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STATE OF CONNECTICUT v. GEORGE
MICHAEL LENIART
(SC 19809)
(SC 19811)
Palmer, McDonald, Robinson, D’Auria, Mullins, Kahn and Vertefeuille, Js.*
Syllabus
The defendant, who was convicted of capital felony and murder following the
disappearance of the victim, appealed from the judgment of conviction,
claiming, inter alia, that certain evidentiary rulings substantially affected
the jury’s verdict and that there was insufficient evidence to sustain his
conviction under the common-law corpus delicti rule. At trial, the state
presented testimony from A, who had been serving a ten year sentence
for a sexual assault involving another victim at the time of the defendant’s
trial. A testified that he and the defendant had sexually assaulted the
victim, a fifteen year old girl, after the three had driven to a secluded
wooded location in the defendant’s truck. A testified that he last saw
the victim in the defendant’s truck and that, when he met the defendant
the following day, the defendant, who was a lobster fisherman, had
confessed to killing the victim, placing her remains in a lobster trap,
and dropping the trap into a river. In order to impeach A’s credibility,
the defendant sought to admit a video recording depicting a police
officer interviewing A prior to the administration of a polygraph examina-
tion. The defendant claimed that the video was relevant because it
showed that A had been promised favorable treatment in exchange for
his cooperation. The trial court, however, excluded the video on the
ground that it constituted inadmissible polygraph evidence under State
v. Porter (241 Conn. 57). The state also presented testimony from three
individuals who previously had been incarcerated with the defendant.
The first of those witnesses, B, testified that the defendant had admitted
to choking an intoxicated young girl to death while having sex with her,
dismembering her body, and disposing of it in lobster pots in Long Island
Sound. The second of those witnesses, D, testified that the defendant
told him that the victim’s body was in a river and had been eaten by
crabs. A, B, and D all testified that they hoped to receive some consider-
ation from the state in exchange for their testimony. The third of those
witnesses, C, who was no longer incarcerated at the time of trial, testified
that the defendant had admitted to raping and killing a fifteen year old
girl on his boat and hiding the body in a well before ultimately dumping
it in Long Island Sound. The state also elicited testimony at trial from
a thirteen year old victim in a separate case indicating that, six months
before the victim’s disappearance, the defendant had choked her while
raping her. Finally, the state called S, the defendant’s ex-wife, who
testified that she had asked the defendant whether he was involved in
the victim’s disappearance and that the defendant had told her that, the
less she knew, the better off she was. At trial, the defendant sought to
introduce testimony from N, a law professor who had studied issues
related to use of incarcerated informants as witnesses in criminal prose-
cutions. The state objected, and N testified, outside the presence of the
jury, that, among other things, the use of such informants is a significant
source of wrongful convictions and that inmates may gather information
from gossip, other inmates’ legal files, or the media in order to fabricate
believable, incriminating stories in exchange for favorable treatment.
Although N was able to testify about the use of such witnesses in certain
other jurisdictions, she acknowledged that she had not studied customs
or practices in Connecticut. The trial court ultimately excluded N’s
testimony, concluding that it invaded the exclusive province of the jury
by assessing the credibility of the state’s witnesses and that it did not
convey any relevant information beyond the ken of the average juror.
After closing arguments, the trial court instructed the jury regarding the
credibility of criminal informants. On appeal, the defendant raised an
unpreserved claim under the corpus delicti rule that the state had failed
to set forth sufficient evidence at trial to corroborate his alleged confes-
sions and to establish that the victim was, in fact, dead. The defendant
also claimed that the trial court had improperly excluded the video
recording and N’s testimony. Although the Appellate Court rejected the
defendant’s sufficiency claim for lack of preservation, it agreed with
both of the defendant’s evidentiary claims. Because the Appellate Court
found that those evidentiary errors were harmful, it reversed the trial
court’s judgment and remanded the case for a new trial. Both the state
and the defendant, on the granting of certification, appealed to this
court. In his appeal, the defendant claimed that the Appellate Court
improperly rejected his sufficiency claim under the corpus delicti rule.
In its appeal, the state claimed that the Appellate Court incorrectly
concluded that the trial court had improperly excluded the video
recording and N’s testimony. Held:
1. The defendant could not prevail on his unpreserved sufficiency claim
under this state’s common-law corpus delicti rule: the purpose, history,
and scope of the corpus delicti rule, in this state as well as in other
jurisdictions, supported this court’s conclusion that the rule both bars
the admissibility of evidence of uncorroborated confessions and imposes
a substantive due process requirement, and, therefore, contrary to the
Appellate Court’s conclusion, the defendant’s corpus delicti claim was
reviewable on appeal even though it was not properly preserved at trial;
moreover, although this court declined the defendant’s invitation to
specifically require the state to prove the fact of death by evidence
independent of a defendant’s confession in a murder case under the
modern formulation of the corpus delicti rule, in light of circumstances
surrounding the victim’s disappearance, the testimony of A regarding
the sexual assault of the victim and related events, the fact that the
defendant had been convicted of sexually assaulting a thirteen year old
girl in a separate case, S’s testimony, and the similarities between the
defendant’s confessions as recounted by A, B, D, and C, this court
concluded that there was sufficient, corroborating evidence, indepen-
dent of the defendant’s confessions, of the victim’s death and of the
credibility of those confessions for the jury to have found the defendant
guilty beyond a reasonable doubt.
2. The Appellate Court incorrectly concluded that the trial court’s improper
exclusion of the video recording constituted harmful error: the trial
court improperly excluded the video for all purposes under Porter, as
that case defined inadmissible polygraph evidence to include only the
results of a polygraph test and the willingness of a witness to undergo
such a test, and, accordingly, Porter did not categorically preclude the
admission of all evidence regarding the pretest interview process; never-
theless, the defendant failed to meet his burden of demonstrating that
the exclusion of the video substantially affected the verdict because the
polygrapher had repeatedly emphasized the importance of telling the
truth while making only infrequent, potentially troubling remarks, A’s
own testimony on cross-examination by defense counsel provided strong
evidence of the powerful incentives that he had to cooperate with the
state by freely admitting his own participation in the underlying crimes
and his desire for leniency in connection with the unrelated sexual
assault conviction, and the state’s case against the defendant was other-
wise strong.
3. The Appellate Court incorrectly concluded that the trial court had abused
its discretion in precluding N’s testimony regarding the credibility of
incarcerated informants; although the trial court incorrectly concluded
that N’s testimony would have invaded the exclusive province of the
jury by assessing the credibility of witnesses, as N explicitly testified
that she had no knowledge of this particular case and that she was not
familiar with and did not intend to comment on the testimony of any
particular witness, the trial court reasonably concluded that the relevant
information presented through N’s testimony was not beyond the ken
of the average juror, as the trial court could have credited N’s testimony
that any fundamental concerns regarding the reliability of informant
testimony have been exposed by the media and are well understood
outside of the jailhouse, and as any concepts relating to the credibility
of incarcerated informants that were directly and specifically applicable
to this case would have been made familiar to the jury through com-
mon sense, other information presented at trial, and the trial court’s
instructions.
State v. Uretek, Inc. (207 Conn. 706), to the extent that it suggested that
corpus delicti claims do not implicate fundamental due process rights
and, therefore, are not reviewable on appeal unless preserved at trial,
overruled.
(One justice concurring separately; three justices
concurring in part and dissenting in part
in two separate opinions)
Argued May 2, 2018—officially released September 10, 2019
Procedural History
Substitute information charging the defendant with
three counts of the crime of capital felony and one
count of the crime of murder, brought to the Superior
Court in the judicial district of New London and tried
to the jury before Jongbloed, J.; thereafter, the court
granted the state’s motion to preclude certain evidence;
verdict and judgment of guilty, from which the defen-
dant appealed; subsequently, the Appellate Court, Shel-
don and Prescott, Js., with Flynn, J., concurring in part
and dissenting in part, reversed the judgment of the
trial court and remanded the case for a new trial, and the
state and the defendant, on the granting of certification,
filed separate appeals with this court. Reversed in part;
further proceedings.
Stephen M. Carney, senior assistant state’s attorney,
with whom, on the brief, were Michael L. Regan, state’s
attorney, and John P. Gravalec-Pannone, former senior
assistant state’s attorney, for the appellant in Docket
No. SC 19809 and the appellee in Docket No. SC 19811
(state).
Lauren Weisfeld, chief of legal services, for the appel-
lee in Docket No. SC 19809 and the appellant in Docket
No. SC 19811 (defendant).
Opinion
MULLINS, J. Following a jury trial, the defendant,
George Michael Leniart, was convicted of murder in
violation of General Statutes § 53a-54a (a) and three
counts of capital felony in violation of General Statutes
(Rev. to 1995) § 53a-54b (5), (7), and (9), as amended
by Public Acts 1995, No. 95-16, § 4.1 The Appellate Court
reversed the judgment of conviction and remanded the
case for a new trial, holding that the trial court improp-
erly excluded (1) a videotape that depicted a police
officer interviewing a crucial prosecution witness prior
to the administration of a polygraph examination, and
(2) certain expert testimony proffered by the defendant
regarding the reliability of jailhouse informant testi-
mony. State v. Leniart, 166 Conn. App. 142, 146–47, 140
A.3d 1026 (2016). The Appellate Court also considered
and rejected the defendant’s claim regarding the suffi-
ciency of the underlying evidence. Id. We granted both
the state’s and the defendant’s petitions for certification
to appeal.
In its certified appeal, the state challenges the conclu-
sion of the Appellate Court that the videotape and
expert testimony were improperly excluded. In his
appeal, the defendant contends that he is entitled to a
judgment of acquittal because, under the common-law
corpus delicti rule, the state failed to set forth sufficient
evidence, independent of the defendant’s own admis-
sions, to establish that the alleged victim was, in fact,
dead.
We reverse the judgment of the Appellate Court with
respect to the state’s appeal and affirm the judgment
with respect to the defendant’s appeal. Specifically, we
conclude that (1) although the defendant’s corpus
delicti claim is not merely evidentiary and, therefore,
is reviewable on appeal, the Appellate Court correctly
concluded that there was sufficient evidence to support
the conviction, (2) although the Appellate Court cor-
rectly concluded that the trial court’s exclusion of the
videotape was improper, the exclusion of that evidence
was harmless, and (3) the Appellate Court incorrectly
concluded that the trial court had abused its discretion
in precluding the expert testimony proffered by the
defendant.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to the
claims before us. On May 29, 1996, the victim,2 who
was then fifteen years old, snuck out of her parents’
home to meet Patrick J. Allain, a teenage friend also
known as P.J., so that they could smoke marijuana,
drink alcohol, and have sex. The two teenagers were
picked up by the defendant, who at the time was thirty-
three years old. They then drove to a secluded, wooded
location near the Mohegan-Pequot Bridge in the defen-
dant’s truck.
While parked, the victim and Allain kissed, drank
beer, and smoked marijuana. At some point, the defen-
dant, who had told Allain that he was in a cult, called
Allain aside and told him that he wanted ‘‘to do’’ the
victim and that he ‘‘wanted a body for the altar.’’
Allain, who feared the defendant, returned to the
truck and informed the victim that he and the defendant
were going to rape her. Allain then removed her clothes
and had sex with her in the truck while the defendant
watched through the windshield. After Allain and the
victim finished having sex, the defendant climbed into
the truck and sexually assaulted the victim while Allain
held her breast. After the assault, the victim pretended
not to be upset so that the defendant would not harm
her further.
The defendant then drove the teenagers back to
Allain’s neighborhood. The defendant dropped off
Allain near his home, and the victim remained in the
truck. The victim never returned home that night and
was never seen again, despite a protracted nationwide
search by law enforcement. The search also did not
recover her body.
Allain subsequently implicated the defendant in the
victim’s death. As a result, in 2008, the state charged
the defendant with murder in violation of § 53a-54a,
capital felony in violation of § 53a-54b (5) for murder
in the course of a kidnapping, capital felony in violation
of § 53a-54b (7) for murder in the course of a sexual
assault, and capital felony in violation of § 53a-54b (9)
for murder of a person under the age of sixteen. The
case was tried to a jury.
The state’s case against the defendant included the
testimony of four witnesses, who each testified that, at
different times, the defendant had admitted, directly or
indirectly, to killing the victim. Allain, the state’s key
witness, was serving a ten year sentence for an unre-
lated sexual assault at the time of trial. He testified that,
on the afternoon following the previously described
events, the defendant had asked to meet with him on
a path behind the Mohegan School in Montville. At that
meeting, the defendant admitted that ‘‘he had to do [the
victim]—to get rid of her.’’ The defendant described to
Allain how, after dropping Allain off the night before,
he had pretended to run out of gas near the path.3 He
then ripped the license plates off his truck, dragged the
frantic victim into the woods, and choked her. Later
that evening, at a second meeting, the defendant further
confessed to Allain that he had killed the victim and
had ‘‘erased’’ her by placing her remains in a lobster
trap and dropping them into the mud at the bottom of
the Thames River. The defendant was a lobster fisher-
man at the time.
Like Allain, the state’s three other confession wit-
nesses either were inmates at the time of trial or pre-
viously had been incarcerated. Each of these three
witnesses had, at some point, been incarcerated with
the defendant while he was serving time for an unre-
lated sexual assault charge. Kenneth S. Buckingham
testified that the defendant confided in him that he
accidentally had choked an intoxicated young girl to
death while having sex with her and that he then dis-
membered the body and disposed of it in lobster pots
‘‘in the sound.’’ Buckingham also testified that a person
named P.J. had been with the defendant and that victim
prior to the death. Michael S. Douton, Jr., testified that
the defendant had told him that the victim ‘‘was in the
river’’ and that ‘‘they would never convict him because
they would never find [her] body,’’ which had been
eaten by crabs. Buckingham and Douton, like Allain,
each testified that they hoped to receive some consider-
ation from the state in return for their testimony. Zee
Y. Ching, Jr., unlike the other witnesses, was not incar-
cerated or facing legal jeopardy at the time of trial.
Ching testified that the defendant admitted that he had
raped and killed a fifteen year old girl on his boat and
that he had hidden the body in a well before ultimately
dumping it in Long Island Sound.
The jury returned a verdict of guilty on all counts.
The court merged the verdicts into a single conviction
of capital felony and sentenced the defendant to a term
of life imprisonment without the possibility of release.
