Summary
holding that such identifications violate due process notwithstanding Perry
Summary of this case from People v. PoseyOpinion
No. 19385.
08-09-2016
STATE of Connecticut v. Andrew DICKSON.
Andrew S. Liskov, Bridgeport, for the appellant (defendant). Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Joseph T. Corradino, senior assistant state's attorney, for the appellee (state). Charles D. Ray, Hartford, James L. Brochin, Marques S. Tracy and Laura E. Sedlak filed a brief for The Innocence Project as amicus curiae.
Andrew S. Liskov, Bridgeport, for the appellant (defendant).
Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Joseph T. Corradino, senior assistant state's attorney, for the appellee (state).
Charles D. Ray, Hartford, James L. Brochin, Marques S. Tracy and Laura E. Sedlak filed a brief for The Innocence Project as amicus curiae.
ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.
Opinion ROGERS, C.J. The issue that we must resolve in this certified appeal is whether we should overrule this court's holding in State v. Smith, 200 Conn. 465, 469, 512 A.2d 189 (1986), and hold that inherently suggestive in-court identifications are inadmissible even in the absence of a suggestive pretrial identification procedure. The defendant, Andrew Dickson, was charged with a variety of offenses after he shot the victim, Albert Weibel, during an attempted robbery. Before trial, the defendant filed a motion to preclude Weibel from making an in-court identification of the defendant on the ground that in-court identification procedures are unnecessarily suggestive. In the alternative, the defendant requested that the trial court require that Weibel select him from a group of individuals of similar appearance. The trial court denied the motion pursuant to Smith, and Weibel identified the defendant as his assailant in court. The jury found the defendant guilty of assault in the first degree and conspiracy to commit robbery in the first degree, and the trial court rendered judgment accordingly.
This court held in State v. Smith, supra, 200 Conn. at 469, 512 A.2d 189, that “an in-court testimonial identification need be excluded, as violative of due process, only when it is tainted by an out-of-court identification procedure which is unnecessarily suggestive and conducive to irreparable misidentification.”
Thereafter, the defendant appealed to the Appellate Court claiming, among other things, that the trial court had abused its discretion by denying his motion to preclude Weibel's in-court identification of him or, in the alternative, to order an alternative identification procedure. The Appellate Court rejected the defendant's claim pursuant to Smith; State v. Dickson, 150 Conn.App. 637, 644–47, 91 A.3d 958 (2014) ; and, having also rejected the defendant's other claims on appeal, affirmed the judgment of conviction. Id., at 654, 91 A.3d 958.
We then granted the defendant's petition for certification to appeal, limited to the following issues: (1) “Did the Appellate Court properly determine that the in-court identification procedure used at trial was proper under this court's decision in State v. Smith, [supra, 200 Conn. at 465, 512 A.2d 189 ], and, if so, should the Smith precedent be overturned?”; and (2) “If we conclude that the in-court identification was improper, was the impropriety harmless in light of the other state's evidence?” State v. Dickson, 314 Conn. 913, 100 A.3d 404 (2014). We conclude that, contrary to our holding in Smith, in cases in which identity is an issue, in-court identifications that are not preceded by a successful identification in a nonsuggestive identification procedure implicate due process principles and, therefore, must be prescreened by the trial court. We also conclude that the admission of the in-court identification here was harmless and, accordingly, affirm the judgment of the Appellate Court on this alternative ground.
For purposes of this opinion, we refer to an identification procedure that is not unnecessarily suggestive as a nonsuggestive procedure.
Hereinafter, we refer to in-court identifications in cases in which the witness has not successfully identified the defendant in a prior out-of-court identification procedure as first time in-court identifications.
The record reveals the following facts that the jury reasonably could have found and procedural history. Akeem Lyles arranged to meet Weibel and Matthew Shaw at Terrace Circle in Bridgeport on the night of January 9, 2010, for the purpose of selling them an all-terrain vehicle. Shortly before the arranged meeting time, Lyles met with Jovanni Reyes and the defendant in a nearby apartment, explained that he planned to rob Weibel and Shaw and asked Reyes and the defendant if they would help him. Reyes and the defendant agreed. The three men left the apartment armed with guns at approximately 9:30 p.m. At that point, Weibel, who was in a pickup truck with Shaw at the arranged meeting place, called Lyles. Lyles told Weibel that he was outside in back of the building with the all-terrain vehicle and that Weibel should come and “check it out.” As Weibel approached Lyles, Lyles put a gun to Weibel's head and demanded money. Weibel then turned around and saw Reyes and the defendant with guns. They also demanded money. As Weibel covered his head, called for help and attempted to return to the pickup truck, the men hit him, demanded money and took his cell phone.
Lyles then broke from the group and approached the pickup truck. He tapped on the window with his gun and pointed the gun at Shaw's head. Shaw got out of the pickup truck and Lyles grabbed him, threw him against a parked car and demanded “the money.” When Shaw told Lyles that he did not have the money, Lyles took Shaw's cell phone and wallet. Lyles also took between $40 and $50, an iPod and a global positioning system from the pickup truck. Someone then yelled “this is taking too long” and Lyles and Reyes ran from the scene. At that point, the defendant held a gun to Weibel's head, threw him against a dumpster near the pickup and said, “You're a dead man.” The defendant then shot Weibel in the leg and neck. Weibel was seriously injured but survived. When Lyles later asked the defendant why he had shot Weibel, the defendant replied, “because we didn't get any money.”
Approximately one year after the shooting, Weibel viewed a police photographic array that included a photograph of the defendant, but he was unable to identify the defendant as his assailant. Both Weibel and Shaw, however, were able to identify Lyles from a photographic array as the person who had first approached Weibel and who had approached Shaw while he was in the pickup truck.
The defendant was arrested and charged with numerous offenses arising from the incident. Before trial, the defendant filed a motion in limine in which he contended that any in-court identification of the defendant by Weibel would be so highly and unnecessarily suggestive and conducive to an irreparable misidentification of the defendant as to violate the defendant's due process rights under article first, § 8, of the Connecticut constitution. In the alternative, the defendant, who is African–American, requested that the court order that Weibel be required to select him from a group of individuals of similar age, weight, height, complexion and hair style. The defendant orally renewed the motion in limine after the jury was selected and before the presentation of evidence. The trial court denied the motion.
At trial, the prosecutor asked Weibel if he saw the person who had shot him in court. Weibel responded in the affirmative and identified the defendant, who was sitting next to counsel at the defense table. Except for a judicial marshal who was in uniform, the defendant was the only African–American male in the courtroom. The jury found the defendant guilty of assault in the first degree and conspiracy to commit robbery in the first degree, and the trial court rendered judgment accordingly.
On appeal to the Appellate Court, the defendant claimed that the trial court had violated his due process rights under the fifth and fourteenth amendments to the federal constitution when it denied his motion in limine. State v. Dickson, supra, 150 Conn.App. at 642–43, 91 A.3d 958. The Appellate Court rejected this claim pursuant to State v. Smith, supra, 200 Conn. at 469–70, 512 A.2d 189 ; State v. Dickson, supra, at 644, 91 A.3d 958 ; and affirmed the judgment of conviction. State v. Dickson, supra, at 654, 91 A.3d 958. This appeal followed.
The Appellate Court concluded that the defendant had abandoned his claim under the state constitution. State v. Dickson, supra, 150 Conn.App. at 642 n. 5, 91 A.3d 958.
The defendant contends that the Appellate Court improperly concluded that Weibel's in-court identification of the defendant as his assailant was admissible under Smith. In the alternative, he claims that this court should overrule Smith and hold that first time in-court identifications trigger due process protections because they are inherently suggestive and are the result of state action. Finally, he claims that the state cannot prove that the improper admission of the in-court identification was harmless beyond a reasonable doubt.
Because we agree with the defendant's alternative claim that Smith must be overruled to the extent that it applies to cases in which the state has conducted a first time in-court identification, we need not address this claim.
In his concurring opinion, Justice Robinson, quoting Moore v. McNamara, 201 Conn. 16, 20, 513 A.2d 660 (1986), contends that “[t]his court has a basic judicial duty to avoid deciding a constitutional issue if a nonconstitutional ground exists that will dispose of the case.” (Internal quotation marks omitted.) In most of the cases that he cites in support of this principle, however, the court had been asked to invalidate a legislative enactment as unconstitutional when there were nonconstitutional grounds on which the case could be decided. In such circumstances, respect for a coordinate branch of government and constitutional separation of powers principles mandate that we avoid reaching the constitutional question. See Moore v. McNamara, supra, at 21, 513 A.2d 660 (“[a]ppropriate deference to a coordinate branch of government exercising its essential functions demands that we refrain from deciding constitutional challenges to its enactments until the need to do so is plainly evident” [internal quotation marks omitted] ).
These principles have no application in cases in which the state action is claimed to be unconstitutional, but may be found harmless beyond a reasonable doubt. Rather, the principle underlying the avoidance of constitutional questions in such cases is judicial economy and convenience. See United States v. Hasting, 461 U.S. 499, 509, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983) (purpose of avoiding constitutional questions when unconstitutional act was harmless “is to conserve judicial resources by enabling appellate courts to cleanse the judicial process of prejudicial error without becoming mired in harmless error” [internal quotation marks omitted] ); State v. Golding, 213 Conn. 233, 242, 567 A.2d 823 (1989) (same); see also State v. Jordan, 314 Conn. 89, 101, 101 A.3d 179 (2014) (“we conclude that the present case does not require us to weigh in on this debate” because, even assuming that action was unconstitutional, it was harmless [emphasis added] ). Because this principle is for the benefit of the reviewing court, the court is free to disregard it when appropriate. Indeed, this court and the Appellate Court have not hesitated to find a constitutional violation when the violation was harmless. See, e.g., State v. Hampton, 293 Conn. 435, 463, 988 A.2d 167 (2009) ; State v. Montgomery, 254 Conn. 694, 716, 759 A.2d 995 (2000) ; State v. Daugaard, 231 Conn. 195, 213, 647 A.2d 342 (1994), cert. denied, 513 U.S. 1099, 115 S.Ct. 770, 130 L.Ed.2d 666 (1995) ; State v. Peloso, 109 Conn.App. 477, 495, 952 A.2d 825 (2008) ; State v. Coleman, 14 Conn.App. 657, 675–76, 544 A.2d 194, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988).
In the present case, because the constitutional issue raised by the defendant is of such great importance, and because first time in-court identifications are occurring on a regular basis, we do not have the luxury of waiting for a case in which this practice actually deprived the defendant of his constitutional right to a fair trial. Rather, the pressing need for guidance in the trial court through a constitutional rule outweighs considerations of judicial economy or convenience. Accordingly, we conclude that we must address the issue.
Finally, contrary to Justice Robinson's contention, we have not defended our decision to address the constitutional issue raised by the defendant by relying on the United States Supreme Court's certiorari process. By pointing out that that court has the authority to overrule our decision, either in an appeal from our decision in the present case or in an appeal from the decision of another court on the same issue, we are simply responding to Justice Zarella's contention that we have somehow exceeded our authority to interpret the federal constitution by adopting a prophylactic constitutional rule. See footnote 11 of this opinion. To the contrary, our conclusion is entirely consistent with the notion that state courts provide valuable incubators for federal constitutional issues. S. Woodward, “The Remedy for A ‘Nollan/Dolan Unconstitutional Conditions Violation,’ ” 38 Vt. L.Rev. 701, 713 n. 75 (2014) (“[s]tate courts have been the incubators for what later becomes incorporated into the [f]ederal [c]onstitution”).
I
DEFENDANT'S CLAIM THAT FIRST TIME IN–COURT IDENTIFICATIONS IMPLICATE DUE PROCESS PRINCIPLES
To provide context for the defendant's claims, we begin our analysis with an overview of the legal principles governing the admission of eyewitness identification testimony. In the absence of unduly suggestive procedures conducted by state actors, the potential unreliability of eyewitness identification testimony ordinarily goes to the weight of the evidence, not its admissibility, and is a question for the jury. See Perry v. New Hampshire, ––– U.S. ––––, 132 S.Ct. 716, 730, 181 L.Ed.2d 694 (2012) (“we hold that the [d]ue [p]rocess [c]lause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement” ). Principles of due process require exclusion of unreliable identification evidence that is not the result of an unnecessarily suggestive procedure “[o]nly when [the] evidence is so extremely unfair that its admission violates fundamental conceptions of justice....” (Citation omitted; internal quotation marks omitted.) Id., at 723, 132 S.Ct. 716 citing Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (due process prohibits state's knowing use of false evidence because such use violates any concept of ordered liberty). To assist the jury in determining what weight to give to an eyewitness identification that is not tainted by an unduly suggestive identification procedure, the defendant is entitled as a matter of state evidentiary law to present expert testimony regarding a variety of factors that can affect the reliability of such testimony. State v. Guilbert, 306 Conn. 218, 248, 49 A.3d 705 (2012) ( “[an] expert should be permitted to testify ... about factors that generally have an adverse effect on the reliability of eyewitness identifications and are relevant to the specific eyewitness identification at issue”).
A different standard applies when the defendant contends that an in-court identification followed an unduly suggestive pretrial identification procedure that was conducted by a state actor. In such cases, both the initial identification and the in-court identification may be excluded if the improper procedure created a substantial likelihood of misidentification. Perry v. New Hampshire, supra, 132 S.Ct. at 724. “A primary aim of excluding identification evidence obtained under unnecessarily suggestive circumstances ... is to deter law enforcement use of improper lineups, show-ups, and photo arrays in the first place.” Id., at 726. “In determining whether identification procedures violate a defendant's due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on examination of the totality of the circumstances.” (Internal quotation marks omitted.) State v. Marquez, 291 Conn. 122, 141, 967 A.2d 56, cert. denied, 558 U.S. 895, 130 S.Ct. 237, 175 L.Ed.2d 163 (2009).
The first suggestiveness prong involves the circumstances of the identification procedure itself; id., at 142–43, 967 A.2d 56 ; and the critical question is whether the procedure was conducted “in such a manner as to emphasize or highlight the individual whom the police believe is the suspect.” Id., at 143, 967 A.2d 56. If the trial court determines that there was no unduly suggestive identification procedure, that is the end of the analysis, and the identification evidence is admissible. State v. Outing, 298 Conn. 34, 54, 3 A.3d 1 (2010), cert. denied, 562 U.S. 1225, 131 S.Ct. 1479, 179 L.Ed.2d 316 (2011).
If the court finds that there was an unduly suggestive procedure, the court goes on to address the second reliability prong, under which “the corruptive effect of the suggestive procedure is weighed against certain factors, such as the opportunity of the [eyewitness] to view the criminal at the time of the crime, the [eyewitness'] degree of attention, the accuracy of [the eyewitness'] prior description of the criminal, the level of certainty demonstrated at the [identification] and the time between the crime and the [identification].” (Internal quotation marks omitted.) State v. Ledbetter, 275 Conn. 534, 553, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S.Ct. 1798, 164 L.Ed.2d 537 (2006), citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) ; see Manson v. Brathwaite, supra, at 114, 97 S.Ct. 2243 (reliability factors include “the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation”); Neil v. Biggers, 409 U.S. 188, 199–200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (same). “[A]n out-of-court eyewitness identification should be excluded on the basis of the procedure used to elicit that identification ... if the court is convinced that the procedure was so suggestive and otherwise unreliable as to give rise to a very substantial likelihood of irreparable misidentification.” (Emphasis omitted.) State v. Marquez, supra, 291 Conn. at 142, 967 A.2d 56.
Hereinafter, we refer to these factors as the Biggers factors.
With this general background in mind, we now turn to the case law governing in-court identifications that are not preceded by an unnecessarily suggestive identification procedure, which is the case here. The United States Supreme Court has not yet addressed the question of whether first time in-court identifications are in the category of unnecessarily suggestive procedures that trigger due process protections. See Galloway v. State, 122 So.3d 614, 663 (Miss.2013) (“[t]he United States Supreme Court has not decided whether Biggers applies to an in-court identification not preceded by an impermissibly suggestive pretrial identification”), cert. denied, – –– U.S. ––––, 134 S.Ct. 2661, 189 L.Ed.2d 209 (2014). This court, however, addressed the issue in State v. Smith, supra, 200 Conn. at 467, 512 A.2d 189. In that case, this court held that despite the inherent suggestiveness of an in-court identification procedure; id., at 468–69, 512 A.2d 189 (“[a]ny one-on-one in-court identification of an accused conveys the message that the state has arrested and placed on trial a person it believes has committed the crime”); an in-court identification “need be excluded, as violative of due process, only when it is tainted by an out-of-court identification procedure which is unnecessarily suggestive and conducive to irreparable misidentification.” Id., at 469, 512 A.2d 189 ; see also State v. Nelson, 4 Conn.App. 514, 516, 495 A.2d 298 (1985) (where there had been no pretrial out-of-court identification procedure, there was no basis to suppress eyewitness' in-court identification because there would have been nothing to taint it). Thus, under Smith, first time in-court identifications are treated in the same way as identifications that are not tainted by an unnecessarily suggestive identification procedure conducted by a state actor.
We address the state's claim that the United States Supreme Court's decision in Perry v. New Hampshire, supra, 132 S.Ct. 716, addressed this question later in this opinion.
The defendant in the present case claims that first time in-court identifications are inherently suggestive and implicate a defendant's due process rights no less than unnecessarily suggestive out-of-court identifications. Accordingly, he contends, such identifications should be subject to prescreening by the court, just like other identifications that are the result of unduly suggestive identification procedures. This is a question of law over which our review is plenary. Commissioner of Environmental Protection v. Farricielli, 307 Conn. 787, 819, 59 A.3d 789 (2013) (“[w]hether [a party] was deprived of his due process rights is a question of law, to which we grant plenary review” [internal quotation marks omitted] ).
We agree with the defendant. First, and most importantly, we are hard-pressed to imagine how there could be a more suggestive identification procedure than placing a witness on the stand in open court, confronting the witness with the person who the state has accused of committing the crime, and then asking the witness if he can identify the person who committed the crime. If this procedure is not suggestive, then no procedure is suggestive. Indeed, the present case starkly demonstratesthe problem, in that Weibel was unable to identify the defendant in a photographic array, but had absolutely no difficulty doing so when the defendant was sitting next to defense counsel in court and was one of only two African–American males in the room. Second, because the extreme suggestiveness and unfairness of a one-one-one in-court confrontation is so obvious, we find it likely that a jury would naturally assume that the prosecutor would not be allowed to ask the witness to identify the defendant for the first time in court unless the prosecutor and the trial court had good reason to believe that the witness would be able to identify the defendant in a nonsuggestive setting. Indeed, such an assumption would be correct in the case of an in-court identification following an unnecessarily suggestive out-of-court identification procedure. Thus, a first time in-court identification procedure amounts to a form of improper vouching. See United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir.1993) (“[v]ouching consists of placing the prestige of the government behind a witness through ... suggesting that information not presented to the jury supports the [witness'] testimony”). Third, this court previously has recognized that mistaken eyewitness identifications are a significant cause of erroneous convictions; State v. Guilbert, supra, 306 Conn. at 249–50, 49 A.3d 705 (“mistaken eyewitness identification testimony is by far the leading cause of wrongful convictions”); and the risk of mistake is particularly acute when the identification has been tainted by an unduly suggestive procedure. United States v. Wade, 388 U.S. 218, 229, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (“[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor—perhaps it is responsible for more such errors than all other factors combined” [internal quotation marks omitted] ). Fourth, we cannot perceive why, if an in-court identification following an unduly suggestive pretrial police procedure implicates the defendant's due process rights because it is the result of state action, the same would not be true when a prosecutor elicits a first time in-court identification. Cf. State v. Warholic, 278 Conn. 354, 361, 897 A.2d 569 (2006) (prosecutor's conduct in court can constitute due process violation). Our research has revealed no case holding that this conduct does not constitute state action and, indeed, the state makes no such claim. Fifth, the rationale for the rule excluding identifications that are the result of unnecessarily suggestive procedures—deterrence of improper conduct by a state actor—applies equally to prosecutors.
