dissenting. The irritation expressed by the majority over the cavalier attitude shown by the New Haven police department toward our decisions relating to the preservation of the statements of witnesses is understandable, but it does not warrant reversal of the defendant’s robbery conviction or the disregard of heretofore well established principles of harmless error analysis. Although there are some instances in which we are compelled to let the criminal “go free because the constable has blundered”; People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585 (1926); such a result is not justified in this case. This outcome, nevertheless, flows inevitably from this decision, because it is plain that the striking of the complainant’s testimony leaves the defendant’s conviction without a sufficient evidentiary basis and necessitates his acquittal.
I agree with the majority’s rejection in part I of the conclusion by the Appellate Court that the police acted *29in “bad faith” in erasing the tape of the complainant’s testimony after it had been transcribed. The testimony that the loss of the recording resulted from the failure to advise the stenographer of the new departmental policy of preserving the tape adequately supports the trial court’s finding that its erasure was inadvertent rather than intentional.
In part II A the majority concludes that the state should bear the burden of showing harmlessness, apparently because “the state has conceded that the Appellate Court was correct in holding that, because the New Haven police department deliberately destroyed the Epps tape, the state should be required to show that the nonproduction of the tape was harmless.” (Emphasis added.) Having concluded in part I that the destruction of the tape was inadvertent and had resulted from the failure to inform the stenographer of the new policy, the declaration in part IIA that the tape was “deliberately destroyed” by the police is wholly inconsistent with part I. This court is not bound by the state’s concession, especially when it is contrary to a conclusion reached by a trial court. State v. Heinz, 193 Conn. 612, 616, 480 A.2d 452 (1984). The majority, however, despite rejection of the “bad faith” conclusion of the Appellate Court, accepts its characterization of the destruction of the tapes as “deliberate,” when the testimony is undisputed that it resulted from the failure to inform the stenographer to preserve the tape. As the opinion concedes, an inadvertent failure to preserve a statement discoverable under the Jencks Act leaves the burden of proving prejudice on the defendant.
As the majority recognizes, a Jencks Act violation is not a violation of a constitutional right. A failure to comply with Practice Book § 752 is of no greater import. The rule we have followed in respect to non-constitutional rights of an accused is that he bears the burden of proving prejudice by showing that the out*30come of the trial would probably have been different if the nonconstitutional infraction had not occurred. I see no reason to reverse the standard allocation of the burden of proving prejudice in this instance of a non-constitutional deviation from the procedure we have prescribed for the preservation of the statement of a witness.
Even if the burden of disproving prejudice were properly to be imposed upon the state, the circumstances of this case demonstrate that the burden has been adequately sustained. The possibility that there is some significant discrepancy between the complainant’s account of the robbery as recorded on the tape and the transcript thereof made by the stenographer is quite remote according to common experience. The complainant testified that the transcript was accurate. Although the opinion refers to inconsistencies between the testimony of the complainant at trial and statements she made to the police, including the transcript of her statement to officer Epps, none of these involve her identification of the defendant or her contention that he had robbed her. The defendant admitted that he had conversed with the complainant in the building where and at the time when the robbery was claimed to have occurred. His testimony was that the complainant, apparently so enamored of him that she sought to arrange a rendezvous with him at her sister’s home, was so offended by his spurning her overture that she was avenging herself by seeking his arrest. That fanciful explanation of the complainant’s motivation for prosecuting the defendant was rejected by the jury in finding him guilty. It is wholly speculative to assume, as the majority does, that some further inconsistency in the details of the complainant’s account of the robbery would have lent sufficient credibility to the defendant’s testimony to have raised a reasonable doubt in the minds of the jurors.
Accordingly, I dissent.