On appeal to the Appellate Court, the defendant raised
various challenges to the trial court’s evidentiary rulings
and also claimed, relying in part on the common-law
corpus delicti rule, that the evidence was insufficient
to sustain his conviction. State v. Leniart, supra, 166
Conn. App. 146–49. The Appellate Court rejected the
defendant’s sufficiency claim but concluded that the
trial court incorrectly had excluded the polygraph pre-
test interview videotape, as well as expert testimony
relating to the credibility of jailhouse informants. The
Appellate Court then concluded that those evidentiary
rulings substantially affected the verdict and, accord-
ingly, remanded the case for a new trial.4
We granted the state’s petition for certification to
appeal, limited to the questions of whether the Appel-
late Court correctly concluded that the trial court had
erroneously excluded the polygraph pretest interview
videotape and expert testimony regarding jailhouse
informant testimony and that those rulings substantially
affected the verdict. State v. Leniart, 323 Conn. 918,
150 A.3d 1149 (2016). We also granted the defendant’s
petition for certification to appeal, limited to the ques-
tion of whether the Appellate Court properly applied
the corpus delicti rule in concluding that there was
sufficient evidence to sustain his conviction of murder
and capital felony. State v. Leniart, 323 Conn. 918, 918–
19, 149 A.3d 499 (2016). Additional facts and procedural
history will be set forth as necessary.
I
CORPUS DELICTI RULE
We first consider the claim raised in the defendant’s
appeal. Before the Appellate Court, the defendant
argued, for the first time; see footnote 7 of this opin-
ion; that the evidence was insufficient to sustain his
conviction because, under the common-law corpus
delicti rule, the state had failed to establish beyond a
reasonable doubt each element of the crimes charged.
As we explain more fully hereinafter, the corpus delicti
rule, although defined and applied differently in other
jurisdictions, and even in our prior cases, generally
‘‘prohibits a prosecutor from proving the [fact of a trans-
gression] based solely on a defendant’s extrajudicial
statements.’’5 Black’s Law Dictionary (7th Ed. 1999) p.
346. In the present case, the defendant argued that
there was no evidence, aside from his various alleged
admissions, that the victim actually was dead, which
is the corpus delicti of murder. See State v. Tillman,
152 Conn. 15, 20, 202 A.2d 494 (1964) (‘‘[T]he corpus
delicti consists of the occurrence of the specific kind
of loss or injury embraced in the crime charged. . . .
[I]n a homicide case, the corpus delicti is the fact of
the death, whether or not feloniously caused, of the
person whom the accused is charged with having killed
or murdered.’’ [Footnote omitted.]).
In order to identify the specific version of the rule
to be applied in the present case, the Appellate Court
reviewed the purpose and history of the corpus delicti
rule. Believing itself to be bound by cases such as State
v. Uretek, Inc., 207 Conn. 706, 543 A.2d 709 (1988) (Ure-
tek), a majority of the Appellate Court held that the
corpus delicti rule is merely an evidentiary rule that
bars the use of a defendant’s own uncorroborated extra-
judicial confessions or admissions6 to prove the corpus
delicti of a crime. State v. Leniart, supra, 166 Conn.
App. 151, 159. Because, in its view, the rule is one of
admissibility, the Appellate Court majority concluded
that the defendant had abandoned his corpus delicti
claim by failing to object at trial to the testimony of
Allain, Buckingham, Ching, and Douton, each of whom
testified that the defendant had confessed to killing the
victim. Id., 151.
Judge Flynn, writing a separate opinion concurring
in part and dissenting in part, concluded that the corpus
delicti rule is a hybrid rule—it is an evidentiary rule,
insofar as it provides that a defendant’s confession is
inadmissible in the absence of some corroborating evi-
dence that a crime has been committed, but it also
is a substantive rule of criminal law providing that a
defendant cannot be convicted of a crime when the
only evidence that the crime has been committed is the
defendant’s own uncorroborated confession. See id.,
236–37. Judge Flynn also opined that the rule should
be applied more strictly with respect to murder than
with respect to other crimes, in that the state should
be required to set forth independent evidence of the
victim’s death and not simply extrinsic evidence that
tends to establish the credibility of the defendant’s con-
fession. Id., 236. All three members of the Appellate
Court panel agreed, however, that the state had, in any
event, set forth sufficient, independent evidence of the
victim’s death to satisfy the corpus delicti rule, regard-
less of how that rule is defined. Id., 171–75; id., 237
(Flynn, J., concurring in part and dissenting in part).
In his certified appeal, the defendant asks us to clarify
that (1) the corpus delicti rule is, at least in part, a
substantive rule and, therefore, that his claim is review-
able on appeal despite his failure to object to the admis-
sion of testimony regarding the confessions at trial, and
(2) the rule bars a murder conviction on the basis of a
defendant’s confession in the absence of independent
evidence that the alleged victim is dead. The defendant
further contends that, in the present case, there was
not sufficient extrinsic evidence to establish that the
victim was dead. We agree with the defendant and Judge
Flynn that our state’s common-law corpus delicti rule
is a hybrid rule that has both substantive and evidentiary
components, and that unpreserved corpus delicti claims
are, therefore, reviewable on appeal. We agree with the
Appellate Court majority, however, that the rule does
not impose a higher standard of proof with respect to
murder than with respect to other crimes. Finally, we
conclude that there was sufficient, independent corrob-
orating evidence both of the victim’s death and of the
credibility of the defendant’s confessions for the jury
to have found the defendant guilty beyond a reason-
able doubt.7 Accordingly, we affirm the judgment of the
Appellate Court with respect to this claim.
A
Assuming, arguendo, that the state is correct that the
defendant’s corpus delicti claim was not preserved at
trial, we must determine as a threshold matter whether
the corpus delicti rule is merely evidentiary or whether
it encompasses a substantive component that invokes
the defendant’s due process rights. If it is merely an
evidentiary rule of admissibility, then the defendant’s
failure to raise his claim at trial precludes appellate
review. See, e.g., State v. Gonzalez, 315 Conn. 564, 591,
109 A.3d 453, cert. denied, U.S. , 136 S. Ct. 84,
193 L. Ed. 2d 73 (2015). On the other hand, if the rule
establishes, as a substantive matter, the type or degree
of evidence necessary to establish that elements of a
crime have been proven beyond a reasonable doubt,
then the defendant’s claim is reviewable on appeal
regardless of whether he raised it at trial.8 See, e.g.,
State v. Adams, 225 Conn. 270, 275–76 n.3, 623 A.2d 42
(1993) (unpreserved insufficiency of evidence claims
implicate due process rights and are reviewable on
appeal). Whether the corpus delicti rule is evidentiary,
substantive, or a hybrid of the two is a question of law
that we review de novo.
The parties and the Appellate Court have identified
four factors that are relevant to the question of whether
our state’s corpus delicti rule has both evidentiary and
substantive components: this court’s precedents, the
approach followed by other jurisdictions, the rationales
that underlie the rule, and issues regarding how the
rule is applied in practice. Our review of these factors
compels the conclusion that corpus delicti is a hybrid
rule and, therefore, that the defendant’s corpus delicti
claim is reviewable.9
1
The Appellate Court began by comprehensively
‘‘reviewing the purpose, history, and present scope of
the corpus delicti rule in Connecticut.’’ State v. Leniart,
supra, 166 Conn. App. 151–52. Although we have not
previously analyzed the issue in any depth, our corpus
delicti decisions, if not entirely consistent, generally
support the conclusion that the rule is a hybrid one
that both bars the admissibility of uncorroborated con-
fession evidence and imposes a substantive due process
requirement. In one case, for example, the defendant
claimed that ‘‘there was insufficient extrinsic evidence
of the corpus delicti to warrant the court’s admission
of his confessions . . . .’’ State v. Doucette, 147 Conn.
95, 97, 157 A.2d 487 (1959), overruled in part by State
v. Tillman, 152 Conn. 15, 20, 202 A.2d 494 (1964). In
Doucette, this court agreed that ‘‘[p]roperly this [extrin-
sic] evidence should be introduced and the court satis-
fied of its substantial character and sufficiency to
render the confession admissible, before the latter is
allowed in evidence.’’ (Internal quotation marks omit-
ted.) State v. Doucette, supra, 100. At the same time,
we made clear in describing the rule that it not only
governs the admission of confession evidence but also
sets the conditions for obtaining a conviction. ‘‘[T]he
corpus delicti,’’ we said, ‘‘cannot be established by the
[extrajudicial] confession of the defendant unsupported
by corroborative evidence.’’ (Internal quotation marks
omitted.) Id., 98–99. ‘‘The Connecticut rule, which we
reaffirm, is that, although the confession is evidence
tending to prove both the fact that the crime [charged]
was committed . . . and the defendant’s agency
therein, it is not sufficient of itself to prove the former,
and, without evidence aliunde of facts also tending to
prove the corpus delicti, it is not enough to warrant a
conviction . . . .’’ (Emphasis added; internal quotation
marks omitted.) Id., 99.10
Since this court decided Doucette, a number of our
decisions have stated or implied that the corpus delicti
rule encompasses both substantive and evidentiary
components and, therefore, that corpus delicti claims
are reviewable even if not raised at trial. See, e.g., State
v. Farnum, 275 Conn. 26, 33, 878 A.2d 1095 (2005);
State v. Grant, 177 Conn. 140, 144, 411 A.2d 917 (1979);
State v. Tillman, supra, 152 Conn. 18; but see State v.
Oliveras, 210 Conn. 751, 757, 557 A.2d 534 (1989) (leav-
ing open reviewability question with respect to recently
reformulated corpus delicti rule). By contrast, in no
recent decision have we indicated that the rule is exclu-
sively evidentiary or that unpreserved corpus delicti
claims are unreviewable on appeal.
The Appellate Court majority, concluding that the
corpus delicti rule is purely evidentiary, understandably
believed itself to be bound by State v. Uretek, Inc.,
supra, 207 Conn. 706.11 See State v. Leniart, supra, 166
Conn. App. 161. In Uretek, we declined to consider the
named defendant’s corpus delicti argument because the
defendant had not preserved the argument at trial. State
v. Uretek, Inc., supra, 713. Our review of the issue was
limited to the following sentence: ‘‘[The defendant’s]
corpus delicti claim does not implicate a fundamental
constitutional right, and, therefore, this court will not
review this contention. State v. George, 194 Conn. 361,
372, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191,
105 S. Ct. 963, 83 L. Ed. 2d 968 (1985); State v. Gooch,
186 Conn. 17, 18, 438 A.2d 867 (1982); State v. Evans,
165 Conn. 61, 70, 327 A.2d 576 (1973).’’ State v. Uretek,
Inc., supra, 713.
We agree with the defendant that Uretek must be
overruled to the extent that it suggested that corpus
delicti claims do not implicate fundamental due process
rights and, therefore, are not reviewable on appeal
unless preserved at trial. The decision provided no sup-
port for that conclusory proposition, which, as we have
discussed, was inconsistent with both our prior and
subsequent corpus delicti cases. Notably, none of the
three cases that Uretek cited in support of that proposi-
tion involved or even referenced the corpus delicti rule.
In addition, Uretek was decided prior to State v. Adams,
supra, 225 Conn. 275–76 n.3, in which we ruled that
unpreserved insufficiency of the evidence claims are
always reviewable on appeal.
2
It also is instructive to consider how the corpus delicti
rule has been construed and applied by our sister states
and the federal courts. Of those states that continue to
apply a corpus delicti rule, the vast majority treat the
rule as either substantive or a substantive and eviden-
tiary hybrid. See, e.g., Langevin v. State, 258 P.3d 866,
873 (Alaska App. 2011) (‘‘[M]ost American jurisdictions
follow the implicit element approach to corpus delicti.
. . . Under this approach, corpus delicti is an element
of the government’s proof—and the general rule is that
a defendant is entitled to a [judgment] of acquittal if
the government fails to offer proof of each element of
the crime.’’ [Citations omitted; internal quotation marks
omitted.]); see also 1 K. Broun, McCormick on Evidence
(7th Ed. 2013) § 145, p. 804; 1 W. LaFave, Substantive
Criminal Law (2d Ed. 2003) § 1.4 (b), p. 31. By contrast,
only a handful of our sister states treat the rule solely
as one of admissibility.12
In addition, although the United States Supreme
Court has not expressly resolved the question, several
federal circuit courts of appeals understand the high
court to have adopted a hybrid version of the rule. See,
e.g., United States v. Dickerson, 163 F.3d 639, 642 (D.C.
Cir. 1999) (explaining that United States Supreme Court
has ‘‘created something of a hybrid rule having elements
both of admissibility and sufficiency’’); see also United
States v. McDowell, 687 F.3d 904, 912 (7th Cir. 2012)
(‘‘[t]he corroboration principle sometimes comes into
play in the trial court’s decision to admit the defendant’s
confession and also if he later challenges the sufficiency
of the evidence’’); United States v. Singleterry, 29 F.3d
733, 737 (1st Cir.) (discussing dual nature of rule), cert.
denied, 513 U.S. 1048, 115 S. Ct. 647, 130 L. Ed. 2d 552
(1994). Moreover, every federal circuit treats the cor-
pus delicti rule as having some substantive component.
See generally United States v. Marshall, 863 F.2d 1285,
1287 (6th Cir. 1988) (reviewing topic and citing cases).
That so many of our sister courts treat the rule as sub-
stantive not only provides persuasive authority for fol-
lowing that approach but also mitigates any concerns
that the state has raised; see part I A 4 of this opinion;
that applying the rule substantively would be impracti-
cable or inappropriate.
3
We also agree with McCormick on Evidence, which
posits that the rationales that gave rise to and continue
to justify the corpus delicti rule support treating that
rule as substantive. See 1 K. Broun, supra, § 145, p. 805.13
‘‘The rationale for the requirement is that inculpatory
confessions and admissions are frequently unreliable
for many reasons, including coercion, delusion, neuro-
sis, self-promotion, or protection of another person.
Jurors find such statements inherently powerful, how-
ever, and may vote to convict based upon such state-
ments alone. . . . The [corpus delicti] rule, which is
intended to prevent convictions of innocent defendants,
also encourages better law enforcement because police
and prosecutors cannot rely solely on a defendant’s
statements to prove a case.’’ (Citation omitted.) United
States v. Bryce, 208 F.3d 346, 354–55 (2d Cir. 1999).
Treating the corpus delicti rule as evidentiary is fully
consistent with the purpose of the rules of evidence,
which is to bar unreliable evidence offered to influence
the trier of fact. See, e.g., Pagano v. Ippoliti, 245 Conn.
