State v. Dickson

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 STATE v. DICKSON—FIRST CONCURRENCE

ZARELLA, J., with whom ESPINOSA, J., joins, con-
curring 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); Bru-
ton 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 constitu-
tionally permissible.
In the present case, the majority crafts what it
describes as a ‘‘prophylactic constitutional [rule]’’
requiring the prescreening of first time in-court identifi-
cations.1 Footnote 11 of the majority opinion. The
majority’s rule prohibits a first time in-court identifica-
tion 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.2 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, clos-
ing argument, jury instructions, the presumption of
innocence, and the government’s burden to prove guilt
beyond a reasonable doubt. See Perry v. New Hamp-
shire, 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.3 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.
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 defen-
dant claims that the Appellate Court incorrectly con-
cluded 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.4
I
I will first address the defendant’s claim that the
Appellate Court improperly applied Smith to the pre-
sent 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., 467. The victim was less
than certain, however, about her identification. See id.
At trial, the victim again identified Smith as the perpe-
trator after, at the state’s attorney’s request, Smith
stood, approached the witness, and spoke. See id., 468.
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 con-
vey the message that the state believes the person
charged committed the crime, and that factor is what
creates suggestion. Id., 468–69. We did not agree that
the additional steps ordered in Smith—that Smith
approach the victim and speak—made the in-court iden-
tification anymore suggestive than usual. See id., 468.
We also noted that the constitution requires suppres-
sion of in-court identifications only when they are
tainted by unnecessarily suggestive out-of-court identi-
fication 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., 469–70.
Finally, we concluded that ‘‘[t]he manner in which in-
court identifications are conducted is not of constitu-
tional magnitude but rests within the sound discretion
of the trial court.’’ (Emphasis added.) Id., 470.
Smith also argued, as the defendant does in the pre-
sent case, that the trial court had abused its discretion
by not granting his request for a less suggestive in-court
identification procedure. Id., 471. This court rejected
that claim as well because it had not been preserved.
Id., 471–72. Despite having determined that Smith’s
claim was unpreserved, this court stated that the consti-
tution does not require trial courts to allow alternative
identification procedures and that the decision regard-
ing 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. 472. 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., 471. 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 unnec-
essarily suggestive—are equally applicable in the pre-
sent case. As this court noted in Smith, in-court iden-
tifications must be excluded when they are tainted by
unnecessarily suggestive out-of-court identification
procedures that are conducive to irreparable misidenti-
fication. See id., 469. That remains the law today. See,
e.g., Perry v. New Hampshire, supra, 132 S. Ct. 730 (‘‘the
[d]ue [p]rocess [c]lause does not require a preliminary
judicial inquiry into the reliability of an eyewitness iden-
tification when the identification was not procured
under unnecessarily suggestive circumstances arranged
by law enforcement’’). Finally, and relatedly, notwith-
standing the nearly thirty years that have passed since
our decision in Smith, it remains an accurate statement
of federal constitutional law regarding in-court identifi-
cations. 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 evalu-
ating 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 recog-
nized social science’s evolved understanding of eyewit-
ness 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 adminis-
trator 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 intro-
duction of expert testimony regarding reliability of eye-
witness identifications and factors that affect reliability
of identifications). In-court identifications are inher-
ently suggestive, the defendant avers, and their reliabil-
ity should be assessed under the current scientific
understanding.5 For the reasons that follow, I do not
agree that Smith should be overruled or that a prophy-
lactic rule for prescreening first time in-court identifica-
tions should be adopted.6
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 constitu-
tion—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 cre-
ate 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 Con-
gress; see, e.g., U.S. Const. amend. XIV, § 5 (‘‘[t]he Con-
gress shall have power to enforce, by appropriate
legislation, the provisions of this article’’)7; 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 four-
teenth 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.8 See Ohio v. Robinette, 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 consti-
tutions). The majority obfuscates the issue by con-
tending that my reliance on Justice Ruth Bader Gins-
burg’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.9
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.10 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.