See Gilbert v. California, 388 U.S. 263, 272 n. 3, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (out-of-court “identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness' mind” [internal quotation marks omitted] ); United States v. Greene, 704 F.3d 298, 306 (4th Cir.) (“ ‘[P]ressured to help solve a heinous crime, often conscious of a duty to do so, and eager to be of assistance, a potential witness may be readily receptive to subtle, even circumstantial, insinuation that the person viewed is the culprit. Unless such a witness is far more introspective than most, and something of a natural-born psychologist, he is usually totally unaware of all of the influences that result in his [saying], “That is the man.” ’ ”), cert. denied, ––– U.S. ––––, 134 S.Ct. 419, 187 L.Ed.2d 279 (2013) ; United States v. Rogers, 126 F.3d 655, 658 (5th Cir.1997) (“it is obviously suggestive to ask a witness to identify a perpetrator in the courtroom when it is clear who is the defendant”); United States v. Archibald, 734 F.2d 938, 941 (“[a]ny witness, especially one who has watched trials on television, can determine which of the individuals in the courtroom is the defendant”), modified, 756 F.2d 223 (2d Cir.1984) ; State v. Smith, supra, 200 Conn. at 468–69, 512 A.2d 189 (“[a]ny one-on-one in-court identification of an accused conveys the message that the state has arrested and placed on trial a person it believes has committed the crime”); State v. Frost, 105 Conn. 326, 341, 135 A. 446 (1926) (“[a]n identification of an accused made publicly for the first time by a witness in court ... may be open to question, but if it be shown that the witness identified the accused previously and the first time after his arrest or incarceration and under circumstances which removed the suspicion of unfairness or unreliability, the prior identification, together with the circumstances surrounding its making, will be of utmost aid in determining the trustworthiness of the identification made in the court room”); State v. Frost, supra, at 341, 135 A. 446 (“Ordinarily, when a witness is asked to identify the assailant, or thief, or other person who is the subject of his testimony, the witness' act of pointing out then and there the accused [or other person] is of little testimonial force. After all that has intervened, it would seldom happen that the witness would not have come to believe in the person's identity.” [Emphasis omitted; internal quotation marks omitted.] ); Middleton v. United States, 401 A.2d 109, 132 (D.C.App.1979) (in-court identification is “by its very nature ... extremely suggestive”); Commonwealth v. Wheeler, 3 Mass.App. 387, 390, 331 N.E.2d 815 (1975) ( “any in-court identification confrontation ... carries with it the stigma of the inevitable suggestion that the state thinks the defendant has committed the crime” [internal quotation marks omitted] ); E. Mandery, “Due Process Considerations of In–Court Identifications,” 60 Alb. L.Rev. 389, 416 (1996) (“[t]he pressure of being asked to make an identification in the formal courtroom setting and the lack of anonymity, create conditions under which a witness is most likely to conform his or her recollection to expectations, either by identifying the particular person whom he or she knows the authorities desire identified, or by acting in conformity with the behavior of others they may have seen on television or in movies or read of in books”).
We recognize that a number of courts have concluded otherwise. See E. Mandery, supra, at 60 Alb. L.Rev. 405 n. 122 (collecting cases). In our view, however, to conclude that telling an eyewitness who is on the stand and who previously had not had an opportunity to identify the defendant, or who had such an opportunity, but was unable to do so, that the state believes that this is the person who committed the crime is not suggestive simply defies common sense.
We also note that, in 2011, the legislature enacted General Statutes § 54–1p ; see Public Acts 2011, No. 11–252, § 1; which governs the procedures that the police must use when conducting photographic arrays and live lineups. This statute demonstrates a clear legislative concern that suggestive identification procedures are a significant cause of erroneous convictions and should be eliminated to the extent possible.
Accordingly, we conclude that first time in-court identifications, like in-court identifications that are tainted by an unduly suggestive out-of-court identification, implicate due process protections and must be prescreened by the trial court. See United States v. Greene, 704 F.3d 298, 308 (4th Cir.) (applying Biggers constitutional analysis to in-court identification), cert. denied, ––– U.S. ––––, 134 S.Ct. 419, 187 L.Ed.2d 279 (2013) ; United States v. Rogers, 126 F.3d 655, 658 (5th Cir.1997) (same); United States v. Hill, 967 F.2d 226, 232 (6th Cir.) (“We hold that the Biggers [constitutional] analysis applies to ... in-court identifications for the same reasons that the analysis applies to impermissibly suggestive [pretrial] identifications. The due process concerns are identical in both cases and any attempt to draw a line based on the time the allegedly suggestive identification technique takes place seems arbitrary. All of the concerns that underlie the Biggers analysis, including the degree of suggestiveness, the chance of mistake, and the threat to due process are no less applicable when the identification takes place for the first time at trial.”), cert. denied, 506 U.S. 964, 113 S.Ct. 438, 121 L.Ed.2d 357 (1992) ; United States v. Rundell, 858 F.2d 425, 427 (8th Cir.1988) (noting “suggestiveness inherent in the witnesses' knowing that [the defendant] was the sole [person] charged with the [crime]” and applying Biggers factors to in-court identification); United States v. Archibald, 734 F.2d 938, 943 (witness' in-court identification suggestive when on cross-examination, witness stated he had “feeling he would be sitting next to” defense counsel, and applying Biggers factors), modified, 756 F.2d 223 (2d Cir.1984) ; E. Mandery, “Due Process Considerations of In–Court Identifications,” 60 Alb. L.Rev. 389, 423 (1997) (“[t]here is no sound basis for this distinction” between in-court identifications and suggestive out-of-court identifications); see also Commonwealth v. Crayton, 470 Mass. 228, 241–42 and n. 16, 21 N.E.3d 157 (2014) (concluding pursuant to “[c]ommon law principles of fairness” that first time in-court identifications are inadmissible except for “good reason,” as when identity is not at issue or eyewitness knew defendant before crime [internal quotation marks omitted] ). Thus, we conclude that the holding of Smith must be limited to its facts, that is, to cases in which the in-court identification has been preceded by an admissible out-of-court identification. We recognize that a number of courts have concluded otherwise. Nevertheless, we conclude that this is an issue for which the arc of logic trumps the weight of authority. For all of the reasons that we have explained, we simply see no reason to distinguish inherently suggestive in-court identifications from inherently suggestive out-of-court identifications.
Thus, we conclude for the first time today that any first time in-court identification by a witness who would have been unable to reliably identify the defendant in a nonsuggestive out-of-court procedure constitutes a procedural due process violation. This is contrary to the holding of Smith that only in-court identifications that are tainted by an unduly suggestive out-of-court identification violate due process principles. Although we recognize that, when the witness could have identified the defendant in a nonsuggestive procedure, a first time in-court identification does not constitute an actual violation of due process principles, this court has an obligation to adopt procedures that will eliminate the risk that the defendant will be deprived of a constitutionally protected right by being identified in court by a witness who could not have identified the defendant in a fair proceeding. Indeed, it is well established that courts have the duty not only to craft remedies for actual constitutional violations, but also to craft prophylactic constitutional rules to prevent the significant risk of a constitutional violation. See Montejo v. Louisiana, 556 U.S. 778, 793, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009) (recognizing authority of court to create prophylactic constitutional rule when benefits of rule outweigh costs); Oregon v. Elstad, 470 U.S. 298, 305, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) (rule set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 [ (1966) ], is prophylactic and was intended to provide “practical reinforcement for the [f]ifth [a]mendment right” [internal quotation marks omitted] ); State v. Jenkins, 298 Conn. 209, 280, 3 A.3d 806 (2010) (considering defendant's request for prophylactic constitutional rule); see also B. Landsberg, “Safeguarding Constitutional Rights: The Uses and Limits of Prophylactic Rules,” 66 Tenn. L.Rev. 925, 950 (1999) (prophylactic constitutional rules “are predicated on a judicial judgment that the risk of a constitutional violation is sufficiently great that simple case-by-case enforcement of the core right is insufficient to secure that right”); S. Klein, “Identifying and (Re)formulating Prophylactic Rules, Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure,” 99 Mich. L.Rev. 1030, 1032–33 (2001) (“A ‘constitutional prophylactic rule’ is a judicially-created doctrinal rule or legal requirement determined by the [c]ourt as appropriate for deciding whether an explicit or ‘true’ federal constitutional rule is applicable. It may be triggered by less than a showing that the explicit rule was violated, but provides approximately the same result as a showing that the explicit rule was violated. It is appropriate only upon two determinations: first, that simply providing relief upon a showing that the explicit right was violated is ineffective; second, that use of this rule will be more effective and involve only acceptable costs.”). In the present case, we conclude that the practice of allowing first time in-court identifications creates a significant risk of a due process violation and that the procedures that we adopt herein are more effective at preventing such violations, less costly and more in keeping with the legislative will than any other alternative.
We further note that, as the United States Supreme Court recognized in Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000), the fact that a rule is designed to prophylactically prevent constitutional violations and is not itself constitutionally mandated “in the sense that nothing else will suffice to satisfy constitutional requirements”; id., at 442, 120 S.Ct. 2326 ; does not mean that the rule does not have the force of a constitutional rule. See id., at 444, 120 S.Ct. 2326 (“Miranda announced a constitutional rule that Congress may not supersede legislatively”). Thus, the adoption of prophylactic constitutional rules does not constitute an exercise of supervisory authority. See id., at 437, 86 S.Ct. 1602 (“[t]his case ... turns on whether the Miranda [c]ourt announced a constitutional rule or merely exercised its supervisory authority”); id., at 438, 86 S.Ct. 1602 (Miranda is binding on state courts, which would not be true if rule were merely supervisory). In the present case, for example, although it is arguable that the legislature constitutionally could enact procedures that are different from the procedures that we adopt herein if the procedures were equally effective at preventing inherently unreliable first time in-court identifications, the legislature could not constitutionally enact legislation providing that first time in-court identifications are categorically admissible, because we have concluded that first time in-court identifications violate constitutional due process principles when the witness would have been unable to identify the defendant in a fair procedure. See id., at 442, 86 S.Ct. 1602 (federal statute overruling Miranda was unconstitutional because it created test for admissibility of confession that court had found constitutionally unacceptable in Miranda ); B. Landsberg, supra, 66 Tenn. L.Rev. 950 (Prophylactic rules “are best characterized as hybrid rules. They are based on the [c]onstitution because they are predicated on a judicial judgment that the risk of a constitutional violation is sufficiently great that simple case-by-case enforcement of the core right is insufficient to secure that right.... However, there may be myriad ways to reach the objective of safeguarding constitutional rights. The [c]ourt acts in a legislative fashion when it chooses a particular method. The [c]onstitution may demand imposition of a prophylactic rule, but it does not demand a particular one.” [Emphasis in original.] ).
We are not persuaded by the Justice Zarella's reliance on Justice Ginsburg's concurring opinion in Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996), which, according to Justice Zarella, supports the proposition that a state court lacks the authority to craft prophylactic rules to protect rights guaranteed by the United States constitution. Justice Ginsburg wrote that the rule under review in Robinette “seem[ed] to be a prophylactic measure not so much extracted from the text of any constitutional provision as crafted by the Ohio Supreme Court to reduce the number of violations of textually guaranteed rights. In Miranda v. Arizona, [supra, 384 U.S. 436, 86 S.Ct. 1602 ], this [c]ourt announced a similarly motivated rule as a minimal national requirement without suggesting that the text of the [f]ederal [c]onstitution required the precise measures the [c]ourt's opinion set forth. See id., at [467, 86 S.Ct. 1602 ] (‘[T]he [c]onstitution [does not] necessarily requir[e] adherence to any particular solution’ to the problems associated with custodial interrogations.); see also Oregon v. Elstad, 470 U.S. 298, 306 [105 S.Ct. 1285, 84 L.Ed.2d 222] (1985) (‘The Miranda exclusionary rule ... sweeps more broadly than the [f]ifth [a]mendment itself.’). Although all parts of the United States fall within this [c]ourt's domain, the Ohio Supreme Court is not similarly situated. That court can declare prophylactic rules governing the conduct of officials in Ohio, but it cannot command the police forces of sister [s]tates.” Ohio v. Robinette, supra, at 43, 117 S.Ct. 417. We do not agree with Justice Zarella that this language clearly indicates that Justice Ginsburg believed that state courts lack the authority to adopt prophylactic rules to protect rights guaranteed by the federal constitution. Rather, it appears to us that Justice Ginsburg may have incorrectly assumed both that prophylactic rules, like the one adopted in Miranda, are adopted pursuant to a court's supervisory powers and that supervisory rules adopted by the United States Supreme Court are binding on the states. Although our decisions announcing federal constitutional rules are, for reasons of federalism, not binding on other state courts, it is beyond dispute that this court has the authority to announce federal constitutional rules that, in our opinion, have force in all jurisdictions; see, e.g., Giaimo v. New Haven, 257 Conn. 481, 509, 778 A.2d 33 (2001) (for purposes of invoking due process provisions of federal constitution, “an applicant for a statutory benefit ... has a protected property interest in the benefit when, under the governing statute, the decision-making body would have no discretion to deny the application if the applicant could establish at a hearing that it met the statutory criteria”); and we have concluded in the present case that the procedures that we adopt herein are required to protect due process rights under the federal constitution. Of course, if other states disagree with our decision, they can decline to follow it and, if the United States Supreme Court disagrees, that court has the authority to overrule our decision. That would not mean, however, that we lacked the authority to adopt prophylactic rules that we believe are necessary to protect rights guaranteed by the federal constitution in the first instance.
In her concurring opinion, Justice Espinosa states that, by adopting this prophylactic rule, we have “[laid] claim to a power that is without any foundation,” and she suggests that our decision is “part of an emerging pattern of judicial activism in this court.” There simply is no doubt, however, that this court has the power to interpret the federal constitution and to apply its interpretation to actions of the state and its constituent parts, including prosecutors and trial courts. Indeed, Justice Espinosa and Justice Zarella make no claim to the contrary, but simply disagree with our conclusion that first time in-court identifications violate the due process provisions of the federal constitution when the witness would not have been able to identify the defendant in a nonsuggestive out-of-court procedure. In our view, having found that first time in-court identifications implicate the due process provisions of the federal constitution, it is indisputable that our power to take steps to prevent such constitutional violations is an inherent aspect of our basic constitutional function of interpreting the law, and certainly does not constitute judicial activism. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803) (“[i]t is emphatically the province and duty of the judicial department to say what the law is”). To the contrary, to stand back and permit prosecutors and trial courts to engage in a practice that creates a significant risk that defendants will be deprived of their constitutional right to a fair trial would be an abdication of our constitutional duty.
But see United States v. Davis, 103 F.3d 660, 670 (8th Cir.1996) (concluding that in-court identification procedure, although suggestive, is “not so impermissibly suggestive as to lead to a likelihood of irreparable misidentification”), cert. denied, 520 U.S. 1258, 117 S.Ct. 2424, 138 L.Ed.2d 187 (1997). In Davis, the United States Court of Appeals for the Eighth Circuit did not refer to its prior holding to the contrary in United States v. Rundell, supra, 858 F.2d at 427.
Although the witness in Smith was not entirely certain of her identification of the defendant in the pretrial identification procedure; see State v. Smith, supra, 200 Conn. at 467, 512 A.2d 189 ; we conclude later in this opinion that uncertain identifications are admissible unless the witness was so uncertain that the identification amounted to a failure to identify the defendant.
See, e.g., United States v. Bush, 749 F.2d 1227, 1232 (7th Cir.1984) (first time in-court identification is not so inherently suggestive that, standing alone, it triggers due process protections), cert. denied, 470 U.S. 1058, 105 S.Ct. 1771, 84 L.Ed.2d 831 (1985) ; Baker v. Hocker, 496 F.2d 615, 617 (9th Cir.1974) (“[t]he danger posed by a courtroom identification is insufficient to require” due process protections); Byrd v. State, 25 A.3d 761, 767 (Del.2011) (“we join the majority of courts in concluding that the two-step Biggers analysis does not apply to in-court identifications that do not come following an impermissibly suggestive pretrial identification”); State v. King, 156 N.H. 371, 376, 934 A.2d 556 (2007) (“we join the apparent majority of courts in concluding that ... Biggers does not apply to in-court identifications” [internal quotation marks omitted] ); State v. Lewis, 363 S.C. 37, 42, 609 S.E.2d 515 (2005) (“[w]e conclude, as the majority of courts have, that ... Biggers does not apply to in-court identifications”); E. Mandery, supra, at 60 Alb. L.Rev. 400 (as of 1997, majority of courts had concluded that in-court identifications ordinarily do not trigger due process protections); E. Mandery, supra, at 402–404 and nn. 108 through 113, and 115 (citing cases).
II
STATE'S ARGUMENTS IN SUPPORT OF CLAIM THAT FIRST TIME IN–COURT IDENTIFICATIONS ARE ADMISSIBLE
The state raises numerous arguments in support of its claim to the contrary. We first address the state's claim that our conclusion is inconsistent with the United States Supreme Court's decision in Perry v. New Hampshire, supra, ––– U.S. ––––, 132 S.Ct. 716, 181 L.Ed.2d 694. Specifically, the state contends that the court in Perry held that an identification that is the result of an unduly suggestive identification procedure is excludable only when the procedure has been conducted by “law enforcement actors involved in extrajudicial investigation, not prosecutors presenting evidence in court.” We disagree. The question of whether a first time in-court identification orchestrated by a prosecutor could trigger due process protections simply was not before the court in Perry. Rather, the issue was whether an identification that was the result of suggestive private conduct triggered due process protections. Perry v. New Hampshire, supra, at 721. Accordingly, we do not believe that the court's repeated statements that due process protections are triggered only when unduly suggestive identification procedures are arranged by the police means that due process protections are not triggered when state actors other than the police conduct unfair identification procedures. Indeed, the court in Perry expressly stated that its prior decisions on this issue “turn on the presence of state action ”; (emphasis added) id.; and, as we have indicated, the state in the present case does not dispute that a prosecutor's conduct in court constitutes state action. We further note that, since the court's decision in Perry, at least one court has assumed that a first time in-court identification triggers due process protections. See United States v. Greene, supra, 704 F.3d at 308 (applying Biggers factors to in-court identification); see also United States v. Correa–Osorio, 784 F.3d 11, 19–20 (1st Cir.2015) (“[o]ne could argue either way” whether Biggers analysis applies to in-court identifications after Perry ); Galloway v. State, supra, 122 So.3d at 663 (as of 2013, “[t]he United States Supreme Court has not decided whether Biggers applies to an in-court identification not preceded by an impermissibly suggestive pretrial identification”); but see United States v. Whatley, 719 F.3d 1206, 1216 (11th Cir.) (“Perry makes clear that, for those defendants who are identified under suggestive circumstances not arranged by police [including in-court identifications], the requirements of due process are satisfied in the ordinary protections of trial”), cert. denied, ––– U.S. ––––, 134 S.Ct. 453, 187 L.Ed.2d 303 (2013). Moreover, we are not persuaded by the state's argument that, if a prosecutor's conduct in presenting evidence in court triggers due process protections, the court in Perry would have held that the admission of the witness' identification—or, indeed, any potentially unreliable evidence—could be excluded. When, as in Perry, a private party was responsible for the suggestiveness of the initial identification procedure, the rationale for the exclusionary rule—deterrence of improper conduct by a state actor—carries no force.
See, e.g., Perry v. New Hampshire, supra, 132 S.Ct. at 723 (referring to “suggestive circumstances not arranged by the police”); id., at 723–24 (referring to “police-arranged identification procedures”); id., at 724 (“[e]ven when the police use [an unfair identification] procedure ... suppression of the resulting identification is not the inevitable consequence”).
The state also points out that the court in Perry specifically referred to in-court identifications when discussing suggestive procedures that do not trigger due process protections. Perry v. New Hampshire, supra, 132 S.Ct. at 727 (The court rejected the defendant's claim that any identification resulting from a suggestive procedure must be prescreened by the court because “[m]ost eyewitness identifications involve some element of suggestion. Indeed, all in-court identifications do.”). We agree that one-on-one in-court identifications do not always implicate the defendant's due process rights, as when identity is not an issue or when there has been a nonsuggestive out-of-court identification procedure. As we have indicated, however, the specific question that we are addressing here—whether the trial court is constitutionally required to prescreen first time in-court identifications—simply was not before the court in Perry. Accordingly, we cannot conclude that the passing, general reference by the court in Perry to the propriety of in-court identifications forecloses our conclusion that they can implicate due process concerns under certain circumstances.
The state further claims that in-court identifications do not violate due process principles because they are necessary and, relatedly, because there is no feasible alternative to them. In support of this claim, the state relies on State v. Tatum, 219 Conn. 721, 725, 595 A.2d 322 (1991), in which the defendant contended that his in-court identification by an eyewitness at trial was tainted by the eyewitness' earlier in-court identification of him, for the first time, at a probable cause hearing. This court disagreed with the defendant's claim, concluding that, “[i]n order to try the defendant, it was necessary for the prosecution to present evidence at the preliminary hearing to establish probable cause to believe that he had committed the crimes charged. Conn. Const. art. I, § 8, as amended [by articles seventeen and twenty-nine of the amendments]; General Statutes [Rev. to 1991] § 54–46a.” (Emphasis in original; footnote altered.) State v. Tatum, supra, at 728–29, 595 A.2d 322. This court further stated that “[t]he fact that the prosecution might have taken extraordinary steps to lessen the suggestiveness of the confrontation [at the probable cause hearing] by using some other identification procedure does not render the routine procedure that was used unnecessary or impermissible. The defendant had no constitutional right to a lineup; State v. Vaughn, 199 Conn. 557, 562, 508 A.2d 430, cert. denied, 479 U.S. 989, 107 S.Ct. 583, 93 L.Ed.2d 585 (1986) ; nor did the state have a constitutional duty to conduct one. State v. Vass, 191 Conn. 604, 611, 469 A.2d 767 (1983).” State v. Tatum, supra, at 729, 595 A.2d 322. Finally, the court stated that, “[a]lthough the probable cause hearing held in this case was a one-to-one pretrial confrontation, it was unlike a showup or single photo[graphic] display in that it occurred in a courtroom. The initial identification made at the probable cause hearing, therefore, resembled an initial identification made at trial. While there is little doubt that the trial setting is suggestive, for the same reasons that a probable cause hearing is suggestive, ‘[t]he manner in which in-court identifications are conducted is not of constitutional magnitude but rests within the sound discretion of the trial court.’ State v. Smith, supra, [200 Conn. at] 470 [512 A.2d 189 ].” (Footnote omitted.) State v. Tatum, supra, at 730–31, 595 A.2d 322.
