dissenting.
I
The majority refuses to review whether under our state constitution the prosecution is required to prove beyond a reasonable doubt that the defendant’s confession was voluntary because (1) he did not preserve the claim before the trial court, and (2) there is an insufficient record to review the claim under the Gold*697ing doctrine.1 The majority confuses preservation with adequacy of the record. Although I agree that the defendant did not preserve this claim in the trial court, I believe there is an adequate record to review it. Whether voluntariness of the confession must be proved beyond a reasonable doubt is an isolated question of state constitutional law. The fact that the defendant’s confession was admitted into evidence against him at trial despite his motion to suppress it as involuntary provides an adequate record for review of this abstract legal issue. If the defendant had raised this claim in the trial court and the court had rejected it and applied the preponderance standard in determining voluntariness, we would clearly be bound to review the claim on appeal, and the record would be adequate to do so. In this case, we are presented with exactly the same record for review of the defendant’s claim. The only difference is that the defendant did not preserve the claim, but that is the purpose for having the Golding doctrine. Therefore, I consider the record adequate and would review this unpreserved constitutional claim under Golding.
A majority of the United States Supreme Court has held that, under the fifth amendment to the federal constitution, the state need prove the voluntariness of a confession by a fair preponderance of the evidence only. Lego v. Twomey, 404 U.S. 477, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972). Nevertheless, the majority in Lego remarked that “the States are free, pursuant to their own law, to adopt a higher standard. They may indeed differ as to the appropriate resolution of the values they find at stake.” Id., 489. Furthermore, “[i]t is well established that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protec*698tion for such rights. . . . Cologne v. Westfarms Associates, 192 Conn. 48, 57, 469 A.2d 1201 (1984). State v. Barton, 219 Conn. 529, 546, 594 A.2d 917 (1991).” (Internal quotation marks omitted.) State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225 (1992).
The right to have the involuntary confession excluded, under the state constitution, is embraced in the following constitutional clause: “No person shall be compelled to give evidence against himself . . . .” Conn. Const., art. I, § 8 (1965). This clause is virtually identical to the one that appeared in our first formal constitution of 1818; Conn. Const., art. I, § 9 (1818); and that of the federal constitution. U.S. Const., amend. V. “What is thereby protected from governmental invasion is, quite simply, ‘the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will.’ Malloy v. Hogan, [378 U.S. 1, 8, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964)]. Hence, a confession is involuntary and inadmissible unless it is ‘the product of a rational intellect and a free will.’ Blackburn v. Alabama, 361 U.S. 199, 208 [80 S. Ct. 274, 4 L. Ed. 2d 242] (1960) . . . .” Lego v. Twomey, supra, 491 (Brennan, J., dissenting).
The value the framers of our state constitution placed on the right to remain silent is evident and important in determining the contours of the state constitutional protection. State v. Geisler, supra, 685. Zephaniah Swift, a leading jurist at the time of the adoption of our constitution of 1818, wrote in his treatise on the law that “the confession must be perfectly voluntary: for if the least degree of influence appear to be exercised over the prisoner’s mind, to induce him to disclose his guilt, the whole will be rejected.” (Emphasis added.) 2 Z. Swift, A Digest of the Laws of the State of Connecticut (1823) p. 408. Justice Swift also pointed out in his treatise on evidence that voluntary confessions “are deemed to be the most *699conclusive evidence . . . .” Z. Swift, A Digest on the Law of Evidence (1810) p. 133. He also noted, however, that “[t]here is, perhaps, no part of evidence in which there is so much misrepresentation and fabrication, as in testifying to the confession of a party.” Id., p. 149.
Common law precedent also leads me to the conclusion that our state constitution requires a higher standard of proof of voluntariness of a confession. E. Peters, “Common Law Antecedents of Constitutional Law in Connecticut,” 53 Alb. L. Rev. 259, 263 (1989). Blackstone, in formally soaping the contours of our common law, wrote: “[I]ndeed, even in cases of felony at the common law, [confessions] are the weakest and most suspicious of all testimony; ever liable to be obtained by artifice, false hopes, promises of favor, or menaces; seldom remembered accurately, or reported with due precision; and incapable in their nature of being disproved by other negative evidence.” 4 W. Blackstone, Commentaries on the Laws of England (1807) p. 357.
My conclusion that voluntariness of an accused’s confession must be proven beyond a reasonable doubt is one that has been reached by numerous courts throughout the nation. See, e.g., People v. Dingle, 174 Cal. App. 3d 21, 219 Cal. Rptr. 707 (1985); Taylor v. State, 479 N.E.2d 1310 (Ind. 1985); State v. Nuccio, 454 So. 2d 93 (La. 1984); State v. Collins, 297 A.2d 620 (Me. 1972); Commonwealth v. Mandile, 397 Mass. 410, 492 N.E.2d 74 (1986); Jones v. State, 461 So. 2d 686 (Miss. 1984); State v. Phinney, 117 N.H. 145, 370 A.2d 1153 (1977); People v. Tucker, 101 App. Div. 2d 601, 475 N.Y.S.2d 151 (1984); State v. Hintz, 318 N.W.2d 915 (S.D. 1982).
Justice Brennan, writing for the dissenters in the four to three Lego decision, makes a powerful argument for requiring proof beyond a reasonable doubt. “The standard of proof required for a criminal conviction presents *700a similar situation, yet we have held that guilt must be established by proof beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361-64 [90 S. Ct. 1068, 25 L. Ed. 2d 368] (1970); see id., at 370-372 (Harlan, J., concurring). Permitting proof by a preponderance of the evidence would necessarily result in the conviction of more defendants who are in fact innocent. Conversely, imposing the burden of proof beyond a reasonable doubt means that more defendants who are in fact guilty are found innocent. It seems to me that the same considerations that demand the reasonable-doubt standard when guilt or innocence is at stake also demand that standard when the question is the admissibility of an allegedly involuntary confession.
