration
to tailor their
order issued
pursuant
necessarily prohibit
to
42-36 does not
such
§
yet
discussions.17 Because Outlaw had not
testified
present
adopt
urges
The defendant in the
case
this court to
a new rule
party
sequestration
under which the burden is on the
who violated the
order
prove
harmless, citing
support
that the violation was
as
United States
Jackson,
128,
denied,
(2d Cir.),
60 F.3d
cert.
516 U.S.
116 S. Ct.
(1995).
IV claim that the Finally, we turn to the defendant’s attorney with wit- improperly argued assistant state’s nesses, credibility commented on the of defense wit- nesses and defense counsel denigrated during closing thereby a fair argument, depriving the defendant of trial.19 we conclude that some of the conduct Although proper conduct, disagree exceeded the bounds we deprived that it the defendant of a fair trial. following
The record reveals the additional facts rele- attorney vant to the conduct the assistant state’s indirectly course, through party. suggest third Of we do not that court sequestration issuing is barred from a broader order if circumstances so require. Vasquez Vasquez acknowledge We interviewed Outlaw after had claim, suppression hearing. testified at the The defendant has made no however, Vasquez’ that Outlaw tailored her to conform to tes timony. attorney engaged The defendant also contends that the state’s assistant prosecutorial impropriety Vasquez in when she instructed to interview Out because, defendant, according law and Freeman that instruction part sequestration light HI violated the order. of our conclusion opinion Vasquez’ this conduct did not constitute a violation of the sequestration order, prosecutorial impropriety this claim of must fail. prosecutorial constituted defendant contends that the Caple, examination impropriety. During redirect attorney following in the engaged state’s assistant exchange: Attorney]: So, your State’s
“[Assistant you told police officers jury this is that those before arms is that true? your twice; say that died [the victim] police them officers. practically I lied to “[Caple]: them, you Now lied to Attorney]: State’s “[Assistant voice broke with emotion your And when . . . okay. your arms you describing dying were as victim] [the . . . twice It with emotion. never broke
“[Caple]: speaks for itself. tape “The Court: The too, Was a lie sir? Attorney]: State’s “[Assistant What emotion It with emotion. “[Caple]: never broke nothing. for you talking get are about? I don’t emotional You Attorney]: don’t? State’s “[Assistant *37 No. “[Caple]: you’re But of me. Attorney]: State’s afraid
“[Assistant you I’m “[Caple]: not afraid neither. me Attorney]: You’re afraid of State’s
“[Assistant and Mr.— you. I’m
“[Caple]: not afraid Kelly Attorney]: State’s [an “[Assistant [Dermis] — attorney’s with state’s investigator office]. you. I’m I’m of him.”
“[Caple]: not afraid of not afraid objected After defense the assistant counsel attorney becoming argumentative, state’s was objection, following trial court sustained the exchange Caple with ensued: Attorney]: you
“[Assistant So, State’s felt threatened you’re me, [the but not afraid of defendant]; isn’t you’re telling that what us?
“[Caple]: nobody. I’m not afraid of Attorney]: you “[Assistant State’s A man that saw kill [the victim] in cold—
“[Caple]:
nobody.”
I didn’t see that man kill
again objected,
Defense counsel
and the trial court
objection.
sustained the
Defense counsel then stated,
going
“I’dlike a curative instruction or I’m
to move for
immediately
a mistrial.” The trial court
instructed the
jury disregard
attorney’s question
the assistant state’s
argumentative
improper.
as
The court then excused
jury
request
at the
of defense counsel, who moved
ground
for a mistrial on the
that the assistant state’s
attorney
jury,
had inflamed the
mischaracterized
Caple’s testimony
effectively
testified that the
defendant had killed the victim. The assistant state’s
attorney
questioning
proper
asserted that the
was
engaged
because she had been
in “cross-examination
of a hostile
. .
witness
.
.” When defense counsel
responded
Caple
never had been declared a hostile
although
pre-
witness, the trial court stated that,
it
viously
ruling
question,
had not made a
on the
it now
Caple
believed that
was a hostile witness.20 The trial
agreed
court then denied the motion for a mistrial, but
give
jury
another curative instruction. When the
again
juiy
returned, the trial court
instructed the
20Traditionally, party
impeach
was not allowed to
his or her own witness
*38
See,
unless the witness
e.g.,
was shown to be hostile or adverse.
State Graham,
(1986).
200 Conn.
During closing argument rebuttal assistant jury, defense counsel’s argument attorney reality “take jury break” state’s asked when Outlaw’s and character- considering “zilch.” counsel credibility ized Outlaw’s as Defense this the trial instructed objected remark, court jury it sole of witness’ credibil- judge that was the you attorney Outlaw: soon as The assistant state’s asked “And so as somebody you confessing shooting], was victim’s [the learned else your trouble, right?” immediately police friend contacted the because was attorney responded, “[n]o,” her: the assistant state’s asked When Outlaw you immediately attorney’s you because the state’s office “And contacted murder, very important right?” information about this had
ity.22 The assistant attorney state’s then “You stated, find, you’d can if . . . like, credibility Outlaw’s is Thereafter, zilch.” she stated that the state’s firearms expert “knows about; what he’s talking he’s been doing it a time.” long her
Throughout rebuttal argument, assistant attorney state’s characterized the defendant’s theories Mayes was the real police shooter and that the Caple had coerced Crimley falsely identify the defendant as “absurd,” “speculation and innuendo and fancy words,” “clever,” “creative,” “desperate,” “weak” mirrors.” Defense counsel did not “[smoke and] object any of these remarks. analysis
We
our
begin
by setting
applicable
forth the
law regarding
prosecutorial
claims of
impropriety. To
prevail on such a claim, the defendant “must establish
prosecutorial
that the
[impropriety] was so serious as
amount to denial of
process
due
....
In evaluat-
ing whether
the [impropriety]
level,
rose to this
we
consider the factors
by
enumerated
this court in State
v. Williams,
“Prosecutorial [impropriety] occur in the course of cross-examination of . . witnesses . and be so clearly inflammatory incapable as to be of correction 22During jury, again its final instructions to the the trial court referred to attorney’s] opinion assistant state’s “[the on the of some of the jury witnesses” disregard and instructed the that it “must that.” ... In such instances there court. by action in the improprieties possibility a reasonable ver- jury’s contributed either cross-examination *40 jury the from foreclosed or, negatively, of guilty dict . . . More- acquittal. of possibility the considering ever pro- of constitutional prosecutorial [impropriety] over, closing course of during arise the portions fairness the fundamental thereby implicating argument, omitted; . . . .” internal (Citations the trial itself of Singh, State v. 259 Conn. omitted.) marks quotation 226 700, (2002). 793 A.2d 693, prosecutorial [impropriety], claims of analyzing
“[I]n process. The two step analytical in a two engage we separate impro- whether steps (1) are and distinct: [an instance; in first whether priety] (2) occurred pro- of [impropriety] deprived a defendant his due differently, right [impropriety] to a fair trial. Put cess ultimate effect on the [impropriety], regardless is of its of whether caused trial; [impropriety] fairness process is separate contributed to a due violation or quotation . . . .” marks and distinct question (Internal Warholic, State v. 278 omitted.) supra, Conn. 361-62. analysis due in cases process touchstone of “[T]he prosecutorial is allegedly] [impropriety] [harmful] trial, culpability the fairness and not the prosecutor’s . . . The issue whether the prosecutor. at so infected with unfairness as to [actions trial] [it] process. make the conviction a denial due resulting ... whether the defendant was denied determining . . prosecutor’s a fair trial . we must view the [actions] quotation in the context of the entire trial.” (Internal Fauci, 32, 282 Conn. 23, marks omitted.) “Just as the remarks must prosecutor’s A.2d 978 (2007). trial, be in the context of the entire once a series gauged must improprieties of serious has been identified we totality improprieties of the determine whether deprived leads to conclusion the defendant was question present trial. . . . Thus, of a fair whether total of prosecutor’s] case is the sum [the improprieties rendered the defendant’s funda- [trial] process. of his mentally unfair, right violation to due . question . . The of whether the defendant has been prejudiced by prosecutorial [impropriety], therefore, on is a depends whether there reasonable likelihood jury’s have that the verdict would been different absent improprieties. Furthermore, the sum total of the . . . a new whether trial or is warranted proceeding depends, part, has whether defense counsel made objection timely any prosecutor’s improper omitted; remarks.”23 internal (Citations quotation marks State Thompson, omitted.) Conn.
