concurring. Although I agree with the result reached by the majority, I continue to adhere to the view, expressed in my dissenting opinion in State v. Williamson, 212 Conn. 6, 29-30, 562 A.2d 470 (1989), that “in respect to nonconstitutional rights of an accused . . . he bears the burden of proving prejudice by showing that the outcome of the trial would probably have been different if the nonconstitutional infraction had not occurred.”
In Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988), reh. denied, 488 U.S. 1051, 109 S. Ct. 885, 102 L. Ed. 2d 1007 (1989), a case involving the intentional but not malicious destruction by the police of physical evidence that, if preserved, might have exonerated the defendant, the United States Supreme Court held that, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Similarly, the failure of the police in this case to preserve the tape recordings of the witnesses’ statements, even though it is possible that their contents might have deviated from the testimony at trial, is not a constitutional infringement, but is based wholly upon General Statutes § 54-86b and Practice Book § 752.
Because the failure to preserve the tapes in this case did not violate any constitutional right, we should fol*181low the rule applied to nonconstitutional breaches of a defendant’s right to disclosure. When such a nondisclosure occurs, the defendant bears the burden of showing that the outcome of the trial would probably have been different if the undisclosed evidence had been made available. United States v. Bagley, 473 U.S. 667, 681-82,105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Id., 682. There is no basis for distinguishing in respect to the burden of proving prejudice the failure to disclose tape recordings that might have been helpful to the defense from the nondisclosure of other evidence that the state should have preserved.
Accordingly, I concur in the result.