“We permit proof by a preponderance of the evidence in civil litigation because ‘we view it as no more serious in general for there to be an erroneous verdict in the defendant's favor than for there to be an erroneous verdict in the plaintiffs favor.’ Id., at 371. (Harlan, J., concurring). We do not take that view in criminal cases. We said in Winship that the reasonable-doubt standard ‘is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence . . . .’ Id., at 363. As Mr. Justice Harlan put it in his concurring opinion, the requirement of proof beyond a reasonable doubt is ‘bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.’ Id., at 372.
“If we permit the prosecution to prove by a preponderance of the evidence that a confession was voluntary, then, to paraphrase Mr. Justice Harlan, we must be prepared to justify the view that it is no more serious in general to admit involuntary confessions than it is to exclude voluntary confessions. I am not prepared to justify that view. Compelled self-incrimination is so *701alien to the American sense of justice that I see no way that such a view could ever be justified. If we are to provide ‘concrete substance’ for the command of the Fifth Amendment that no person shall be compelled to condemn himself, we must insist, as we do at the trial of guilt or innocence, that the prosecution prove that the defendant’s confession was voluntary beyond a reasonable doubt.” Lego v. Twomey, supra, 493-94 (Brennan, J., dissenting).
Indeed, even under the best of circumstances, the suspect nature of a confession requires this higher standard of proof. “Confessions are usually obtained in the psychological atmosphere of police custody and in the greatest secrecy in which the cards can be stacked against the accused. He has no means of combating the evidence produced by the police save by his own testimony. The stakes are too high and the risk of error too great to permit a determination of admissibility to be decided by a balance of probabilities.” State v. Phinney, supra, 147.
Accordingly, I would find that the state constitutional right not to be compelled to give evidence against oneself requires proof beyond a reasonable doubt that the confession was voluntarily made before it can be admitted into evidence. I would, therefore, remand this case to the trial court for a determination of whether the confession was voluntary beyond a reasonable doubt. If it was not, there should be a new trial.2 See id.
*702II
Failing to give so much as an admonition to the trial court, the majority implicitly continues to give its blessing to the jury instruction that “the law is made to protect society and innocent persons and not to protect guilty ones.” This jury instruction was subsequently underscored in this case when the trial court again stated: “In summary, and to remind you of your obligation, it is the sworn duty of courts and jurors to safeguard the rights of persons charged with crime by respecting the presumption of innocence which the law imputes to every person so charged. But as I said, the law is made to protect society and innocent persons and not to protect guilty ones.”
The Second Circuit Court of Appeals viewed similar language with disfavor when a prosecutor argued to the jury that the fifth amendment “was a ‘protection for the innocent’ and not ‘a shield’ for ‘the guilty,’ ” and reversed a conviction from our state court in Floyd v. Meachum, 907 F.2d 347, 354 (2d Cir. 1990). The remarks by the prosecution in Floyd and those made by the trial judge in this case both violated the accused’s constitutional due process right by diluting the state’s burden of proof. “The heavy burden of proof that the United States Constitution, as interpreted by the [United States] Supreme Court, imposes on the prosecution means that the guilty will sometimes go free. . . . [C]onstitutional rights are not conditioned on guilt or innocence and [t]he requirement of proof *703beyond a reasonable doubt for a conviction is neither a sword, nor a shield, but a necessary element of proof placed solely upon the prosecution. . . . The prosecutor’s statements, if taken literally, would mean that a guilty person could never be acquitted on the basis of the presumption of innocence, and as a result of these misstatements, the jurors may have thought they were free to convict [the defendant] if they somehow felt or suspected he was guilty even if they were not convinced beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) Id.
There is, however, a significant difference between what transpired in Floyd and what happened in this case. The instructions in this case are more egregious because they were given by the trial judge. A prosecutor’s remarks are ordinarily less prejudicial than similar ones made by the trial judge. Mahorney v. Wallman, 917 F.2d 469, 473 n.4 (10th Cir. 1990); see also State v. Fernandez, 198 Conn. 1, 12, 501 A.2d 1195 (1985).
By refusing at least to indicate our disapproval of language in the instruction that implicates the right to the presumption of innocence, we encourage the continued use of this practice. Indeed, I take judicial notice that the language I find to be offensive in these jury instructions has been in common use for at least the last two decades that I sat on the trial bench. It is time to say “no more.”
Accordingly, I dissent.
State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).
Although the defendant had raised the state constitutional claim in his motion to suppress, he had failed to claim specifically that the state was required to prove that the confession was voluntary beyond a reasonable doubt. Is the majority now holding in its footnote 9 that, even if the defendant had raised the claim with sufficient specificity in regard to the burden of proof, and even if he had properly preserved this claim at trial, the defendant would still not prevail because he had failed to file a request for an articulation on whether the state had met the higher burden of proof? Instead of creating new hoops for the defendant to jump through in order to obtain review of his rights under the constitution, we should remand *702the case to the trial court for a determination of whether the confession would be admissible upon a showing that the confession was freely given beyond a reasonable doubt. If it would not be admissible under this higher burden of proof, then there should be a new trial. State v. Phinney, 117 N.H. 145, 370 A.2d 1153 (1977). The majority’s new requirement for appellate review will preclude many constitutional claims from being reviewed. Accordingly, I strongly disagree.