A.2d 626 (2003).
“We are mindful
this
throughout
inquiry, however,
unique responsibilities
of the
of
prosecutor
the
our
judicial system.”
quotation
(Internal
marks omitted.)
Fauci,
State
v.
supra,
cifically, argue Warholic, State omitted.) motive (Citation to lie.” supra, Conn. 365. 278 principles mind,
With these we address each of respect improprieties the claimed turn. With attorney’s Caple assistant state’s comment sug- afraid defendant, that he must be gesting “[a] man saw kill victim],” agree we [he] [the improper. comment was That remark that it suggested was a matter of established fact that the had defendant Caple shot the victim and that had lied he testified when that the defendant had not shot the victim. See State Grant, supra, (prosecutor Conn. should not express opinion credibility or of witnesses defen- dant’s the remark guilt). addition, that it suggested prosecutor’s opinion was the was danger- defendant (“expressions personal opinion ous. See id. are a form testimony, of unsworn and unchecked and are particularly jury difficult for the because ignore prosecutor’s special position” quotation [internal marks omitted]). attorney assistant state’s Although was to impeach Caple, entitled this remark was not a proper by Moreover, means which to do so. the remark was by not invited conduct defense or and it argument theory was central to the primary defendant’s of defense Caple Crimley had given false statements to police. We agree also with the defendant that the assistant attorney’s questions state’s to Outlaw concerning what the defendant’s mother bought had her for lunch and about her conduct Mayes’ after confession overhearing improper. was This does court not condone the use of sarcasm during examination of See witnesses.
v. Rizzo,
We conclude that assistant when prosecutorial impropriety she engage not that the what stated state’s firearms “knows he’s about; he’s been it a time.” This talking doing long not of vouching isolated comment did rise level was “an credibility but, rather, for the of a witness . . drawn . based on reasonable inferences argument supra, State v. Warholic, from the evidence.” Conn. 365. *44 Finally, respect attorney’s with to the assistant state’s ” credibility “zilch, that
statement Outlaw’s was the state See State improper. concedes that this remark was Grant, supra, prosecutor may 286 Conn. not (“[t]he express directly his opinion, indirectly, own or [or her] credibility quotation as to the of the witnesses” [internal also omitted]). contends, however, marks The state that any impropriety, this as well other that improprieties as it not concede, deprive does did not the defendant agree. a fair trial. We
The remarks that we found improper have were were The trial isolated. court curative instruc- gave strong immediately improper tions Caple after the comment to jury that the must the comment disregard argumenta- as improper, tive and comment evidence, was not jury and that was the sole finder of The fact. court repeated much of this instruction its final instructions jury. With respect comment on Outlaw’s credibility, we note attorney that the assistant state’s promptly corrected herself. We further note Out- law’s was pri- not central the defendant’s mary theory of Caple Crimley defense that falsely had identified the defendant as the Finally, shooter. for previously the reasons we have discussed, note we eyewitness identifications were strong evidence of guilt. defendant’s The accounts were consistent with at bicy- evidence found two scene, they cles—the victim’s one and the claimed defen- dant had abandoned —and four shell casings. Although the witnesses later recanted their identifications, they admitted to being fearful of testifying against defen- Accordingly, dant. we conclude that the assistant state’s attorney’s comment did not violate the defendant’s due process right to a fair trial. judgment
The is affirmed. opinion ROGERS, In this J.,C. and ZARELLA and McLACHLAN,Js., concurred. reasons that are For the
NORCOTT, J., concurring. researched comprehensively artfully explained his with wholeheartedly I Justice opinion, agree concurring our prior time has come overrule Palmer that the Kemp, 473, 507 A.2d decisions in 199 Conn. *45 McClendon, 572, Conn. and State v. 248 1387 (1986), they be read the extent that 730 1107 to (1999), A.2d testimony expert concerning as inadmissible holding I therefore reliability eyewitness identifications. the respect reliability, with to join that, him in concluding to into evidence improperly refused admit the trial court Dysart introduced expert the of Jennifer on his hearing J’Veil at the defendant, Outing, eyewitness testimony. identification suppress motion to validity however, write separately, recognize I majority’s prudential concerns about whether appropriate us with the vehicle for presents this case precedents. these flawed overruling ideal majority I with the that this is not agree precedents, (1) case for these because: reconsidering we need process principles, under well established due herein not consider identification procedure properly was using because it obtained parts Dysart’s prof- was after found, consideration unnecessarily see, not testimony, suggestive; fered to be Brathwaite, Manson 107, 432 97 Ct. e.g., 98, U.S. S. (2) preserva- L. Ed. 2d 140 there are (1977); 53 proffer problems,
tion
the defendant’s failure to
namely,
at the
Dysart’s expert testimony into evidence
subse-
however,
“inherent
quent jury
Given,
trial.1
this court’s
respectfully
majority’s
disagree
1 I
conclusion that we
with the
alternate
any
because,
event,
not
issue
the failure
admit
need
address this
Dysart’s
Particularly
would have been harmless error.
evidentiary field,
previously
prior
we
have
case law without
overruled
evidentiary
regard
resulting
error turned out to be
to the fact that
722, 740-43,
Malave,
(1999)
PALMER, J., with whom NORCOTT and VERTE
FEUILLE, Js., join,
I
concurring. Although
with
agree
the majority that the murder conviction of the defen-
dant, J’Veil
must be
Outing,
affirmed, I disagree with
the majority’s refusal to reconsider and overrule this
precedent
court’s
the
concerning
admissibility
expert
of
testimony
reliability
on the
eyewitness
of
identifica-
tions.