Before the probable cause hearing, the eyewitness had been shown “a photographic array that included the defendant's picture, but he declined to identify anyone, explaining that he preferred to see the individuals in person.” State v. Tatum, supra, 219 Conn. at 724, 595 A.2d 322. The court in Tatum stated that, “[a]t the probable cause hearing, both parties referred to [a previous in person lineup] ... from which [the eyewitness] failed to select anyone as his assailant. Since there is no other mention of such a procedure anywhere in the trial record or in any of the appellate briefs, we exclude it from our recitation of the background facts.” Id., at 724–25 n. 7, 595 A.2d 322.
The constitution of Connecticut, article first, § 8, as amended by articles seventeen and twenty-nine of the amendments, provides: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law, except in the armed forces, or in the militia when in actual service in time of war or public danger.”
General Statutes (Rev. to 1991) § 54–46a (a) provides: “No person charged by the state, who has not been indicted by a grand jury prior to May 26, 1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.”
We conclude that the holding in Tatum that it was “necessary” for the state to present a first time in-court identification of the defendant at the probable cause hearing must be overruled. We simply can perceive no reason why the state cannot attempt to obtain an identification using a lineup or photographic array before asking an eyewitness to identify the defendant in court. Although the state is not constitutionally required to do so, it would be absurd to conclude that the state can simply decline to conduct a nonsuggestive procedure and then claim that its own conduct rendered a first time in-court identification necessary, thereby curing it of any constitutional infirmity. See United States v. Archibald, supra, 734 F.2d at 941 (“[w]e may agree with the [trial] court that there was no obligation to stage a lineup, but there was ... an obligation to ensure that the in-court procedure ... did not simply amount ... to a show-up” [internal quotation marks omitted] ); see also United States v. Hill, supra, 967 F.2d at 231 (same); United States v. Hill, supra, at 232 (although government is not required to conduct lineup, it “is prohibited under the [d]ue [p]rocess [c]lause from introducing the fruits of an impermissibly suggestive and inherently unreliable identification as evidence against the accused”). To the extent that the state claims that first time in-court identifications are necessary in cases where the eyewitness had a fair opportunity to identify the defendant before trial but was unable to do so because, otherwise, the state will not be able to present an eyewitness identification to the jury, to state this claim is to refute it. The state is not entitled to conduct an unfair procedure merely because a fair procedure failed to produce the desired result. Moreover, if the state declines to conduct a nonsuggestive identification procedure before the in-court confrontation, or if it attempts to do so but the eyewitness is unable to identify the defendant, the state is not barred from presenting any evidence regarding the defendant's identity and guilt. The state still can question the eyewitness about his observations of the perpetrator at the time of the crime, including his observations of the perpetrator's height, weight, sex, race, age and any other characteristics that the eyewitness was able to observe, and present any other evidence that is relevant.
Of course, if an eyewitness was unable to provide any of these details before the court proceeding, asking him to provide them at the proceeding would present the same problem as a first time in-court identification. Specifically, the witness could simply describe the defendant who was facing the witness in court. Because this problem is not presented in the present case, we need not address it.
We also are not persuaded by the state's argument that first time in-court identifications are necessary because there is no feasible alternative. Specifically, the state contends that it would be entirely impractical to assemble a group of individuals who closely resemble the defendant and arrange for them to appear in court, that it would be dangerous to allow a defendant to sit among the spectators in court, and that there is no source of funds to pay individuals to participate in lineups. Although numerous courts have held that it is within the trial court's discretion to order a nonsuggestive in-court identification, we are compelled to conclude that such a procedure is no longer viable in this state since the legislature's enactment of General Statutes § 54–1p, which governs the procedures for live lineups. Although that statute applies to identification procedures conducted by police, and the defendant makes no claim that it applies to in-court lineups, we believe that it would be inconsistent with the will of the legislature to allow a first time in-court identification that does not comport with the statutory procedures. We further conclude that it would be simply impracticable in a courtroom setting to present the lineup participants to the witness sequentially; see General Statutes § 54–1p (c)(1) ; and to give extensive instructions to the witness. See General Statutes § 54–1p (c)(3)(A) through (G). Nevertheless, we reject the state's claim that a traditional in-court identification is the only feasible option. Specifically, the state has not provided any convincing arguments as to why it would not be feasible to arrange for a nonsuggestive out-of-court lineup or photographic array, as is done routinely in cases where identity is at issue. See United States v. Wade, supra, 388 U.S. at 230, 87 S.Ct. 1926 (“[l]ineups are prevalent in rape and robbery prosecutions”). Indeed, the state could conduct either of these procedures at any point up to the time of the witness' testimony.
See, e.g., United States v. Domina, 784 F.2d 1361, 1368–69 (9th Cir.1986) (trial court has discretion to allow in-court lineup or other procedure to reduce suggestiveness of in-court identification), cert. denied, 479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987) ; United States v. Sebetich, 776 F.2d 412, 420–21 (3d Cir.1985) (requiring government to conduct nonsuggestive identification procedures in lieu of one-on-one in-court identification “will not be unduly burdensome, and their potential benefits would ... outweigh any additional time or complexity at trial”), cert. denied, 484 U.S. 1017, 108 S.Ct. 725, 98 L.Ed.2d 673 (1988) ; United States v. Archibald, supra, 734 F.2d at 942 (“[a] fairly short delay of proceedings was all that would have been required to rearrange the seating in the courtroom and to secure the presence of some people of the defendant's approximate age and skin color”).
The state contends that it is unclear what type of procedure would qualify as nonsuggestive and whether the persons in the lineup or photographic array should resemble the defendant at the time of trial or at the time of the crime. The case law is replete, however, with guidance on what constitutes a suggestive identification procedure. See United States v. Wade, supra, 388 U.S. at 232–33, 232 nn. 18, 87 S.Ct. 1926 through 23 (citing cases in which suggestive procedures are described). Moreover, § 54–1p expressly describes procedures for avoiding undue suggestiveness. If the defendant's appearance has changed since the time of the crime, the state has the option of producing a photographic array with photographs of the defendant as he appeared at the time of the crime and similar looking individuals or of conducting a lineup with individuals who look similar to the defendant at the time of the trial. If the defendant's appearance has changed so much from the time of the crime that the eyewitness would not be able to recognize the defendant in a nonsuggestive lineup, it is no solution to allow the state to conduct a suggestive in-court identification. The possibility of the defendant's appearance changing over time is one of many reasons that the state should conduct an identification procedure at the earliest possible time when identity is at issue in a case. United States ex rel. Stovall v. Denno, 355 F.2d 731, 738 (2d Cir.1966) (“interests of the accused and society alike demand that the opportunity to identify be afforded at the earliest possible moment when the likelihood of an accurate identification is greatest”), aff'd, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).
The state also contends in its supplemental brief that “[p]olice have largely stopped using live lineups because of the practical obstacles, and, even more importantly, because the criteria for nonsuggestiveness have tightened so much that live lineups can rarely satisfy them.” (Emphasis in original.) Even if it is true that police have stopped using lineups because it is difficult to conduct them in a nonsuggestive manner, that, again, is no reason to allow a highly suggestive in-court identification. Indeed, if police have stopped using live lineups, it may be because they know that, under Smith, a suggestive lineup may result in the exclusion of both the out-of-court and the in-court identification, while, if there is no pretrial lineup, the witness can be asked to identify the defendant for the first time in the highly suggestive courtroom setting.
The state also claims that in-court identifications do not implicate the same concerns as unduly suggestive pretrial identification procedures because, when the identification is in court, jurors are present to observe the witness making the initial identification. See United States v. Domina, 784 F.2d 1361, 1368 (9th Cir.1986) (when initial identification is in court “[t]he jury can observe the witness during the identification process and is able to evaluate the reliability of the ... identification”), cert. denied, 479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987) ; State v. Hickman, 355 Or. 715, 735, 330 P.3d 551 (2014) (when identification is made for first time in court, jury can observe “variables such as indications of witness certainty or hesitation during the identification process, including facial expression, voice inflection and body language”). These courts fail to recognize, however, that the very reason that first time in-court identifications are so problematic is that, when the state places the witness under the glare of scrutiny in the courtroom and informs the witness of the identity of the person who has been charged with committing the crime, it is far less likely that the witness will be hesitant or uncertain when asked if that person is the perpetrator. Moreover, cross-examination is unlikely to expose any witness uncertainty or weakness in the testimony “because cross-examination is far better at exposing lies than at countering sincere but mistaken beliefs.” State v. Guilbert, supra, 306 Conn. at 243, 49 A.3d 705 ; see also Commonwealth v. Collins, 470 Mass. 255, 264, 21 N.E.3d 528 (2014) (“cross-examination cannot always be expected to reveal an inaccurate in-court identification where most jurors are unaware of the weak correlation between confidence and accuracy and of witness susceptibility to manipulation by suggestive procedures or confirming feedback” [internal quotation marks omitted] ). In any event, even if a first time in-court identification is less likely to lead to error than an identification resulting from an out-of-court suggestive procedure, first time in-court identifications still create a greater risk of error than nonsuggestive procedures. See Commonwealth v. Crayton, supra, 470 Mass. at 239–40, 21 N.E.3d 157 (“even if we were persuaded that there were evaluative benefits arising from the jury's ability to see the identification procedure, it would not justify admission of an inherently suggestive identification”).
The state also contends that in-court identifications pose no undue risk of error because they are subject to cross-examination, expert testimony, arguments and jury instructions. This does not distinguish in-court identifications from out-of-court identifications that are the result of unnecessarily suggestive procedures, however, and such identifications trigger due process protections.
We next address the state's claim that there is no need for the trial court to prescreen in-court identifications because they “were a routine and expected part of trials at common law” and, up to the end of the nineteenth century, “were the principal means of identifying the perpetrator ... because pretrial police investigations and identification procedures are late developments....” Again, we are not persuaded. First, it is beyond dispute that the fact that a criminal procedure has roots in tradition does not necessarily mean that it is constitutional. See, e.g., United States v. Wade, supra, 388 U.S. at 236–37, 87 S.Ct. 1926 (holding for first time that pretrial lineup is critical stage of prosecution at which defendant has right to aid of counsel under sixth amendment); see also Stovall v. Denno, 388 U.S. 293, 299–300, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) (prior to court's decision in Wade, “[t]he overwhelming majority of American courts [had] always treated the evidence question [arising from the absence of defense counsel during a pretrial lineup] not as one of admissibility but as one of credibility for the jury”); cf. United States v. Archibald, supra, 734 F.2d at 942–43 (“[t]he in-court identification procedure utilized here was so clearly suggestive as to be impermissible, however traditional it maybe ” [emphasis added] ). Second, it would appear that the reason that eyewitness identifications played a predominant role in early English and American history is that a large proportion of criminals who were brought into court had been caught in the act by private parties, not because first time in-court eyewitness testimony was deemed to be particularly reliable. See J. Langbein, “The Criminal Trial before the Lawyers,” 45 U. Chi. L.Rev. 263, 281 n. 56 (1978) (“By today's standards a striking proportion of the Old Bailey [court of regular jurisdiction for serious crime in London in the sixteenth and seventeenth centuries] cases involved defendants caught in the act or taken with stolen goods. We can understand why identification evidence would predominate in an age before professional policing and well before the development of scientific techniques for generating and evaluating many of the types of circumstantial evidence now familiar to us [such as fingerprints].”). Third, first time in-court identifications became the norm at a time when travel was by foot or by horse, communications were by post, and official investigative resources were very limited. Consequently, it presumably would have been very burdensome both for the government and for eyewitnesses to arrange for a pretrial identification of the defendant. Because the difficulty of conducting a nonsuggestive identification procedure before trial is greatly reduced by the availability of instantaneous electronic communications, ready transportation and photography, the state's interest in continuing the tradition of first time in-court identifications is similarly reduced. See In re Tremaine C., 117 Conn.App. 521, 530, 980 A.2d 317 (due process analysis generally “requires balancing the government's interest in existing procedures against the risk of erroneous deprivation of a private interest inherent in those procedures” [internal quotation marks omitted] ), cert. denied, 294 Conn. 920, 984 A.2d 69 (2009).
The state further contends in its brief that, “[t]raditionally, in-court identifications were the admissible identification evidence. Many courts held that evidence of out-of-court identifications [were] inadmissible because [they were] hearsay ... [impermissible bolstering of in-court identification] or prejudicial....” (Citations omitted; emphasis in original.) In order for that evidentiary rule to apply, however, there had to have been a prior out-of-court identification. In such cases, the in-court identification would not be unnecessarily suggestive.
See also Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (holding for first time that, under sixth amendment confrontation clause, testimonial evidence is admissible only when witness is unavailable to testify at trial and defendant had prior opportunity for cross-examination); Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (holding for first time that sixth amendment prohibits sentencing judge from finding aggravating circumstance necessary for imposition of death penalty); Taylor v. Louisiana, 419 U.S. 522, 534, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) (holding for first time that defendant's sixth amendment right to jury drawn from fair cross section of community precludes state from systematically excluding women from jury service).
The state also disputes that mistaken eyewitness identifications are a significant source of erroneous convictions. As we have indicated, this court recently concluded otherwise. State v. Guilbert, supra, 306 Conn. at 249–50, 49 A.3d 705 (“mistaken eyewitness identification testimony is by far the leading cause of wrongful convictions”). In addition, the legislature's enactment of § 54–1p, governing procedures for photographic arrays and live lineups, demonstrates that the legislature has concerns that suggestive procedures are a significant source of error. Even if the state were correct, however, that the emerging social science casts doubt on the earlier cases and studies that supported our statement in Guilbert, it is black letter law that an unnecessarily suggestive out-of-court identification triggers due process protections, and that will presumably continue to be the case until the courts are convinced that eyewitness identifications are so inherently reliable that suggestive procedures can have no significant effect on them. We certainly are not prepared to make that determination in the present case and, as we have explained, if unnecessarily suggestive pretrial identification procedures trigger due process protections, we can perceive no reason why the same should not be true of unnecessarily suggestive in-court identifications.
Thus, contrary to Justice Zarella's suggestion, we do not rely on “evolving social science.” See footnote 4 of Justice Zarella's concurring opinion. Rather, we rely on black letter law holding that suggestive identification procedures raise due process concerns.
Finally, the state raises two claims that require little analysis. With respect to the state's claim that in-court identifications do not require prescreening because the sixth amendment's confrontation clause “guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact”; (internal quotation marks omitted) State v. Arroyo, 284 Conn. 597, 622, 935 A.2d 975 (2007) ; it does not follow from this principle that the state has a right to conduct an unnecessarily suggestive identification during the guaranteed confrontation. The state further claims that a defendant has no right to absent himself from court to avoid being identified. Again, however, it simply does not follow from the fact that the defendant cannot invoke his fifth amendment right against self-incrimination as a shield against a nonsuggestive in-court or out-of-court identification that the state has the right to conduct an unnecessarily suggestive in-court identification procedure. See E. Mandery, supra, at 60 Alb. L.Rev. 414 (noting that courts have confused “the privilege against self-incrimination issue presented by in-court identifications and the due process question” and concluding that, “[w]hile a defendant's presence can be compelled for purposes of identification, it is a separate issue whether a defendant can be compelled to submit to a suggestive identification” [footnote omitted] ). III
See United States v. Wade, supra, 388 U.S. at 222, 87 S.Ct. 1926 (“[t]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material” [internal quotation marks omitted] ); United States ex rel. Stovall v. Denno, 355 F.2d 731, 737 (2d Cir.1966) (“[t]he principle that an arrested person may be exhibited for identification to the person injured by the commission of the crime ... is so consistent with fundamental fairness both to the accused and society that there is little point in further elaboration except to take notice that the law sanctions many methods of identification which do not invade the field of testimonial compulsion such as the use of fingerprints and photographs, including photographs of body scars” [citations omitted; internal quotation marks omitted] ), aff'd, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).
PROCEDURES FOR PRESCREENING FIRST TIME IN–COURT IDENTIFICATIONS
Having concluded that first time in-court identifications must be prescreened for admissibility by the trial court, we now set forth the specific procedures that the parties and the trial court must follow. Preliminarily, we take this opportunity to emphasize that, in cases in which the identity of the perpetrator is at issue and there are eyewitnesses to the crime, the best practice is to conduct a nonsuggestive identification procedure as soon after the crime as is possible. See United States ex rel. Stovall v. Denno, 355 F.2d 731, 738 (2d Cir.1966) (“interests of the accused and society alike demand that the opportunity to identify be afforded at the earliest possible moment when the likelihood of an accurate identification is greatest”), aff'd, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). It is our hope and expectation that this decision will provide an incentive for the state to conduct an out-of-court identification procedure before seeking an in-court identification, thereby obviating the need to resort to the procedures that we delineate herein.
After oral argument before this court, the state filed a motion for permission to file a supplemental brief in which it argued that, because the only remedies that the defendant sought in the present case were preclusion of Weibel's in-court identification or a nonsuggestive in-court identification procedure, the state was not on notice that this court would adopt alternative procedures to protect the due process rights of defendants if we overruled State v. Smith, supra, 200 Conn. at 465, 512 A.2d 189, and concluded that first time in-court identifications implicate due process rights. Specifically, the state contended that it had “no notice of the possibility that this [c]ourt would craft a rule requiring the prescreening [of] lineups for some category of freestanding in-court identifications outside the jury's presence.” Accordingly, the state sought permission to file a supplemental brief addressing the feasibility of those alternative procedures. This court granted the state's motion. As we previously have indicated in this opinion, contrary to the state's contention in its supplemental brief, we see no reason why an out-of-court lineup or photographic array would not be a feasible procedure to avoid the inherent suggestiveness and potential unreliability of an in-court identification. In any event, the state conceded in its motion for permission to file a supplemental brief that the defendant had asked this court to preclude in-court identifications entirely. Thus, by identifying procedures by which the state may avoid preclusion of an in-court identification, we are broadening the range of options that are available to the state. If the state believes in any particular case that the costs of seeking an out-of-court identification will outweigh the benefits of presenting an in-court identification, it may choose not to take advantage of those procedures.
Justice Zarella states conclusorily that “the parties have not had the opportunity to brief the issue of whether to adopt [the prescreening procedures that we adopt herein]....” See footnote 3 of Justice Zarella's concurring opinion. As the foregoing procedural history shows, however, the parties were afforded ample opportunity to brief both the questions of whether first time in-court identifications implicate due process principles and, if so, what the proper remedy should be.
In cases in which there has been no pretrial identification, however, and the state intends to present a first time in-court identification, the state must first request permission to do so from the trial court. See Commonwealth v. Crayton, supra, 470 Mass. at 243, 21 N.E.3d 157 (“[a]lthough we generally place the burden on the defendant to move to suppress an identification, that makes little sense where there is no out-of-court identification of the defendant by a witness and only the prosecutor knows whether he or she intends to elicit an in-court identification from the witness”). The trial court may grant such permission only if it determines that there is no factual dispute as to the identity of the perpetrator, or the ability of the particular eyewitness to identify the defendant is not at issue. Id., at 241, 21 N.E.3d 157 (holding under supervisory powers that, “[w]here an eyewitness has not participated before trial in an identification procedure, we shall treat the in-court identification as an [impermissible] in-court showup, and shall admit it in evidence only where there is ‘good reason’ for its admission”); id., at 242, 21 N.E.3d 157 (first time in-court identification may be allowed when eyewitness knew defendant before crime). For example, in cases in which the trial court determines that the only issue in dispute is whether the acts that the defendant admittedly performed constituted a crime, the court should permit a first time in-court identification. In cases in which the defendant concedes that identity or the ability of a particular witness to identify the defendant as the perpetrator is not in dispute, the state may satisfy the prescreening requirement by giving written or oral notice to that effect on the record.
For example, in the present case, although the defendant disputes Lyles' testimony that the defendant was Weibel's assailant, he does not dispute Lyles' ability to identify him. Accordingly, Lyles was properly permitted to make a first time in-court identification of the defendant.
If the trial court determines that the state will not be allowed to conduct a first time identification in court, the state may request permission to conduct a nonsuggestive identification procedure, namely, at the state's option, an out-of-court lineup or photographic array, and the trial court ordinarily should grant the state's request. If the witness previously has been unable to identify the defendant in a nonsuggestive identification procedure, however, the court should not allow a second nonsuggestive identification procedure unless the state can provide a good reason why a second bite at the apple is warranted. If the eyewitness is able to identify the defendant in a nonsuggestive out-of-court procedure, the state may then ask the eyewitness to identify the defendant in court.
We reject the defendant's suggestion that a first time in-court identification may be allowed if the trial court determines that the identification would be reliable under the Biggers factors. Biggers traditionally has been applied when the witness' ability to make a reliable in-court identification has already been tainted by an unnecessarily suggestive identification procedure that the trial court was powerless to prevent. In our view, it would make little sense for the trial court to perform a Biggers analysis to determine whether it should permit the state to conduct an unnecessarily suggestive procedure in the future when other, nonsuggestive alternatives are available.