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.11 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. Califor-
nia, 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 identi-
fications 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, 219–20; see also Gilbert v. Cali-
fornia, supra, 264. 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, 264–65. 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, 228; the court concluded that an accused is enti-
tled to have counsel present during postindictment
identifications arranged for the purpose of eliciting
identification evidence for trial. Id., 236–37; see also
Gilbert v. California, supra, 272. Of particular concern
is the difficulty of uncovering and reconstructing for
the jury what occurred during an uncounseled identifi-
cation procedure, thereby inhibiting the ability of the
defendants to effectively attack the credibility of the
eyewitnesses. United States v. Wade, supra, 230–32.
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., 240 (‘‘[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, 272
(admissibility of in-court identifications depended on
determination of whether identifications had indepen-
dent 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 defen-
dant, such as during the commission of the crime.
United States v. Wade, supra, 240–41; see Gilbert v.
California, supra, 272. The admissibility of the testi-
mony of certain witnesses regarding their out-of-court
lineup identifications, the court stated, raised an
entirely different question. See Gilbert v. California,
supra, 272–73. 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.
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 ‘‘con-
ducive to irreparable mistaken identification’’ that it
violated the defendant’s due process rights. Stovall v.
Denno, supra, 388 U.S. 301–302. In the showup identifi-
cation at issue, the petitioner was presented to the
eyewitness in her hospital room. Id., 295. 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 eyewit-
ness’ 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 identi-
fied 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., 302. The eyewitness was the only
person who could identify the petitioner as the assail-
ant, 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 addi-
tional cases in which it was alleged that law enforce-
ment had conducted unnecessarily suggestive pretrial
identification procedures that gave ‘‘rise to a very sub-
stantial likelihood of irreparable misidentification’’;
(internal quotation marks omitted) Coleman v. Ala-
bama, 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., 3;
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 determina-
tion of whether an identification process violates an
accused’s due process rights depends on the totality
of the circumstances. Coleman v. Alabama, supra, 4;
Foster v. California, supra, 442; Simmons v. United
States, supra, 383. The court further noted that the
reliability of identification evidence is generally a mat-
ter 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.12 See Foster v. California,
supra, 443 n.2 (‘‘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,
384 (‘‘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 sugges-
tive as to give rise to a very substantial likelihood of
irreparable misidentification’’ [emphasis added]).
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 pro-
cedure—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, rea-
soning 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 proce-
dure.13 See id., 198–201. 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., 199.
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 atten-
tion’’; id.; (3) ‘‘the accuracy of the witness’ prior descrip-
tion 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., 199–200.
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 unneces-
sarily 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., 99, 107. 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., 111–13. First, the court
noted that the concern underlying Wade and its compan-
ion cases was ensuring that identification evidence pre-
sented to the jury has aspects of reliability. See id.,
111–12. 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 with-
out consideration of alleviating factors, keeps evidence
from the jury that is reliable and relevant.’’ Id., 112. 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 consider-
ation, 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 consti-
tute error under the per se approach but be proper
under the totality approach adopted in Biggers. Id.,
112–13. ‘‘[R]eliability is the linchpin in determining the
admissibility of identification testimony,’’ the court con-
cluded; id., 114; after all, it is not the suggestive identifi-
cation procedure that is violative of due process. Id.,
113 n.13. The Biggers totality of the circumstances
approach properly balances these interests and limits
the societal cost of excluding relevant and reliable evi-
dence of guilt in criminal proceedings. See id., 110.
The court most recently addressed the issue of eye-
witness identifications in Perry v. New Hampshire,
supra, 132 S. Ct. 716.14 In Perry, the eyewitness, Nubia
Blandon, spontaneously identified the petitioner,
Barion Perry, from the window of her fourth floor apart-
ment, while Perry was standing next to a police officer
and was the only African-American in the area. Id.,
721–22. Thus, the court had to address whether identifi-
cation evidence had to be prescreened for reliability
when it resulted from a suggestive procedure that was
not arranged by law enforcement. Id., 723. The court
concluded that, unless identification evidence is tainted
by ‘‘improper state conduct’’; id., 728; due process does
not require such evidence to be prescreened for reliabil-
ity; id., 725; and the court rejected Perry’s contention
that the Biggers test should apply to Blandon’s identifi-
cation of him. See id., 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., 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 deter-
rence concern is not present. Id.