State v. Kemp,
The
which are set forth
following
generally
majority
particularly
are
opinion,
relevant
this
to trial,
issue. Prior
the defendant
filed a motion to
suppress
identification
two
*47
Crimley
Ray Caple. The defen-
witnesses, Nadine
and
informed
court
the state that he intended
dant
the
and
testimony
Dysart,
to
the
of Jennifer
an acknowl-
present
pur-
eyewitness identifications,
for
on
edged
poses
suppress
at
of his motion to
and
trial. In
proffered by
in
with
the defendant
connection
his
suppress, Dysart opined that,
to
generally: (1)
motion
hat,
use of a
a
can
perpetrator’s
disguise, including
the
opinion
respects.
majority
agree
1 I
with the
in all other
ability make an
identifica-
impair a witness’
to
accurate
effect”;
likely
a
is more
“disguise
(2)
tion —the
witness
person
peipetrator
to
a
if the witness
identify
as the
perpetrator
phenom-
believes that the
looks familiar —a
transference”;
as
(3)
enon known
“unconscious
when
perpetrator
weapon,
the
carries a
a witness tends to
weapon
perpetrator,
focus on the
rather than on the
thereby
the likelihood of an accurate identifi-
reducing
“weapons
witness’
effect”;
cation —the
focus
con-
(4)
his or
fidence in
her identification bears little or no
accuracy
relation
the
of that
identification;
(5)
to
witness under stress when
the commission
observing
identify
of a
likely
perpetrator
crime is less
to
the
accu-
rately;
adversely
(6)
and
witness collaboration can
accuracy
affect
of an
identification.2 The
objected Dysart’s
testimony,
state
to
proffered
claiming,
inter
that it was
in
alia,
inadmissible
of this court’s
light
in
Kemp, supra,
determination
State v.
The trial court allow agreed testify to to at suppression hearing on several issues relating to police manner which the had administered the photographic procedure the present identification permitted Dysart case.3 The court also testify to about theory express unconscious transference. In reli- Kemp ance McClendon, however, the court sus- tained objection respect any the state’s with tes- 2Dysart problems also testified about certain with the manner which the police photographic procedures pursuant had conducted identification Crimley Caple which their had made out-of-court identifications of the defendant. 3 particular, Dysart permitted testify the court about simultaneous presentation photographs, police instructions to the witnesses and the procedure. double-blind administration of the identification *48 relia- that the opinion her concerning by Dysart timony by adversely affected be can an identification bility of perpetrator’s collaboration, witness stress, witness witness’ that the weapon, and or a disguise of a use bears accuracy of the identification in the confidence accuracy of the identification. no relation little or had determined that, as this court explained The court testimony was the excluded McClendon, Kemp ... the realm it fell “within unnecessary because After consider- experience.”4 . . . sense common previously testimony that it Dysart’s portion of that ing denied the the trial court admissible, be had found to evidence establish- suppress the motion to defendant’s had identified initially Crimley Caple ing perpetrator. as the defendant the resolution principles govern
I next to the turn applicable with the claim, beginning of the defendant’s has wide discre- trial court of review. standard “[T]he testimony admissibility ruling tion in on ruling has been abused or that discretion and, unless trial law, misconception involves a clear ... will not be disturbed. decision court’s of discre- has been an abuse whether there determining court could rea- is whether the tion, the ultimate issue did. . . . sonably conclude as it majority explained, that it wanted “to the trial court stated has As record, ruling here with whatever court [on] it clear for the [the is] make only respect admissibility topics with to the motion respect is . . . or . . . suppress, finder of fact and the court is both the ... where the that, “[o]bviously, legal further stated issues.” The trial court ruler on the repeated, may arguments if and when not be . . . that need there be some just the record to want[s] is offered at trial. But [the court] admissibility, only ruling that, point, as to the at this be clear [it is] majority agree that this statement hearing with the I before [it].” that, it wished to adduce the defense if was sufficient to alert court trial, required trial. The by Dysart issue at the time of to raise the at it was majority Consequently, agree so, with the I also failed to do however. defense claim, first, because it to review of his is not entitled that the defendant opted against second, unpreserved and, have the defense because Dysart testily having reasons. at trial for tactical *49 92 recently
“This court articulated the test for the admis- expert sion of testimony, deeply which is rooted in common law. Expert testimony should be admitted when: the (1) special witness has a skill or knowledge directly applicable to a matter in issue, that skill or (2) knowledge is not common to the average person, (3) would helpful jury be to the court or in considering the issues. ... In words, other [i]n order to an expert opinion render the witness must be qualified to do so and there must be a factual basis for opinion. . . .
“It is well settled that
true test of the admissibil
[t]he
ity of [expert] testimony
subject
is not whether
matter is common or uncommon,
many
or whether
persons or few have some
knowledge
matter;
but it is whether the
experts
witnesses offered as
have
any peculiar
or
knowledge
experience, not common to
the world, which
opinions
renders their
founded on
such knowledge
experience any
or
aid to the court or
jury
in determining
questions
at issue.
.
.
.
Implicit in this standard is the requirement
. . . that
expert’s
experience
knowledge or
must
directly
be
applicable to the
specifically
matter
in issue.” (Citations
omitted;
quotation
internal
Sullivan marks
omitted.)
Metro-North Commuter
Co.,
Railroad
150,
292 Conn.
157-59,
“Beyond general these requirements regarding admissibility expert testimony, is a further [t]here hurdle to admissibility testimony when that testimony is based on . . . scientific [evidence]. 5 Section 7-2 of provides: the Connecticut Code of Evidence “A witness qualified expert by knowledge, skill, experience, as an training, education may testify or opinion otherwise in the form concerning of an or otherwise scientific, specialized knowledge, technical or other if the will understanding assist the trier of fact in determining the evidence or in fact in issue.”
93
evidence
forms
situations,
the scientific
In those
undergo
valid
expert’s opinion must
the basis for the
reliability.
Porter,
ity
to ensure
assessment
[241
denied, 523
cert.
68-69,
(1997),
698 A.2d
57,
Conn.
L.
2d 645
1384,
(1998)].
S. Ct.
140 Ed.
1058,
U.S.
.
v. Merrell
.
. Daubert
Porter,
court followed
this
S. Ct.
Pharmaceuticals,
Inc., 509 U.S.
Dow
2d
and held
scientific
L. Ed.
469 (1993),
with
subjected
test,
be
a flexible
evidence should
*50
case-by-case
a
applied
that are
factors
differing
reliability
the scientific evi
basis,
determine the
of
to
supra, 81-84,
sci
Porter,
dence.
. . .
State
Following
testimony
thereon,
based
evidence,
expert
entific
and
a
usually
be evaluated under
threshold admissibil
is to
reliability
the
ity
methodology
standard
the
of
assessing
at
and whether the evidence
the evidence
underlying
and
that meth
fact,
issue
derived from
based
is,
[on]
to as
fit
. . . which has been referred
the
odology
quotation
requirement.”
omitted;
internal
(Citations
Quest
Diagnostics,
Inc.,
marks
Maher v.
omitted.)
Conn.
With of reliability eyewitness identifications, on the of this nearly twenty-five years court first addressed the issue supra, Kemp, 473. In ago Kemp, Conn. defendants, Kemp and who Kemp, Harold Robert robbery had the armed charged been connection with army navy surplus id., 474; of an store; sought see expert testimony to of Robert introduce the trial Buck- hout, authority psychologist recognized “a on the accuracy Id., factors affect the of identifications.” [that] Kemps 475. The offered Buckhout’s for the purpose reliability of several wit- impeaching partic- nesses had them as robbers. In who identified to ular, prepared explain jury was Buckhout an stress, particularly during that: stress incident “(1) by weapon, may violence a decrease the reha- involving memory bility identification; is not a (2) recording accurately device records an event and does not [that] over change time; (3) process the identification by post-event by witness; affected information learned certainty and the level of demonstrated (4) person not accuracy.” does reflect a level of corresponding quotation marks Id. (Internal omitted.) After an eviden- tiary hearing jury’s presence, outside the court trial request the Kemps’ present denied testi- Buckhout’s mony. Id.