640, 656, 716 A.2d 848 (1998) (McDonald, J., dissenting);
see also State v. Beverly, 224 Conn. 372, 375, 618 A.2d
1335 (1993) (‘‘[t]he corpus delicti rule is a rule of evi-
dence’’). However, as we discuss at greater length here-
inafter; see part I B 1 of this opinion; the rule did not
originate exclusively, or even primarily, to assist the
jury in assessing the credibility of confession evidence,
or even to ensure that false confessions are not entered
into evidence. Rather, the rule has a more fundamental
purpose, namely, to avoid the patent injustice of con-
victing an innocent person—frequently one who either
is mentally ill or has been subject to coercive interroga-
tion—of an imaginary crime. See State v. Arnold, 201
Conn. 276, 287, 514 A.2d 330 (1986); D. Moran, ‘‘In
Defense of the Corpus Delicti Rule,’’ 64 Ohio St. L.J.
817, 817 (2003). Those concerns lie at the core of our
due process protections, and we can perceive no reason
why the injustice of trying and convicting a possibly
troubled individual for a nonexistent crime should be
compounded by denying that individual the opportunity
for appellate review when his or her attorney fails to
raise a timely and appropriate objection.
Furthermore, to the extent that a purpose of the rule
is to eliminate incentives for law enforcement to obtain
false confessions through coercive means, while at the
same time promoting more thorough investigative prac-
tices, corpus delicti fairly may be characterized as a
type of constitutional prophylactic rule. See T. Mullen,
‘‘Rule Without Reason: Requiring Independent Proof
of the Corpus Delicti as a Condition of Admitting an
Extrajudicial Confession,’’ 27 U.S.F. L. Rev. 385, 401
(1993) (describing purposes of rule); see also C. Rogers,
‘‘Putting Meat on Constitutional Bones: The Authority
of State Courts To Craft Constitutional Prophylactic
Rules Under the Federal Constitution,’’ 98 B.U. L. Rev.
541, 548, 555–56 (2018) (defining constitutional prophy-
lactic rules). We are not aware of any such rule the
alleged violation of which must be raised at trial in
order to be reviewable on appeal. See State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989) (establishing
requirements for defendant to prevail on claim of consti-
tutional error not preserved at trial). Accordingly, the
rationales that underlie the rule are fully consistent with
the majority position that corpus delicti is a substantive
rule of criminal law to be applied in reviewing the suffi-
ciency of the state’s evidence and not merely an eviden-
tiary rule regarding the admissibility of confessions.
4
We next consider several reasons offered by the state
and the Appellate Court majority as to why corpus
delicti should be treated solely as a rule of admissibility.
First, the Appellate Court decision starts with the prem-
ise that, if the rule implicates the sufficiency of the
evidence, then the jury must be involved in some way in
resolving corpus delicti questions. See State v. Leniart,
supra, 166 Conn. App. 166. But, that line of reasoning
proceeds, courts typically do not instruct jurors that
they must find the corpus delicti of a crime established
independent of the defendant’s own incriminating state-
ments. Id. In addition, the Appellate Court majority
reasoned that, if jurors are to be tasked with finding
that the corpus delicti has been established independent
of any confession evidence, then they, having already
heard the defendant’s confessions, would be required to
set those confessions aside while objectively evaluating
the strength of any independent, corroborating evi-
dence. The Appellate Court majority opined that that
expectation is not realistic. Id., 167–68. Thus, the court
concluded, the rule must not be substantive.
We are not persuaded that the Appellate Court’s start-
ing premise is correct. Many of the courts that treat
the corpus delicti rule as a substantive rule that impli-
cates the sufficiency of the evidence do not involve
the jury in its application. See, e.g., United States v.
McDowell, supra, 687 F.3d 912 (‘‘[W]e have held that
the district court is not obligated to instruct the jury
on the requirement of corroboration. . . . Following
the lead of two other circuits, we concluded . . . that
the matter was better left to the trial judge, and that
the standard instructions regarding the government’s
burden of proof and the presumption of innocence are
generally sufficient.’’ [Citation omitted.]). In those juris-
dictions, the trial court makes an initial determination
as to whether there is sufficient corroboration to allow
the jury to hear the defendant’s confessions. If the court
allows the confessions—and thus the case—to reach
the jury, the jury is then tasked with assessing whether
all of the evidence, including the confessions and any
extrinsic evidence, is sufficient to establish the defen-
dant’s guilt beyond a reasonable doubt.
In United States v. Dickerson, supra, 163 F.3d 642–43,
the United States Court of Appeals for the Tenth Circuit
explained why the fact that the rule involves a substan-
tive component that implicates the defendant’s due pro-
cess rights does not require the involvement of the jury
in its application. Corpus delicti, that court explained,
is ‘‘essentially . . . a duty imposed upon courts to
ensure that the defendant is not convicted on the basis
of an uncorroborated out-of-court-statement.’’ Id., 642.
In this respect, the rule places the trial court in the
same gatekeeping role that it occupies in deciding a
motion for a judgment of acquittal. Id., 643. In that
capacity, the court must determine whether there is
sufficient evidence to support a finding of guilt before
sending the case to the jury. As the court noted in
Dickerson, however, ‘‘no one thinks it follows from this
that the jury must be given an opportunity to reconsider
for itself the judge’s decision on a motion for judgment
of acquittal.’’ Id. The same logic applies, a fortiori, to
the corpus delicti rule, which requires only that the trial
court make the threshold determination that there are
some ‘‘corroborating facts [that] tend to produce a con-
fidence in the truth of the confession . . . .’’ (Internal
quotation marks omitted.) State v. Hafford, 252 Conn.
274, 317, 746 A.2d 150, cert. denied, 531 U.S. 855, 121
S. Ct. 136, 148 L. Ed. 2d 89 (2000); see also id. (‘‘it is
sufficient if the corroboration merely fortifies the truth
of the confession’’ [internal quotation marks omitted]).
The Appellate Court majority also was of the view
that, because ‘‘the rule itself is not constitutional in
nature and jurisdictions are free to abandon it alto-
gether . . . it makes little sense to characterize it as
an implicit element of the state’s case that is subject
to appellate review like all other unpreserved suffi-
ciency of the evidence claims.’’ State v. Leniart, supra,
166 Conn. App. 167. In a footnote, the majority acknowl-
edged, however, that the rule could take on constitu-
tional implications if the legislature were to formally
adopt it. Id., 167 n.19.
We do not agree that the question of whether the
corpus delicti rule is substantive in nature and, thus,
implicates the defendant’s constitutional rights, hinges
on whether it has been formally codified. It is true that
‘‘[t]he adoption of the comprehensive Penal Code in
1969 abrogated the common-law authority of Connecti-
cut courts to impose criminal liability for conduct not
proscribed by the legislature.’’ Luurtsema v. Commis-
sioner of Correction, 299 Conn. 740, 772, 12 A.3d 817
(2011). At the same time, however, the savings clause
to the Penal Code provides, and our cases recognize,
that the common law is preserved under the code unless
clearly preempted; the code does not bar our courts
from ‘‘recognizing other principles of criminal liability
or other defenses not inconsistent with’’ statute. Gen-
eral Statutes § 53a-4; see, e.g., State v. Terwilliger, 314
Conn. 618, 654, 104 A.3d 638 (2014) (self-defense); State
v. Courchesne, 296 Conn. 622, 679–88 and n.44, 998 A.2d
1 (2010) (born alive principle); State v. Walton, 227
Conn. 32, 45, 630 A.2d 990 (1993) (vicarious liability of
conspirator). As the cited examples indicate, common-
law rules and principles that are neither constitutionally
required nor expressly adopted by statute nevertheless
may clarify the elements of, or defenses to, a crime in
ways that have constitutional implications. The corpus
delicti rule is no different.
Finally, the state argues that it would be fundamen-
tally unfair to review unpreserved corpus delicti claims
because prosecutors will not have been put on notice
at the time of trial that there may be a corpus delicti
problem and, therefore, will not have the opportunity
to identify and introduce the additional evidence neces-
sary to corroborate a defendant’s naked confession.
We trust that the present opinion will serve as adequate
notice. See Burks v. United States, 437 U.S. 1, 16, 98 S.
Ct. 2141, 57 L. Ed. 2d 1 (1978) (‘‘the prosecution cannot
complain of prejudice, for it has been given one fair
opportunity to offer whatever proof it could assem-
ble’’).
For all of these reasons, we conclude that the corpus
delicti rule is a hybrid rule that not only governs the
admissibility of confession evidence but also imposes
a substantive requirement that a criminal defendant
may not be convicted solely on the basis of a naked,
uncorroborated confession. Accordingly, the defen-
dant’s corpus delicti claim is reviewable even though
it was not properly preserved at trial.
B
Having established that our corpus delicti rule has a
substantive component that implicates the defendant’s
due process rights and, therefore, that his claim is
reviewable, we now turn our attention to the merits of
his claim. To resolve the claim, we first must address
another dispute between the parties, and among the
Appellate Court panel, regarding how the rule applies
in murder cases.
1
The defendant contends, in essence, that the corpus
delicti rule imposes different, more stringent standards
with respect to murder than with respect to less serious
crimes. Before we set forth the defendant’s argument,
it will be helpful briefly to review the evolution of the
corpus delicti rule in Connecticut.
Although our cases contain earlier references to the
rule; see, e.g., State v. Carta, 90 Conn. 79, 83, 96 A. 411
(1916); the corpus delicti rule was first fully articulated
in 1933. See State v. LaLouche, 116 Conn. 691, 166 A.
252 (1933), overruled in part by State v. Tillman, 152
Conn. 15, 20, 202 A.2d 494 (1964). In LaLouche, this
court characterized the rule as follows: ‘‘Undoubtedly
the general rule is that the corpus delicti cannot be
established by the [extrajudicial] confession of the
defendant unsupported by corroborative evidence.
. . . There are cases which hold in effect that it must be
established by evidence independent of the defendant’s
confession and that without such proof evidence of the
confession is inadmissible. . . .
‘‘The overwhelming weight of authority and of rea-
son, however, recognizes that such a confession or
admission may be considered in connection with other
evidence to establish the corpus delicti, and that it is
not necessary to prove it by evidence entirely indepen-
dent and exclusive of the confession. . . . In order to
warrant a conviction in a given case, it must be shown
(1) that a crime has been committed, and (2) that the
person charged therewith was the active agent in the
commission thereof. But, while it is necessary that both
of said essential facts should be proved beyond a rea-
sonable doubt, it does not follow that each must be
proved independently of, and apart from, the other, or
that either must be proved independently of, and with-
out regarding the confession of the person charged with
the crime. The confession is evidence tending to prove
both the fact that the crime was committed and the
defendant’s agency therein. . . . But it is not sufficient
of itself to prove the former, and, without [independent]
evidence . . . of facts also tending to prove the corpus
delicti, it is not enough to warrant a conviction. There
must be such extrinsic corroborative evidence as will,
when taken in connection with the confession, estab-
lish this fact in the minds of the jury beyond a reason-
able doubt.
‘‘The independent evidence must tend to establish
that the crime charged has been committed and must
be material and substantial, but need not be such as
would establish the corpus delicti beyond a reasonable
doubt apart from the confession. . . . [T]his evidence
should be introduced and the court satisfied of its sub-
stantial character and sufficiency to render the confes-
sion admissible, before the latter is allowed in evi-
dence.’’ (Citations omitted; internal quotation marks
omitted.) State v. LaLouche, supra, 116 Conn. 693–95;
see also State v. Doucette, supra, 147 Conn. 98–100
(reaffirming rule).
In the decades since we decided LaLouche and
Doucette, and consistent with the modern trend, we
have reduced in several respects the burden that the
corpus delicti rule imposes on the state in prosecuting
a crime.14 First, in State v. Tillman, supra, 152 Conn.
20, we joined a small handful of jurisdictions to have
departed from the traditional rule that the state must
establish, by independent evidence,15 both that an injury
or loss occurred and that the loss was feloniously
caused.16 In Tillman, we held that the corpus delicti
that must be established by independent evidence
encompasses only the former element, namely, the spe-
cific kind of loss or injury embraced in the crime
charged. Id. ‘‘Under [this definition], in a homicide case,
the corpus delicti is the fact of the death, whether or
not feloniously caused, of the person whom the accused
is charged with having killed or murdered.’’ Id.; but see
State v. Courchesne, supra, 296 Conn. 791 n.5 (Zarella,
J., concurring in part and dissenting in part) (adhering
to traditional rule that corpus delicti includes fact that
‘‘death was produced through criminal agency’’ [inter-
nal quotation marks omitted]).
Next, in State v. Harris, 215 Conn. 189, 193–94, 575
A.2d 223 (1990), we modified the rule as it applies to
crimes, such as driving under the influence, that pro-
scribe certain undesirable conduct but do not necessar-
ily entail any particular injury or loss. Specifically,
relying on the decision of the United States Supreme
Court in Opper v. United States, 348 U.S. 84, 75 S. Ct.
158, 99 L. Ed. 101 (1954), we concluded that, for crimes
of that sort, the state need not establish the corpus
delicti of the crime through extrinsic evidence. Rather,
the state need only ‘‘introduce substantial independent
evidence [that] would tend to establish the trustworthi-
ness of the [defendant’s] statement.’’ (Internal quotation
marks omitted.) State v. Harris, supra, 194.
Most recently, in State v. Hafford, supra, 252 Conn.
317, we held that this trustworthiness rule set forth
in Harris, also known as the corroboration rule, now
‘‘applies to all types of crimes, not only those offenses
that prohibit conduct and do not result in a specific loss
or injury.’’ In other words, post-Hafford, a confession
is now sufficient to establish the corpus delicti of any
crime, without independent extrinsic evidence that a
crime was committed, as long as there is sufficient
reason to conclude that the confession is reliable.
In Hafford, we justified this departure from our estab-
lished corpus delicti jurisprudence by observing that
the corroboration rule (1) has been embraced both by
the federal courts and by an increasing number of state
courts, (2) is favored by a number of respected com-
mentators, and (3) is more reasonable and more work-
able than the traditional corpus delicti rule. Id., 316–17.
At the same time, we expressed confidence that the
corroboration rule, as applied in Harris, would con-
tinue to ‘‘fulfill the avowed purpose and reason for the
existence of the corpus delicti rule [by] protect[ing]
accused persons against conviction of offenses that
have not in fact occurred . . . and prevent[ing] errors
in convictions based upon untrue confessions alone.’’
(Internal quotation marks omitted.) Id., 316.