Although it is impossible to catalogue all of the reasons that might justify allowing an eyewitness to make another attempt to identify the defendant, a second procedure might be justified, for example, when the witness failed to identify the defendant in a photographic array and the state wants to conduct a lineup, or when the witness was threatened or intimidated before the first attempt.
Of course, if the state has conducted an out-of-court identification procedure in compliance with the procedures that we adopt herein and the defendant contends that the procedure was unnecessarily suggestive, the court must then determine whether the identification procedure was, in fact, unnecessarily suggestive and, if so, whether the identification was nevertheless sufficiently reliable to be admissible under the Biggers factors.
If the trial court denies a request for a nonsuggestive procedure, the state declines to conduct one, or the eyewitness is unable to identify the defendant in such a procedure, a one-on-one in-court identification should not be allowed. The prosecutor may still examine the witness, however, about his or her observations of the perpetrator at the time of the crime, but the prosecutor should avoid asking the witness if the defendant resembles the perpetrator. See United States v. Greene, supra, 704 F.3d at 304 (“if there is a line between resemblance and identification testimony it is admittedly thin” [internal quotation marks omitted] ).
The state raises a number of objections to these procedures. First, the state contends that it is unclear what level of certainty at a prior nonsuggestive identification procedure would eliminate the need for prescreening of an in-court identification. We recognize that this question may require the exercise of judgment. We conclude however, that, as a general rule, if the state has conducted a nonsuggestive out-of-court identification procedure and the witness has identified the defendant, even with some uncertainty, the in-court identification need not be prescreened for admissibility and the witness' level of uncertainty at the initial procedure should go to the weight of the evidence. If the level of certainty was so low that it amounted to a failure to identify the defendant, the in-court identification should be prescreened and ordinarily disallowed.
But see Commonwealth v. Collins, supra, 470 Mass. at 262–63, 21 N.E.3d 528 (if eyewitness lacked confidence in out-of-court identification, in-court identification is barred because witness may “regard the defendant's prosecution as confirmation that the defendant is the ‘right’ person and, as a result, may develop an artificially inflated level of confidence in [his or her] in-court identification”). We disagree with the court's conclusion in Collins. Rather, because any inconsistencies between the eyewitness' level of confidence at the initial identification and at the in-court identification can be brought out on cross-examination, that is a sufficiently effective tool under these circumstances to counter the inherent suggestiveness of the in-court identification. Moreover, the defendant can present expert testimony that there is a weak correlation between confidence and accuracy, that memory degrades over time, and that “witnesses may develop unwarranted confidence in their identifications if they are privy to postevent or postidentification information....” State v. Guilbert, supra, 306 Conn. at 253, 49 A.3d 705.
Second, the state contends that it is unclear what the consequence would be if a witness who is going to identify the defendant in court during trial had learned that the defendant had been charged with the crime by attending pretrial proceedings and observing the defendant. If the state was not responsible for the pretrial confrontation, this situation is analogous to any other situation in which a witness has learned the identity of the person who has been charged with the crime under suggestive circumstances that are not the result of state action. Such circumstances go to the weight of the identification testimony, not its admissibility. See Perry v. New Hampshire, supra, 132 S.Ct. at 728. If the state was responsible for the suggestive pretrial confrontation, however, it must be treated in the same manner as a suggestive identification procedure, and the trial court must determine under the totality of the circumstances whether the witness would have been able to identify the defendant in court even without the prior suggestive confrontation. Cf. State v. Ledbetter, supra, 275 Conn. at 553, 881 A.2d 290. If the answer to that question is yes, the court should allow the in-court identification, subject to cross-examination and argument. If the answer is no, an in-court identification should be precluded, just as an in-court identification that was irreparably tainted by an unnecessarily suggestive identification procedure would be.
Third, the state contends that, if the trial court precludes the state from obtaining a first time in-court identification, fairness requires that the trial court give a jury instruction explaining that the identification was not permitted. We conclude that, if the state requests such an instruction, the trial court may provide the jury with an accurate statement of the law, specifically, that an in-court identification was not permitted because inherently suggestive first time in-court identifications create a significant risk of misidentification and because either the state declined to pursue other, less suggestive means of obtaining the identification or the eyewitness was unable to provide one. The state is not entitled to an instruction that would suggest to the jury that the eyewitness could have made a reliable identification of the defendant in court if the state had been permitted to request the witness to do so.
Finally, the state contends that, if we preclude first time in-court identifications pursuant to our supervisory powers, the new rule must be prospective only. We have concluded, however, that first time in-court identifications implicate constitutional due process rights. It is well established that “new [constitutional] rules of criminal procedure must be applied in future trials and in cases pending on direct review....” Danforth v. Minnesota, 552 U.S. 264, 266, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008) ; see also Griffith v. Kentucky, 479 U.S. 314, 322–23, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (“Unlike a legislature, we do not promulgate new rules of constitutional criminal procedure on a broad basis. Rather, the nature of judicial review requires that we adjudicate specific cases, and each case usually becomes the vehicle for announcement of a new rule. But after we have decided a new rule in the case selected, the integrity of judicial review requires that we apply that rule to all similar cases pending on direct review.”); Griffith v. Kentucky, supra, at 328, 107 S.Ct. 708 (“a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a clear break with the past” [internal quotation marks omitted] ). Accordingly, the new rule that we adopt today applies to the parties to the present case and to all pending cases. It is important to point out, however, that, in pending appeals involving this issue, the suggestive in-court identification has already occurred. Accordingly, if the reviewing court concludes that the admission of the identification was harmful, the only remedy that can be provided is a remand to the trial court for the purpose of evaluating the reliability and the admissibility of the in-court identification under the totality of the circumstances. Cf. United States v. Wade, supra, 388 U.S. at 242, 87 S.Ct. 1926 (when in-court identification is preceded by out-of-court identification without aid of counsel, proper procedure on review is to vacate conviction and to remand to trial court for hearing to determine whether in-court identification was independently reliable); see also State v. Ledbetter, supra, 275 Conn. at 553, 881 A.2d 290 (“corruptive effect of suggestive procedure [regarding eyewitness identification] is weighed against certain factors”). If the trial court concludes that the identification was sufficiently reliable, the trial court may reinstate the conviction, and no new trial would be required.
Some older United States Supreme Court cases hold that prophylactic constitutional rules are prospective only. See Michigan v. Payne, 412 U.S. 47, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973) (declining to apply prophylactic rule set forth in North Carolina v. Pearce, 395 U.S. 711, 723–26, 89 S.Ct. 2072, 23 L.Ed.2d 656 [ (1969) ], retroactively to cases pending on direct review); Johnson v. New Jersey, 384 U.S. 719, 732, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) (declining to apply prophylactic rule set forth in Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S.Ct. 1602, 16 L.Ed.2d 694 [ (1966) ], retroactively to cases pending on direct review). We do not believe that these cases are compatible with the United States Supreme Court's later decision in Griffith. See People v. Harris, 123 Ill.2d 113, 130, 122 Ill.Dec. 76, 526 N.E.2d 335 (1988) (implying that Johnson was overruled by Griffith ); but see Cowans v. Bagley, 624 F.Supp.2d 709, 734–36 (S.D.Ohio 2008) (assuming that prophylactic rules, such as that set forth in Miranda, are not grounded in federal constitution and concluding that Griffith applies only to rules required by federal constitution). No less than when a new rule is designed to remedy a constitutional violation, when a new rule is designed to prevent the significant risk of a constitutional violation, “the integrity of judicial review requires that we apply that rule to all similar cases pending on direct review.” Griffith v. Kentucky, supra, 479 U.S. at 323, 107 S.Ct. 708 ; see also Dickerson v. United States, 530 U.S. 428, 444, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (“Miranda announced a constitutional rule”). Indeed, the new rule that was at issue in Griffith was the rule set forth in Batson v. Kentucky, 476 U.S. 79, 97, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), requiring a prosecutor to provide a neutral explanation for the use of a peremptory challenge to strike a member of the defendant's race from the jury venire, reasonably could be characterized as a prophylactic rule. See B. Landsberg, “Safeguarding Constitutional Rights: The Uses and Limits of Prophylactic Rules,” 66 Tenn. L.Rev. 925, 939 (1999) (characterizing Batson rule as at least partially prophylactic).
The new rule would not apply, however, on collateral review. This question is governed by the framework set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Casiano v. Commissioner of Correction, 317 Conn. 52, 62, 115 A.3d 1031 (2015). Under Teague, a “new” constitutional rule, i.e., a rule that “was not dictated by precedent existing at the time the defendant's conviction became final,” generally does not apply retroactively. (Internal quotation marks omitted.) Id. There are two exceptions, however, to this general rule. Specifically, a new rule will apply retroactively if it is substantive or, if the new rule is procedural, when it is “a watershed [rule] of criminal procedure ... implicit in the concept of ordered liberty....” (Citation omitted; internal quotation marks omitted.) Id., at 63, 115 A.3d 1031. Because the rule that we adopt in the present case is a new procedural rule, we must determine whether it is a watershed rule. To be considered a watershed rule, the rule must “implicat[e] the fundamental fairness and accuracy of [a] criminal proceeding”; (internal quotation marks omitted) id.; or “[alter] our understanding of the bedrock procedural elements essential to the fairness of a proceeding....” (Citation omitted; internal quotation marks omitted.) Id. Watershed rules “include those that raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise.” (Internal quotation marks omitted.) Id. The exception is “narrowly construed ... and, in the twenty-five years since Teague was decided, [the United States Supreme Court] has yet to conclude that a new rule qualifies as watershed.” Id.; but see id., at 64, 115 A.3d 1031 (this court may construe Teague more liberally than United States Supreme Court); id., at 69, 115 A.3d 1031 (concluding that new procedural rule requiring individualized sentencing of juvenile before life sentence may be imposed is watershed rule under Teague ). In the present case we conclude that the rule requiring prescreening of first time in-court identification does not fall within the narrow exception because: (1) as we have explained, the rule is prophylactic and a violation of the rule does not necessarily rise to the level of a due process violation; and (2) the rule is merely an incremental change in identification procedures. Cf. Beard v. Banks, 542 U.S. 406, 419–20, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004) (“the fact that a new rule removes some remote possibility of arbitrary infliction of the death sentence does not suffice to bring it within Teague 's second exception”); id., at 419, 124 S.Ct. 2504 (although new rule was intended to enhance accuracy of capital sentencing, “because it effected an incremental change, [the United States Supreme Court] could not conclude that ... [it was] an absolute prerequisite to fundamental fairness” [internal quotation marks omitted] ).
Of course, if the record is adequate for review of the reliability and admissibility of the in-court identification, the reviewing court may make this determination. For example, if the eyewitness had a full and fair opportunity to identify the defendant before trial and was unable to do so, the reviewing court reasonably could conclude that the subsequent in-court identification was unreliable.
IV
APPLICATION OF NEW PROCEDURES TO PRESENT CASE
We now apply the foregoing principles to the present case. Because Weibel's in-court identification of the defendant was preceded by an unsuccessful attempt to identify the defendant in a photographic array, it was a first time in-court identification. In addition, the identity of the person who assaulted Weibel was in dispute and the defendant was not known to Weibel before the assault. Accordingly, we conclude that the identification testimony should have been prescreened and the state should have been required either to conduct a nonsuggestive identification procedure—in the event that the trial court concluded that the state was entitled to such a procedure even though Weibel had failed to identify the defendant in the photographic array—or to refrain from seeking an in-court identification. We further conclude that the failure to follow these procedures potentially violated the defendant's due process rights.
We cannot be certain that Weibel's in-court identification was so unreliable as to be inadmissible because the record is inadequate for us to subject the identification to a Biggers analysis. Moreover, although Weibel was unable to identify the defendant in a photographic array, there is no way of knowing whether Weibel would have been able to identify the defendant in a lineup.
V
HARMLESS ERROR ANALYSIS
Even if we were to assume that Weibel's in-court identification of the defendant was improperly admitted, however, we conclude that any due process violation was harmless beyond a reasonable doubt. See State v. Artis, 314 Conn. 131, 154, 101 A.3d 915 (2014) (“because of the constitutional magnitude of the error, the burden falls on the state to prove that the admission of the tainted identification was harmless beyond a reasonable doubt”). A constitutional error is harmless when it is “clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible [evidence]....” (Internal quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 718, 759 A.2d 995 (2000). “That determination must be made in light of the entire record [including the strength of the state's case without the evidence admitted in error].” (Internal quotation marks omitted.) Id. The following facts and procedural history, some of which we have already discussed, are relevant to our analysis. Lyles testified at trial that, before the robbery at issue in the present case, he had engaged in similar robberies with the help of a friend whom he knew only as “Black.” On the evening of January 9, 2010, at about 8 p.m., he was at the apartment of a friend, Stephanie Perez, at 455 Trumbull Avenue in Bridgeport. Reyes was also at the apartment. At approximately 9 p.m., the defendant and the defendant's sister arrived. Lyles had known the defendant his entire life because their mothers were close friends. At some point, Lyles left the apartment and the defendant and Reyes followed him. Lyles told the men that he was planning a robbery and they indicated that they wanted to participate. Lyles was armed with a .40 caliber Smith and Wesson handgun, the defendant carried a .38 caliber revolver, and Reyes carried a paintball gun that looked like an assault rifle. Lyles had supplied the weapons. After leaving the apartment, the three men proceeded to Terrace Circle in Bridgeport, where the events previously described in this opinion occurred. As Lyles and Reyes were leaving the scene after the robbery, the defendant was holding his gun to Weibel's head. Lyles then heard two gunshots. He and Reyes returned to the parking lot behind the apartment building at 455 Trumbull Avenue and got into a Cadillac owned by Perez. Approximately two minutes later, the defendant joined them. They then drove to the residence of Lyles' friend “L” on Louis Street in the south end of Bridgeport. At that point, Lyles asked the defendant about the shooting and the defendant stated that he had shot Weibel in the head and leg “because we didn't get any money.” Both Weibel and Shaw were able to identify Lyles and their testimony at trial corroborated Lyles' testimony concerning the events at Terrace Circle, specifically, that Lyles was not the shooter. Lyles further testified at trial that he was currently incarcerated and that, as a result of the incident on the night of January 9, 2010, he had been charged with accessory to assault in the first degree, robbery in the first degree, larceny in the fifth degree, violation of probation, attempted murder and conspiracy to commit robbery. He had negotiated a tentative plea agreement with the state, which had not yet been signed, pursuant to which he would be sentenced to fifteen years imprisonment, suspended sometime between three and seven years, with five years probation. He had also signed an agreement to cooperate with the state in its investigation of the present case. Pursuant to that agreement, if Lyles testified untruthfully at trial, he would serve the maximum sentence.
On cross-examination, defense counsel asked Lyles how he could be sentenced to the maximum sentence of approximately forty years imprisonment if he testified untruthfully when he had not yet pleaded guilty to the charges. Lyles acknowledged that the maximum sentence was not reflected in his agreement to testify. He also acknowledged that the police were investigating the three robberies that he had committed with “Black” and that he would not be charged in any of those cases. Lyles denied that “Black” was his cousin, Rasheem Davis, who was the only other person who had access to the e-mail account that Lyles had used to lure his robbery victims. Lyles admitted that he had been arrested in December, 2009, after he helped Perez steal items from a department store where he was employed, and that he had not been charged with another theft from that store. He further admitted that he had lied repeatedly to the police during their investigation of the present case. On redirect examination, Lyles testified that he had lied to the police before he entered into the agreement to cooperate with the state requiring him to speak truthfully. The defendant presented alibi evidence in the form of testimony by his mother and his aunt that he had been with his family at a sports bar in Bridgeport watching a playoff game between the Philadelphia Eagles and the Dallas Cowboys on the evening of January 9, 2010. The defendant's mother testified that kickoff was at approximately 8:30 or 9 p.m., but she did not testify as to whether the defendant was in the bar at that time. The defendant's aunt testified that the defendant arrived at the bar before kickoff, but she could not remember the precise time. The defendant left the bar with his mother when the game ended at approximately 11:30 p.m. The defendant's mother remembered the evening very clearly because she was an ardent Eagles fan and her husband was an ardent Cowboys fan. When the Cowboys defeated the Eagles in that football game, the defendant's mother and father had an intense argument. The defendant's aunt specifically recalled that the defendant left the bar with his mother because he stated that he was going to have to act as a referee when they got home.
Defense counsel also brought out some minor inaccuracies in Lyles' testimony under direct examination. For example, Lyles testified on direct examination that he had learned that Weibel would be accompanied by a friend when Weibel called him at Perez' apartment, while he testified on cross-examination that he learned that fact when Weibel called him at the scene of the crime. In addition, Lyles testified on direct examination that he left the residence on Louis Street alone, while he testified on cross-examination that he left with Reyes and the defendant.
Specifically, the following exchange occurred between defense counsel and the defendant's mother:
“Q. And do you recall who arrived with what groups, if you can remember?
“A. I remember the first two to get there was [the defendant's aunt] and Jason [Temple]. I remember when—I don't remember when Laurie [Council] got there. I was in the bathroom and I came out, she was already there. [The defendant], Jaquisha [Griffin] and her mom came in together. Mom didn't stay long, she left. The other two kids, I remember them coming, I don't know how they got there, but I remember them coming.
“Q. And was it the intention to get there to watch the game?
“A. Yes, we got there before kickoff.
“Q. And do you roughly know what that time was ... the beginning of the game?
“A. I would say probably—the game probably started about 8:30, 9 o'clock. I—I didn't, you know—
“Q. But you don't know the exact time?
“A. No, [exact] timing I couldn't tell you.”
Thus, the defendant's mother testified equivocally that “we” arrived at the bar before kickoff. By referring to “we,” she might have been referring only to herself and her husband. She never expressly testified that the defendant arrived before kickoff.
The following exchange took place between the prosecutor and the defendant's aunt:
“Q. What time did [the defendant] get to the party?
“A. He got to the party—it was, I want to say it was—I know it was before kickoff but I can't give you an exact time.
“Q. Okay. Do you know what time the kickoff was?
“A. Kickoff started about—little after 9 [p.m.]. Not exactly 9 o'clock. It was a little after 9.”
As we have indicated previously, Weibel acknowledged at trial that he had been unable to identify the defendant from a photographic array approximately one year after the shooting. During closing argument, the prosecutor argued that Weibel's in-court identification of the defendant was nevertheless credible because “[l]ooking at photographs is very different from looking at people. We look different from photographs.” The prosecutor also stated, “What kind of an impression did those moments of being hit with the gun and being shot make on [Weibel]? What burned into his mind—what image burned into his mind at that point, but the face of the person who shot him.” Defense counsel argued that, to the contrary, the in-court identification was unreliable because Weibel had been unable to identify the defendant in the photographic array, the crime scene was dark, and the identification was not corroborated by other evidence. Defense counsel further contended that, because the defendant was the only black male sitting in the courtroom other than the uniformed marshal, and because the defendant was sitting at the table with defense counsel, the in-court identification “[was] practically a neon light pointed to the [defendant]....” The trial court gave a lengthy instruction on eyewitness identification testimony in which it stated that certainty did not correlate to accuracy and that, in determining what weight to give to Weibel's identification, the jury could consider the suggestiveness of the identification procedure, the fact that the eyewitness had failed to identify the defendant in a photographic array, and the fact that a lineup procedure is generally more reliable than a one-on-one showup. We conclude on the basis of this record that it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict even without Weibel's in-court identification of the defendant. First, although the defendant presented evidence that Lyles had lied to the police in the past, there is no evidence that Lyles made any material misrepresentations or misstatements during his testimony at trial. Second, although Lyles clearly had a motive to cooperate with the state, the record does not reveal any motive for Lyles to have falsely identified the defendant as Weibel's assailant. Both Weibel and Shaw testified unequivocally that Lyles was not the person who had shot Weibel, and Lyles did not deny his involvement in the crime. Thus, Lyles clearly was not attempting to shift blame from himself to the defendant. In addition, the undisputed evidence shows that Lyles had known the defendant his entire life and had been on friendly terms with him. Thus, there is no evidence that Lyles had a motive to harm the defendant. Third, Lyles' testimony regarding the events on the night in question was corroborated in all material respects by Weibel and Shaw. Fourth, neither of the alibi witnesses testified unequivocally that the defendant had been in the sports bar with his family at 9:30 p.m. on January 9, 2010, when the crime occurred. See footnotes 38 and 39 of this opinion. Moreover, to the extent that the testimony of the defendant's mother and aunt would support that conclusion, both witnesses had a clear motive to attempt to convince the jury that the defendant was in the bar at that time. Finally, the weaknesses in Weibel's identification testimony were highlighted both by the defendant during closing argument and by the trial court in its jury instructions. Accordingly, we conclude that the improper admission of Weibel's first time in-court identification was harmless. We therefore affirm the judgment of the Appellate Court upholding the defendant's conviction on this alternative ground.