Moreover, the court noted in Perry that the constitu-
tion’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., 723.
In fact, a determination regarding the reliability of evi-
dence, the court observed, is normally within the prov-
ince 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 jus-
tice . . . .’’ (Citation omitted; emphasis added; internal
quotation marks omitted.) Id., 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 testi-
mony with prior inconsistent statement and rejecting
‘‘a broader exclusionary rule for uncorroborated state-
ments obtained [by jailhouse snitches],’’ despite inher-
ent 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’’); Dow-
ling 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 testi-
mony); 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 convic-
tion on evidence that, although not solicited by prosecu-
tion, 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. 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 presump-
tion of innocence and the government’s burden to estab-
lish guilt beyond a reasonable doubt, evidentiary rules
requiring exclusion of unduly prejudicial evidence, and
expert testimony regarding the shortcomings of eyewit-
ness identifications. Id., 728–29.
III
With this background in mind, I turn to the defen-
dant’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 pre-
screened for reliability or excluded entirely, except for
good reason. The majority agrees with the defendant.
After concluding that in-court identifications are sug-
gestive, the majority holds that first time in-court identi-
fications must be prescreened. The screening proce-
dure that the majority adopts, however, is largely unlike
any of the procedures advocated by the defendant.15
See footnote 5 of this opinion. First time in-court identi-
fications are inadmissible, pursuant to the majority’s
approach, unless they are preceded by nonsuggestive
out-of-court identifications, with a few narrow excep-
tions.
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.16 See United States v. Correa-Osorio, supra,
784 F.3d 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 evi-
dence, however, I conclude that first time in-court iden-
tifications are admissible and are not subject to pre-
screening. I further conclude that the approach that the
majority adopts is an inappropriate prophylactic rule
under the fifth and fourteenth amendments. Cf. Arkan-
sas 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 specifi-
cally refrains from imposing them’’ [emphasis in origi-
nal; internal quotation marks omitted]).
I do not dispute—nor could I—that in-court identifi-
cations are suggestive. Insofar as the majority suggests
that all in-court identifications are unnecessarily sug-
gestive, 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 sugges-
tiveness. See State v. Marquez, supra, 291 Conn. 145
(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’’);17
see also, e.g., United States v. Correa-Osorio, supra,
784 F.3d 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’’ [foot-
note 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 pro-
cedures. See Neil v. Biggers, supra, 409 U.S. 198.
Instead, due process safeguards against convictions
based on unreliable evidence. Id.
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. 594 n.* (‘‘[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 vio-
lates fundamental conceptions of justice . . . .’’ (Cita-
tion omitted; emphasis added; internal quotation marks
omitted.) Perry v. New Hampshire, supra, 132 S. Ct.
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 sys-
tem, not by the prescreening and suppression of pur-
portedly unreliable evidence. Id., 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., 728.
Effective defense counsel can vindicate the defendant’s
confrontation rights by thoroughly cross-examining the
identification witness. Id. Moreover, counsel can edu-
cate the jury regarding the fallibility of eyewitness evi-
dence 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., 729. In addition, a defendant
is entitled to identification-specific jury instructions.
Id., 728–29. Such instructions direct the jury to consider
the totality of the circumstances surrounding the eye-
witness’ 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 falli-
bility of eyewitness identification[s]’’; State v. Guilbert,
supra, 306 Conn. 221; and the factors that impact the
reliability of such identifications. Id., 248. Indeed, we
have characterized expert testimony on the reliability
of eyewitness identification as ‘‘[a] highly effective safe-
guard against [wrongful convictions] . . . .’’ Id., 250.
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 iden-
tification procedure. See Practice Book §§ 40-34 and
40-38.18
I acknowledge that my conclusion in the present case
may seem inconsistent with our case law requiring judi-
cial prescreening of the reliability of unnecessarily sug-
gestive 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. 230. 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., 235. The court again, while discussing the reliability
of identification evidence, voiced its concern regarding
police manipulation of eyewitness recollection, inten-
tional or not, during the identification procedure in
Manson v. Brathwiate, supra, 432 U.S. 112, 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.
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, there-
fore, defense counsel’s inability to recreate the identifi-
cation or discern what occurred during the identi-
fication 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.