The defendant does not deny that, under Hafford,
the state may rely, in most instances, on the accused’s
statements to establish all of the elements of a charged
crime, as long as there is sufficient, independent evi-
dence to establish the trustworthiness of those state-
ments. The defendant emphasizes, however, that, in
Hafford, we left open the possibility that extrinsic evi-
dence of the corpus delicti still might be required before
a defendant can be convicted of murder on the basis
of a confession. Specifically, he draws our attention to
a footnote in which this court noted that ‘‘proving the
trustworthiness of a defendant’s confession to a crime
resulting in injury or loss often will require evidence
of that injury or loss. For example, a confession to
a homicide likely would not be trustworthy without
evidence of the victim’s death.’’ Id., 317 n.23. The Appel-
late Court majority in the present case dismissed the
importance of that statement, concluding that the ‘‘cryp-
tic footnote,’’ which was merely dictum, was too conclu-
sory and equivocal to indicate that we intended to carve
out an exception to the corroboration rule for murder
prosecutions. State v. Leniart, supra, 166 Conn. App.
156–58. Judge Flynn disagreed, writing that, in his view,
independent proof of death should be required in any
murder case. Id., 229–32 (Flynn, J., concurring in part
and dissenting in part).
At first blush, requiring the prosecution to prove the
fact of death by extrinsic evidence in a murder case
would seem to be consistent with the history of the
corpus delicti rule, which was inspired by two cases—
centuries and continents apart—in which defendants
were wrongly convicted of the murders of victims who
were still very much alive.17 See D. Moran, supra, 64
Ohio St. L.J. 829–30; T. Mullen, supra, 27 U.S.F. L. Rev.
399–401; R. Perkins, ‘‘The Corpus Delicti of Murder,’’
48 Va. L. Rev. 173, 173–75 (1962). The first, known as
Perry’s Case, arose from the disappearance of William
Harrison from his home in Chipping Campden, England,
in 1660. See generally J. Paget, Legal Recreations: Judi-
cial Puzzles (1876) pp. 37–67. When the septuagenarian
Harrison failed to return from his regular two mile walk
to collect rents for the Viscountess Campden, a servant,
John Perry, was sent to search for him. Id., p. 39. A
bloodied band, a torn hat, and a comb belonging to
Harrison were found, and Perry was arrested. Id., p.
40. After several interrogations, however, John Perry
confessed that he had conspired with his mother and
brother to rob Harrison, that his brother had choked
Harrison to death, and that he had disposed of the body
in a swamp. Id., p. 41. The three Perrys were tried,
convicted of Harrison’s murder, and hanged within the
week. Id., p. 43. Several years later, a haggard Harrison
mysteriously reappeared in Campden, claiming to have
been captured by men on horseback, transferred to a
Turkish ship, and sold into slavery, from which he had
ultimately escaped.18 Id., pp. 44–49.
The second case centers on equally incredible but
somewhat less tragic events that took place in Manches-
ter, Vermont. See E. Borchard, Convicting the Innocent:
Sixty-Five Actual Errors of Criminal Justice (1932) pp.
14–21. Two brothers, Stephen Boorn and Jesse Boorn,
were known to be ill-inclined toward Russel Colvin,
their eccentric brother-in-law. Id., p. 14. Colvin vanished
one day in May, 1812, while his wife was away, and,
after a time, suspicion of foul play fell on Stephen and
Jesse. Id., pp. 14–15. Seven years and many rumors and
superstitions later, after a dog had dug up some animal
bones near the Boorn property, Jesse was interrogated
by a justice of the peace and implicated Stephen in
Colvin’s ‘‘murder.’’ Id., pp. 15–16. A jailhouse informant,
Silas Merrill, subsequently informed a grand jury that
Jesse had confessed to him that both Stephen and Jesse
had been involved in Colvin’s death. Id., p. 17. Stephen
subsequently confessed to killing Colvin and disposing
of his remains in a river and under an old tree stump.
Id., pp. 17–18. Stephen then was tried, convicted, and
sentenced to hang. Id., p. 18.
In that case, however, fortune, together with the
slower and more cautiously moving wheels of justice
in nineteenth century Vermont, spared Stephen the
same fate as the Perrys. Two months before the sched-
uled execution, one of Stephen’s attorneys published
an article in the New York Evening Post in an attempt
to locate Colvin. Id., p. 18. Through an unlikely conflu-
ence of events, Colvin, who may have been mentally
ill, was found to be living in New Jersey under a different
identity, and Stephen was exonerated. Id., pp. 14, 20–21.
Returning to the question before us, courts and com-
mentators have articulated several rationales for the
corpus delicti rule: ‘‘(1) protecting the mentally unstable
from the consequences of their false confessions, (2)
avoiding reliance on repudiated confessions out of con-
cern for voluntariness, and (3) promoting better police
work by requiring the prosecution to prove its case
without the aid of confessions.’’ T. Mullen, supra, 27
U.S.F. L. Rev. 401. As the Perry and Boorn cases demon-
strate, however, the rule originated in response to, and
was most powerfully justified by, ‘‘a narrow, practical
problem: how to ensure that after a murderer was exe-
cuted the supposed murder victim did not show up to
cast doubt on the propriety of the execution.’’ Id., 399.
Those cases also reveal, we think, why it is not neces-
sary to apply the rule more stringently in murder cases
than with regard to other crimes. Already, from the
time of Perry’s Case to that of the Boorns, social prog-
ress was such that Stephen Boorn was able to evade
the gallows. The longer delay between conviction and
execution in nineteenth century Vermont gave Ste-
phen’s attorneys a reasonable opportunity to investigate
Colvin’s disappearance after the condemned repudiated
his earlier confession. At the same time, newspapers
of mass circulation, such as the New York Evening
Post, allowed for a broad and efficient search for the
missing ‘‘victim.’’
Now consider modern Connecticut. The horrible that
first inspired the rule—a disturbed individual executed
after confessing to an imaginary murder—is no longer
a concern following the repeal of the death penalty in
this state. Although false conviction remains a tragic
and ever present possibility, it is no longer a completely
irreparable one.
Further, the technological tools that are now avail-
able to locate missing persons are truly impressive.
When the Internet was still in its infancy, the United
States Court of Appeals for the Third Circuit recognized
that ‘‘[w]orldwide communication and travel today are
so facile that a jury may properly take into account the
unlikelihood that an absent person, in view of his health,
habits, disposition and personal relationships would
voluntarily flee, go underground, and remain out of
touch with family and friends. The unlikelihood of such
a voluntary disappearance is circumstantial evidence
entitled to weight equal to that of bloodstains and con-
cealment of evidence.’’ (Internal quotation marks omit-
ted.) Virgin Islands v. Harris, 938 F.2d 401, 418 (3d
Cir. 1991). That statement is all the more true today,
with new technologies running the gamut from ‘‘Amber
Alerts,’’ to biometric identification databases, to social
media platforms such as Facebook and Twitter. See
McDuff v. State, 939 S.W.2d 607, 623 (Tex. Crim. App.)
(‘‘it is less likely in today’s mobile and technological
society that a person might vanish and never be heard
from again’’), cert. denied, 522 U.S. 844, 118 S. Ct. 125,
139 L. Ed. 2d 75 (1997). That is not to say that people
do not still go missing, sometimes for many years. With
modern tools and expertise, however, many, if not most,
are located quickly.19 Accordingly, the abolition of the
death penalty and the increasing unlikeliness that a
living person will disappear without a trace for an
extended period of time have mitigated the two most
compelling rationales for retaining the traditional, more
stringent corpus delicti rule solely with respect to mur-
der prosecutions.
In addition, the same general considerations that
have led courts and commentators20 to question the
ongoing vitality of the corpus delicti rule—mostly the
fact that the Miranda warnings21 and related constitu-
tional protections have curtailed the use of coercive
interrogation techniques by law enforcement—apply to
murder no less than to other crimes. Those considera-
tions counsel against carving out a special exception
for murder.
Finally, we note that, unlike with many other crimes,
in any murder prosecution there necessarily will be at
least some modicum of extrinsic evidence to support
a defendant’s confession, namely, a missing person. We
are not aware of, and we doubt that due process would
permit, any prosecution charging the murder of a wholly
unspecified victim. A person charged with murder must
be charged with the murder of some specific victim
who must, at the very least, have gone missing for some
not insignificant period of time. Accordingly, we decline
the defendant’s invitation to carve out a special excep-
tion to the rule set forth in State v. Harris, supra, 215
Conn. 193–94, for the crime of murder.
2
We now turn our attention to the defendant’s claim
that the state failed to set forth sufficient evidence at
trial to corroborate his alleged confessions and estab-
lish that the victim was, in fact, dead. As previously
discussed, the corpus delicti rule, as most recently clari-
fied by this court in Harris and Hafford, required that
the state introduce ‘‘substantial independent evidence
[that] tend[s] to establish the trustworthiness of the
[defendant’s] statement[s].’’ (Emphasis omitted; inter-
nal quotation marks omitted.) State v. Hafford, supra,
252 Conn. 316; see also R. Perkins, supra, 48 Va. L.
Rev. 181 (‘‘[prima facie] evidence is sufficient for this
purpose, and there are indications in the direction of
accepting even less than this’’ [footnote omitted]). The
Appellate Court concluded, and we agree, that there
was sufficient, independent corroborating evidence
both to permit the trial court to allow the defendant’s
alleged confessions into evidence and, when considered
in tandem with the various confessions, for the jury to
find, beyond a reasonable doubt, that the defendant
was guilty of the victim’s murder. That evidence, which
is more fully set forth in the opinion of the Appellate
Court, may be briefly summarized as follows.
First, although it was not required under the rule that
we have articulated today; see part I B 1 of this opinion;
substantial circumstantial evidence was introduced at
trial, wholly independent of the defendant’s alleged con-
fessions, tending to show that the victim died around
the time of the alleged murder. The fifteen year old
victim disappeared suddenly and without warning on
May 29, 1996. She left home that night without taking
any money, clothing, or personal belongings, despite
the fact that nearly $1000 was available in the house.
The jury also reasonably could have found, on the basis
of the evidence presented at trial, that she enjoyed her
family, friends, life, and routines in Montville and had
no desire to run away from home or to commit suicide.
At the time of trial, she had been missing for more
than thirteen years, without having made any known
contact with family or friends, and a nationwide search
had failed to locate her or to flag any use of her social
security number.22 See Virgin Islands v. Harris, supra,
938 F.2d 417 (in murder cases in which body is never
found, victim’s failure to maintain habits and regular
contact with family and friends is important extrinsic
evidence of corpus delicti). In addition, Allain testified
that, the day after the victim disappeared, he discovered
her shoe on the wooded path where the defendant had
taken him. All of this tended to support the conclusion
that the victim had been murdered rather than running
away from home.
In addition, aside from relating several of the defen-
dant’s alleged confessions, Allain provided other inde-
pendent support for the conclusion that the victim had
been killed. Allain testified that both he and the defen-
dant had raped the victim on the evening in question,
and that he had left the victim alone in the defendant’s
company. That testimony, if credited, established that
the defendant already had assaulted the victim that
night and that he had both the motive and the opportu-
nity to kill her. See, e.g., State v. Farnum, supra, 275
Conn. 34 (evidence of motive deemed corroborative
of confession).
Allain also testified that the defendant, prior to sexu-
ally assaulting the victim, had stated that he ‘‘wanted
to do her’’ and that ‘‘we need a body.’’ The corpus delicti
rule generally does not apply so as to bar statements
that an accused made prior to committing the alleged
crime. See Warszower v. United States, 312 U.S. 342,
347, 61 S. Ct. 603, 85 L. Ed. 876 (1941); see also State
v. Farnum, supra, 275 Conn. 35 (prior statement of
intent to commit crime deemed corroborative of confes-
sion). At the same time, the defendant, when inter-
viewed by the police, acted in a manner that could be
interpreted as evidencing a consciousness of guilt, such
as by questioning whether Allain had implicated him
in the victim’s disappearance and volunteering informa-
tion to cast aspersions on Allain.
Moreover, at the time of trial, the defendant already
had been convicted of sexually assaulting a thirteen
year old girl. That victim testified in the present case
that the defendant, six months prior to the victim’s
disappearance, had choked her into unconsciousness
while raping her. She further testified that the defen-
dant, after raping her in his trailer, threatened that, if
she tried to leave, he would hunt her down, find her,
and kill her. Where, as here, there is a question as
to whether a crime has been committed and of the
improbability of alternative, innocuous explanations for
a loss, the fact that the accused has committed other,
similar crimes may help to establish the corpus delicti
of the charged offense. United States v. Woods, 484
F.2d 127, 136 (4th Cir. 1973), cert. denied, 415 U.S. 979,
94 S. Ct. 1566, 39 L. Ed. 2d 875 (1974); Matthews v.
Superior Court, 201 Cal. App. 3d 385, 392, 247 Cal. Rptr.
226 (1988); see also Conn. Code Evid. § 4-5 (c) (evidence
of other crimes admissible to demonstrate absence of
accident and to corroborate crucial prosecution tes-
timony).
Second, aside from this independent evidence that
tends to establish that the victim was dead (and that the
defendant was her killer), the Appellate Court identified
various facts and factors that corroborate the defen-
dant’s inculpatory statements. See State v. Leniart,
supra, 166 Conn. App. 170–74. Four different wit-
nesses—Allain, Buckingham, Douton, and Ching—all
testified that the defendant had admitted to them that he
had killed the victim, or someone fitting her description,
and disposed of her remains in a body of water.23 Several
of these witnesses testified that the defendant claimed
to have disposed of the body in a lobster trap or fed
the victim’s remains to crabs. That testimony is consis-
tent with the fact that the defendant was employed as
a lobster fisherman.
The jury may have found Ching’s testimony to be
especially credible insofar as that witness was no longer
in prison, on probation or parole, and had no charges
pending against him when he came forward to relate the
defendant’s confession to law enforcement. In addition,
the fact that the defendant’s most significant and sub-
stantial confessions were volunteered to Allain, an
accomplice to the sexual assault of the victim, rather
than to an investigating officer, endows those confes-
sions with ‘‘a strong inference of reliability . . . .’’24
(Internal quotation marks omitted.) Kaneshiro v.
United States, 445 F.2d 1266, 1270 (9th Cir.), cert.
denied, 404 U.S. 992, 92 S. Ct. 537, 30 L. Ed. 2d 543
(1971).
Finally, the defendant’s ex-wife, Vicki Staplins, testi-
fied that, when she asked the defendant whether he
was involved in the victim’s disappearance, ‘‘[h]e told
me the less I knew, the better off I was.’’ The jury
reasonably may interpret statements of this sort as evi-
dence of the defendant’s consciousness of guilt. See,
e.g., People v. Ortiz, Docket No. B257413 (LDR), 2016
WL 1178972, *16 (Cal. App. March 25, 2016), review
denied, California Supreme Court, Docket No. S234113
(July 13, 2016).