The court gave the following jury instruction: “Weibel testified that [the defendant] was the person who committed the crimes. The identification of the defendant by a single witness as the one involved in the commission of a crime is, in and of itself, sufficient to justify conviction provided of course that you are satisfied beyond a reasonable doubt of the identity of the defendant as the person who committed the crime or crimes.
“In arriving at a determination on the issue of identification, you should consider all the facts and circumstances that existed at the time of the witness' observation of the perpetrator.
“Since identification testimony is an expression of belief or impression by the witness, the value of the testimony depends upon the opportunity and ability of the witness to observe the perpetrator at the time ... of the event and the ability to make an accurate identification later.
“You must decide how much weight to place on ... Weibel's identification testimony. In appraising his testimony you should take into account whether ... Weibel had adequate opportunity and ability to observe the perpetrator on the date in question. This will be affected by such considerations as length of time available to make the observation, the distance between the witness and perpetrator, the lighting conditions at the time of the offense, whether the witness had known or seen the person [on] an earlier occasion, any history between them ... whether anything distracted the attention of the witness during the incident. You should also consider the witness' physical and emotional condition at the time of the ... confrontation and the witness' powers of observation in general.
“You should consider the length of time that elapsed between the occurrence of the crime and the identification of the defendant by the witness. You may also consider the strength of the identification including the witness' degree of certainty. Certainty, however, does not mean accuracy. You should take into account the circumstances under which the witness first observed and identified the defendant, the suggestibility, if any, of the procedure used in that viewing, physical descriptions that the witness may have given to the police, and any other factors which you find that relate to the reliability of the identification of the defendant.
“You may also consider whether the identification witness some time before the trial was shown a photo[graphic] array that included a photo[graph] of the defendant. And whether or not he failed to identify the defendant at that time.
“Picking a defendant out of a group of similar individuals is generally more reliable than a procedure involving the presentation of the defendant alone to a witness.
“You will subject the testimony of the identification witness to the same standards of credibility that apply to all witnesses. It is not sufficient that the witness be free from doubt as to the correctness of the identification of the defendant. Rather, you must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may find him guilty on a charge.
“In short, you must consider the totality of the circumstances [a]ffecting the identification. Remember the state has the burden to not only prove every single element of the crime but also the identity of the defendant as the perpetrator of the crime.
“You must be satisfied beyond a reasonable doubt of the identity of the defendant as the one who committed the crime or crimes or you must find the defendant not guilty.
“If you have a reasonable doubt as to the accuracy of the identification you must find the defendant not guilty.”
As we have indicated herein, when asked by defense counsel, Lyles denied that the person who he previously had committed robberies with—who he claimed to know only as “Black”—was the cousin who had access to the e-mail account that Lyles had used to lure his victims. The state presented no evidence other than this denial, however, that “Black” was his cousin or that Lyles was motivated by a desire to protect him.
The judgment of the Appellate Court is affirmed.
In this opinion PALMER, EVELEIGH and McDONALD, Js., concurred.
ZARELLA, J., with whom ESPINOSA, J., joins, concurring in the judgment.
Distilled to its essence, the question the court must answer in the present case is whether first time in-court identifications violate the rights guaranteed to criminal defendants under the due process clauses of the fifth and fourteenth amendments to the United States constitution. In addressing this question, I am mindful of the fact that the constitution does not require the “best practice” or a perfect trial. United States v. Kahn, 415 U.S. 143, 155 n. 15, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974) (in fourth amendment context, police officers need not follow best practice in order for search to pass constitutional muster); Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (“[a] defendant is entitled to a fair trial but not a perfect one” [internal quotation marks omitted] ); see also State v. Marquez, 291 Conn. 122, 145, 697 A.2d 56 (test for determining whether identification procedure is unnecessarily suggestive “is not a best practices test” [emphasis omitted; internal quotation marks omitted] ), cert. denied, 558 U.S. 895, 130 S.Ct. 237, 175 L.Ed.2d 163 (2009). Thus, my objective is not to determine which of the many alternative identification procedures is the “best” or is likely to result in the most reliable identification. Instead, I must consider only whether first time in-court identifications are constitutionally permissible.
In the present case, the majority crafts what it describes as a “prophylactic constitutional [rule]” requiring the prescreening of first time in-court identifications. Footnote 11 of the majority opinion. The majority's rule prohibits a first time in-court identification that is not preceded by a nonsuggestive out-of-court identification in which the eyewitness identified the defendant, unless the defendant's identity or the witness' ability to identify the defendant is not at issue in the case. It may well be that such prescreening would be a better practice than a first time in-court identification. Indeed, I encourage law enforcement personnel to secure an out-of-court identification, through a procedure consistent with General Statutes § 54–1p, at the earliest reasonable time following the commission of a crime. My concern in the present case, however, is not what the ideal identification procedure is but whether first time in-court identifications pass constitutional scrutiny. After a review of the relevant federal authority, I conclude that they do, as long as the defendant is afforded the traditional protections of our adversary system, such as confrontation, the attendant right to cross-examine state witnesses, closing argument, jury instructions, the presumption of innocence, and the government's burden to prove guilt beyond a reasonable doubt. See Perry v. New Hampshire, ––– U.S. ––––, 132 S.Ct. 716, 728–29, 181 L.Ed.2d 694 (2012) (discussing “safeguards built into our adversary system that caution juries against placing undue weight on eyewitness testimony of questionable reliability”). For this reason, I do not join the majority opinion. Because the majority ultimately concludes that the admission of the in-court identification in the present case was harmless beyond a reasonable doubt and affirms the judgment of conviction, I concur in the judgment.
I adopt the majority's terminology in that I use “first time in-court identification” to refer to instances “in which the witness has not successfully identified the defendant in a prior out-of-court identification procedure”; footnote 3 of the majority opinion; either because the witness did not have such opportunity or had the opportunity but nonetheless was unable to identify the defendant.
Like the majority, I refer to in-court identifications that have not been preceded by a successful out-of-court identification by the same witness as first time in-court identifications. See footnote 3 of the majority opinion.
In this opinion, I use the word “nonsuggestive” as the majority does, namely, to refer to an identification procedure that is not unnecessarily suggestive. See footnote 2 of the majority opinion. I also note that the majority does not—nor could it—overrule our existing case law regarding the admissibility of evidence of out-of-court identifications or in-court identifications that follow successful out-of-court identifications. Thus, if the nonsuggestive out-of-court identification required by the rule that the majority announces today is in fact an unnecessarily suggestive identification, a subsequent in-court identification is not necessarily inadmissible. Instead, the admissibility of such an identification will be determined by applying our current two-pronged test: “[F]irst, it must be determined whether the identification procedure was unnecessarily suggestive; and, second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on examination of the totality of the circumstances.” (Internal quotation marks omitted.) State v. Revels, 313 Conn. 762, 771, 99 A.3d 1130 (2014), cert. denied, ––– U.S. ––––, 135 S.Ct. 1451, 191 L.Ed.2d 404 (2015).
Section 1257(a) of title 28 of the United States Code provides: “Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States.”
Notwithstanding my conclusion that the constitution does not require the prophylactic rule adopted by the majority, I would not join the majority opinion in the present case because the parties have not had the opportunity to brief the issue of whether to adopt such a rule, and, therefore, the ramifications of this new rule may not be fully appreciated.
Other similar examples of constitutional avoidance abound in our jurisprudence. See, e.g., State v. Santos, 318 Conn. 412, 424–25, 121 A.3d 697 (2015) (confrontation clause); State v. Randolph, 284 Conn. 328, 375–76, 933 A.2d 1158 (2007) (declining to consider whether Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 [ (2004) ], applies to pretrial hearings because “the impropriety was harmless beyond a reasonable doubt because ample evidence existed to support the trial court's probable cause determination”); State v. Brunetti, 279 Conn. 39, 77, 901 A.2d 1 (2006) (claim under Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S.Ct. 1602, 16 L.Ed.2d 694 [ (1966) ] ), cert. denied, 549 U.S. 1212, 127 S.Ct. 1328, 167 L.Ed.2d 85 (2007) ; State v. Lemon, 248 Conn. 652, 663, 731 A.2d 271 (1999) (declining to consider state constitutional claim concerning commentary on right to testify because “the defendant cannot prevail even under the ... test that she advocates”).
The defendant in the present case, Andrew Dickson, claims that the trial court violated his due process rights, under the fifth and fourteenth amendments to the United States constitution, by allowing an eyewitness, Albert Weibel, to make an inherently suggestive first time in-court identification. He further argues that the trial court abused its discretion by not excluding the identification or by not permitting a less suggestive in-court identification procedure. In addition, the defendant claims that the Appellate Court incorrectly concluded that the trial court's actions were permitted by State v. Smith, 200 Conn. 465, 512 A.2d 189 (1986). In the alternative, the defendant argues that Smith should be overruled because it is outdated and inconsistent with the evolving social science literature regarding eyewitness identifications.
It would be imprudent for this court to create constitutional rules on the basis of evolving social science. Moreover, the social science regarding eyewitness identifications is not only evolving but revolving. For example, for years, law enforcement personnel utilized simultaneous identification procedures. Then, in 2012, the legislature required that all photographic arrays and live lineups be presented sequentially; see Public Acts 2012, No. 12–111, § 1, codified at General Statutes (Rev. to 2013) § 54–1p (c)(1) ; and this court recognized in State v. Guilbert, 306 Conn. 218, 49 A.3d 705 (2012), that the consensus among social scientists and courts was that sequential identification procedures are more reliable than simultaneous procedures. See id., at 237–38, 49 A.3d 705. Recently, however, some studies again favor the use of simultaneous lineups. See, e.g., United States v. Johnson, 745 F.3d 227, 229 (7th Cir.2014) (noting that resent research “has called into question” view that sequential photographic identification procedures are superior to simultaneous photographic procedures); National Research Council et al., Identifying the Culprit: Assessing Eyewitness Identification (2014) pp. 83, 86 n. 42 (observing that some recent studies indicate that simultaneous lineups have higher accuracy than sequential lineups and calling for more research). Thus, the federal courts, Congress, and law enforcement personnel should create prophylactic procedures, and this court should limit itself to remedying actual constitutional violations.
As Justice Zarella aptly observes in his concurring opinion, the majority does not analyze whether State v. Smith, supra, 200 Conn. at 465, 512 A.2d 189, or State v. Tatum, 219 Conn. 721, 728, 595 A.2d 322 (1991), which it also overrules, should receive any benefit from the doctrine of stare decisis.
I
I will first address the defendant's claim that the Appellate Court improperly applied Smith to the present case. In Smith, the victim of a robbery and sexual assault was presented with an array of six photographs, from which she identified the defendant, Patrick D. Smith, as the perpetrator. Id., at 467, 512 A.2d 189. The victim was less than certain, however, about her identification. See id. At trial, the victim again identified Smith as the perpetrator after, at the state's attorney's request, Smith stood, approached the witness, and spoke. See id., at 468, 512 A.2d 189. On appeal, Smith did not challenge the photographic array but, instead, argued that the in-court identification procedure, namely, the requirement that he approach the victim and speak, was unnecessarily suggestive. Id. Smith conceded, however, that in-court identifications were not per se unduly suggestive. Id. This court rejected Smith's argument, reasoning that all trials convey the message that the state believes the person charged committed the crime, and that factor is what creates suggestion. Id., at 468–69, 512 A.2d 189. We did not agree that the additional steps ordered in Smith —that Smith approach the victim and speak—made the in-court identification anymore suggestive than usual. See id., at 468, 512 A.2d 189. We also noted that the constitution requires suppression of in-court identifications only when they are tainted by unnecessarily suggestive out-of-court identification procedures and, even then, only under certain circumstances, and that there is no constitutional right to have an in-court identification conducted by lineup or some other less suggestive means. Id., at 469–70, 512 A.2d 189. Finally, we concluded that “[t]he manner in which in-court identifications are conducted is not of constitutional magnitude but rests within the sound discretion of the trial court.” (Emphasis added.) Id., at 470, 512 A.2d 189.
Smith also argued, as the defendant does in the present case, that the trial court had abused its discretion by not granting his request for a less suggestive in-court identification procedure. Id., at 471, 512 A.2d 189. This court rejected that claim as well because it had not been preserved. Id., at 471–72, 512 A.2d 189. Despite having determined that Smith's claim was unpreserved, this court stated that the constitution does not require trial courts to allow alternative identification procedures and that the decision regarding requests for such procedures lies within the trial court's discretion. Id.
In the present case, the defendant contends that Smith does not control because the claim regarding an alternative in-court identification procedure in that case was unpreserved. In the present case, however, the defendant correctly asserts that such a claim has been preserved. The defendant maintains that, instead of Smith, the “persuasive authority” of United States v. Archibald, 734 F.2d 938, 940–43 (2d Cir.), modified on other grounds, 756 F.2d 223 (2d Cir.1984), should have controlled the Appellate Court's decision and should guide this court's decision. I do not agree.
First, although Smith's claim for an alternative in-court identification procedure was not preserved, we did state that granting or denying such a request was within the sound discretion of the trial court. State v. Smith, supra, 200 Conn. at 472, 512 A.2d 189. We further noted that defendants do not possess a constitutional right to less suggestive in-court identification procedures, such as an in-court lineup. Id., at 471, 512 A.2d 189. Second, although the facts of Smith and the present case are distinguishable, the governing principles employed in addressing Smith's first claim—that the in-court identification was unnecessarily suggestive—are equally applicable in the present case. As this court noted in Smith, in-court identifications must be excluded when they are tainted by unnecessarily suggestive out-of-court identification procedures that are conducive to irreparable misidentification. See id., at 469, 512 A.2d 189. That remains the law today. See, e.g., Perry v. New Hampshire, supra, 132 S.Ct. at 730 (“the [d]ue [p]rocess [c]lause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement”). Finally, and relatedly, notwithstanding the nearly thirty years that have passed since our decision in Smith, it remains an accurate statement of federal constitutional law regarding in-court identifications. For example, our statement in Smith that the United States Supreme Court has not extended the exclusionary rule to in-court identifications that are suggestive merely due to the trial setting is still accurate today. See, e.g., United States v. Correa–Osorio, 784 F.3d 11, 19–20 (1st Cir.) (observing split in United States Circuit Courts of Appeals regarding standard for evaluating purportedly suggestive in-court identifications), cert. denied sub nom. Shepard–Fraser v. United States, ––– U.S. ––––, 135 S.Ct. 2909, 192 L.Ed.2d 940 (2015), and cert. denied, ––– U.S. ––––, 136 S.Ct. 336, 193 L.Ed.2d 242 (2015).
II
Having determined that the in-court identification in the present case was properly admitted under Smith, I turn to the defendant's second claim, namely, that the time has come to overrule Smith. The defendant argues that the “time is ripe” to overrule Smith in light of the burgeoning social science literature and research regarding the reliability of eyewitness identifications. Moreover, he asserts that this court already has recognized social science's evolved understanding of eyewitness identifications in cases such as State v. Ledbetter, 275 Conn. 534, 579, 881 A.2d 290 (2005) (requiring, in light of scientific research, that jury instruction be given in cases when [1] “the state has offered eyewitness identification evidence,” [2] “that evidence resulted from an identification procedure,” and [3] “the administrator of that procedure failed to instruct the witness that the perpetrator may or may not be present in the procedure”), cert. denied, 547 U.S. 1082, 126 S.Ct. 1798, 164 L.Ed.2d 537 (2006), and State v. Guilbert, 306 Conn. 218, 246–48, 49 A.3d 705 (2012) (allowing introduction of expert testimony regarding reliability of eyewitness identifications and factors that affect reliability of identifications). In-court identifications are inherently suggestive, the defendant avers, and their reliability should be assessed under the current scientific understanding. For the reasons that follow, I do not agree that Smith should be overruled or that a prophylactic rule for prescreening first time in-court identifications should be adopted.
In place of Smith, the defendant suggests three possible alternative approaches. First, the court could review the reliability of first time in-court identifications by utilizing the rules of evidence, as the Oregon Supreme Court did in State v. Lawson, 352 Or. 724, 737–39, 291 P.3d 673 (2012), and State v. Hickman, 355 Or. 715, 727–30, 330 P.3d 551 (2014), modified on other grounds, 356 Or. 687, 343 P.3d 634, cert. denied, ––– U.S. ––––, 136 S.Ct. 230, 193 L.Ed.2d 173 (2015). Second, the court could prohibit all first time in-court identifications, except for good reason, an approach that the Supreme Judicial Court of Massachusetts adopted in Commonwealth v. Crayton, 470 Mass. 228, 241–42, 21 N.E.3d 157 (2014), and Commonwealth v. Collins, 470 Mass. 255, 261–62, 21 N.E.3d 528 (2014). Third, the court could review the reliability of first time in-court identifications using the factors that social science has identified as influencing the reliability of eyewitness identifications generally (system variables and estimator variables); see, e.g., State v. Guilbert, supra, 306 Conn. at 236 n. 11, 49 A.3d 705 ; or the court could apply the factors set forth in Neil v. Biggers, 409 U.S. 188, 199–200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), as it does when an identification follows an unnecessarily suggestive out-of-court identification procedure. Rather than adopt one of the tests that the defendant has presented, the majority decides to craft its own rule for prescreening the reliability of first time in-court identifications.
I recognize the existence of a debate, highlighted in footnotes 7 and 8 of Justice Zarella's concurring opinion and footnote 11 of the majority opinion, over whether the United States Supreme Court itself has the authority to articulate constitutionally based prophylactic rules, such as that of Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Until that court definitively states that it lacks such authority, I assume that this court shares the interpretive prerogative to articulate those prophylactic rules that it deems mandated by specific federal constitutional provisions, so long as those rules are not inconsistent with previous decisions of the United States Supreme Court. See Ohio v. Robinette, 519 U.S. 33, 39–40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) (rejecting, as inconsistent with Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 [ (1973) ], state supreme court's apparent holding that fourth amendment requires per se rule “requir[ing] police officers to always inform detainees that they are free to go before a consent to search may be deemed voluntary”); see also Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975) (“a [s]tate may not impose such greater restrictions as a matter of federal constitutional law when this [c]ourt specifically refrains from imposing them” [emphasis omitted] ); State v. Ledbetter, 275 Conn. 534, 559–60, 881 A.2d 290 (2005) (stating that “[w]e lack the authority to replace the [factors set forth in Neil v. Biggers, 409 U.S. 188, 199–200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) ] on federal constitutional grounds” and that “[w]e lack the authority to hold now that, in light of additional scientific information, those factors no longer satisfy federal constitutional strictures”), cert. denied, 547 U.S. 1082, 126 S.Ct. 1798, 164 L.Ed.2d 537 (2006).
Without addressing the doctrine of stare decisis, the majority overrules two of this court's previous decisions. First, the majority overrules State v. Smith, supra, 200 Conn. at 469–70, 512 A.2d 189, insofar as it holds that an in-court identification will be excluded only when it follows an unnecessarily suggestive out-of-court identification that is conducive to irreparable misidentification. See footnote 5 of the majority opinion. Second, the majority overrules this court's holding in State v. Tatum, 219 Conn. 721, 595 A.2d 322 (1991), that a first time in-court identification during a probable cause hearing is not unnecessarily suggestive because, “[i]n order to try [a] defendant, it [is] necessary for the prosecution to present evidence at the preliminary hearing to establish probable cause to believe that [the defendant] ... committed the crimes charged.” (Emphasis omitted.) Id., at 728, 595 A.2d 322 ; see part II of the majority opinion. I am troubled by the majority's decision to overrule these cases without first balancing the reliance interests that will be disturbed by overruling these cases against the costs of adhering to the holdings in Smith and Tatum in order to determine whether the dictates of stare decisis justify overruling those cases. See State v. Peeler, 321 Conn. 375, 469–70, 140 A.3d 811 (2016) (Zarella, J., dissenting). By failing to address the principle of stare decisis, the majority creates the appearance that stare decisis is nothing more than “a doctrine of convenience” and that our determination of whether to adhere to the doctrine is “determined by the needs of the moment....” (Internal quotation marks omitted.) Id., at 440 n. 5 (Zarella, J., dissenting), quoting C. Cooper, “Stare Decisis: Precedent and Principle in Constitutional Adjudication,” 73 Cornell L.Rev. 401, 402 (1988).
“Ordinarily, only a party aggrieved by a judgment or order of a district court may exercise the statutory right to appeal therefrom. A party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it.... The rule is one of federal appellate practice, however, derived from the statutes granting appellate jurisdiction and the historic practices of the appellate courts; it does not have its source in the jurisdictional limitations of [article three of the United States constitution]. In an appropriate case, appeal may be permitted from an adverse ruling collateral to the judgment on the merits at the behest of the party who has prevailed on the merits, so long as that party retains a stake in the appeal satisfying the requirements of [article three].” (Citations omitted.) Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 333–34, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980) ; see also Camreta v. Greene, supra, 563 U.S. at 702, 131 S.Ct. 2020 (“[w]e have previously recognized that an appeal brought by a prevailing party may satisfy [the] case-or-controversy requirement [set forth in article three]”).