Following convictions, Kemps their appealed court, this inter claiming, alia, the trial court improperly precluded testimony. had Buckhout’s Id. court, We concluded that the trial like courts in other jurisdictions, so; had properly id., done see 476; because “the identification is within the jurors knowledge generally would not in determining question.” assist them Id., We explained 477. further testimony is also “[s]uch *51 disfavored because ... it the province invades of the to jury determine what weight or effect it to wishes to give testimony.” (Internal quotation marks omitted.) Although Id. we acknowledged that, many “in cases of guilt the determination or innocence depends in large part credibility on the to assigned eyewitness identifications, many and that in instances may unreliable”; id., identifications be 478; we also observed that does not mean that a criminal “[t]his protection.” defendant Id. explained, without We in particular, process that permits due the use of such if only they identifications meet a minimum and, further, threshold weaknesses of identi- “[t]he explored fications can be on cross-examination and during jury.” counsel’s final to the arguments Id. We that, the identifications “reliability stated because questioned by be adequately such means and [could] jury capable of understanding the reasons [was] expert of unreliable, the introduction why they be attempt superfluous testimony would been] [have of frosting, like a bit put expertise, of gloss [on] equally capable were of lay persons inferences [that] quotation marks evidence.” (Internal from the drawing the trial Id., We observed that 478-79. also omitted.) criti- “emphasized the jury instructions, in its had court, of identifications [eyewitness] cal nature [at issue] might affect their various factors and reviewed [that] stress delay, under reliability, including performance 479 n.3. Not- inaccuracy prior descriptions.” Id., of “ample defense counsel had been afforded ing witnesses who identified opportunity question the any weaknesses of Kemps] [thereby] expose [the identifications”; id., 479; we concluded “[t]he properly proffered trial court excluded [had] testimony on that would not have aided the the basis it
jury in its deliberations.” Id. years thirteen after our decision in
Approximately supra, this Kemp, court, McClendon, had we Conn. occasion revisit the issue that had McClendon, jury found Kemp. addressed felony defendant, McClendon, Charles murder guilty robbery stemming shooting from the fatal two robbery Id., of a 574- during moving company. men predicated large 75. McClendon’s conviction was measure on the out-of-court and in-court identifications perpetrator by employee as the an McClendon company. id., appeal See 577. On moving McClendon that the trial court Appellate Court, claimed improperly precluded had him from the testi- presenting *52 mony Leippe, expertise with psychologist of Michael subject eyewitness memory in the identification and of 666- McClendon, App. 658, 45 Conn. retention. State rejected Appellate A.2d (1997). The Court claim, Kemp, McClendon’s reliance on concluding, reasonably the trial had determined that the that court proffered expert testimony within the general “was knowledge jurors and that it would not aid them Id., to resolve the issues at hand.” 667.
Upon petition our of granting McClendon’s for certifi- we appeal, agreed Appellate cation with Court the trial properly that court had excluded testi- Leippe’s mony. McClendon, supra, State v. 248 Conn. 585. doing so, explained we that Leippe testified, would have “among eyewit- other that the of an things, confidence accuracy observation, ness does not correlate to the of that variables as stress lighting, such and time to impact have an accuracy, ques- observe on that leading repetition tions can an increase eyewitness’ confidence but accuracy, people not that they analyze remember faces when many best features just one, and characteristics the face than rather that questions misleading police can alter memories, and descriptions most accurate are given immedi- ately after a Id., crime.” 586-87. We concluded “Leippe’s [proffered] testimony supported] trial court’s decision that his were nothing conclusions out- experience side common of mankind.” (Internal quotation omitted.) Id., marks 586. We also explained, we any as had Kemp, eyewitness weaknesses probed identifications be on cross-examination and highlighted during argument jury, both which had been at length by done McClendon’s counsel. Id., 588. We further noted that the trial had court jury potential “instructed the to consider the unreliabil- ity of with eyewitnesses, specific reference to the condi- tions under which the witnesses the perpetrator, viewed the distance them, between and the time length of between the description.” incident the witnesses’ Id., 587.
Finally, we declined McClendon’s invitation to follow the rationale pertaining admissibility Ari- identifications that the
97 adopted in State Supreme previously had zona Court Chap 1208 In (1983). v. Ariz. 660 P.2d Chappie, 135 facts that under the of pie, that, concluded court pre in had his discretion case, judge the trial abused from defendant, Chappie, adducing Dolan cluding the experi eyewitnesses generally that expert the initial iden rapid following ence a curve” “forgetting inaccuracy perception of stress causes tification, “that eyewitnesses recall,” subsequent with distortion they “fre by transfer,” “unconscious are affected into inaccurate quently incorporate their identifications subsequent to the event and con gained information relationship is “no event,” fused with the that there in which a witness has between the confidence [with] accuracy or and the actual of that his her identification Id., quotation marks (Internal omitted.) identification.” determination, its Arizona reaching 293-94. In law Supreme long after that “the has Court, observing eyewitness inherent in recognized danger [identifi 293; that it could not testimony”; id., explained cation] juror would be aware of the average “assume that the memory about concerning variables identification testify.” qualified Id., which was 294. expert] [the “[depriving jurors The further that court stated [the] benefit of scientific research [iden search testimony force them to for the [d] tification] knowledge opportunity truth without full to evalu short, depriva this ate the evidence. strength jurors best prevented] having tion from [the] subject toward possible understanding degree quotation (Internal which the law of evidence strives.” however, we McClendon, rejected marks Id. In omitted.) analysis analysis Chappie in in that we favor 6 McClendon, employed Kemp State previously had supra, 589. 248 Conn. rejected We also the contention the case was controlled our Barletta, (1996), A.2d 238 Conn.
decision
we
that it
abuse of discretion for the trial
which
had concluded
was an
concerning
preclude
from an
the effects of cocaine
court to
*54
Research reveals
routinely
that the courts of this state
have relied on the
employed
rationale that we
in Kemp
in
McClendon
the claim that a
rejecting
defendant
present expert
testimony
was entitled to
concerning
reliability
eyewitness
of
See,
identifications.
e.g.,
Monteeth,
State v.
202,
n.5,
Conn.