Considered in the light most favorable to sustaining
the verdict, this evidence was more than sufficient to
corroborate the defendant’s various confessions and,
when viewed in tandem with those confessions, to sus-
tain the conviction.
II
EXCLUSION OF PRETEST INTERVIEW VIDEOTAPE
We next consider the state’s appeal, in which it claims
that the Appellate Court improperly held that the defen-
dant is entitled to a new trial because the trial court’s
exclusion of Allain’s polygraph pretest interview video-
tape constituted harmful error. The Appellate Court
concluded that (1) a recording of a polygraph pretest
interview does not qualify as ‘‘polygraph evidence’’ for
purposes of State v. Porter, 241 Conn. 57, 93–94, 698
A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct.
1384, 140 L. Ed. 2d 645 (1998) (holding that polygraph
evidence is per se inadmissible for all purposes in all
trial court proceedings), and (2) the trial court’s exclu-
sion of the videotape pursuant to Porter was not harm-
less error. State v. Leniart, supra, 166 Conn. App. 182.
The state challenges both of those conclusions on
appeal. Although we agree with the Appellate Court
that polygraph pretest interview evidence is not per se
inadmissible under Porter and, therefore, that the video
was improperly excluded on that basis, we conclude
that any error in the exclusion of the video was harm-
less.
We begin by briefly summarizing the procedural his-
tory relevant to this issue, which was set forth in full
by the Appellate Court. Prior to trial, the state filed a
motion in limine seeking to exclude all testimony or
evidence pertaining to the polygraph examination of
any witnesses. Defense counsel opposed the motion,
arguing that he intended to offer, among other things,
a ninety minute videotape showing the standard pretest
interview that the polygrapher, state police Trooper Tim
Madden, had conducted with Allain prior to performing
Allain’s polygraph test in 2004. Defense counsel stated
that he would seek to offer the videotape on the ground
that it showed Madden giving Allain numerous assur-
ances that Allain would receive favorable treatment if
he cooperated with the police, which, defense counsel
argued, ‘‘raises questions . . . about whether this
young man is coming into this courtroom with the inten-
tion to do anything other than save himself.’’
The trial court ruled that the videotape was inadmissi-
ble. The court’s oral ruling appeared to adopt the state’s
argument that a recording of a pretest interview or,
indeed, any reference to the fact that a polygraph exami-
nation has been conducted, constitutes polygraph evi-
dence and is, therefore, per se inadmissible. The court
did, however, indicate that it would permit defense
counsel to cross-examine Allain regarding ‘‘any prom-
ises or benefits that were made to him during the course
of that interview.’’
A
We first consider whether the trial court properly
determined that the videotape of Allain’s pretest inter-
view was not admissible for any purpose because it
constituted ‘‘polygraph evidence,’’ which we have held
to be per se inadmissible. See State v. Porter, supra,
241 Conn. 93–94. This presents a question of law that
we review de novo. See, e.g., State v. Saucier, 283 Conn.
207, 218, 926 A.2d 633 (2007).
In granting the state’s motion in limine to exclude
the pretest interview videotape, the trial court relied
solely on Porter, concluding that the videotape consti-
tuted polygraph evidence. Accordingly, we shall confine
our analysis to the question of whether the per se ban
on the admission of polygraph evidence articulated in
Porter extends to evidence of the conduct of the polyg-
rapher and the witness during the pretest interview
process.
The Appellate Court concluded, and we agree, that
the phrase ‘‘polygraph evidence,’’ as used in Porter, does
not encompass documentation of the pretest interview
process. State v. Leniart, supra, 166 Conn. App. 182.
As the Appellate Court recognized, the question before
this court in Porter simply was whether we should
abandon the existing rule regarding the inadmissibility
of (1) the results of polygraph tests and (2) the willing-
ness of a witness to submit to such a test. Id., 190–91.
In Porter, we characterized that rule as follows: ‘‘This
court has repeatedly held that neither the results of a
polygraph test nor the willingness of a witness to take
such a test is admissible in Connecticut courts.’’ (Inter-
nal quotation marks omitted.) State v. Porter, supra,
241 Conn. 93. Thus, our holding in Porter was limited
to barring the results of a polygraph test and the willing-
ness of a witness to undergo such a test.
We also are not persuaded by the state’s argument
that, because the pretest interview is an integral compo-
nent of a polygraph examination, evidence of what tran-
spired during the interview must be subject to the same
per se rule as are examination results. Rather, we agree
with the Appellate Court that we used the term ‘‘poly-
graph evidence’’ narrowly in Porter, as a shorthand
reference only to the specific types of evidence the
admission of which was at issue in that case, namely,
evidence showing test results and a witness’ willingness
to submit to a polygraph test.
Thus, we agree with the Appellate Court that poly-
graph pretest interview evidence does not constitute
‘‘polygraph evidence’’ for purposes of Porter and is not,
therefore, per se inadmissible. Accordingly, it was for
the trial court, in the exercise of its discretion and in
light of the facts of this particular case, to determine
whether admission of part of Allain’s pretest interview
would have been more probative than prejudicial. To
the extent that the trial court failed to make such a
determination, exclusion of the entire videotape was
improper.
B
Having concluded that the trial court incorrectly
determined that the videotape of Allain’s pretest inter-
view constituted inadmissible polygraph evidence, we
must consider whether the Appellate Court correctly
concluded that that error was harmful.25 The Appellate
Court recognized that, during his cross-examination of
Allain, defense counsel was able to establish both that
Allain had powerful incentives to cooperate with the
state in implicating the defendant and that Allain had
changed or augmented various aspects of his story on
a number of occasions. State v. Leniart, supra, 166
Conn. App. 195–96. Nevertheless, the Appellate Court
found that the failure to admit the videotape substan-
tially affected the verdict because (1) the videotape
would have provided more direct evidence of Allain’s
motive and bias to implicate the defendant, including
‘‘the subtle but significant pressure placed on Allain by
law enforcement,’’ and (2) the jury was deprived of the
opportunity to understand that the pretest interview
was conducted in the context of a polygraph examina-
tion, which was significant to the defendant’s claim.
Id., 196–97. Although it is a close call, we are not per-
suaded that the defendant has met his burden of demon-
strating that exclusion of the videotape substantially
affected the verdict.
1
We begin by setting forth the well established stan-
dards that guide our review. ‘‘When an improper eviden-
tiary ruling is not constitutional in nature, the defendant
bears the burden of demonstrating that the error was
harmful. . . . [A] nonconstitutional error is harmless
when an appellate court has a fair assurance that the
error did not substantially affect the verdict.’’ (Internal
quotation marks omitted.) State v. Rodriguez, 311 Conn.
80, 89, 83 A.3d 595 (2014).
2
The following additional facts and procedural history
are relevant to this issue. Madden’s pretest interview
of Allain lasted for approximately ninety minutes. For
the first thirteen minutes or so, Madden and Allain dis-
cussed Allain’s reasons for submitting to the polygraph.
Specifically, a question arose as to whether Allain was
taking the test voluntarily, because he believed that
assisting the state was the right thing to do or, rather,
because he was facing a potential five year sentence
for having violated his probation through a failed drug
test and had been led to believe that the state might
not pursue a conviction if he cooperated in this matter.
Allain initially indicated that he had consented to the
polygraph primarily to avoid the conviction for violating
his probation. Madden promptly explained, in no uncer-
tain terms, that he could not perform the polygraph on
those terms. Thus, before proceeding, Madden obtained
from Allain a statement that he was participating freely.
The remainder of the pretest interview consisted of
Madden’s asking Allain a series of background ques-
tions, reviewing the statements that Allain had given
to the police and Allain’s accounts of the events sur-
rounding the victim’s disappearance, and explaining the
questions that Allain would be asked during the poly-
graph. During that time, Madden repeatedly emphasized
how ‘‘unbelievably important’’ it was for Allain to give
completely truthful answers during the examination.
Moreover, Madden consistently equated truthfulness
with successfully passing the test, doing ‘‘the right
thing,’’ and being a reliable witness. He emphasized in
this respect that the state would consider Allain to be
a useful witness, and Allain would qualify for potentially
favorable treatment, only if the polygraph results dem-
onstrated that Allain was being completely truthful and
forthcoming. Madden referred several times during the
interview to the investigation of the 1997 gang rape and
murder of Maryann Measles. He informed Allain that
suspected participants in that crime who truthfully con-
fessed their roles and then passed polygraph examina-
tions were let off with ‘‘a slap on the wrist,’’ whereas
suspected participants who failed polygraph tests were
aggressively prosecuted.
At several points during the interview, Madden made
comments indicating that the police were interested in
obtaining Allain’s cooperation. In particular, Madden
explained that the police were interested in having
Allain on their ‘‘team’’ rather than on the defendant’s
team, and in procuring Allain’s assistance in ‘‘getting’’
the defendant, whom Madden described as the ‘‘bigger
fish.’’ In each instance, however, he made clear that
Allain could provide such assistance only by giving com-
pletely truthful testimony and passing the polygraph
test. Madden indicated, for example, that, if Allain failed
the polygraph, then he would be on the ‘‘other team,’’
aligned with the defendant, rather than ‘‘on our team.’’
In other words, Madden made clear that only truthful
statements would help Allain.
Throughout the interview, Madden made comments
that gave the impression that he believed that Allain
had not been completely forthcoming in his prior state-
ments to the police and that Allain still had something
to ‘‘get off [his] chest.’’ In a few instances, Madden
speculated that Allain felt intimidated or frightened by
the defendant. In most instances, however, Madden
appeared to believe that what Allain was withholding
was the extent of his own involvement in the crime.
Madden even suggested that this might be a cause of
Allain’s diagnosed clinical depression and speculated
that Allain, by telling the complete truth, might find
some relief. It is clear to us, then, that introduction of
the videotape into evidence would not have significantly
weakened the state’s case. See State v. Rodriguez,
supra, 311 Conn. 89 (import of excluded evidence was
important factor in assessing harmlessness).
After the trial court ruled the videotape inadmissible,
the state called Allain to testify. The prosecutor began
his direct examination by eliciting that Allain was then
serving a ten year sentence for felony sexual assault
involving a different victim, and that Allain was hoping
for ‘‘leniency’’ in connection with that sentence in
exchange for his cooperation with the state and testi-
mony against the defendant in the present matter. Allain
acknowledged that ‘‘it would be nice’’ to receive some
consideration in exchange for his testimony.
On cross-examination, defense counsel effectively
developed all of the basic facts and themes that the
defendant sought to establish through use of the pretest
interview videotape. Defense counsel was able to dem-
onstrate that Allain was generally unreliable as a wit-
ness. For example, defense counsel repeatedly returned
to the theme that Allain had two powerful incentives
to cooperate with the state in convicting the defendant,
namely, to divert attention from himself as a suspect
in the victim’s murder and to obtain a reduction of the
sentence that he was then serving for sexual assault.
With respect to the former, Allain admitted to having
raped the victim on the night she disappeared and to
having concealed that information from the police until
after the statute of limitations for rape had expired. He
also understood, however, that the statute of limitations
for a felony murder never runs.
Allain also acknowledged that he had found and con-
cealed the victim’s shoe the day after she disappeared,
and that this could make him an accessory to her mur-
der. He also admitted to telling the police that he had
previously indicated to the defendant that he was will-
ing to kill the victim, and that he later told his father
that he was involved in the victim’s murder and that
he needed help moving her body.26 Allain admitted that
he was concerned because, if the police believed that
he had anything to do with the victim’s death, he still
could be charged with capital felony, and he believed
that he would face a likely death sentence if convicted.
At the same time, Allain, without expressly mentioning
the pretest interview, testified that Madden had repeat-
edly told him that even someone who had been involved
in rape and murder ‘‘could walk away . . . with a slap
on the hand’’ if they cooperated with the police.27
Accordingly, the jury was aware that Allain was a poten-
tial suspect in the victim’s murder, that he had impli-
cated himself in the murder, and that he understood
that he could be charged with the crime if the defendant
were exonerated.
The jury also heard testimony suggesting that there
was an implicit agreement between Allain and the state
that he would receive leniency on his sexual assault
sentence if he fully cooperated with the state in this
matter and if his cooperation proved sufficiently help-
ful. Allain twice acknowledged that, at the time he was
sentenced on that conviction, the state’s attorney had
indicated that the state would not oppose a motion for
sentence modification at a later date if Allain met cer-
tain unstated requirements. Allain testified that he
understood that to mean that he might be allowed to
serve less time if he ‘‘played ball’’ and cooperated in
the defendant’s case.
At several points, Allain expressed hope that the state
would believe that he had provided substantial assis-
tance in the case against the defendant and that, if
his cooperation was sufficiently valuable, he would be
released from prison early. Indeed, Allain complained
that he had been ‘‘blackmailed’’ by the state and that
an especially long sentence had been imposed for the
sexual assault conviction specifically to ensure that he
assisted the state in the defendant’s case.
Accordingly, the jury learned through cross-examina-
tion that Allain felt pressured to cooperate and that he
hoped that the state would deem his help sufficiently
valuable that he would obtain a sentence modification.
See State v. Rodriguez, supra, 311 Conn. 89 (opportu-
nity to bring out content of excluded evidence on cross-
examination was important factor in assessing harm-
lessness). Even though all of the basic facts and themes
that the defendant sought to show to the jury through
the pretest interview videotape were effectively elicited
during Allain’s cross-examination, the Appellate Court
concluded that the defendant had met his burden of
proving that exclusion of the videotape had substan-
tially affected the verdict. State v. Leniart, supra, 166
Conn. App. 197.
3
The conclusion of the Appellate Court was based on
the dual determinations that (1) viewing the videotape
would have given the jury a more direct and persuasive
impression of Allain’s bias and motives, and of the pres-
sures he was under to implicate the defendant, than
could have come out through during cross-examination,
and (2) the fact that the interview took place in the
specific context of a polygraph examination was criti-
cally important to the ability of the jury to assess the
credibility of the state’s key witness. Id., 196–97. We
consider each point in turn.
a
Our analysis is guided by the principle that ‘‘[t]he
credibility of a witness may be impeached by evidence
showing bias for, prejudice against, or interest in any
person or matter that might cause the witness to testify
falsely.’’ Conn. Code Evid. § 6-5. ‘‘Because evidence
tending to show a witness’ bias, prejudice or interest
is never collateral . . . impeachment of a witness on
these matters may be accomplished through the intro-
duction of extrinsic evidence, in addition to examining
the witness directly.’’ (Citation omitted.) Conn. Code
Evid. § 6-5, commentary. ‘‘However, otherwise [r]ele-
vant [impeachment] evidence may be excluded if its
probative value is outweighed by the danger of unfair
prejudice or surprise, confusion of the issues, or mis-
leading the jury, or by considerations of undue delay,
waste of time or needless presentation of cumulative
evidence.’’ (Emphasis omitted; internal quotation marks
omitted.) State v. Brown, 273 Conn. 330, 342, 869 A.2d
1224 (2005); see also Conn. Code Evid. § 4-3.