I begin by voicing my concern over this court's authority to craft the prophylactic rule that it adopts in the present case. Specifically, I question this court's authority to adopt prophylactic rules under the United States constitution. The majority has not cited a case, statute, or constitutional provision that bestows on this court —a state court established by a state constitution—the power it today has opted to exercise. Citing cases in which the United States Supreme Court—a federal court established by article III, § 1, of the United States constitution—has exercised its authority to create prophylactic rules is no answer. It seems to me that the power to craft prophylactic rules under the federal constitution rests solely with the United States Congress; see, e.g., U.S. Const. amend. XIV, § 5 (“[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article”) ; Boerne v. Flores, 521 U.S. 507, 518, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (“[l]egislation [that] deters or remedies constitutional violations can fall within the sweep of Congress' enforcement power [under § 5 of the fourteenth amendment] even if in the process it prohibits conduct [that] is not itself unconstitutional”); or with the United States Supreme Court or other federal courts. See Ohio v. Robinette,
As the thirteenth, fourteenth, and fifteenth amendments to the United States constitution make clear, when there is an intent to endow the government with power to create prophylactic constitutional rules or protections, the constitution so states. See U.S. Const. amend. XIII, § 2 (“Congress shall have power to enforce this article by appropriate legislation”); U.S. Const. amend. XIV, § 5 (“[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article”); U.S. Const. amend. XV, § 2 (“[t]he Congress shall have power to enforce this article by appropriate legislation”). Thus, I suggest that no court, including this court, has the authority to craft such rules. See, e.g., Dickerson v. United States, 530 U.S. 428, 460, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (Scalia, J. dissenting) (“[when] the [c]onstitution has wished to lodge in one of the branches of the [f]ederal [g]overnment some limited power to supplement its guarantees, it has said so”).
My research disclosed three occasions on which the United States Supreme Court has granted a petition for certiorari filed by a party that prevailed entirely in a previous proceeding, all concerning judgments with some preclusive effect on the petitioner that gave it a continuing stake in the controversy. See Camreta v. Greene, supra, 563 U.S. at 708–709, 131 S.Ct. 2020 (adopting “exempt[ion]” to this policy for “one special category of cases,” namely, civil actions in which government official was adjudged to have violated a party's constitutional rights, but nevertheless prevailed on grounds of qualified immunity because, otherwise the official “must either acquiesce in a ruling he had no opportunity to contest in this [c]ourt, or defy the views of the lower court, adhere to practices that have been declared illegal, and thus invite new suits and potential punitive damages” [internal quotation marks omitted] ); Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 334–36, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980) (appeal from denial of class certification filed by named plaintiff who had received offer of judgment for maximum amount of individual damages permitted under federal law); Electrical Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241, 242, 59 S.Ct. 860, 83 L.Ed. 1263 (1939) (judgment for defendant declaring patent valid, but not infringed).
A number of United States Supreme Court justices have voiced doubt concerning that court's authority to craft prophylactic rules. See, e.g., Dickerson v. United States, 530 U.S. 428, 446, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (Scalia, J., with whom Thomas, J., joins, dissenting) (if United States Supreme Court had prophylactic power “not merely to apply the [c]onstitution but to expand it,” it would have “an immense and frightening antidemocratic power, and [that power] does not exist ” [emphasis added] ); id., at 457, 120 S.Ct. 2326 (Scalia, J., with whom Thomas, J., joins, dissenting) (characterizing court's prophylactic power as “a lawless practice”); Oregon v. Elstad, 470 U.S. 298, 348, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) (Brennan, J., with whom Marshall, J., joins, dissenting) (citing with approval conclusion in Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 [ (1974) ], that court cannot craft prophylactic rules to support argument that violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 [ (1966) ], is violation of constitution); Oregon v. Elstad, supra, at 370–71, 105 S.Ct. 1285 (Stevens, J., dissenting) (United States Supreme Court's “power to require state courts to exclude probative self-incriminatory statements rests entirely on the premise that the use of such evidence violates the [f]ederal [c]onstitution.... [Thus, if a violation of Miranda is not necessarily a violation of the constitution, the court] must regard the holding in the Miranda case itself, as well as all of the federal jurisprudence that has evolved from that decision, as nothing more than an illegitimate exercise of raw judicial power.” [Footnote omitted.] ); Michigan v. Tucker, supra, at 462–63, 94 S.Ct. 2357 (Douglas, J., dissenting) (“The [c]ourt is not free to prescribe preferred modes of interrogation absent a constitutional basis. [The court] held the requirement of warnings and waiver of rights [to be] fundamental with respect to the [f]ifth [a]mendment privilege ... and without so holding we would have been powerless to reverse [the] conviction [in Miranda ].” [Citation omitted; internal quotation marks omitted.] ); Michigan v. Tucker, supra, at 465–66, 94 S.Ct. 2357 (Douglas, J., dissenting) (“Miranda 's purpose was not [the] promulgation of judicially preferred standards for police interrogation, a function we are quite powerless to perform”); North Carolina v. Pearce, 395 U.S. 711, 741, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (Black, J., concurring in part and dissenting in part) (agreeing that due process prohibits imposition of harsher sentence on defendant who successfully appeals conviction but who again is convicted after new trial merely to punish defendant for taking appeal, but arguing that court was “not vested with any general power to prescribe particular devices [for example, requiring sentencing judge to state reasons for more serve punishment affirmatively or requiring factual data supporting such reasons to be made part of the record] [i]n order to [en]sure the absence of such a motivation.... This is pure legislation if there ever was legislation.” [Internal quotation marks omitted.] ), overruled in part on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). If there is question regarding the United States Supreme Court's authority to craft prophylactic constitutional rules, then, surely, it is not obvious that this court has such authority.
This is not to say that we should completely eschew the opportunity to scrutinize first time in-court identifications, which are inherently suggestive to the point of troubling in many cases. See, e.g., State v. Nelson, 4 Conn.App. 514, 516–17, 495 A.2d 298 (1985) (rejecting claim that “in-court identification was impermissibly suggestive since the defendant was the only black male present in the courtroom” because it was otherwise reliable). Rather than encroach on the authority that we share with the United States Supreme Court, I would consider utilizing our supervisory authority over the administration of justice, particularly in cases such as this one wherein reversal is not required and we are simply setting prophylactic rules to promote the fairness of future proceedings. See State v. Carrion, 313 Conn. 823, 851–52, 100 A.3d 361 (2014) ; accord State v. Ledbetter, 275 Conn. 534, 578–79, 881 A.2d 290 (2005) (utilizing supervisory authority to require specific jury instruction concerning certain risks of misidentification that are inherent in eyewitness identification evidence), cert. denied, 547 U.S. 1082, 126 S.Ct. 1798, 164 L.Ed.2d 537 (2006) ; cf. State v. Rose, 305 Conn. 594, 605–606, 46 A.3d 146 (2012) (declining to consider whether it is structural constitutional error to require defendant to stand trial in identifiable prison clothing after resolving case under supervisory authority).
519 U.S. 33, 43, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) (Ginsburg, J., concurring in the judgment) (suggesting that United States Supreme Court may craft prophylactic measures to safeguard federal constitutional rights but that state high courts are permitted to craft such rules only under state constitutions). The majority obfuscates the issue by contending that my reliance on Justice Ruth Bader Ginsburg's concurrence in Robinette is mistaken because, according to the majority, Justice Ginsburg was not suggesting that state courts do not have authority to adopt prophylactic rules under the federal constitution. See footnote 11 of the majority opinion. Regardless of the true meaning of Justice Ginsburg's concurrence, it is the majority's obligation to identify the source of the authority it exercises in the present case by referring to some primary source of law, such as a constitutional provision or statute. This is a task that the majority is unable to accomplish, likely because no such source of authority exists. In any event, it is particularly true in the present case that this court lacks the authority to adopt the prophylactic rule that the majority announces because the controlling jurisprudence of the United States Supreme Court does not support it, as I explain subsequently in this opinion.
I am not convinced that Justice Ginsburg “incorrectly assumed [in Robinette ] both that prophylactic rules ... are adopted pursuant to a court's supervisory powers and that supervisory rules adopted by the United States Supreme Court are binding on the states,” as the majority contends. Footnote 11 of majority opinion. The United States Supreme Court had decided, before Robinette, that federal courts have no supervisory authority over state courts. See Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (“[f]ederal [c]ourts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension”); Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973) ( “Within ... a unitary jurisdictional framework the appellate court ... may ... require [the trial court] to follow procedures deemed desirable from the viewpoint of sound judicial practice although in no-wise commanded by statute or by the [c]onstitution.... Before a federal court may overturn a conviction resulting from a state trial [however] ... it must be established ... that [the state trial court] violated some right [that] was guaranteed to the defendant by the [f]ourteenth [a]mendment.”). Thus, if Justice Ginsburg believed that prophylactic rules could be applied to the states, which she did, then she must have understood that not all prophylactic rules, especially those developed under the federal constitution, were derived from the adopting court's supervisory powers. Even if Justice Ginsburg did so assume, I doubt that would impact her ultimate suggestion in Robinette, namely, that, if state courts, in order to protect constitutional rights, wish to craft rules that sweep further than the federal constitution—the defining characteristic of a prophylactic rule—they must base such a rule on independent state law. See Ohio v. Robinette, supra, 519 U.S. at 42–43, 117 S.Ct. 417 (Ginsburg, J., concurring in the judgment).
Although this court cannot craft prophylactic rules under the federal constitution, that does not mean the majority is without recourse to redress the purported constitutional violation. When evidence is secured in a criminal trial as a consequence of a violation of one or more of the defendant's constitutional rights, the remedy is suppression of such evidence after the trial court has determined that such evidence was procured on the basis of such a violation. Thus, if I agreed with the majority that first time in-court identifications implicate due process and, therefore, required prescreening—which I do not —I would likely conclude that the proper redress would be to conduct a hearing pursuant to Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), prior to allowing a first time in-court identification in those cases in which the defendant challenges the witness' ability to make a reliable first time in-court identification. Moreover, in the present case, if the majority were to conclude that the first time in-court identification in fact violated the defendant's due process rights—a determination it has not made—and that the admission of such identification was not harmless beyond a reasonable doubt, the remedy would be to remand the case for a new trial in which the witness would not be allowed to make such an in-court identification.
Even if this court could craft the rule that the majority adopts, it nevertheless is an improper application of federal law. The determination of this question is aided by a review of the development of federal jurisprudence on eyewitness identifications. The United States Supreme Court's modern jurisprudence on eyewitness identifications begins with a trio of cases decided in 1967, namely, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) ; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). In Wade and Gilbert, the court considered the admissibility of in-court identifications that were preceded by out-of-court lineup identifications conducted without giving notice to and in the absence of the defendants' attorneys. United States v. Wade, supra, at 219–20, 87 S.Ct. 1926 ; see also Gilbert v. California, supra, at 264, 87 S.Ct. 1951. In Gilbert, the court also considered the admissibility of the testimony of some witnesses that they had identified the defendant at the out-of-court lineup. Gilbert v. California, supra, at 264–65, 87 S.Ct. 1951. In light of the “dangers and variable factors” peculiar to identification procedures, including the potential for prejudicial suggestiveness, and the general “vagaries of eyewitness identification[s]”; United States v. Wade, supra, at 228, 87 S.Ct. 1926 ; the court concluded that an accused is entitled to have counsel present during postindictment identifications arranged for the purpose of eliciting identification evidence for trial. Id., at 236–37, 87 S.Ct. 1926 ; see also Gilbert v. California, supra, at 272, 87 S.Ct. 1951. Of particular concern is the difficulty of uncovering and reconstructing for the jury what occurred during an uncounseled identification procedure, thereby inhibiting the ability of the defendants to effectively attack the credibility of the eyewitnesses. United States v. Wade, supra, at 230–32, 87 S.Ct. 1926. Nevertheless, the court concluded that the violations of the defendants' right to counsel during the out-of-court identification procedures did not, per se, require the exclusion of the subsequent in-court identifications. Id., at 240, 87 S.Ct. 1926 (“[when] ... the admissibility of evidence of the lineup identification itself is not involved, a per se rule of exclusion of courtroom identification would be unjustified”); see also Gilbert v. California, supra, at 272, 87 S.Ct. 1951 (admissibility of in-court identifications depended on determination of whether identifications had independent source or were tainted by illegal lineup). Instead, in deciding whether an in-court identification should be allowed, a court must determine whether such an identification is based on the witness' observation of the defendant at the improper pretrial identification or on the witness' independent observation of the defendant, such as during the commission of the crime. United States v. Wade, supra, at 240–41, 87 S.Ct. 1926 ; see Gilbert v. California, supra, at 272, 87 S.Ct. 1951. The admissibility of the testimony of certain witnesses regarding their out-of-court lineup identifications, the court stated, raised an entirely different question. See Gilbert v. California, supra, at 272–73, 87 S.Ct. 1951. The court in Gilbert applied a per se exclusionary rule to such testimony, reasoning that the testimony was the direct result of an illegal lineup, and a per se rule of exclusion would be the only effective way to deter law enforcement personnel from engaging in similar practices in the future. Id.
The defendant has alleged a violation of only his due process rights as guaranteed by the fifth and fourteenth amendments to the United States constitution, and he has made no claims under article first, § 8, of the Connecticut constitution. Thus, our review in this case is limited to the federal constitution, and, therefore, the court's decision must be guided in the first instance by the decisions of the United States Supreme Court. See Wojculewicz v. Cummings, 143 Conn. 624, 629, 124 A.2d 886 (1956) ( “[S]ince the plaintiff relies on his rights under the federal constitution ... we are, in passing [on] his claims in that regard, bound to accept the law as formulated by the Supreme Court of the United States.... Decisions of that court which construe the constitution of the United States are absolutely binding on us.” [Citation omitted.] ). Even if the defendant had argued that the Connecticut constitution provides greater due process protections than does the federal constitution, it is unlikely that he could have prevailed on that claim. See State v. Ledbetter, supra, 275 Conn. at 568, 881 A.2d 290 (concluding that Connecticut constitution provides no greater protection than the federal constitution in context of reliability of eyewitness identifications).
Stovall raised a different issue for the court to address. In that case, the court considered whether an out-of-court identification was so suggestive and “conducive to irreparable mistaken identification” that it violated the defendant's due process rights. Stovall v. Denno, supra, 388 U.S. at 301–302, 87 S.Ct. 1967. In the showup identification at issue, the petitioner was presented to the eyewitness in her hospital room. Id., at 295, 87 S.Ct. 1967. At the time, the petitioner was handcuffed to one of five police officers who, along with two members of the District Attorney's Office, accompanied him into the eyewitness' hospital room. Id. The petitioner was also the only African–American individual in the room and was required to repeat a few words. Id. The witness identified the petitioner after an officer asked if he “was the man....” (Internal quotation marks omitted.) Id. Whether an identification is so unnecessarily suggestive as to violate a defendant's due process rights, the court stated, depends on the totality of the circumstances surrounding it. Id., at 302, 87 S.Ct. 1967. The eyewitness was the only person who could identify the petitioner as the assailant, or exonerate him, and it was unclear whether the eyewitness would live. Id. Thus, the court concluded that, under those circumstances, the identification did not violate the petitioner's due process rights. Id.
Between 1967 and 1972, the court heard three additional cases in which it was alleged that law enforcement had conducted unnecessarily suggestive pretrial identification procedures that gave “rise to a very substantial likelihood of irreparable misidentification”; (internal quotation marks omitted) Coleman v. Alabama, 399 U.S. 1, 5, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) and, therefore, that the introduction into evidence of the out-of-court, or subsequent in-court, identifications violated the defendants' due process rights. See id., at 3, 90 S.Ct. 1999 ; Foster v. California, 394 U.S. 440, 441–42, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969) ; Simmons v. United States, 390 U.S. 377, 381–82, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). In each case, the court stated that the determination of whether an identification process violates an accused's due process rights depends on the totality of the circumstances. Coleman v. Alabama, supra, at 4, 90 S.Ct. 1999 ; Foster v. California, supra, at 442, 89 S.Ct. 1127 ; Simmons v. United States, supra, at 383, 88 S.Ct. 967. The court further noted that the reliability of identification evidence is generally a matter for the jury to determine, and, thus, it would be excluded only after a showing that the identification procedure in question was so unnecessarily suggestive as to taint the identification. See Foster v. California, supra, at 443 n. 2, 89 S.Ct. 1127 (“in some cases the procedures leading to an eyewitness identification may be so defective as to make the identification constitutionally inadmissible as a matter of law”); Simmons v. United States, supra, at 384, 88 S.Ct. 967 (“convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification” [emphasis added] ).
I cannot overstate enough that reliability is a jury question, and a major flaw in the majority's opinion is its failure to give this principle sufficient weight.
Then, in Neil v. Biggers, 409 U.S. 188, 195, 198–99, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the court addressed whether an unnecessarily suggestive identification procedure—in that case, a showup—in and of itself required the exclusion of identification evidence, such as testimony regarding the out-of-court identification. The court answered the question in the negative, reasoning that its earlier cases made clear that it is not the unnecessarily suggestive procedure that violates the defendant's due process rights but the likelihood of misidentification that might result from such procedure. See id., at 198–201, 93 S.Ct. 375. When a defendant challenges the admissibility of identification evidence, the court stated, the central question is whether the identifica tion is reliable, despite a suggestive procedure. Id., at 199, 93 S.Ct. 375. The court provided five factors for courts to consider in evaluating the reliability of an identification, which have come to be known as the Biggers factors: (1) “the opportunity of the witness to view the criminal at the time of the crime”; id.; (2) “the witness' degree of attention”; id.; (3) “the accuracy of the witness' prior description of the criminal”; id.; (4) “the level of certainty demonstrated by the witness at the confrontation”; id.; and (5) “the length of time between the crime and the confrontation.” Id., at 199–200, 93 S.Ct. 375. In 1977, the United States Supreme Court had its first opportunity to address the admissibility of out-of-court identification evidence that resulted from an unnecessarily suggestive identification procedure post-Stovall, in Manson v. Brathwaite, 432 U.S. 98, 109, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). The question in Brathwaite was whether a per se exclusionary rule or the rule announced in Biggers should apply to such evidence. Id., at 99, 107, 97 S.Ct. 2243. Rejecting the per se exclusionary rule and concluding that the Biggers test should apply to both pre-Stovall and post-Stovall identifications, the court considered three interests. Id., at 111–13, 97 S.Ct. 2243. First, the court noted that the concern underlying Wade and its companion cases was ensuring that identification evidence presented to the jury has aspects of reliability. See id., 111–12, 97 S.Ct. 2243. Although both the per se exclusionary rule and the Biggers test help to keep unreliable evidence from the jury, “[t]he per se rule ... goes too far since its application automatically and peremptorily, and without consideration of alleviating factors, keeps evidence from the jury that is reliable and relevant.” Id., at 112, 97 S.Ct. 2243. The court next considered the alternative rule's deterrent effect on law enforcement. Id. The per se rule, the court conceded, would have a greater deterrent effect. Id. Nevertheless, the Biggers approach also influences law enforcement behavior because, to guard against the possible exclusion of evidence, officers need to avoid suggestive procedures. Id. Finally, the court considered the administration of justice. Id. Under this consideration, the court noted that the per se approach has a serious drawback, namely, that it deprives the trier of fact of reliable evidence, which, in turn, may result in the “guilty going free.” Id. Moreover, the court noted that it would be “Draconian” to reverse a conviction when a trial court's admission of evidence would constitute error under the per se approach but be proper under the totality approach adopted in Biggers. Id., at 112–13, 97 S.Ct. 2243. “[R]eliability is the linchpin in determining the admissibility of identification testimony,” the court concluded; id., at 114, 97 S.Ct. 2243 ; after all, it is not the suggestive identification procedure that is violative of due process. Id., at 113 n. 13, 97 S.Ct. 2243. The Biggers totality of the circumstances approach properly balances these interests and limits the societal cost of excluding relevant and reliable evidence of guilt in criminal proceedings. See id., at 110, 97 S.Ct. 2243.
The court also noted that a strict exclusionary rule could be justified on the basis of deterring police officers from using less reliable identification procedures when more reliable procedures are available. See Neil v. Biggers, supra, 409 U.S. at 199, 93 S.Ct. 375. Nevertheless, adopting such a rule in Biggers would be inappropriate, the court concluded, because the identification at issue and the underlying trial were conducted before the court's decision in Stovall. Id.
The court most recently addressed the issue of eyewitness identifications in Perry v. New Hampshire, supra, 132 S.Ct. 716. In Perry, the eyewitness, Nubia Blandon, spontaneously identified the petitioner, Barion Perry, from the window of her fourth floor apartment, while Perry was standing next to a police officer and was the only African–American in the area. Id., at 721–22. Thus, the court had to address whether identification evidence had to be prescreened for reliability when it resulted from a suggestive procedure that was not arranged by law enforcement. Id., at 723. The court concluded that, unless identification evidence is tainted by “improper state conduct”; id., at 728 ; due process does not require such evidence to be prescreened for reliability; id., at 725 ; and the court rejected Perry's contention that the Biggers test should apply to Blandon's identification of him. See id., at 725–28. The purpose of excluding identification evidence obtained through a suggestive procedure falls away when the suggestive procedure was not orchestrated by law enforcement. See id., at 726. A primary aim of the rule adopted in Brathwaite, the court observed, was to deter officers from using improper identification procedures. Id. When the police do not arrange the identification, however, the deterrence concern is not present. Id.