“Over the last there have been extensive stud- ies on the issue of identification evidence, research that
102 Dubose, State v. 285 impossible ignore.” ... is now studies, N.W.2d 582 These (2005). Wis. 2d 699 amount of behavioral sci which “detail the extensive Copeland, State v. 226 area”; ence research in this “literally 287, 299 are found (Tenn. 2007); S.W.3d scholarly, legal, of articles in and scientific hundreds subject eyewitness testimony.” of Id. journals on the article, law review there fact, according to recent eyewit concerning have been more than 2000 studies “Beyond identification; al., ness R. Schmechel et Eyewitness Jurors’ of Testing Understanding Ken? 46 180 Reliability Evidence,” 177, (2006); Jurimetrics v. Dubose, supra, see also State 162 have been (“there extensive studies on the issue of identification evi a number that one court has characterized dence”); “far the research on mental exceeding as most health Wright, State supra, 157; . . . .” v. 147 Idaho evidence v. Smith, see also United States Sup. 1207, 621 F. 2d (M.D. 2009) (“[n]umerous 1212-13 Ala. studies have been done under controlled conditions assessing eyewitnesses factors that influence in accordance with accepted practice the behavioral science generally community any independently] litigation” done of quotation marks omitted]). Furthermore, [internal nearly “researchers are unanimous on the these studies’ factors that contribute findings regarding v. Wright, misidentification.”9 eyewitness 9See, Birkett, 469, e.g., (6th 2007) (“expert Ferensic v. F.3d Cir. eyewitness universally recognized ... identifications is now scientifically admissibility pur as valid and of aid the trier of fact for [to] Moore, poses” quotation omitted]); United States marks 786 F.2d [internal (5th 1986) (“This accepts Cir. court the modem conclusion that expert testimony eyewitness regarding the admission of identifications is proper say inadequate .... We cannot such scientific data or [that] [are] contradictory. validity many confirming The scientific of the studies eyewitness seriously questioned weaknesses of identification cannot be at Downing, point.” quotation United omitted.]); States this marks [Internal proliferation (3d 1985) (noting 753 F.2d and n.23 Cir. “the empirical demonstrating pitfalls research identification” consistency [impressive] studies,” agree and “the of the results of these eyewitness perception ing that “the has achieved the level of science
103
[concerning
evidence
Thus,
scientific
supra, 157.
“[t]he
...
is
eyewitness
fallibility
the
of
identifications]
. .
It is .
comprehensive and consistent.
voluminous,
studies
peer-reviewed
in .
.
. hundreds of
reported
reliability
meta-analyses ....
The soundness and
and
. . .
indisputable.
of that evidence are
many
abundantly
“The science
demonstrates
memory
retrieval;
and
encoding, storage
of
vagaries
effects of
malleability
memory;
contaminating
of
interview
information;
police
extrinsic
the influence of
procedures;
many
and the
techniques and identification
reliability
eyewitness
of
other factors that bear on
. . . The wide
of the sci-
recognition
identifications.
by
scientists,
experts,
ence
social
forensic
law enforce-
exactness, methodology
reliability
any psychological
and
research” [inter
quotation
omitted]);
Feliciano,
v.
nal
marks
United States
United States
Court,
5, 2009) (“[t]he
(D.
District
No. CR-08-0932-01 Ariz. November
Docket
acceptance
eyewitness
degree of
the scientific data on the
[of
community
People
substantial”);
...
is
within the scientific
identifications]
351,
Rptr.
McDonald,
364-65,
709,
(1984)
v.
37 Cal. 3d
690 P.2d
208 Cal.
236
eyewitness
affecting
(“[EJmpirical
psychological
studies ofthe
factors
identi
appeared
proliferated,
reports
have
at an
fication have
and
of their results
pace
ever-accelerating
professional
in
of the behavioral and
literature
consistency
sciences.
.
.
. The
of the results of these studies is
social
impressive,
implica
longer
and the courts can no
remain oblivious to their
justice.”
omitted.]),
tions for the administration of
overruled
[Citations
part
by People Mendoza,
896,
265,
grounds
v.
4th
4 P.3d
on other
23 Cal.
Rptr.
State,
435, 440-41,
(2000);
98 Cal.
2d 431
v.
279 Ga.
614 S.E.2d
Brodes
validity
unreliability
(2005) (scientific
concerning
research studies
eyewitness
People Legrand,
established);
identifications is well
8 N.Y.3d
(2007) (“[E]xpert psychological
867 N.E.2d
ment agencies,
.
confirms its soundness.
. . The
powerfully
courts
reliable,
are
definitive
findings,
short,
scientific
fit for use in the courtroom.”
unquestionably
(Cita
*59
Gaulkin, Report
Special Master,
omitted.)
tions
G.
Henderson,
State v.
Jersey Supreme Court,
New
Docket
available at
10,
pp. 72-73,
No. A-8-08 (June
2010)
http://www.judiciary.state.nj.us/pressrel/HENDERSON
.PDF
%20FINAL%20BRIEF%20.PDF%20(00621142)
(last
Henderson,
see State
v.
Docket
August 18,2010);
visited
February 26,
*3
A-8-08,
45,
(N.J.
No.
2009 N.J. LEXIS
develop
for
2009)
remanded case to trial court
(court
whether
test for
existing
ment of record
determine
reliability
eyewitness
identification evi
assessing
evidence
light
dence is still valid
of recent scientific
recently
has
studies).
fact,
this court
endorsed
by
these
trial courts in connection
the use of
studies
our
eyewit
particular
with the determination of whether a
in an
procedure
ness identification
was conducted
manner. See State Ledbet
v.
unnecessarily
suggestive
see also State v.
ter, supra,
Marquez,
575;
275 Conn.
122,
n.31,
56,
denied,
291 Conn.
155 and
967 A.2d
cert.
895,
237,
U.S.
130 S. Ct.
105
weapon
when a
accuracy
identification,10 (2)
is dimin
reliability of the identification
involved, 11
weapon,
(3) high
focus on the
by
ished
the witness’
observations
time of the witness’
level of stress at the
to retain an accurate
the witness less able
render
memory
events,12
cross-racial
perception
(4)
than
considerably less accurate
identifications
are
perpetra-
that a
identifications,13
the fact
(5)
same-race
10
Williams,
809,
(7th
2008);
See, e.g.,
United States
v.
522 F.3d
811
Cir.
Brownlee,
131, 143-44
2006);
United States
(3d Cir.
United States v.
454 F.3d
Moore,
Stevens,
1380,
1991); United States v.
(3d
786
v.
935 F.2d
1400
Cir.
People McDonald,
351, 369,
1308,
(5th
1986);
v.
37 Cal. 3d
690
F.2d
1312
Cir.
part
grounds
709,
Rptr.
(1984), overruled in
on other
P.2d
208 Cal.
236
People Mendoza,
Rptr.
896,
265,
(2000);
v.
Cal. 4th
4 P.3d
98 Cal.
2d 431
People
State,
254,
n.2,
(2000);
v.
Johnson
272 Ga.
526 S.E.2d
Young,
(2006);
N.Y.S.2d 576
see also
7 N.Y.3d
850 N.E.2d
Ledbetter, supra,
(“the
tor was
identify
perpetrator,14
ability
(6)
the witness’
the witness
be
perpetrator
identification of the
double-blind, sequential
identifica-
less rehable unless
may develop
procedure
used,15
is
a witness
(7)
tion
in his or her identification if
unwarranted confidence
postidentification
or
privy
postevent
he or she is
to the event or to the identifica-
relating
information
accuracy
eyewitness
of an
identifica-
tion,16and
(8)
consistently
published
past [twenty] years
show that other-race
over
poorer
recognition.
studies,
recognition
. . .
is
than same-race
One of these
witness/participants,
reviewing [thirty-nine]
involving
research articles
likely
was 1.56 times more
in other-
found that mistaken identification
likely
accurately
conditions,
participants
2.2
race
were
times as
identify
[opposed
faces.”).
light
own-race faces as
other-race
of this
to]
fact,
previously
“rejected
especially troubling
it
this court
has
special
notion of
treatment for defendants in cross-racial identification situa
Porter, supra,
tions”;
n.80; explaining,
particular,
v.