Our impression of the videotape, and what the jury
likely would have gleaned therefrom, differs from that
of the Appellate Court. It is true that the first portion
of the pretest interview does not cast the polygrapher
in an especially favorable light. One could view the
videotape and conclude that Madden disregarded
Allain’s clear statement that he believed that he was
being coerced into taking the polygraph test, and that
Madden coaxed Allain into saying the magic words that
would allow the interview to proceed while permitting
Allain to obtain the benefits that he sought.
Equally apparent, though, is the diligence with which
Madden conducted the remainder of the interview. At
the outset, having ascertained that Allain suffers from
depression, Madden offered Allain numerous opportu-
nities to terminate the interview if Allain believed that
it might exacerbate his condition. More importantly,
although Madden repeatedly encouraged Allain to coop-
erate with the state, cooperation was never framed in
terms of implicating the defendant, inventing stories,
or testifying falsely for the state. Rather, Madden repeat-
edly, consistently, and expressly instructed Allain that
cooperation consists of telling the truth. In fact, on
more than one dozen occasions, Madden emphasized
to Allain the importance of telling the complete truth
and that only truthful testimony would be of assistance
to the state or advantageous to Allain. Likewise, two
other officers who briefly questioned Allain during the
interview encouraged Allain to be completely truthful,
at one point telling him that ‘‘we don’t want you to tell
us what you think we want to hear.’’
Although this point is not discussed in the Appellate
Court opinion, it is critically important. Although
Allain’s motivation for participating in the state’s inves-
tigation and prosecution of the defendant may have
been of some interest to the jury, jurors’ primary con-
cern must have been his veracity—whether he had been
pressured or induced to fabricate his account of the
defendant’s confessions. Allain’s trial testimony itself
provided the strongest evidence that he might have
reason not only to cooperate with the state but also to
actively help the state to convict the defendant. During
cross-examination, for example, Allain conceded that
he hoped ‘‘that the state believes that [he] provided
substantial assistance in [its] case against [the defen-
dant] . . . .’’ He also expressed his hope that ‘‘the state
agrees that [his] cooperation in this case was valuable
enough’’ to obtain a sentence modification.
By contrast, even defense counsel, in arguing to the
trial court the importance of the videotape, emphasized
that the polygrapher’s primary focus was to encourage
Allain to testify truthfully: ‘‘Insofar as this witness was
taken, isolated for a period of ninety minutes, badgered
in my view into being told about all the benefits of
cooperation, about the need to be truthful, about every-
thing he stood to gain up to and including a potential
walk—that . . . rate[s] a powerful argument that this
young man may have been promised more than a year
or two off if he tells the truth.’’ (Emphasis added.)
For this reason, we disagree with the Appellate Court
that the videotape provided the most compelling evi-
dence that Allain had an undisclosed bias against or
motive to implicate the defendant. At trial, Allain him-
self freely admitted that he had powerful incentives to
cooperate with the state and to assist in convicting the
defendant. If anything, the videotape, with its constant
emphasis on the importance of truthfulness, undercuts
that narrative. The themes that the Appellate Court
found most troubling—Madden’s desire to keep Allain
on his team so as to catch ‘‘the big fish’’—are embodied
in just a few brief comments made in the course of a
ninety minute interview, all of which are expressly
linked to the ‘‘unbelievably important’’ need for Allain
to be completely truthful.
We also do not share the Appellate Court’s concern
that ‘‘the jury could reasonably conclude from the video-
tape that Madden attempted to shape Allain’s story
about the defendant’s actions on May 29, 1996, in order
to make it more plausible.’’ State v. Leniart, supra,
166 Conn. App. 195. It is true that, during the pretest
interview, Madden and the other officers pointed out
a few aspects of the defendant’s story that they found
difficult to believe. They found Allain’s story implausi-
ble, for example, on the point that the victim had not
said anything at all when the defendant approached
and began having sex with her. Also, after Allain
amended his statement to include the fact that he had
found and disposed of the victim’s shoe before meeting
with the defendant on the day after the assaults, the
officers questioned whether that discovery would not
have altered the tone of the ensuing conversation with
the defendant as Allain initially had reported it. We
have not identified any instance, however, in which it
appeared that Madden or other officers were attempting
to help Allain to more plausibly implicate the defendant.
Rather, the clear subtext to the entire interview was
that Madden believed that Allain had not come clean
with respect to his own role in the victim’s murder.28
b
We also do not share the Appellate Court’s concern
that cross-examination in this case was an inadequate
substitute for the videotape. The Appellate Court took
issue with the fact that, although the jury was able to
learn some of what had transpired during the interview
and was made aware of Allain’s incentives to falsely
implicate the defendant, the jury was not informed that
these events occurred in the specific context of a poly-
graph examination. State v. Leniart, supra, 166 Conn.
App. 196.
Although the Appellate Court frames the importance
of the videotape in terms of having occurred in the
context of a polygraph examination, the court’s expla-
nation primarily addresses the content of the videotape
rather than the context. But, as we already have dis-
cussed, the handful of potentially troubling statements
that the Appellate Court highlights were made by Mad-
den over the course of a ninety minute interview in
which he consistently emphasized that Allain would be
of assistance to the state, and eligible for the benefits
attendant to that assistance, only if he were completely
truthful. Moreover, all of Madden’s statements to that
effect either were, or could have been, elicited by
defense counsel on cross-examination.
Unlike the Appellate Court, we fail to see the signifi-
cance of the fact that the pretest interview took place
in the specific context of a polygraph examination. If
anything, that context would appear to undermine the
defendant’s position. At the time of the polygraph, Allain
already had implicated the defendant in the victim’s
murder on several occasions. Madden’s clear purpose
in the interview was not to encourage Allain to implicate
the defendant, which he already had done, but, rather,
to impress on Allain the importance of fully disclosing
all details, including his own role in the victim’s disap-
pearance. Madden repeatedly indicated that the state
would be able to depend on Allain’s credibility as a
witness only if Allain was completely forthcoming dur-
ing the polygraph test. Accordingly, we do not think
the jury reasonably could have gleaned from the video-
tape that the police were pressuring or incentivizing
Allain either to falsely implicate the defendant in the
victim’s murder or to hew to the inculpatory statements
that he previously had given.
To summarize, all of the themes that the defendant
sought to develop by way of the videotape were ade-
quately brought out during cross-examination and, if
anything, viewing the videotape in context would have
undermined the defendant’s theory that Allain had been
pressured to implicate the defendant falsely. See State
v. Rodriguez, supra, 311 Conn. 89 (likely impact on jury
is central factor in assessing harmlessness). We further
emphasize that, despite the lack of a body, the state’s
case against the defendant was strong, as it involved
four independent witnesses who testified that the defen-
dant had admitted to killing the victim. See id. We
therefore conclude that any error by the trial court in
excluding the pretest interview videotape was harm-
less.
III
EXCLUSION OF EXPERT TESTIMONY
We next consider whether the Appellate Court cor-
rectly concluded that the trial court had abused its
discretion in precluding the testimony of Alexandra
Natapoff, a law professor whom the defendant offered
as an expert on the use, and questionable credibility,
of incarcerated informants as witnesses in criminal
prosecutions. The state contends, and we agree, that
the trial court did not abuse its discretion when it deter-
mined that Natapoff’s testimony would not have
assisted the jury in this case. We therefore conclude
that the Appellate Court incorrectly determined that
the trial court had abused its discretion in precluding
that testimony.
A
The following procedural history is relevant to this
issue. Prior to trial, the state filed a motion in limine
seeking to preclude Natapoff’s testimony. The state
argued that expert testimony regarding the dubious
credibility of jailhouse informants would (1) address
matters within the common knowledge of the jury, (2)
be more prejudicial than probative, and (3) invade a
core function of the jury, namely, assessing the credibil-
ity of witnesses. At trial, the state renewed its objection,
and Natapoff proffered the testimony outside the pres-
ence of the jury.
After establishing her bona fides as an expert on the
subject of jailhouse informants,29 Natapoff testified that
the use of such informants in criminal prosecutions
is pervasive, with prosecutors and the police offering,
and inmates seeking, an array of benefits in exchange
for incriminating testimony. She explained that the
informant testimony acquired in this ‘‘marketplace’’ is
‘‘sometimes’’ untruthful and, in fact, is a significant
source of wrongful convictions. Natapoff further tes-
tified that informants can be quite ‘‘entrepreneurial,’’
using various methods to obtain information about
another inmate’s case and to fabricate believable,
incriminating stories. For example, inmates may rely
on jailhouse gossip, steal files from other inmates,
obtain case information from newspapers and media
reports, or simply cooperate with other inmates to
invent and validate each other’s stories. Natapoff also
expressed doubts as to whether the usual methods used
to instruct and warn juries to be cautious about infor-
mant testimony are effective in preventing false convic-
tions arising from the use of criminal informants.
Natapoff further described the marketplace for jail-
house informant testimony as ‘‘secretive’’ and testified
that the public learns little about how the criminal jus-
tice system uses informants. She opined that the public
is not familiar with jailhouse culture and is unaware of
how infrequently dishonest informants are prosecuted
for perjury. She also acknowledged, however, that sev-
eral magazines have done exposés on the abuses associ-
ated with the use of jailhouse informants and that the
practice is now well understood ‘‘outside’’ of correc-
tional facilities.
On cross-examination, Natapoff conceded that stud-
ies regarding the use of jailhouse informants are largely
limited to capital cases and that, even in those cases,
it is impossible to know how many wrongful convictions
have occurred as a result. The most she could say by
way of quantification is that estimates of the share of
wrongful convictions in capital cases range from 1 to
10 percent and that informant testimony was a factor
in 20 to 45 percent of those cases—so between 0.2
and 4.5 percent of all capital convictions. She also
described one study that concluded that criminal infor-
mant testimony was responsible for approximately
20 percent of all wrongful convictions in California.
Natapoff acknowledged, however, that the problems
associated with criminal informant testimony are not
uniform throughout the country and that she had not
studied Connecticut and was not aware of any particu-
lar customs and practices in Connecticut or, specifi-
cally, in New London. At no time did she opine as to
what percentage of criminal informants testify untruth-
fully, either in Connecticut or elsewhere.
Natapoff further conceded that she had never testi-
fied before a jury. In fact, she was aware of only two
cases in the country in which experts had been per-
mitted to testify regarding the use of criminal infor-
mants, one in Wyoming and one in Louisiana. Moreover,
although she wrote a book on the subject of criminal
informants in which she offered various proposals for
reforming the system and preventing the abuses associ-
ated with dishonest informants, Natapoff admitted that
she had not recommended the use of expert testimony
as a prophylaxis. She also could not say whether stricter
regulation of the use of criminal informants had reduced
the number of wrongful convictions in Los Angeles, a
city that is closely associated with the use and abuse
of jailhouse informant testimony.
After permitting additional argument by the parties,
the trial court granted the state’s motion in limine and
precluded Natapoff’s testimony. The court articulated
three rationales for its decision.
First, the trial court concluded that allowing testi-
mony as to the credibility of jailhouse informants would
be improper because credibility determinations are
within the exclusive province of the jury. Second, the
court found that, although Natapoff referenced certain
research about which the jury might not be aware, her
central conclusions—the marketplace for information
and informants’ incentives to testify falsely—were not
outside the ken of the average juror. Third, the court
emphasized that it had given the defense wide latitude
in cross-examining the state’s witnesses regarding any
consideration they might receive for their testimony
and that it intended to instruct the jury regarding the
credibility of incarcerated witnesses in accordance with
State v. Arroyo, 292 Conn. 558, 569, 973 A.2d 1254 (2009)
(jailhouse informant testimony is inherently suspect
and warrants special jury instruction), cert. denied, 559
U.S. 911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086 (2010).30
The Appellate Court, unpersuaded by these rationales,
reversed. That court held that ‘‘expert testimony con-
cerning the reliability of informant testimony should be
admitted if the court . . . determines that the expert
is qualified and the proffered testimony is relevant to
the specific issues in the case.’’ State v. Leniart, supra,
166 Conn. App. 212.
B
We begin by setting forth the well established legal
principles that govern this claim. ‘‘The trial court has
wide discretion in ruling on the qualification of expert
witnesses and the admissibility of their opinions. . . .
The court’s decision is not to be disturbed unless [its]
discretion has been abused, or the error is clear and
involves a misconception of the law. . . . Generally,
expert testimony is admissible if (1) the witness has a
special skill or knowledge directly applicable to a mat-
ter in issue, (2) that skill or knowledge is not common
to the average person, and (3) the testimony would be
helpful to the court or jury in considering the issues.’’
(Internal quotation marks omitted.) State v. Taylor G.,
315 Conn. 734, 760, 110 A.3d 338 (2015); see also Conn.
Code Evid. § 7-2. ‘‘It is well settled that [t]he true test
of the admissibility of [expert] testimony is not whether
the subject matter is common or uncommon, or
whether many persons or few have some knowledge
of the matter; but it is whether the witnesses offered
as experts have any peculiar knowledge or experience,
not common to the world, which renders their opinions
founded on such knowledge or experience any aid to
the court or the jury in determining the questions at
issue. . . . Implicit in this standard is the requirement
. . . that the expert’s knowledge or experience . . .
be directly applicable to the matter specifically in
issue.’’ (Internal quotation marks omitted.) State v.
Guilbert, 306 Conn. 218, 230, 49 A.3d 705 (2012).
We also have explained that ‘‘[t]he determination of
the credibility of a witness is solely the function of the
jury. . . . It is the trier of fact [that] determines the
credibility of witnesses and the weight to be accorded
their testimony. . . . Expert witnesses cannot be per-
mitted to invade the province of the jury by testifying
as to the credibility of a particular witness or the truth-
fulness of a particular witness’ claims.’’ (Internal quota-
tion marks omitted.) State v. Taylor G., supra, 315
Conn. 760–61.
C
As previously noted, the trial court precluded Nata-
poff’s testimony on several different grounds. We agree
with the Appellate Court that the trial court incorrectly
concluded that Natapoff’s testimony would have
invaded the exclusive province of the jury by assessing
the credibility of the state’s witnesses. State v. Leniart,
supra, 166 Conn. App. 224. We do not agree, however,
that the trial court abused its discretion in concluding
that that Natapoff’s testimony was largely within the
ken of the jurors. Id., 227–28.