‘‘It is part of our adversary system that we accept at
trial much evidence that has strong elements of untrust-
worthiness—an obvious example being the testimony
of witnesses with a bias. While identification testimony
is significant evidence, such testimony is still only evi-
dence, 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—includ-
ing reference to both any suggestibility in the identifica-
tion procedure and any countervailing testimony such
as alibi [testimony].’’ (Footnote omitted; internal quota-
tion 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 evi-
dence with some element of untrustworthiness is cus-
tomary grist for the jury mill. Juries are not so
susceptible that they cannot measure intelligently the
weight of identification testimony that has some ques-
tionable feature.’’ Manson v. Brathwaite, supra, 432
U.S. 116. 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.
1
I adopt the majority’s terminology in that I use ‘‘first time in-court identifi-
cation’’ 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.
2
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 identi-
fications that follow successful out-of-court identifications. Thus, if the
nonsuggestive out-of-court identification required by the rule that the major-
ity 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 circum-
stances.’’ (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).
3
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.
 4
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., 237–38. 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 simul-
taneous photographic procedures); National Research Council et al., Identi-
fying 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 remedy-
ing actual constitutional violations.
5
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 vari-
ables); see, e.g., State v. Guilbert, supra, 306 Conn. 236 n.11; 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.
6
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. 469–70, insofar as it holds that an in-court identifica-
tion 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., 728; 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, A.3d (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., 440 n.5 (Zarella, J., dissenting), quoting C.
Cooper, ‘‘Stare Decisis: Precedent and Principle in Constitutional Adjudica-
tion,’’ 73 Cornell L. Rev. 401, 402 (1988).
7
As the thirteenth, fourteenth, and fifteenth amendments to the United
States constitution make clear, when there is an intent to endow the govern-
ment 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’’).
8
A number of United States Supreme Court justices have voiced doubt
concerning that court’s authority to craft prophylactic rules. See, e.g., Dick-
erson 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]onstitu-
tion but to expand it,’’ it would have ‘‘an immense and frightening antidemo-
cratic power, and [that power] does not exist’’ [emphasis added]); id., 457
(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 constitu-
tion); Oregon v. Elstad, supra, 370–71 (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, 462–63 (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 with-
out so holding we would have been powerless to reverse [the] conviction
[in Miranda].’’ [Citation omitted; internal quotation marks omitted.]); Michi-
gan v. Tucker, supra, 465–66 (Douglas, J., dissenting) (‘‘Miranda’s purpose
was not [the] promulgation of judicially preferred standards for police inter-
rogation, 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, requir-
ing sentencing judge to state reasons for more serve punishment affirma-
tively 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.
9
I am not convinced that Justice Ginsburg ‘‘incorrectly assumed [in Robi-
nette] 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 proce-
dures 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] vio-
lated 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. 42–43 (Ginsburg, J., concurring in the judgment).
10
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 crimi-
nal 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.
11
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 formu-
lated 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. 568 (concluding that
Connecticut constitution provides no greater protection than the federal
constitution in context of reliability of eyewitness identifications).
12
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.
13
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. 199. 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.
14
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., 349.
15
Admittedly, the first step in the majority’s test is similar to the approach
that the Supreme Judicial Court of Massachusetts adopted in Common-
wealth v. Crayton, 470 Mass. 228, 241–42, 21 N.E.3d 157 (2014), and Common-
wealth v. Collins, 470 Mass. 255, 261–62, 21 N.E.3d 528 (2014). If the pro-
secution 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, 243 (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., 242–43 (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., 241 (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.
16
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 defen-
dant in photographic array just eleven days before trial); United States
v. Greene, supra, 704 F.3d 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 identifica-
tions. 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., 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 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 20. That court has indicated, however, that either the approach of
Perry or Biggers applies to first time in-court identifications. See id., 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., 20. The Seventh
Circuit Court of Appeals decided that Biggers should apply. See Lee v.
Foster, supra, 750 F.3d 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 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’’).
17
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 sequen-
tially, and the procedure was merely single, rather than double, blind. See
State v. Marquez, supra, 291 Conn. 132–33, 146. 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.
18
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. 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 inter-
changeably. 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.