107 may adversely be affected unconscious trans tion person when a seen in one situa ference, which occurs person with as a tion or context is confused or recalled emphasis seen in another situation or context.17 It bears examples are illustrative rather than these exhaustive. permit
Presently,
expert
courts often
any
factor that
be shown to reduce or undermine
accuracy
if
identifications
that factor
particular
bears on the
at
identification
issue. Courts
allow such
to be admitted because it
established, contrary
has been
our
conclusion
Kemp
McClendon,
and
that most of those factors are
not within the common knowledge
experience
and
jurors.
many
fact,
great
of them are counterintu
Brownlee,
United States v.
See, e.g.,
itive.
131,
454 F.3d
142
Cir.
(3d
2006) (“while
firmly
science has
established
unreliability
the inherent
perception
of human
memory . . .
reality
jury’s
this
is outside the
common
and often
knowledge,
jurors’
contradicts
commonsense
understandings”
omitted;
quotation
internal
[citations
United
Smithers,
States
marks
v.
omitted]);
212 F.3d
306, 312 n.1 (6th
many
Cir. 2000) (“because
of the fac
tors
eyewitness impressions
affecting
are counter-intu
itive, many jurors’ assumptions about how memories
actively
are created are
wrong”); United States
v.
Smithers, supra, 316 (“There
question
many
is no
aspects
perception
memory
are not within the
experience
common
of most
. . .
jurors,
many
fac
tors that
memory
affect
are
H. Fra
counter-intuitive”);
della, “Why Judges
Expert
Should Admit
Testimony on
v.
State Ariz. 294.
Alaska Court of
United States 1271 n.50
See,
105 S. Ct.
Chapple,
e.g.,
(D.C. 2009).
United States v.
Smith,
Appeals,
supra,
109
The studies also show
opposite is true.
indicate that the
as to an
witnesses
among
consensus
group
likely to be inaccu-
identity is far more
criminal’s
alleged
This is because
identification.
is an individual
rate than
serves to
factor, which
of the feedback
of the effect
omitted;
mistaken identifications.”
reinforce
[Citation
marks omit-
quotation
in
internal
emphasis
original;
362, 690 P.2d
McDonald,
351,
37 Cal. 3d
People v.
ted.]);
research has
Rptr.
(1984) (“empirical
208 Cal.
236
709,
about
widespread lay beliefs
a number of
undermined
identification, e.g., that
eyewitness
psychology
increases with
recollection
accuracy
of a [witness’]
accuracy
improved
stress,
also
certainty, that
his
and that
factors are not significant,
that cross-racial
by the
is unaffected
reliability of an identification
over-
weapon
scene”),
or violence at
presence of
by People Mendoza,
v.
other
part
grounds
ruled
Rptr.
(2000);
2d 431
896,
265,
4th
4 P.3d
98 Cal.
23 Cal.
n.2,
256
Consequently,
there is a growing consensus among
both federal and state courts that the methods tradition-
ally employed for
challenging
accuracy
eyewit-
ness identifications
largely
are
ineffective and inade-
quate. First,
the method most commonly relied on,
cross-examination,
is not a satisfactory substitute for
expert testimony,
in part,
eyewitnesses
because most
express
who
accuracy
confidence
of their identifi-
cation sincerely believe that that
is
confidence
war-
eyewitnesses
ranted.
may express almost
“[B]ecause
certainty
absolute
about identifications that are inaccu-
18Furthermore,
jurors may
general knowledge
to the extent that
have some
familiarity
eyewitness
or
with one or more of the deficiencies of
identifica
tions, “experts may testify
jurors
wholly ignorant
even when
are not
about
subject
testimony.
ignorance]
test,
of the
. . .
. . .
[I]f
were the
[total
expert opinion testimony
little
would ever be
.
heard.
. .
“Rather,
pertinent question
whether,
jurors
is
even if
have some
subject
knowledge
matter, expert opinion testimony
would assist the
jury.” (Citations omitted;
quotation
People
omitted.)
Prince,
internal
marks
v.
1015,
Rptr.
(2007),
40 Cal. 4th
156 P.3d
57 Cal.
3d 543
cert.
denied,
1106,
887, 169
(2008);
552 U.S.
128 S. Ct.
L. Ed. 2d 742
see also State
Clopten,
(Utah 2009) (expert testimony
223 P.3d
performs
identifications
beneficial function even when it
jurors by quantifying
they already may know).
assists
that which
of cross-exami
effectiveness
shows the
research
rate,
will often
Cross-examination
badly hampered.
nation
far less effective
may be
half-truth, but
a lie or
expose
what
believe that
mistaken,
although
witnesses,
when
are
eyewitnesses
.
.
.
addition
is true. In
they say
experience,
personal
expectations,
likely to use their
in the
created
gaps
to fill
prejudices
biases, and
wit
unlikely that
.
it is
memory.
. . Because
imperfect
occurred,
process has
aware that this
will be
nesses
identifica
in the
far more confidence
they may express
quo
omitted; internal
(Citation
is warranted.”
tion than
Clopten,
P.3d
pciarks
omitted.)
tation
if cross-examina
Moreover,
2009).
1110 (Utah
“[e]ven
identification, expert
in the
reveals flaws
tion
jury.
assist the
Cross-examination
be needed to
still
was a
perpetrator
example, that the
show, for
might
wearing
was also
eyewitness and
race than the
different
testimony,
Without the assistance
a disguise.
import
of those
difficulty assessing
jury may
have
*65
reliability of the identification.”
gauging
factors
Birkett,
481-82
see also Ferensic
v.
501 F.3d
Id.;
eyewitness
not
2007) (cross-examination
Cir.
(6th
testimony
expert
on
effective substitute for
States,
Benn United
v.
eyewitness identifications);
gen
1257, 1279 (D.C. 2009) (cross-examination
978 A.2d
testimony
erally
adequate
expert
substitute for
not
provide
information that an
can
because “the
in nature and cannot
research studies is different
about
cross-examina
lay
during
from a
witness
be elicited
Copeland,
supra,
Similarly,
generally
instructions
eye-
weaknesses of
jury
potential
apprise
Birkett, supra,
testimony. See, e.g., Ferensic
witness
Copeland, supra,
226 S.W.3d
481-82;
F.3d
300. “Trial courts . . .
remedy
have often tried to
possibility of
by
mistaken identification
giving caution-
ary
jury.
instructions to the
. . .
seemed logical
[I]t
substantially
this measure would
a jury’s
enhance
ability
to evaluate
accuracy.” (Citations
State v.
omitted.)
Clopten, supra,
(“The significance [the jury no basis it, Without overstated. cannot be ha[s] inherent suspect the word to beyond defense counsel’s identifications.”). [eyewitnesses’] unreliability of that the effectiveness to reason Moreover, it stands when diminished jury greatly will be to argument been a factor that has subject argument of that accuracy of an identifica- adversely the found to affect testi- counterintuitive; expert without but that is tion jury as appeal well such mony, argument suspect. Thus, expert particularly weak or identifications, no less than pitfalls on the likely assist the testimony that is to any expert other case, in a key of a fact or issue jury understanding in its defense counsel merely barred because should not be why, explain to during closing argument, has the right, was not trust- view, the identification in the defendant’s worthy. expert an prohibit is no reason to addition, there eyewitness identifi problems testifying
from testimony infringes on the that such ground cations evaluate witness jury responsibility on the jurors jurors or that it will confuse the credibility, that expert’s on the emphasis too much likely place are permitted not be Any such would opinion.
opine
credibility
about the
accuracy
eyewit
or
of the
testimony
ness
itself;
solely
that determination is
within
province
jury.
of the
Rather,
expert testimony
presumably would cover those factors that have been
found to have an adverse
reliability
effect on the
eyewitness identifications
and
generally
that are rele
particular eyewitness
vant to the
identification at issue.
expert testimony
Although
designed
assist the
jury in
the extent
ascertaining
jury
to which the
should
eyewitness
credit the
testimony,
there is no material
expert
difference between it and
testimony on battered
syndrome;
woman
see, e.g., State v. Borrelli, 227 Conn.