1
We have had a number of opportunities to consider
whether the admission of expert testimony as to the
credibility and tendencies of a certain class of witnesses
would improperly usurp the role of the jury. See, e.g.,
State v. Taylor G., supra, 315 Conn. 734 (minor victims
of sexual abuse); State v. Favoccia, 306 Conn. 770, 51
A.3d 1002 (2012) (same); State v. Guilbert, supra, 306
Conn. 218 (eyewitnesses to crime); State v. Ali, 233
Conn. 403, 660 A.2d 337 (1995) (female victims of sexual
assault); State v. Borrelli, 227 Conn. 153, 629 A.2d 1105
(1993) (battered women syndrome). In those cases, we
have drawn a critical distinction between expert testi-
mony that merely explains the behaviors or underlying
neuropsychology typical of the class of witnesses at
issue, and testimony that applies that knowledge so as
to pass judgment—directly or indirectly—on the verac-
ity of particular witnesses. We consistently have held
that, although the former type of testimony is admissi-
ble if the trial court concludes that it otherwise satisfies
the standards for expert testimony; see part III B of
this opinion; testimony that speaks to the credibility of
specific witnesses typically is inadmissible insofar as
it invades the exclusive province of the jury. See, e.g.,
State v. Taylor G., supra, 761–65; State v. Favoccia,
supra, 787–90; State v. Ali, supra, 432–33; State v. Bor-
relli, supra, 173–74; State v. Spigarolo, 210 Conn. 359,
378–79, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S.
Ct. 322, 107 L. Ed. 2d 312 (1989). Accordingly, although
the jury is free to apply an expert’s generic testimony
about a class of witnesses to the specific witnesses who
testify in a particular case, an expert may not connect
those dots for the jury.
In the present case, Natapoff intended to testify only
with respect to the general characteristics of the mar-
ketplace for criminal informant testimony and the aca-
demic research indicating that unreliable informant
testimony contributes to many wrongful convictions.
During argument on the state’s motion, defense counsel
represented to the trial court that Natapoff had no
knowledge about this particular case and that she was
not familiar with, and did not intend to comment on,
the testimony of any of the state’s witnesses. Expert
testimony about the behavior of jailhouse informants
as a class is not per se inadmissible.31 For this reason,
we agree with the Appellate Court that the trial court
incorrectly concluded that Natapoff’s testimony would
have invaded the province of the jury. State v. Leniart,
supra, 166 Conn. App. 222–24.
2
We next consider whether the trial court abused its
discretion when it determined that Natapoff’s primary
conclusions were not of assistance to the jury. We have
explained that expert testimony is required only when
a disputed matter is ‘‘manifestly beyond the ken of the
average trier of fact, be it judge or jury.’’ (Emphasis
added.) State v. McClary, 207 Conn. 233, 245, 541 A.2d
96 (1988). At the other extreme, ‘‘[w]hen inferences or
conclusions are so obvious that they could be as easily
drawn by the jury as the expert from the evidence,
expert testimony regarding such inferences is inadmis-
sible.’’ State v. Iban C., 275 Conn. 624, 639, 881 A.2d 1005
(2005). It also is well established that expert testimony
should be admitted only when the expert’s knowledge
or experience is directly applicable to a matter specifi-
cally at issue. Sullivan v. Metro-North Commuter Rail-
road Co., 292 Conn. 150, 159, 971 A.2d 676 (2009); see
also Conn. Code Evid. § 7-2.
We are not aware of any studies supporting Natapoff’s
testimony that the typical juror may not be familiar
with the full scope of the marketplace for jailhouse
informant testimony, the specific means by which
inmates can fabricate believable incriminating stories,
the panoply of incentives that the state is able to offer
in exchange for such testimony, and the lack of any
meaningful deterrent for an inmate who is willing to
commit perjury. However, even if we were to assume,
for the sake of argument, that Natapoff is correct that
the typical juror is not aware of the full spectrum of
risks that attend to the use of jailhouse informants, we
would conclude for the following three reasons that
the trial court did not abuse its discretion in precluding
her testimony.
First, the trial court was free to credit Natapoff’s own
testimony that, although jurors may not be familiar with
all of the nuances of the academic research in this field,
the fundamental concerns regarding the reliability of
criminal informant testimony have been exposed by the
media and are well understood outside of the jailhouse.
Natapoff’s testimony in this regard is consistent with
our own understanding of the issue. Although we dis-
agree with the Appellate Court that the state was
obliged to provide ‘‘empirical studies’’ to demonstrate
that Natapoff’s opinions are within the knowledge of
the average layperson; State v. Leniart, supra, 166
Conn. App. 224; we observe that the potential abuses
associated with jailhouse informant testimony have
been explored by investigative journalists and are gen-
erally engrained throughout the popular culture.32
Indeed, one federal court facing a similar question
recently cited to the Appellate Court’s decision in this
case, finding it unpersuasive for precisely this reason.
See United States v. Noze, 255 F. Supp. 3d 352, 354 (D.
Conn. 2017), aff’d sub nom. United States v. Dugue, 763
Fed. Appx. 93 (2d Cir. 2019). In that case, the defendants
proposed to call an expert who, like Natapoff, would
have testified as to the questionable credibility of coop-
erating witnesses. Id., 353. Judge Jeffrey A. Meyer
explained that he was unpersuaded by the Appellate
Court’s reasoning because, among other things, ‘‘I think
juries already understand that jails are miserable places.
Juries understand that cooperating witnesses have com-
mitted crimes and have powerful motives to say what
they can to stay out of or to be released from jail. I am
not convinced that juries need a law professor to teach
them more about the ‘true culture of jails.’ ’’ Id., 354;
see also State v. Woods, Docket No. C-130413 (LHH),
2014 WL 4437733, *7 (Ohio App. September 10, 2014)
(testimony was not beyond knowledge of jury), appeal
denied, 142 Ohio St. 3d 1422, 28 N.E.3d 121, cert. denied
U.S. , 136 S. Ct. 420, 193 L. Ed. 2d 329 (2015).
Second, and perhaps more significantly, the defen-
dant’s proffer failed to establish that any of the specific
information of which the jury might not have been
aware is directly applicable to the present case. Unlike
in cases such as State v. Guilbert, supra, 306 Conn. 226–
27, in which the expert testimony at issue addressed
neuropsychological traits that can be expected to apply
to most, if not all, individuals, Natapoff’s testimony
hinged to a significant extent on research into the prac-
tices that are common to certain correctional facilities
and the procedures that are used by certain prosecu-
tor’s offices in states such as California. Natapoff readily
conceded that these practices and procedures are not
uniform throughout the country and, further, that she
had not studied whether and to what extent they are
present in Connecticut. She was unable to say, for exam-
ple, whether there is a significant possibility that an
informant who lies under oath in a Connecticut trial
will be prosecuted for perjury; nor could she speak to
the specific benefits that the witnesses in this action
might reasonably have expected to receive.
Moreover, in the cases in which we have allowed
experts to testify as to the credibility of a class of
witnesses, the experts did not merely testify that certain
witnesses are, generally, of dubious credibility. Rather,
the experts provided the jury with a useful template,
describing patterns of behavior typical of such wit-
nesses so that jurors could better assess whether partic-
ular conduct or statements demonstrated veracity or
mendacity. In Guilbert, for instance, the state’s expert
presented various factors that jurors could use to assess
the accuracy of an eyewitness identification: the degree
of stress to which the witness was exposed, the witness’
prior familiarity with the person, ‘‘the length of time
during which the eyewitness was able to observe the
person, lighting, distance, and whether the eyewitness
was paying attention.’’ State v. Guilbert, supra, 306
Conn. 227.
Similarly, in our cases addressing the credibility of
victims of domestic abuse, experts explained how such
victims tend to delay reporting to the police, recant or
provide inconsistent accounts of the abuse, and feel
powerless to leave an abusive relationship. See, e.g.,
State v. Taylor G., supra, 315 Conn. 755; State v. Ali,
supra, 233 Conn. 429; State v. Borrelli, supra, 227 Conn.
167–70. In several instances, we emphasized that the
defense had tried to impeach the complaining witness
by highlighting delayed or inconsistent reporting of the
alleged crime and that expert testimony was needed to
rebut those arguments and to help jurors understand
how conduct that might otherwise be thought to under-
mine a complainant’s credibility is actually typical of
victims of such crimes. See, e.g., State v. Ali, supra,
433; State v. Borrelli, supra, 170; State v. Spigarolo,
supra, 210 Conn. 377.
In the present case, by contrast, Natapoff did not
provide any template by which jurors could evaluate
the testimony of jailhouse informants. She opined that
some informants testify truthfully and others do not
but did not offer any practical guidance as to how a
jury might distinguish the former from the latter.
One could imagine a case in which Natapoff’s testi-
mony might prove helpful to a jury. If, for example,
an informant witness claimed that a defendant had
revealed details about a crime that would appear to be
knowable only by the perpetrator, then learning that
inmates often glean such information by reading their
cellmates’ legal files or from outside sources could be
illuminating. Importantly, however, there is no sugges-
tion in the present case that the state’s witnesses testi-
fied as to any details of the crime that, while appearing
to be knowable only by the perpetrator, could in fact
have been obtained via media reports or other means.
Rather, Allain’s statements and testimony were the only
source of detailed information about the alleged crime,
and he obtained that information from the defendant
at the time of the murder, rather than during his later
incarceration.33 Moreover, as the defendant himself
emphasizes, the testimony of Buckingham, Ching, and
Douton, while confirming the general outlines of
Allain’s account, differed with respect to certain details
of the alleged crime.
Ultimately, then, all a jury reasonably could glean
from Natapoff’s testimony is that it should be especially
skeptical of any jailhouse informant, given the abun-
dant opportunities and incentives to fabricate confes-
sion stories and the fact that jailhouse informants some-
times do in fact testify falsely, which results in wrongful
convictions. But that is precisely how the trial court
instructed the jury, and we must assume that the jury
followed the court’s instructions.34 See, e.g., State v.
Booth, 250 Conn. 611, 626, 737 A.2d 404 (1999), cert.
denied sub nom. Brown v. Connecticut, 529 U.S. 1060,
120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000). In addition,
although jurors may have entered the courtroom igno-
rant of some of this information, the problems that
Natapoff described are readily understood and easily
probed on cross-examination. For example, Douton
conceded on cross-examination that he had followed
the victim’s case in the New London Day newspaper
while incarcerated, that he had looked at the defen-
dant’s legal papers when they were in a holding cell
together, and that, in exchange for his testimony, he
hoped that the state would agree to modify his sen-
tences to run concurrently rather than consecutively.
Indeed, the prosecutor himself acknowledged to the
jury in closing argument that ‘‘[a]ll these [prisoners] are
hoping for consideration or most of them are hoping
for consideration . . . .’’ Defense counsel also ques-
tioned the state’s other witnesses on multiple occasions
about any opportunities they may have had to read the
defendant’s legal papers or to collaborate. In short, it
was not unreasonable of the trial court to conclude
that, through common sense, the information presented
at trial, and the court’s instructions, the jurors would
have already been familiar with any concepts presented
in Natapoff’s testimony that were directly and specifi-
cally applicable to this case.
Third, agreeing with the Appellate Court that expert
testimony such as Natapoff’s must be admitted in any
case in which it is relevant—presumably any case in
which the testimony of an informant plays more than
a minimal role—would set a costly and troubling prece-
dent. As one court has recognized, if defendants are
allowed to put on experts who will testify as to the
questionable credibility of criminal informants, then,
surely, the state will want to parry with experts of its
own. These counter experts would, undoubtedly, tell
the jury about the critical and generally reliable role
that informants play in many criminal prosecutions.
United States v. Noze, supra, 255 F. Supp. 3d 355. Crimi-
nal trials would devolve into expensive and time con-
suming ‘‘battles of [road show] experts . . . .’’ Id.
For these and other reasons, although Natapoff has
been permitted to testify in one civil trial subsequent
to the defendant’s conviction; see Larson v. State, 194
Wn. App. 722, 731 n.5, 375 P.3d 1096, review denied,
186 Wn. 2d 1025, 385 P.3d 117 (2016); other courts
generally have not permitted Natapoff or other experts
to testify regarding the credibility of criminal infor-
mants. See People v. Curl, 46 Cal. 4th 339, 360, 207 P.3d
2, 93 Cal. Rptr. 3d 537 (2009) (trial court did not abuse
discretion in precluding expert testimony on methods
used by jailhouse informants to fabricate testimony),
cert. denied, 559 U.S. 1009, 130 S. Ct. 1881, 176 L. Ed.
2d 369 (2010); People v. Vega, Docket No. G045613, 2013
WL 1736669, *8 (Cal. App. April 23, 2013) (Natapoff’s
testimony was properly excluded), review denied, Cali-
fornia Supreme Court, Docket No. S210465 (June 26,
2013); State v. Woods, supra, 2014 WL 4437733, *7 (trial
court did not abuse its discretion by excluding expert
testimony when informant was cross-examined at
length); see also Servello v. Commissioner of Correc-
tion, 95 Conn. App. 753, 763, 899 A.2d 636 (upholding
habeas court’s conclusion that expert testimony would
not have assisted jury), cert. denied, 280 Conn. 904, 907
A.2d 91 (2006).
By contrast, in other instances in which we have
allowed or required expert testimony as to the reliability
of a class of witnesses, we relied on the fact that sister
states routinely admit such evidence. See, e.g., State v.
Guilbert, supra, 306 Conn. 233–39 and n.20 (eye witness
testimony); State v. Ali, supra, 233 Conn. 434 (reporting
delays by rape victims); State v. Borrelli, supra, 227
Conn. 170 (battered woman’s syndrome); State v.
Spigarolo, supra, 210 Conn. 377 (disclosure tenden-
cies of sexually abused children). Accordingly, we are
unable to say that the trial court abused its discretion
in concluding that Natapoff would not have provided
any expert information that was both directly applicable
to the case at hand and beyond the ken of the aver-
age juror.35
The judgment of the Appellate Court is reversed with
respect to the evidentiary claims at issue in the state’s
certified appeal and the case is remanded to that court
with direction to consider the defendant’s remaining
claims on appeal; the judgment is affirmed in all other
respects.
In this opinion ROBINSON, KAHN and VERTE-
FEUILLE, Js., concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
1
For the sake of simplicity, we note that all references in this opinion to
§ 53a-54b are to General Statutes (Rev. to 1995) § 53a-54b, as amended by
Public Acts 1995, No. 95-16, § 4.
