dissenting. With today’s decision, this court continues its assault on habeas corpus, the Great Writ of liberty.1 Today’s attack takes the form of imposing an impossibly high standard on a petitioner who seeks a new trial based on evidence that he or she is actually innocent of the crime. I believe that, in imposing such a standard, the majority departs dramatically from our established jurisprudence.
Although the majority purports to leave the issue of the appropriate standard unresolved because they claim that the petitioner could not meet any acceptable standard,2 it is clear to me that they are setting the stage *442for adoption of the standard set forth by a majority of the United States Supreme Court in Herrera v. Collins, U.S. , 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993). Writing for a majority of the court in Herrera, Chief Justice Rehnquist indicated that in order to be entitled to relief, a habeas petitioner claiming actual innocence would have to make a “truly persuasive demonstration of ‘actual innocence,’ ” and that “the threshold showing . . . would necessarily be extraordinarily high.” Id., 869. Although not fully defined, the standard suggested by Chief Justice Rehnquist and embraced by the majority in this case implies that an absolute certainty of innocence is required.
This standard is simply absurd. If a petitioner could provide evidence so overwhelming that no rational person could continue to believe that he or she were guilty of the crime, then a new trial would not even be necessary. Furthermore, such a standard is inappropriate for state habeas proceedings. As Chief Justice Rehnquist explained in Herrera, in determining the appropriate scope of federal habeas review, the federal courts are limited by federalism concerns and by the traditional deference paid to the states in matters of criminal process. Id., 860-61, 864. Therefore, a claim of actual innocence based on newly discovered evidence is not a ground for federal habeas relief “absent an independent constitutional violation occurring in the underlying state criminal proceeding”; id., 860; because “[fjederal courts are not forums in which to relitigate state trials.” (Emphasis added; internal quotation marks omitted.) Id., 861. According to Chief Justice Rehnquist, the federal courts do not have jurisdiction to grant habeas relief for a claim of actual innocence unless the evidence of innocence is so overwhelming that it would be unconstitutional not to grant the petitioner a new trial. Id., 869. State courts face no such limitation.
*443Although a majority of the United States Supreme Court has adopted strict standards for habeas review that demean our federal charter of liberty, state courts need not and should not go down this same path. This court clearly is not limited by federalism concerns in considering the scope of review that should be afforded to petitioners who have been convicted in our own state courts. Indeed, the applicable statute commands that habeas cases must be disposed of “as law and justice require.” General Statutes § 52-470 (a). The impossibly high standard suggested by the Herrera majority for federal habeas review of state court convictions is inconsistent with the statutory mandate that justice be done.
I recognize that the issuance of a writ of habeas corpus carries with it certain costs. I agree with the majority that it can undermine the societal interest in the finality of judgments, and can make it difficult to retry a person because of the passage of time. A democratic society such as ours, however, has an important interest in assuring that innocent persons are not put to death or deprived of their liberty. That assurance is, quite simply, what the writ of habeas corpus is all about. The Great Writ “cuts through all forms and goes to the very tissue of the structure. It comes in from the outside, not in subordination to the proceedings, and although every form may have been preserved opens the inquiry whether they have been more than an empty shell.” Frank v. Mangum, 237 U.S. 309, 346, 35 S. Ct. 582, 59 L. Ed. 969 (1915) (Holmes, J., dissenting). In Bunkley v. Commissioner of Correction, 222 Conn. 444, 460-61, 610 A.2d 598 (1992), this court held that the writ “is to serve as a bulwark against convictions that violate fundamental fairness” or involve a “miscarriage of justice.” (Internal quotation marks omitted.) Today’s decision reduces this great bulwark to a sieve.
*444I believe that, when considering a petitioner’s claim that he or she is actually innocent based on evidence not offered at trial, the standard suggested by Justice Blackmun (joined by Justices Stevens and Souter) in Herrera charts a course that both protects society’s interests and is consistent with the purpose of habeas corpus. “I think the standard for relief on the merits of an actual-innocence claim must be higher than the threshold standard for merely reaching that claim or any other claim that has been procedurally defaulted or is successive or abusive. I would hold that, to obtain relief on a claim of actual innocence, the petitioner must show that he probably is innocent.” (Emphasis added.) Herrera v. Collins, supra, 113 S. Ct. 882 (Blackmun, J., dissenting); see also Jones v. State, 591 So. 2d 911, 915 (Fla. 1991) (habeas petitioner entitled to relief if new evidence would probably produce an acquittal on retrial); H. Friendly, “Is Innocence Irrelevant? Collateral Attack on Criminal Judgments,” 38 U. Chi. L. Rev. 142, 160 (1970) (habeas petitioner should be required to “show a fair probability that, in light of all the evidence, including . . . evidence tenably claimed ... to have become available only after the trial, the trier of the facts would have entertained a reasonable doubt of his guilt”). The majority of this court, in rejecting this standard, denies new trials to petitioners who are “probably innocent.”