153, 174,
It is
any
in
eyewitness
identifications
reliability of
on the
trial. This
longer
may result
a somewhat
case
given
such
excluding
for
however,
is not a basis
alone,
fact
relevant,
highly
will be
generally
which
testimony,
recently
eyewitness
has observed
on
identifications
As one commentator
frequently
given
have
for
discussing
most
the reasons that courts
two of
testimony
namely,
expert testimony,
an
precluding
addresses
that
such
jurors
knowledge
it intrudes
of
and that
the common
issue that falls within
credibility:
jury
unduly
province
witness
“Courts
of the
to assess
on the
credit,
appear
jurors
accept
reasoning
give
much
both too
this
jurors
showing
enough.
reasoning ignores
research
scientific
not
Such
many
eyewitness
of
knowledge
and that the effect
of
factors
have limited
accuracy
eyewitness
It also
a matter of common sense.
is not
factors on
jurors
susceptible
wily experts
naive and
will induce
concern that
reflects
jurors’
Furthermore,
ignores
testimony
reject eyewitness
it
that is reliable.
experts,
especially
skeptical
experts,
whose
defense
of
to be
tendencies]
Wise,
they
simple
testimony
sense." R.
goes against
common
what
consider
Accuracy Eyewitness
Analyze
Safer,
Testi
& M.
“How
C. Fishman
(2009).
Case,”
these
mony
453-54
For
42 Conn. L. Rev.
in a Criminal
courts,
expert
by
accepted
reasons,
argument,
several
reliability
eyewitness
much on the
“intrudes too
identifications
on
credibility”;
jury
States
province
witness
United
to assess
traditional
simply
persuasive.
1999);
Lumpkin,
(2d
is not
Cir.
192 F.3d
United States
perhaps crucial, to the
See, e.g.,
defense.
v. Brownlee, supra,
(“[i]t
see id., (any also reasonable “concern atrial [that] may judge have that admission expert testimony [on could con identifications] jury fuse or appropriately overwhelm is more dealt with, by exclusion, by not but reasonable placing limita expert’s tions on the testimony and instructing the jurors they only they the ultimate fact —and —are fact, finders”). contrary conclusion might well infringe on the defendant’s right pre constitutional to sent a defense, on the depending facts the case. See, Washington Schriver, e.g., 255 F.3d 56-57 (2d Cir. 2001) (constitutional right present to meaningful implicated defense by be improper exclusion of expert testimony).
Thus, as the District of Appeals Columbia Court of recently observed, “[although expert the admission of trial within the discretion testimony falls [court] to witnesses to confront right . . . because constitutionally protected, are [i]n a defense present be guided must discretion, the trial court its exercising to be free should that the defense principles only Not is the testimony. expert appropriate introduce but that defense defense, present to defendant entitled use of scien- in the put disadvantage at a not be should gov- permitted to that comparable tific evidence approach judicial a balanced dictates ernment. Fairness expert trials of use in criminal permitting might factors psychological concerning subtle permitted be The defense should witnesses. affect eyewit- unreliability of testimony on the expert present cases, just govern- as appropriate ness expert introduce cases to appropriate ment is allowed witnesses government the failure of explain evidence to in order identify accuse an attacker or promptly quotation prosecution.” (Internal for the build a case 978 A.2d States, supra, Benn United omitted.) marks Rev. 2 Fed. Cts. L. Fradella, supra, also H. 1269-70; see testimony on be recognized should (“[I]t *70 eyewitness identifications unreliability of certain However, trial. expense of length adds to those con- trump should to a fair trial right defendant’s based common should be as no conviction cerns, [on] reliability what of alleged misconceptions regarding the time eyes. Taking own with their someone saw in involved biases and errors jury on the educate time, especially is worth the identification eyewitness eyewitness identification testimony about expert since functioning.”). improves juror analytical under reconsider the need to pressing
The is Kemp and McClendon our decisions of pinnings has long what confirming evidence by bolstered recent a direct correla that there exists suspected, is, that been con- testimony wrongful eyewitness tion between 118 experimental “In literature,
victions. addition to proven peo- convictions of innocent wrongful cases of eyewitness ple consistently have shown that mistaken responsible is for more wrongful identification of these than . . . .” convictions all other causes combined 22 al., G. Wells et Law & (Citations omitted.) supra, Hum. In fact, Behav. 605. studies of DNA exonerations eyewitness have demonstrated that identifica- mistaken percent tions were involved between 64 and 86 See, all wrongful e.g., McMurtrie, convictions. J. “The Role of the Social in Preventing Wrongful Sciences Con- 42 Am. Crim. Rev. victions,” 1271, L. 1275 n.17 (2005) (citing revealing to studies that erroneous identifica- tions have toup percent accounted for 86 of convictions persons ultimately by exonerated DNA S. testing); al., Gross et “Exonerations 1989 United States: 2003,” J. L. & Through 95 Crim. Criminology study percent (2005) (citing demonstrating that 64 wrongful convictions involved at least one erroneous eyewitness These identification). findings, and the other extensive research that thirty has occurred over the last years, expert testimony memory have “shown that eyewitness only identification is the safeguard legal effective jurors eyewitness is in sensitizing J. McMurtrie, supra, errors.”21 R. 1276; Wise, see also appellate 21 I note some have courts concluded that it is not an abuse of for a discretion trial court to exclude otherwise admissible testimony eyewitness’ on the identifications if the guilt. See, is corroborated other evidence of the defendant’s e.g., Moore, supra, 1312-13; Wright, supra, v. United States F.2d State v. 158; People Young, 40, 45-46, Idaho 7 N.Y.3d 850 N.E.2d (2006). predicated apparently that, N.Y.S.2d 576 This view on the belief circumstances, reasonably in such the trial court could concluded have eyewitness testimony “quite unlikely mistaken, was to be and that [the unnecessary expert’s] jury.” People would be an distraction for the supra, Young, general matter, however, why *71 46. As a I see no reason precluded presenting expert defendant should be from otherwise admissible testimony reliability eyewitness merely the on of identifications because predicated solely eyewitness testimony. my view, the is not state’s case on In contrary put disadvantage conclusion would at an the defendant unfair with ability respect challenge specifically to his to identification the evidence
119 L. & Crimi- supra, M. 97 J. Crim. Safer, K. & Dauphinais testimony ... is the eyewitness nology (“expert 819 any that has shown effi- only legal safeguard traditional B. Garrett, cf. cacy eyewitness mitigating error”); 55, 81 Innocence,” (2008) Colum. L. Rev. 108 “Judging for challeng- no successful basis exonerees had (“most eyewitness be incorrect iden- what we now know to ing tifications”). eyewitness testimony hope is “often