Between Biggers and Perry, the United States Supreme Court did address identification evidence in another case, namely, Watkins v. Sowders, 449 U.S. 341, 101 S.Ct. 654, 66 L.Ed.2d 549 (1981). In Watkins, the court held that, although it may be prudent for trial courts to determine admissibility of identification evidence after an evidentiary hearing outside the jury's presence, “it does not follow that the [c]onstitution requires a per se rule compelling such a procedure in every case.” Id., at 349, 101 S.Ct. 654.
Moreover, the court noted in Perry that the constitution's safeguard against convictions based on unreliable or questionable evidence is not the exclusion of such evidence but an opportunity for the defense to persuade the jury that such evidence is untrustworthy. Id., at 723. In fact, a determination regarding the reliability of evidence, the court observed, is normally within the province of the jury, and due process requires the exclusion of evidence only when it “is so extremely unfair that its admission violates fundamental conceptions of justice....” (Citation omitted; emphasis added; internal quotation marks omitted.) Id., at 723 ; see also Kansas v. Ventris, 556 U.S. 586, 594 and n. *, 129 S.Ct. 1841, 173 L.Ed.2d 801 (2009) (allowing testimony of jailhouse informant for purpose of impeaching respondent's testimony with prior inconsistent statement and rejecting “a broader exclusionary rule for uncorroborated statements obtained [by jailhouse snitches],” despite inherent unreliability, because “[o]ur legal system ... is built on the premise that it is the province of the jury to weigh the credibility of competing witnesses”); Dowling v. United States, 493 U.S. 342, 353, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990) (rejecting claim that testimony regarding prior misconduct, of which defendant was acquitted, should be excluded because it is inherently unreliable, reasoning that jury “remained free to assess the truthfulness and the significance” of such testimony); Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (restating established law that due process prohibits prosecution from obtaining conviction through false evidence or sustaining conviction on evidence that, although not solicited by prosecution, it knows to be false and leaves uncorrected, and extending such due process protection to evidence regarding witness' credibility). In light of its recognition that, traditionally, the jury, not judges, determine the reliability of evidence, the court in Perry concluded that our adversary system already provided defendants like Perry with adequate protections against potentially unreliable identification testimony. Perry v. New Hampshire, supra, 132 S.Ct. at 728. Those protections, many of which are guaranteed by the constitution, include the rights of confrontation and to the effective assistance of counsel, jury instructions, the presumption of innocence and the government's burden to establish guilt beyond a reasonable doubt, evidentiary rules requiring exclusion of unduly prejudicial evidence, and expert testimony regarding the shortcomings of eyewitness identifications. Id., at 728–29.
III
With this background in mind, I turn to the defendant's claim in the present case. As I previously stated, the defendant contends that, in light of developments in social science regarding eyewitness testimony and the inherent suggestiveness of in-court identifications, Smith should be overruled. The defendant argues that first time in-court identifications either should be prescreened for reliability or excluded entirely, except for good reason. The majority agrees with the defendant. After concluding that in-court identifications are suggestive, the majority holds that first time in-court identifications must be prescreened. The screening procedure that the majority adopts, however, is largely unlike any of the procedures advocated by the defendant. See footnote 5 of this opinion. First time in-court identifications are inadmissible, pursuant to the majority's approach, unless they are preceded by nonsuggestive out-of-court identifications, with a few narrow exceptions.
Admittedly, the first step in the majority's test is similar to the approach that the Supreme Judicial Court of Massachusetts adopted in Commonwealth v. Crayton, 470 Mass. 228, 241–42, 21 N.E.3d 157 (2014), and Commonwealth v. Collins, 470 Mass. 255, 261–62, 21 N.E.3d 528 (2014). If the prosecution wants to introduce a first time in-court identification, it first must seek permission from the court to do so. See Commonwealth v. Crayton, supra, at 243, 21 N.E.3d 157 (requiring prosecution “to move in limine to admit the in-court identification” when witness has not made out-of-court identification of defendant). The trial court should grant such motion if the identity of the defendant or the witness' ability to identify the defendant is not at issue. See id., at 242–43, 21 N.E.3d 157 (holding that defendant has burden to establish that there is no good reason for admission of in-court identification and noting that “there may be good reason ... [when] the eyewitness was familiar with the defendant before the commission of the crime ... [or when] the witness is an arresting officer who was also an eyewitness to the commission of the crime, and the identification merely confirms that the defendant is the person who was arrested for the charged crime” [citations omitted; internal quotation marks omitted] ). It is the next step in the majority's approach, namely, the requirement of a nonsuggestive out-of-court identification if the first time in-court identification cannot be admitted, that diverges from the test adopted in Crayton and Collins. See id., at 241, 21 N.E.3d 528 (prohibiting first time in-court identification if there is no “good reason”). Although the majority's approach is preferable to the approach that the Supreme Judicial Court of Massachusetts adopted, I do not believe it is supported by the United States Supreme Court's case law and, therefore, is an inappropriate prophylactic rule under the fifth and fourteenth amendments.
The United States Supreme Court has not directly addressed the issue in the present case, namely, the admissibility of first time in-court identifications under the suggestive circumstances of a trial. In addition, the United States Circuit Courts of Appeals have split on this issue. See
The federal circuit courts of appeals have approached the issue of first time in-court identifications in varying ways. The Eleventh Circuit Court of Appeals has determined that first time in-court identifications are not subject to judicial prescreening. United States v. Whatley, 719 F.3d 1206, 1216 (11th Cir.) (observing that Perry abrogated earlier Eleventh Circuit cases that applied Biggers approach to first time in-court identifications), cert. denied, ––– U.S. ––––, 134 S.Ct. 453, 187 L.Ed.2d 303 (2013). Instead, that circuit has decided that, for a defendant “who [is] identified under suggestive circumstances not arranged by [the] police, the requirements of due process are satisfied in the ordinary protections of trial.” Id.
Conversely, a majority of the circuit courts—seven to be exact—apply the Biggers approach to first time in-court identifications. That is, they first review whether the in-court identification is unnecessarily suggestive. If it is, they then determine whether the identification nonetheless has indicia of reliability, using the Biggers factors. See, e.g., Lee v. Foster, 750 F.3d 687, 690–91 (7th Cir.2014) (utilizing two-pronged Biggers test to determine admissibility of in-court identification when witness failed to identify defendant in photographic array just eleven days before trial); United States v. Greene, supra, 704 F.3d at 304–10 (identification witness did not identify defendant in or out of court but provided “ ‘resemblance’ ” testimony by describing similarities between defendant and perpetrator, and court treated this evidence as in-court identification and applied Biggers test to determine admissibility); United States v. Jones, 126 Fed.Appx. 560, 567–68 (3d Cir.) (applying Biggers factors to in-court identification in case involving witness who failed to identify defendant in photographic array conducted six months after crime but who, upon viewing defendant when entering courtroom, informed prosecutor that she could identify defendant as perpetrator and was subsequently asked to make such identification in court), cert. denied, 546 U.S. 966, 126 S.Ct. 494, 163 L.Ed.2d 374 (2005); United States v. Brown, 200 F.3d 700, 707 (10th Cir.1999) (noting that first time in-court identification is permissible if, under Biggers, it has indicia of reliability, and stating that “the inability [of a witness] to identify a defendant from a photo[graphic] array does not render a subsequent in-court identification inadmissible ... [but] that inability goes to the weight of the [witness'] testimony”), cert. denied, 528 U.S. 1178, 120 S.Ct. 1213, 145 L.Ed.2d 1114 (2000), and cert. denied sub nom. Dixon v. United States, 529 U.S. 1081, 120 S.Ct. 1706, 146 L.Ed.2d 509 (2000); United States v. Rogers, 126 F.3d 655, 657–59 (5th Cir.1997) (reviewing, under Biggers test, admission of first time in-court identification by witness who was not originally expected by prosecution to identify defendant); United States v. Kime, 99 F.3d 870, 882–83 (8th Cir.1996) (reviewing admissibility of first time in-court identification under Biggers framework), cert. denied, 519 U.S. 1141, 117 S.Ct. 1015, 136 L.Ed.2d 892 (1997), and cert. denied sub nom. Bell v. United States, 520 U.S. 1220, 117 S.Ct. 1714, 137 L.Ed.2d 838 (1997); United States v. Hill, 967 F.2d 226, 232 (6th Cir.) (“[w]e hold that the Biggers analysis applies to [first time] in-court identifications for the same reasons that the analysis applies to impermissibly suggestive [pretrial] identifications”), cert. denied, 506 U.S. 964, 113 S.Ct. 438, 121 L.Ed.2d 357 (1992).
The Ninth Circuit Court of Appeals has determined that Stovall and its progeny, including Biggers, do not extend to first time in-court identifications. See United States v. Domina, 784 F.2d 1361, 1368–69 (9th Cir.1986), cert. denied, 479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987). Instead, that circuit reviews the admission of first time in-court identifications for an abuse of discretion, which occurs “if the resulting in-court identification procedures are so unnecessarily suggestive and conducive to irreparable misidentification as to amount to a denial of due process of law....” (Internal quotation marks omitted.) Id., at 1369; see also id. (noting that “[t]here is no constitutional entitlement to an in-court [lineup] or other particular methods of lessening the suggestiveness of in-court identification[s]”).
The Second Circuit Court of Appeals has adopted an approach similar to the majority approach, with a unique variation. That circuit, like the majority, reviews first time in-court identifications under the Biggers two-pronged framework. See United States v. Matthews, 20 F.3d 538, 547 (2d Cir.1994). In the Second Circuit, however, defendants can request less suggestive identification procedures, such as being placed in a lineup prior to the in-court identification or being seated somewhere other than at the counsel table. Id.; see also United States v. Archibald, supra, 734 F.2d at 940–43. The First Circuit Court of Appeals has not adopted a standard for reviewing first time in-court identifications. See United States v. Correa–Osorio, supra, 784 F.3d at 20. That court has indicated, however, that either the approach of Perry or Biggers applies to first time in-court identifications. See id., at 19–20. It does not appear that the District of Columbia Circuit Court of Appeals has addressed the issue.
Although a majority of the circuit courts apply the Biggers approach to first time in-court identifications, most of those circuit courts have not addressed this issue since the United States Supreme Court's decision in Perry. In fact, only three circuit courts have had the opportunity to review first time in-court identifications since then. As I just noted, the First Circuit did not determine which standard should apply. See id., at 20. The Seventh Circuit Court of Appeals decided that Biggers should apply. See Lee v. Foster, supra, 750 F.3d at 690–91. It does not appear, however, that it considered whether Perry should apply instead. See id. Finally, the Eleventh Circuit adopted the approach in Perry, repudiating its earlier cases applying Biggers. United States v. Whatley, supra, 719 F.3d at 1216. Moreover, other circuit courts have indicated that, perhaps, in light of Perry, first time in-court identifications should not be judicially prescreened. See, e.g., United States v. Hughes, 562 Fed.Appx. 393, 398 (6th Cir.2014) (observing that prevailing authority was against defendant's claim that in-court identification was unduly suggestive because he was only African–American in court room other than Assistant United States Attorneys and United States Marshal, and further noting that “the [United States] Supreme Court has recently made clear [in Perry ] that due process rights of defendants identified in the courtroom under suggestive circumstances are generally met through the ordinary protections in trial”), cert. denied, –––U.S. ––––, 135 S.Ct. 1188, 191 L.Ed.2d 143 (2015); see also Benjamin v. Gipson, 640 Fed.Appx. 656, 659 (9th Cir.2016) (noting that “courts suppress eyewitness identifications only when they are the product of improperly suggestive conduct by the police”).
United States v. Correa–Osorio, supra, 784 F.3d at 19–20 (noting circuit split regarding standard applicable to in-court identifications when claim is that trial setting is suggestive). After reviewing the federal jurisprudence on the admissibility of identification evidence, however, I conclude that first time in-court identifications are admissible and are not subject to prescreening. I further conclude that the approach that the majority adopts is an inappropriate prophylactic rule under the fifth and fourteenth amendments. Cf. Arkansas v. Sullivan, 532 U.S. 769, 772, 121 S.Ct. 1876, 149 L.Ed.2d 994 (2001) (“[although] a [s]tate is free as a matter of its own law to impose greater restrictions on police activity than those [that the United States Supreme] Court holds to be necessary [on the basis of] federal constitutional standards, it may not impose such greater restrictions as a matter of federal constitutional law when [the United States Supreme] Court specifically refrains from imposing them” [emphasis in original; internal quotation marks omitted] ).
I do not dispute—nor could I—that in-court identifications are suggestive. Insofar as the majority suggests that all in-court identifications are unnecessarily suggestive, however, I do not agree. Additionally, I do not agree with the majority's suggestion that a comparative analysis of alternative identification procedures is the appropriate test for determining unnecessary suggestiveness. See State v. Marquez, supra, 291 Conn. at 145, 967 A.2d 56 (concluding in slightly different context that “the test [for unnecessary suggestiveness] does not require a court to engage in a relative value judgment of various possible identification techniques and [to] settle on the one that it believes bears the least risk of mistake”); see also, e.g., United States v. Correa–Osorio, supra, 784 F.3d at 21 (“[a]n in-court identification may be unduly suggestive if ... the prosecutor drew the [witness'] attention to the defendant ... or asked questions that suggested the hoped-for result, or if the defendant looked different from others in the courtroom or at counsel table when the identification occurred” [footnote omitted] ); United States v. Greene, 704 F.3d 298, 307 (4th Cir.) (in-court identification was unnecessarily suggestive because prosecutor asked witness to look at defendant and to state to jury similarities witness observed between defendant and bank robber), cert. denied, ––– U.S. ––––, 134 S.Ct. 419, 187 L.Ed.2d 279 (2013) ; United States v. Murdock, 928 F.2d 293, 297 (8th Cir.1991) (defendant's “presence at the defense table, combined with his being the only African–American in the courtroom at the time of the identification,” did not render first time in-court identification impermissibly suggestive). Moreover, whether a first time in-court identification is unnecessarily suggestive is not the salient question in the present case because due process does not protect against unnecessarily suggestive procedures. See Neil v. Biggers, supra, 409 U.S. at 198, 93 S.Ct. 375. Instead, due process safeguards against convictions based on unreliable evidence. Id.
I recognize that Marquez involved a photographic array and that the defendant in that case argued that the array was unnecessarily suggestive because the photographs were shown simultaneously, rather than sequentially, and the procedure was merely single, rather than double, blind. See State v. Marquez, supra, 291 Conn. at 132–33, 146, 967 A.2d 56. Thus, the comparative judgment we were asked but declined to make in that case was between a double-blind, sequential photographic array and a single-blind, simultaneous photographic array, not a photographic array and some other identification procedure, such as a live lineup. See id. Nevertheless, I think the logic and theory espoused in Marquez equally apply in the present case and to in-court identifications.
It is well established in our adversarial system that the jury determines issues of witness credibility and the reliability of evidence. See, e.g., Kansas v. Ventris, supra, 556 U.S. at 594 n. *, 129 S.Ct. 1841 (“[o]ur legal system ... is built on the premise that it is the province of the jury to weigh the credibility of competing witnesses”); United States v. Katsougrakis, 715 F.2d 769, 777 (2d Cir.1983) (“to require a preliminary assessment of the in-court witness' credibility would ... be a usurpation of the jury function”), cert. denied, 464 U.S. 1040, 104 S.Ct. 704, 79 L.Ed.2d 169 (1984) ; State v. Rivera, 268 Conn. 351, 372, 844 A.2d 191 (2004) ( “[t]he determination of a witness' credibility is within the province of the jury”). Indeed, unreliable evidence is excluded by the courts, as a matter of constitutional law, “[o]nly when [such] evidence is so extremely unfair that its admission violates fundamental conceptions of justice....” (Citation omitted; emphasis added; internal quotation marks omitted.) Perry v. New Hampshire, supra, 132 S.Ct. at 723. Thus, the proper approach in this case, and similar cases, is to permit the in-court identification and then allow the jury, properly charged regarding the reliability issues of eyewitness testimony, to determine its worth.
As the United States Supreme Court recognized in Perry, moreover, a defendant's due process right to be free from conviction based on unreliable evidence is safeguarded by the mechanics of our adversarial system, not by the prescreening and suppression of purportedly unreliable evidence. Id., at 723, 728. The United States constitution requires that criminal defendants be permitted to confront the witnesses against them and to have the effective assistance of counsel. Id., at 728. Effective defense counsel can vindicate the defendant's confrontation rights by thoroughly cross-examining the identification witness. Id. Moreover, counsel can educate the jury regarding the fallibility of eyewitness evidence in closing arguments and direct the jury's attention to the particular factors that indicate that the in-court identification was unreliable. Id. The defendant also is protected by the presumption of innocence and the government's burden to establish guilt beyond a reasonable doubt. See id., at 729. In addition, a defendant is entitled to identification-specific jury instructions. Id., at 728–29. Such instructions direct the jury to consider the totality of the circumstances surrounding the eyewitness' identification in determining its reliability and convey to the jury the factors articulated in Biggers. See, e.g., Connecticut Criminal Jury Instructions 2.6–4 (revised to June 12, 2015), available at https://www.jud.ct.gov/JI/criminal/part2/2.6-4.htm. In fact, a defendant who is identified for the first time in court is likely entitled to an instruction regarding the suggestiveness of in-court identifications. Connecticut defendants are also permitted to present expert testimony on “the fallibility of eyewitness identification[s]”; State v. Guilbert, supra, 306 Conn. at 221, 49 A.3d 705 ; and the factors that impact the reliability of such identifications. Id., at 248, 49 A.3d 705. Indeed, we have characterized expert testimony on the reliability of eyewitness identification as “[a] highly effective safeguard against [wrongful convictions]....” Id., at 250, 49 A.3d 705. Finally, if defense counsel questions a witness' ability to make a reliable identification, he can ask the court to order the prosecutor to arrange an out-of-court identification procedure. See Practice Book §§ 40–34 and 40–38. I acknowledge that my conclusion in the present case may seem inconsistent with our case law requiring judicial prescreening of the reliability of unnecessarily suggestive out-of-court identifications. An identification made during an unnecessarily suggestive out-of-court identification procedure, however, is distinct from an identification made in court. The ills that gave the court pause in cases such as Wade and Brathwaite are not present when the first identification occurs in court and in the presence of the judge, jury, and defense counsel. For example, the court in Wade would exclude evidence of a lineup identification conducted without the presence of counsel and require screening of an in-court identification following such a lineup, due to the extreme difficulty of discerning, and recreating for the judge and jury, what occurred during the lineup. See United States v. Wade, supra, 388 U.S. at 230, 87 S.Ct. 1926. Moreover, an in-court identification following an uncounseled lineup is prescreened because the absence of counsel at the lineup deprives the defendant of an opportunity to effectively scrutinize the identification at trial. See id., at 235, 87 S.Ct. 1926. The court again, while discussing the reliability of identification evidence, voiced its concern regarding police manipulation of eyewitness recollection, intentional or not, during the identification procedure in Manson v. Brathwiate, supra, 432 U.S. at 112, 97 S.Ct. 2243 and, more recently, in Perry, the court highlighted the importance of police involvement in its previous identification cases. See Perry v. New Hampshire, supra, 132 S.Ct. at 724–27. In the present case, however, none of these concerns appears. First, this is not an identification procedure arranged by the police. In fact, police officers took no part in the challenged identification, ensuring that officers did not distort the witness' recollection of the perpetrator. Second, the identification occurred before the judge, jury, and defense counsel, and, therefore, defense counsel's inability to recreate the identification or discern what occurred during the identification is no longer a factor. And, third, because the identification takes place in front of defense counsel, counsel is not hindered in his cross-examination of the identifying witness. If the jury is capable of evaluating the reliability of an inherently suggestive out-of-court identification not tainted by police misconduct, such as the identification in Perry, there is no reason to conclude that it is not equally capable of determining the reliability of an identification that transpires in its presence.
Perry may govern for an additional reason. In that case, the United States Supreme Court held that, “[w]hen no improper law enforcement activity is involved ... it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.” Perry v. New Hampshire, supra, 132 S.Ct. at 721. As I previously noted; see footnote 16 of this opinion; at least one court has read Perry to hold that identifications not procured through suggestive procedures arranged by the police are admissible, and the defendant's due process rights are protected through the ordinary protections of our adversarial system. See United States v. Whatley, 719 F.3d 1206, 1216 (11th Cir.), cert. denied, ––– U.S. ––––, 134 S.Ct. 453, 187 L.Ed.2d 303 (2013). The majority rejects this possibility by stating that it “[does] not believe that the court's repeated statements [in Perry ] that due process protections are triggered only when unduly suggestive identification procedures are arranged by the police means that due process protections are not triggered when state actors other than the police conduct unfair identification procedures. Indeed, the court in Perry expressly stated that its prior decisions on this issue ‘turn on the presence of state action’ ... and ... the state in the present case does not dispute that a prosecutor's conduct in court constitutes state action.” (Citation omitted; emphasis omitted.) Part II of the majority opinion. Certainly, the court in Perry did use state action and police conduct interchangeably. On the other hand, the majority overstates the state's concession regarding state action. In fact, the state contends that “the [United States Supreme] Court clearly mean[t] to signify police or other law enforcement actors involved in extrajudicial investigation, not prosecutors presenting evidence in court.” (Emphasis added.) The state further claims that Perry cannot be read to mean that the presentation of evidence in court by a prosecutor is the kind of state action that triggers the Biggers due process protections. The state may be correct. If the majority's reading of Perry is correct, it produces a confounding result. I can think of no reasonable basis for distinguishing between the state action of a prosecutor entering into evidence a suggestive out-of-court identification, not arranged by law enforcement, and the state action of a prosecutor eliciting a first time in-court identification.