2
In accordance with our policy of protecting the interests of the victims
of sexual abuse, we decline to identify the victim or others through whom
the victim’s identity may be ascertained. See General Statutes § 54-86e.
3
Although Allain’s testimony was unclear on this point, the jury reasonably
could have concluded that the path on which Allain and the defendant spoke
is the same path to which the defendant confessed having taken the victim.
4
Judge Flynn, writing separately, concluded that the Appellate Court
majority had, in some respects, improperly articulated and applied the cor-
pus delicti rule, but he agreed that the defendant could not prevail on his
corpus delicti claim. See State v. Leniart, supra, 166 Conn. App. 228 (Flynn,
J., concurring in part and dissenting in part).
5
For the reasons discussed in part I B of this opinion, some courts and
commentators refer to Connecticut’s version of the corpus delicti rule as
the corroboration rule.
6
For brevity, subsequent references to ‘‘confessions’’ are intended to refer
to the alleged extrajudicial confessions or admissions of a criminal
defendant.
7
Because we agree with the defendant that the corpus delicti rule is a
hybrid rule that implicates his due process rights and, therefore, that his
failure to object to admission of his alleged confessions does not preclude
appellate review, we need not consider his alternative arguments that his
corpus delicti claim is properly preserved or should be reviewed for
plain error.
The defendant contends that there also is insufficient evidence to prove
that he sexually assaulted, kidnapped, and intentionally killed the victim.
Although those issues are not encompassed within the certified question,
we note that Allain’s testimony, if credited by the jury, and as corroborated
by independent evidence, was sufficient to establish the essential elements
of all of the charged crimes.
8
Aside from the question of reviewability, the distinction determines the
remedy that would be available to the defendant should he prevail on his
corpus delicti claim. If the confession testimony were found to have been
improperly admitted, then he would be entitled to a new trial, assuming
that the error was not deemed harmless, whereas a finding that the state’s
evidence was insufficient to sustain a conviction would require his acquittal.
See Burks v. United States, 437 U.S. 1, 16, 98 S. Ct. 2141, 57 L. Ed. 2d 1
(1978); State v. Ferrell, 191 Conn. 37, 46, 463 A.2d 573 (1983).
9
We note that it is not uncommon for substantive rules to have evidentiary
implications as well. See, e.g., Manderson v. Chet Morrison Contractors,
Inc., 666 F.3d 373, 381 (5th Cir. 2012) (collateral source rule ‘‘can apply as
evidentiary rule or as substantive rule of damages, or both’’); Strout v.
Paisley, Docket No. CIV. 00-107-B (MJK), 2000 WL 1900313, *4 (D. Me.
December 4, 2000) (‘‘any rule, whether [common-law] or statutory, may
have both substantive and evidentiary components’’).
10
As we discuss subsequently in this opinion, the nature of the burden
imposed on the prosecution under the corpus delicti rule was later refined
by this court in State v. Tillman, supra, 152 Conn. 20. See part I B 1 of
this opinion.
11
The Appellate Court believed that it was bound by Uretek, notwithstand-
ing our subsequent decision in State v. Farnum, supra, 275 Conn. 26,
because, in State v. Heredia, 139 Conn. App. 319, 325 and n.3, 55 A.3d 598
(2012), cert. denied, 307 Conn. 952, 58 A.3d 975 (2013), a different panel of
the Appellate Court had announced that it would adhere to Uretek until
that decision was expressly overruled by this court. See State v. Leniart,
supra, 166 Conn. App. 161–62.
12
See, e.g., Langevin v. State, supra, 258 P.3d 873; People v. Konrad, 449
Mich. 263, 269, 536 N.W.2d 517 (1995); State v. Jones, 427 S.W.3d 191, 195
(Mo. 2014).
13
We note that McCormick on Evidence favors treating the rule as exclu-
sively substantive. See 1 K. Broun, supra, § 145, p. 805. Other scholars,
however, adopt the hybrid approach. See, e.g., T. Mullen, ‘‘Rule Without
Reason: Requiring Independent Proof of the Corpus Delicti as a Condition
of Admitting an Extrajudicial Confession,’’ 27 U.S.F. L. Rev. 385, 386 and
n.5 (1993).
14
See D. Moran, supra, 64 Ohio St. L.J. 818 (‘‘[t]he corpus delicti rule has
fallen into disfavor in recent decades’’); id., 835 (‘‘the last half of the twentieth
century has produced a distinct trend away from the corpus delicti rule’’
[internal quotation marks omitted]); T. Mullen, supra, 27 U.S.F. L. Rev.
389 (noting modern trend ‘‘reducing the quantum of evidence necessary to
establish the corpus delicti’’); T. Mullen, supra, 418 (‘‘[m]ost courts have
acted with [half measures] to unburden themselves of the corpus delicti
rule’’).
15
Unless otherwise noted, we use the term ‘‘independent evidence’’ to
refer to evidence independent of any purported admissions, confessions,
or related extrajudicial statements of the accused.
16
See T. Mullen, supra, 27 U.S.F. L. Rev. 389 and n.17 (listing Connecticut
as one of only four states to adhere to narrower version of rule); see also
United States v. Woods, 484 F.2d 127, 132 (4th Cir. 1973) (describing this
view as ‘‘ ‘orthodox’ ’’ but noting that it has not found widespread accep-
tance), cert. denied, 415 U.S. 979, 94 S. Ct. 1566, 39 L. Ed. 2d 875 (1974).
17
We note that, although the term corpus delicti, which literally translates
to ‘‘body of the crime,’’ has led to some confusion, it never has been the
rule that a victim’s body must be produced before the state can secure a
murder conviction. See D. Moran, supra, 64 Ohio St. L.J. 828 and n.68; R.
Perkins, ‘‘The Corpus Delicti of Murder,’’ 48 Va. L. Rev. 173, 182 (1962). As
has been long recognized and frequently remarked, such a rule would serve
only to incentivize gangland style murders in which victim’s bodies are
incinerated, dissolved, or dumped in the sea. See Virgin Islands v. Harris,
938 F.2d 401, 415 (3d Cir. 1991) (‘‘[A] murderer should not be entitled to
acquittal simply because he successfully disposes of a victim’s body. That
is one form of success for which society has no reward.’’ [Internal quotation
marks omitted.]); United States v. Gibert, 25 F. Cas. 1287, 1290 (C.C.D.
Mass. 1834) (No. 15,204) (requiring production of body ‘‘would amount to
a universal condonation of all murders committed on the high seas’’).
18
Although the Perry tale apparently boasts sufficient indicia of historical
reliability to not be deemed apocryphal; see P. Clifford, The Campden Won-
der, available at http://www.campdenwonder.plus.com/Sources.htm (last
visited September 4, 2019); details of the story vary from one account to
another. Compare State v. Bishop, 431 S.W.3d 22, 46 (Tenn. 2014), with A.
Howard, Rope: A History of the Hanged (2016) pp. 145–46.
19
M. Sullo, ‘‘Adult Missing Persons in Connecticut: Advocate Says Police
Aren’t Doing Enough,’’ Middletown Press (December 18, 2011), available at
https://www.middletownpress.com/news/article/Adult-missing-persons-in-
Connecticut-Advocate-11876085.php (last visited September 4, 2019).
20
See, e.g., D. Moran, supra, 64 Ohio St. L.J. 818–19.
21
See Miranda v. Arizona, 384 U.S. 436, 471–74, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
22
We recognize that the record contains some troubling testimony and
exhibits regarding James Butler, a former Marine and family friend of the
victim, who claimed to have spoken with the victim at a video rental store
in Virginia, some three years after her disappearance. However, Butler did
not testify at trial, some questions were raised regarding his competence,
and the police were unable to verify key elements of his story. Accordingly,
and in light of the standard of review that governs this claim, we agree with
the Appellate Court that we must assume that the jury declined to credit
Butler’s statement.
23
We caution that the mere fact that more than one witness testifies that
the accused has confessed to a crime is not, by itself, sufficient corroboration
to satisfy the corpus delicti rule. See Wong Sun v. United States, 371 U.S.
471, 489–90 n.15, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); see also United States
v. Northrup, 482 F. Supp. 1032, 1037 (D. Nev. 1980) (‘‘[i]f two admissions,
in and of themselves, are untrustworthy, obviously they cannot be boot-
strapped together to raise each other to the level of trustworthiness’’); State
v. Doucette, supra, 147 Conn. 100 (‘‘[e]ven two positive confessions of guilt,
without independent proof of the corpus delicti, would not be sufficient to
authorize a conviction’’ [internal quotation marks omitted]).
24
We note that the corpus delicti rule, as applied in Connecticut, governs
confessions made to and reported by laypersons as well as law enforcement
officers. See State v. Farnum, supra, 275 Conn. 33 (applying rule where
defendant confessed crime to jailhouse informant); see also 1 K. Broun,
supra, § 145, pp. 807–808. This reflects the fact that false confessions may
result not only from the use of oppressive interrogation tactics by law
enforcement but also from other causes—mental illness, publicity seeking,
etc.—that may lead an individual to falsely confess to family, friends, cell-
mates, or even complete strangers.
25
Because we conclude that exclusion of the videotape was not harmful
error, we need not address the state’s alternative argument that the trial
court also made a reasonable, discretionary determination that the prejudi-
cial impact of the videotape outweighed its probative value.
26
Allain had previously repudiated that confession during his direct exami-
nation.
27
Allain initially testified that he did not recall discussing that subject with
Madden but ultimately acknowledged that, although he could not remember
exactly what Madden had said, he did recall the discussion.
28
Prior to asking Allain to review and verify his prior statements to the
police, for example, Madden instructed him as follows: ‘‘[L]et’s assume worst
case scenario, worst case scenario you go look, [the defendant] was choking
her and I was holding her feet. Not only did I witness him kill her, I helped
restrain her. . . . [A]s long as it comes out prior to, you’re going to pass
the polygraph.’’
29
The state does not dispute that Natapoff qualifies as an expert on
these matters.
30
Shortly after the trial court’s ruling in this case, this court decided State
v. Guilbert, 306 Conn. 218, 257–58, 49 A.3d 705 (2012), in which we held that,
although expert testimony on the reliability of eyewitness identifications is
presumptively admissible where relevant and directly applicable to the facts
and circumstances of a case, a court does not abuse its discretion in preclud-
ing such testimony if cross-examination and focused, informative jury
instructions provide an adequate substitute. We express no opinion as to
whether the rule articulated in Guilbert should apply to expert testimony
regarding the reliability of jailhouse informants.
31
Although we conclude in part III C 2 of this opinion that, to the extent
that Natapoff’s testimony was directly applicable to the present case, it was
not beyond the ken of the average juror, we do not foreclose the possibility
that testimony on the practices and procedures governing criminal informant
testimony in Connecticut could be presumptively admissible under other cir-
cumstances.
32
See, e.g., N. Yarris, The Fear of 13 (Arrow Books 2017) c.4; 60 Minutes:
Informant Says He Was Planted in Orange County Jail To Snitch (CBS tele-
vision broadcast May 21, 2017), available at https://www.cbsnews.com/news/
informant-says-he-was-planted-in-orange-county-jail-to-snitch (last visited Sep-
tember 4, 2019); Frontline: Snitch, How Informants Have Become a Key Part
of Prosecutorial Strategy in the Drug War (PBS television broadcast January
12, 1999), available at https://www.pbs.org/wgbh/pages/frontline/shows/snitch/
etc/script.html (last visited September 4, 2019); G. Cothran, ‘‘Trial by Liar,’’ SF
Weekly, January 14, 1998, available at https://www.sfweekly.com/news/trial-
by-liar (last visited September 4, 2019); R. Reinhold, ‘‘California Shaken over
an Informer: He Shows How To Fabricate a Prisoner’s Confession,’’ N.Y. Times,
February 17, 1989, pp. A1, A17; see also Goldstein v. Long Beach, 715 F.3d
750, 758 (9th Cir. 2013) (referencing 60 Minutes broadcast from 1988).
33
For this reason, among others, we are not persuaded by Justice Palmer’s
attempt to distinguish United States v. Noze, supra, 255 F. Supp. 3d 352.
34
The court instructed the jury as follows: ‘‘In weighing the testimony of
an accomplice who is a self-confessed criminal, you should consider that
fact. It may be that you would not believe a person who has committed a
crime as readily as you would believe a person of good character.
‘‘In weighing the testimony of an accomplice who has not yet been sen-
tenced or whose case has not yet been disposed of or who has not been
charged with offenses in which the state has evidence, you should keep in
mind that he may in his own mind be looking for some favorable treatment
in the sentence or disposition of his own case or hoping not to be arrested.
‘‘Therefore, he may have such an interest in the outcome of this case that
his testimony may have been colored by that fact. Therefore, you must look
with particular care at the testimony of an accomplice and scrutinize it very
carefully before you accept it.
‘‘There are many offenses that are of such a character that the only persons
capable of giving useful testimony are those who are themselves implicated
in the crime. It is for you to decide what credibility you will give to a witness
who has admitted his involvement in criminal wrongdoing; whether you
will believe or disbelieve the testimony of a person who by his own admission
has committed or contributed to the crime charged by the state here. Like
all other questions of credibility, this is a question you must decide based
on all the evidence presented to you.
‘‘Witnesses testified in this case as informants. An informant is someone
who has information regarding the crime and agrees to testify in exchange
for some benefit from the state. In evaluating an informant’s testimony, you
should consider the benefits that the state has promised the informant in
exchange for his cooperation.
‘‘It may be that you would not believe a person who is receiving benefits
in exchange for testimony as well as you might believe other witnesses. An
informant may have such an interest in the outcome of this case that his
testimony may have been colored by that fact.
‘‘Therefore, you must look with particular care at the testimony of an
informant and scrutinize it very carefully before you accept it. You should
determine the credibility of that witness in the light of any motive for
testifying falsely and inculpating the accused.
‘‘If you find that the witness is an informant who has been promised a
reduction in his sentence or other valuable consideration by the state in
return for his testimony or who hopes for or expects consideration by the
state in return for his testimony, you must decide whether you will believe
or disbelieve the testimony of a person who is testifying in exchange for
some benefit from the state. Like all other questions of credibility, this is
a question you must decide based on all the evidence presented to you.’’
35
Because the Appellate Court reversed the defendant’s conviction on
evidentiary grounds, it did not consider various constitutional challenges
that he raised. State v. Leniart, supra, 166 Conn. App. 182 n.28, 212 n.39.
On remand, the Appellate Court will have the opportunity to consider those
claims in the first instance.