Even though lessly quotation omitted) marks unreliable”; (internal Dubose, supra, Commonwealth accord 162; v. 285 Wis. 2d 780 Vardinski, v. 438 Mass. N.E.2d rely testimony as jurors frequently 1278 on that (2003); s. Watkins Sow See, powerful e.g., evidence of guilt. ders, supra, J., 449 U.S. (Brennan, dissenting). 352 jurors are unaware measure, this is so because large adversely accuracy many of the factors that affect of of eyewitness identifications, including, course, of United that See those factors are counterintuitive. Smithers, States n.1; see supra, F.3d 312 also generally. course, Of trial broad the state’s case court retains discretion admissibility testimony, expert expert including testimony concerning the eyewitness may reliability identifications, on the and there be cases reasonably that, which the court determines under circumstances testimony eyewitness presented, expert simply of an on identifications reliability unnecessary. example, eyewit affecting is factors For some appro ness be identifications so well-known cross-examination priate protect any genuine jury against will instructions suffice to risk of See, e.g., Rodriguez-Berrios, States 573 F.3d misidentification. United 1300, 2009), denied, (1st U.S. Ct. L. 71-72 Cir. cert. 130 S. exceptional (2010). 2d I also case in which Ed. can conceive wholly apart linking crime, from the state’s evidence the defendant any eyewitness testimony, overwhelming is so is identification there any possibility no the defendant could demonstrate harm reasonable inability prejudice arising or out of his adduce Generally however, speaking, identifications. expert testimony, present entitled such and the trial defendant should be appropriate both to take to ensure that the court remains free measures properly facts of and that it not tailored to the the case is unduly burdensome, distracting. confusing or *72 Downing, United States v. 753 F.2d 1230-32 (3d Moreover, Cir. as recent studies have 1985). confirmed, can lead to results.” ignorance devastating “[t]his n.1. Smithers, United States v. It is abun supra, dantly ability clear, therefore, that the of a defendant accuracy to mount an challenge eye effective to the of witness is a paramount importance matter of justice. and essential to the fair administration In light eyewitness of the results research on identi fications, apparent it is that, expert now testi generally, mony is an appropriate method for challenging the of those shortcomings identifications. law will “[T]he always behind the lag degree sciences to some because of the need for solid scientific consensus before the law incorporates Appellate its . . teachings. . courts have a responsibility forward, to look and a con legal cept’s should longevity not be extended when it is estab lished is it no longer appropriate.” (Citation quotation omitted; internal omitted.) marks Brodes v. State, 279 Ga. (2005). Contrary S.E.2d 766 analysis Kemp to our and conclusion in and McClendon, therefore, is absolutely why there reason no courts should bar qualified expert testifying from about the factors that tend to weaken reliability or undermine the eyewitness identifications when the factors about expert prepared testify which the are relevant to particular identification involved. Insofar as Kemp are McClendon this conclusion, inconsistent with I would overrule them. present case, the trial court concluded that
Dysart an qualified reliability as eyewit- on the ness and, further, identifications that her was respect admissible with several of factors that she eyewitness had determined were relevant identifications at issue. The court, however, declined Dysart’s proffered testimony to consider on several additional factors that also detract from tend to identifications, specifically, the stress, perpetrator’s disguise, use of a perpetrator’s *73 between lack of a correlation weapon, of a use witness collaboration.22 accuracy, and confidence and that ground rejected court that The have therefore, would not commonly and, known it was testimony. in evaluating aided the court contrary to court’s conclude, I this Because would testi- Kemp McClendon, and that such in determination I would reason, for also mony is not inadmissible that rejected not have the trial court should conclude that that ground. it on of not to consider the merits majority
The
elects
is not
court’s
claim because
this
the defendant’s
“[i]t
it would have no effect
cases when
practice
overrule
is
hand.” This assertion
incorrect.
on the case at
whether
we sometimes decline
consider
Although
when
will
be overruled
so
prior precedent
doing
should
appeal,
we have not
not affect the result of
case on
modify prior
or
hesitated to reconsider
to overrule
so
outcome
precedent,
doing
even if
is not
determina
when,
present case, there
reason to
tive,
as in the
418, 470-76,
288 Conn.
See,
DeJesus,
do so.
State v.
e.g.,
precedent
A.2d 45
concern
(modifying prior
953
(2008)
admissibility
prior
recog
of
misconduct evidence
ing
exception
but
propensity
in sexual assault cases
nizing
impropriety
admitting
trial
concluding that
court’s
purpose
common
demonstrating
that evidence for
of
v. Griffin,
was
State
253
plan
harmless);
scheme
195, 209-10,
(2000) (disapproving
Conn.
Conn.
737
(1999) (abandoning
concluding
witness rule
criminal cases but
missing
application
of rule in that case constituted harmless
Schiappa,
State
168, 175-77,
248 Conn.
error);
132,
future
(prohibiting
charge
A.2d
use of
requirement
proof beyond
reasonable doubt is “a
. .
rule of law
. made
protect
innocent
not
despite
prior
guilty,”
approval
charge,
this court’s
but
concluding
harmless),
instruction was
cert.
U.S.
Ct.
denied,
152,
120 S.
The on the Kemp should be overruled whether issue of expert admissibility of Kemp involved ground the context in identifications testimony on case involves present trial, whereas jury of a sup- of a testimony in the context admissibility such finder, fact court is the in which the pression hearing of this proper use that “the ground and on the the test the soundness question calls into in Neil Supreme Court” States forth the United set L. S. Ct. 188, 199-200, 93 Biggers, 409 U.S. Biggers, court identi- because, (1972), Ed. 2d 401 witness” by the certainty demonstrated fied the “level of many fac- as one of the procedure at the identification to the determination be relevant tors these grounds Neither of the identification. the trial the first respect ground, With persuasive. and McClendon Kemp exclusively court relied and, fact, Dysart’s proffered rejecting majority’s Thus, extensively from both cases. quoted contrary notwith- assertion wholly unsupported *75 present case defendant in the the claim of the standing, that are “dif- or “concerns” implicate not “issues” does if that same implicated that would be from those ferent” majority is Indeed, at trial. had been raised claim or con- issue identify even one such different unable to simply there respect ground, to the second cern. With Biggers analysis in court’s between the is no conflict adduce a defendant to and the right eyewitness identifications. concerning in jury are free to instruct trial courts course, Of Biggers, factors identified with the accordance certainty by the identi- exhibited the level of including the limited testimony concerning Expert witness. fying certainty nature of the nexus between witness and the accuracy or her would only of his identification serve place particular proper factor in its context. set majority, however,
For the reasons forth proffered the trial failure to court’s consider the testi- mony was harmless. this court Nevertheless, has an obligation Kemp reconsider overrule because its holding application is invalid because its results evidentiary rulings deprive defendants of a fair opportunity to demonstrate the weaknesses inherent identifications, evidence results in more wrongful any convictions than other evidence. I concur in
Accordingly, majority the result that the respect reaches with to its affirmance the defendant’s murder conviction. K.
CHRIS STURM ET AL. HARB AL. DEVELOPMENT, LLC, ET (SC 18447) Rogers, X, Norcott, Katz, Vertefeuille, Palmer, C. Zarella and McLachlan, Js.* * *76 justices listing seniority The reflects their on this status court as of argument. the date of oral