“It is part of our adversary system that we accept at trial much evidence that has strong elements of untrustworthiness—an obvious example being the testimony of witnesses with a bias. While identification testimony is significant evidence, such testimony is still only evidence, and, unlike the presence of counsel, is not a factor that goes to the very heart—the integrity—of the adversary process.
“Counsel can both cross-examine the identification witnesses and argue in summation as to factors causing [doubt] as to the accuracy of the identification—including reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi [testimony].” (Footnote omitted; internal quotation marks omitted.) Clemons v. United States, 408 F.2d 1230, 1251 (D.C.Cir.1968) (Leventhal, J., concurring), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969).
In the absence of out-of-court misconduct by the state, I am of the opinion that the jury should be allowed to perform its rightful task in the American criminal justice system. “[I am] content to rely [on] the good sense and judgment of [Connecticut] juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.” Manson v. Brathwaite, supra, 432 U.S. at 116, 97 S.Ct. 2243. There is no reason to assume that judges are better equipped to pass on the reliability of a first time in-court identification than are jurors. We presume that jurors follow instructions in other contexts. See, e.g., State v. Wooten, 227 Conn. 677, 694, 631 A.2d 271 (1993) (“[j]urors are presumed to follow the instructions given by the judge” [internal quotation marks omitted] ). There is no reason to believe they do not follow eyewitness-specific instructions as well.
For the foregoing reasons, I respectfully concur in the judgment.
ESPINOSA, J., with whom ZARELLA, J., joins, concurring.
I agree with the majority that the judgment of conviction of the defendant, Andrew Dickson, should be affirmed. Therefore, I concur in the result. I disagree, however, with the majority's decision to overrule State v. Smith, 200 Conn. 465, 512 A.2d 189 (1986), and State v. Tatum, 219 Conn. 721, 728, 595 A.2d 322 (1991). In my view, the majority's decision is yet another instance in which this court acts under the mistaken belief that justice is served when this court crafts a new legal rule in order to allow itself to step in and perform a function that is the proper province of the trial court. I therefore agree with and join the concurring opinion of Justice Zarella. I particularly note my agreement with him that the majority lacks authority to announce a prophylactic rule predicated on federal constitutional law. If any court has that authority—an issue I need not resolve as it is not implicated in this appeal—it is the United States Supreme Court. The majority's failure to offer any explanation for its authority to issue such a rule, even resisting the increasingly popular resort to this court's supervisory powers, highlights the fact that the majority lays claim to a power that is without any foundation. Compounding the error, the majority not only acts without authority, but in doing so it micromanages the trial courts—again.
In Smith, this court acknowledged that there is always an “element of suggestiveness” involved in an in-court identification procedure; State v. Smith, supra, 200 Conn. at 469, 512 A.2d 189 ; because such a procedure “conveys the message that the state has arrested and placed on trial a person it believes has committed the crime.” Id., at 468–69, 512 A.2d 189. The court further recognized, however, that, unless the in-court identification had been preceded by an unnecessarily suggestive pretrial identification procedure that was “ ‘conducive to irreparable misidentification,’ ” the suggestiveness involved in an in-court identification does not implicate the due process clause. Id., at 470, 512 A.2d 189. Accordingly, the court explained, because the “manner in which in-court identifications are conducted is not of constitutional magnitude,” the admissibility of such identifications “rests within the sound discretion of the trial court.” Id. Justice Zarella's concurring opinion thoroughly and cogently explains why the principles that this court relied on in Smith to conclude that in-court identifications do not violate a defendant's right to due process remain valid and controlling. Today, however, the majority departs from all other jurisdictions by adopting a prophylactic rule that applies to all first time in-court identifications. In doing so, the majority invades the province of the trial court.
The unwieldy nature of the majority's rule illustrates that it attempts to perform a task more suited to the trial court. In order to make its general rule “fit” to the task, the majority tries to anticipate possible contingencies, constructing a rule that reads like a complicated flowchart. A brief summary of the general rule and all of its permutations is illustrative.
The general rule announced by the majority is that “in-court identifications that are not preceded by a successful identification in a nonsuggestive identification procedure ... must be prescreened by the trial court.” (Footnote omitted.) So, when there has been no pretrial identification, and the state intends to present a first time in-court identification, it must first ask permission from the trial court.
But what if the defendant is a person known to the witness? In that case, the majority explains, the state need only give notice to that effect on the record to satisfy the prescreening requirement.
What if the defendant fails to dispute or concedes the ability of the witness to identify him? The state must provide notice on the record of that fact to satisfy the prescreening requirement.
What if the defendant concedes that he performed the actions at issue, and only disputes that his actions constituted a crime? The state must provide notice on the record of such concession to satisfy the prescreening requirement. If the trial court determines that the state may not perform a first time identification in court, then the state may request permission to perform an out-of-court identification procedure, and the court ordinarily should grant the state's request.
But what if the witness already has participated in a nonsuggestive identification procedure, and failed to identify the defendant? In order to be allowed to conduct a second identification procedure, the state must “provide a good reason” why the court should allow it. The majority acknowledges that it cannot “catalogue” all of the reasons that could justify a court's decision to allow a second identification procedure, but offers two examples: if the state already conducted a photographic array and now wishes to conduct a lineup, or when the witness was threatened or intimidated before the first identification procedure. See footnote 30 of the majority opinion.
If the witness did identify the defendant in a previous, nonsuggestive procedure, but with “some uncertainty,” the majority states, due process generally does not require that the court prescreen the in-court identification. The level of uncertainty goes to the weight of the evidence, not its admissibility. If the uncertainty of the witness during the prior identification procedure was so great that it amounted to a failure to identify the defendant however the in-court identification procedure would be subject to prescreening.
What if the witness learned that the defendant had been charged with a crime and the witness attended pretrial proceedings, thus observing the defendant? If the state was not responsible for the pretrial confrontation, then those facts go to the weight of the evidence, not its admissibility.
What if the state was responsible for the presence of the witness at the pretrial proceedings? In that case, the trial court must determine under the totality of the circumstances whether “the witness would have been able to identify the defendant in court even without the prior suggestive confrontation.” If the answer is yes, then the in-court identification should be allowed. If the answer is no, then no in-court identification should be allowed.
The many alternatives that the majority attempts to anticipate in its rule reveal that it has taken upon itself a task for which this court is not suited. The supervision of procedures and the managing of evidence should be left to the sound discretion of the trial court. The defendant's protections against the suggestiveness of an in-court identification, as Justice Zarella explains in his concurring opinion, are the “traditional protections of our adversary system, such as confrontation, the attendant right to cross-examine state witnesses, closing argument, jury instructions, the presumption of innocence, and the government's burden to prove guilt beyond a reasonable doubt.” The trial court, presiding over the proceedings, is in the best position to ensure that all of these traditional protections operate to ensure that the defendant receives a fair trial. The majority's effort to substitute its own broad rule for the myriad decisions that a trial judge must make as a case evolves is ill-adapted to the task at hand, as illustrated by the multiple contingencies that the majority attempts to anticipate.
What is more troubling than the poor fit of the majority's rule is that today's decision is part of an emerging pattern of judicial activism in this court. I have already noted this trend in a previous dissenting opinion, but because of the risk posed to the rule of law, the observation bears repeating. Today's decision is one among a disturbing line of cases in which this court has exceeded “the constitutional bounds of its power in order to impose its personal notion of what justice and fairness
require.” State v. Santiago, 318 Conn. 1, 389, 122 A.3d 1 (2015) (Espinosa, J., dissenting). For instance, in recent decisions, this court also has strained beyond its own role: to usurp the role of the legislature in setting public policy for the state; see, e.g., id., at 389, 122 A.3d 1 (Espinosa, J., dissenting) (explaining that majority decision abolishing death penalty constituted “legislating from the bench” [emphasis omitted] ); see also State v. Peeler, 321 Conn. 375, 377, 140 A.3d 811 (2016) (according stare decisis effect to State v. Santiago, supra, at 1, 122 A.3d 1 ); to cross the line from adjudication into advocacy; see, e.g., Lapointe v. Commissioner of Correction, 316 Conn. 225, 440, 112 A.3d 1 (2015) (Espinosa, J., dissenting) (explaining that majority, by resolving appeal on basis that habeas petitioner expressly had abandoned, and by announcing radical new rule allowing for de novo review of habeas court's factual findings, effectively “doff[ed] [its] judicial robe and donn[ed] an advocate's suit”); and, in disregard of applicable standards of review, to substitute its own judgment, or in the most extreme case, its own findings, for that of the trial court. See, e.g., In re Oreoluwa O., 321 Conn. 523, 547–48, 139 A.3d 674 (2016) (Espinosa, J., dissenting) (detailing manner in which majority opinion ignored applicable standard of review of evidentiary sufficiency, and, rather than considering evidence in light most favorable to sustaining judgment of trial court, as required, instead drew inferences least likely to support judgment); Lapointe v. Commissioner of Correction, supra, at 298, 112 A.3d 1 (applying de novo review of habeas court's credibility findings).
This line of recent decisions risks creating the perception that the court is not content to be confined by the rule of law to its role as a state, appellate tribunal, and instead is willing to appropriate authority that properly belongs to other courts or branches of government, to advocates rather than judges, or, in some instances, possibly to no one at all. For instance, in the present case, as Justice Zarella explains thoroughly in his concurring opinion, by announcing its prophylactic rule predicated on federal constitutional law, the majority purports to exercise authority that, if enjoyed by any court at all, belongs only to the United States Supreme Court. See Ohio v. Robinette, 519 U.S. 33, 43, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) (Ginsburg, J., concurring). Moreover, as Justice Robinson observes in his concurring opinion, because the state has prevailed in this appeal, the majority's conclusion is “virtually unreviewable,” unless the United States Supreme Court departs from its normal practice of denying petitions for certiorari filed by prevailing parties. As I have explained in this concurring opinion, the majority's rule also encroaches on the role of the trial court by attempting to supervise proceedings at that court by universal rule, rather than allowing the trial court to manage the proceedings in each case as they develop. Because I believe that this court best serves the rule of law and justice by recognizing the limits of its role and acting within those limits, I respectfully concur in the judgment.
ROBINSON, J., concurring.
I share the majority's concern about the inherently suggestive nature of first time in-court identifications at criminal trials.1 I am, however, concerned about the majority's election to decide the merits of the federal constitutional issues concerning such identifications raised by the defendant, Andrew Dickson, under these circumstances. In my view, this court's analysis more appropriately starts and ends with part V of the majority opinion, which “assume[s] that [the] in-court identification of the defendant [by one of the victims] was improperly admitted,” but nevertheless “conclude[s] that any due process violation was harmless beyond a reasonable doubt.” Given this conclusion, I believe that parts I through IV of the majority opinion appear to be inconsistent with our long held commitment to avoid unnecessarily deciding constitutional issues. See Moore v. McNamara, 201 Conn. 16, 20, 513 A.2d 660 (1986). This is particularly troublesome because the state's ultimate victory in this appeal renders the majority's analysis of a complex and controversial issue of federal constitutional law virtually unreviewable under the “usual rule” of the United States Supreme Court in its exercise of its certiorari jurisdiction, which is to deny petitions filed by prevailing parties. Camreta v. Greene, 563 U.S. 692, 709, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) ; see also 28 U.S.C. § 1257(a) (providing for certiorari jurisdiction over state court decisions).2 Accordingly, I join only in part V of the majority's opinion and this court's ultimate decision to affirm the judgment of the Appellate Court upholding the defendant's convictions of assault in the first degree in violation of General Statutes § 53a–59 (a)(1), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a–48 and 53a–134 (a)(4).
It is well settled that “[t]his court has a basic judicial duty to avoid deciding a constitutional issue if a nonconstitutional ground exists that will dispose of the case.... The best teaching of this [c]ourt's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity.” (Citations omitted; internal quotation marks omitted.) Moore v. McNamara, supra, 201 Conn. at 20–21, 513 A.2d 660 ; see Parker v. Los Angeles, 338 U.S. 327, 333, 70 S.Ct. 161, 94 L.Ed. 144 (1949) ; Rescue Army v. Municipal Court, 331 U.S. 549, 568–74, 67 S.Ct. 1409, 91 L.Ed. 1666 (1947) ; Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346–47, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). “We do not take lightly our responsibility to act as the final arbiter in resolving issues relating to our constitution.... We also, however, do not engage in addressing constitutional questions unless their resolution is unavoidable.” (Citations omitted.) State v. McCahill, 261 Conn. 492, 501, 811 A.2d 667 (2002) ; see also Kinsey v. Pacific Employers Ins. Co., 277 Conn. 398, 420–22, 891 A.2d 959 (2006) (Zarella, J., concurring) (collecting authorities). The United States Supreme Court has described this doctrine of constitutional avoidance as “more deeply rooted than any other in the process of constitutional adjudication....” (Internal quotation marks omitted.) Rescue Army v. Municipal Court, supra, at 570 n. 34, 67 S.Ct. 1409.
This court often applies the doctrine of constitutional avoidance not to decide difficult questions of constitutional law when the state has established that any constitutional error will not affect the result of the appeal because it is harmless beyond a reasonable doubt. “Under such circumstances, it would [not be an efficient use of] judicial resources, and a pedantic exercise, to delve deeply into the constitutional merits of a claim that can appropriately be resolved in accordance with the relevant harmless error analysis.” (Citations omitted.) State v. Golding, 213 Conn. 233, 241–42, 567 A.2d 823 (1989) ; see also United States v. Hasting, 461 U.S. 499, 509, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). For example, in State v. Jordan, 314 Conn. 89, 96, 101 A.3d 179 (2014), the defendant raised a complex challenge to the seizure of drugs from a closet near where he was arrested under the fourth amendment to the United States constitution. See id., at 96–98, 101 A.3d 179 (noting questions over scope of Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 [ (2009) ], with respect to searches incident to arrest under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 [ (1969) ] ). Observing the “unsettled” nature of the law in this area given a “split” among the federal courts, this court “conclude[d] that the present case does not require us to weigh in on this debate. Even if we assume, without deciding, that the facts and the law should have led the trial court to suppress the evidence seized from the closet, we are fully convinced that any improper admission of the evidence is harmless beyond a reasonable doubt in light of the unchallenged evidence seized from the defendant's person.” (Emphasis added.) State v. Jordan, supra, at 100–101, 101 A.3d 179.
Identification cases like the present case are no exception to the doctrine of constitutional avoidance. Recently, in State v. Artis, 314 Conn. 131, 145, 101 A.3d 915 (2014), this court declined to consider a constitutional challenge to the reliability of an out-of-court identification that the state had conceded “was unnecessarily suggestive,” because, “even if [the] identification testimony should have been suppressed, the state's use of that testimony is subject to harmless error review, and the state has proven beyond a reasonable doubt that the admission of the testimony was harmless.” See also id., at 155–56, 101 A.3d 915 (overruling State v. Gordon, 185 Conn. 402, 441 A.2d 119 [ (1981) ], cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 [ (1982) ], and concluding that use of unreliable eyewitness identification resulting from unnecessarily suggestive procedure is not structural error and, therefore, subject to harmless error review). The majority opinion and Justice Zarella's concurring opinion comprehensively explore the divergent approaches taken by the United States Circuit Courts of Appeal and our sister states with respect to first time in-court identifications, and I need not repeat them here. Suffice it to say, given the deep division in the law in this area, I would follow the doctrine of constitutional avoidance, as exemplified by our recent decisions in Artis and Jordan, and not weigh in on the difficult federal constitutional issue in this case, in which the claimed due process violation is ultimately harmless error.3 Further weighing in favor of restraint is the fact that we already have a controlling precedent, State v. Smith, 200 Conn. 465, 469, 512 A.2d 189 (1986), which the majority overrules in part I of its opinion. That the majority's constitutional analysis implicates stare decisis4 is even more reason that we should be reticent to resolve the defendant's federal constitutional claims. That doctrine “counsels that a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it.... Stare decisis is justified because it allows for predictability in the ordering of conduct, it promotes the necessary perception that the law is relatively unchanging, it saves resources and it promotes judicial efficiency.... It is the most important application of a theory of decisionmaking consistency in our legal culture and ... is an obvious manifestation of the notion that decisionmaking consistency itself has normative value.” (Internal quotation marks omitted.) State v. Artis, supra, 314 Conn. at 146, 101 A.3d 915.
The majority, however, supports its decision to overrule Smith and impose a constitutionally based prophylactic rule with respect to first time in-court identifications by observing that the United States Supreme Court “has the authority to overrule our decision” should it disagree with this court's resolution of the constitutional issue.5 See footnote 11 of the majority opinion. I respectfully disagree with the majority's reliance on the United States Supreme Court's certiorari process as a safety net for its interpretation of the federal due process clause given the posture of this case, wherein the state ultimately prevails entirely by obtaining an affirmance of the defendant's convictions, albeit on harmless error grounds. This is because it is well settled that the “usual rule” of the United States Supreme Court is not to “[consider] prevailing parties' petitions [for writs of certiorari]” and, thus, that court would not be able to review the majority's analysis of the constitutional issue in the present case. Camreta v. Greene, supra, 563 U.S. at 709, 131 S.Ct. 2020.
Although the United States Supreme Court is not precluded constitutionally or statutorily from granting a petition filed by a prevailing party,6 it has stated that its “resources are not well spent superintending each word a lower court utters en route to a final judgment in the petitioning party's favor.” Id., at 704, 131 S.Ct. 2020. The court, “therefore [has] adhered with some rigor to the principle that [t]his [c]ourt reviews judgments, not statements in opinions.” (Internal quotation marks omitted.) Id.; see also Bunting v. Mellen, 541 U.S. 1019, 1023, 124 S.Ct. 1750, 158 L.Ed.2d 636 (2004) (Scalia, J., dissenting from denial of certiorari) (“although the statute governing our certiorari jurisdiction permits application by ‘any party’ to a case in a federal court of appeals ... our practice reflects a ‘settled refusal’ to entertain an appeal by a party on an issue as to which he prevailed”). “On the few occasions when we have departed from that principle, we have pointed to a policy reaso[n] ... of sufficient importance to allow an appeal by the winner below.” (Internal quotation marks omitted.) Camreta v. Greene, supra, 563 U.S. at 704, 131 S.Ct. 2020. I suggest that the United States Supreme Court's reviewability precedents disclose no such policy reason that would allow certiorari review in this otherwise routine criminal appeal.7 Particularly instructive on this point is California v. Rooney, 483 U.S. 307, 107 S.Ct. 2852, 97 L.Ed.2d 258 (1987) (per curiam). In that case, the United States Supreme Court “granted the [s]tate's petition for certiorari to decide whether [the] respondent retained an expectation of privacy in a bag that he placed in the communal trash bin of a multi-unit apartment building,” despite the fact that the state had prevailed entirely before a state appellate court, which had determined that there was sufficient other evidence beyond the trash bin search to support probable cause for the challenged warrant. Id., at 308–11, 107 S.Ct. 2852. Ultimately, the United States Supreme Court dismissed the appeal as improvidently granted, reasoning that the challenged “judgment ... was entirely in the [s]tate's favor—the search warrant which was the sole focus of the litigation was deemed valid. The fact that the [state appellate court] reached its decision through analysis different than this [c]ourt might have used does not make it appropriate for this [c]ourt to rewrite the [state appellate] court's decision, or for the prevailing party to request us to review it. That the [state appellate court] even addressed the trash bin issue is mere fortuity; it could as easily have held that since there was sufficient evidence to support the search even without the trash evidence, it would not discuss the constitutionality of the trash search. The [state appellate court's] use of analysis that may have been adverse to the [s]tate's long-term interests does not allow the [s]tate to claim status as a losing party for purposes of this [c]ourt's review. ” (Emphasis added.) Id., at 311, 107 S.Ct. 2852.
Rooney suggests, then, that it is extraordinarily unlikely that the Supreme Court would grant certiorari to consider any challenge by the state to the majority's resolution of the merits of the defendant's federal constitutional claim. The ultimate judgment of the United States Supreme Court would have no practical effect whatsoever on the judgment of this court affirming the defendant's convictions. Thus, given the majority's conclusion in part V of its opinion that the state has proven any identification error in this case harmless beyond a reasonable doubt, I do not think it advisable to rely on the prospect of the United States Supreme Court's review to encourage us to go out on a federal constitutional limb with respect to the complex constitutional issue presented by the merits of the defendant's challenge to his first time in-court identification.8 Accordingly, I join in the judgment of the court.