In considering a petitioner’s request for a new trial, we have always used the standard that there must be a reasonable probability that he or she would be acquitted if retried. See Bunkley v. Commissioner of Correction, supra, 222 Conn. 457, 465. The majority distinguishes Bunkley because the petition in that case was based on a claim of ineffective assistance of counsel. Nevertheless, if a petitioner is successful on the claim of ineffective assistance of counsel, it results in a new trial. Retrying such a case poses the same “stale *445evidence” problems to the state that a new trial based on a claim of actual innocence would involve. Furthermore, the majority claims that the “reasonable probability” claim was appropriate in Bunkley but not in the present case because in Bunkley, the ineffectiveness of counsel constituted “a breakdown of the traditional adversarial process on which we rely to produce just results.”3 If, however, a probably innocent person has been convicted, then there has been a breakdown of the adversarial process, regardless of whether there exists a specific constitutional violation to blame for the breakdown.
Similarly, the majority rejects the standard applied in reviewing a petition for a new trial based on newly discovered evidence—i.e., “whether it is probable that on a new trial a different result would be reached.” Taborsky v. State, 142 Conn. 619, 623, 116 A.2d 433 (1955). The majority claims that it would be inappropriate to “transplant” this standard “to a habeas corpus petition based on a claim of actual innocence” because the petition for a new trial must be brought within three years after the judgment, whereas a habeas petition may be brought at any time. Thus, they conclude, “[t]he petitioner who thinks that there is newly discovered evidence sufficient to overturn his verdict would have no incentive to bring that evidence before the court within the three year limitations period . . . .” (Emphasis added.) This argument ignores the fact that *446the petitioner is in jail, and therefore has a strong incentive to bring the evidence of his or her probable innocence before the court as quickly as possible.
Even if this court rejects the “probably innocent” standard for a new trial, we should, at the very least, order a new hearing. As the Appellate Court pointed out, the habeas court failed to consider the petitioner’s actual innocence claim under any standard because it believed that a new trial based on sufficiency of the evidence was not available in a habeas proceeding.4 Summerville v. Warden, 29 Conn. App. 162, 177, 614 A.2d 842 (1992).
Furthermore, I believe that under any standard— whether it requires a showing of probable innocence or a truly persuasive demonstration of actual innocence— the petitioner in all probability would be entitled to a new trial. I agree with the Appellate Court that “[t]he additional evidence brought forth by the petitioner, if found to be such that a jury might reasonably credit, indicates that the petitioner’s conviction was based on a scientific improbability, if not an impossibility.” Summerville v. Warden, supra, 29 Conn. App. 179. The findings and conclusions of Mark Taff, a forensic pathologist, undermine the state’s position that the damage done to the victim’s body was caused by manual strangulation. Furthermore, his findings hurt the credibility of the state’s witness. For example, Taff testified at the habeas hearing that the hemorrhages found in the victim’s left eye could not have been caused by strangulation, because strangulation would have caused hemorrhaging in both eyes and no hemorrhages were found in the right eye. He also testified that the absence of hemorrhaging in the area of the hyoid bone means *447that it could not have been broken before death as a result of strangulation. Nevertheless, the majority invades the province of the habeas court by finding facts and weighing the evidence, and concluding as a matter of law that the proffered evidence is insufficient to satisfy its standardless standard for granting a new trial.
When the liberty or life of a person is at stake, the Great Writ must be given adequate breathing room so that justice may be done. In advocating a relaxation of the requirements for habeas review of a claim that has been procedurally defaulted at trial or on direct appeal, Connecticut Supreme Court Justice David Shea wrote the following: “ [Principles of comity and finality .. . must yield to the imperative of correcting a fundamentally unjust incarceration. Accordingly . . . where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default. . . . This court in exercising its habeas corpus jurisdiction should do no less. The very nature of the writ demands that it be administered with the initiative and flexibility to insure that miscarriages of justice within its reach are surfaced and corrected. . . . Courts ought not to suffocate the writ in stifling formalisms or hobble its effectiveness with the manacles of arcane and scholastic procedural requirements.” (Citations omitted; emphasis added; internal quotation marks omitted.) Valeriano v. Bronson, 209 Conn. 75, 97, 546 A.2d 1380 (1988) (Shea, J., concurring).
I respectfully dissent.
The majority claims in footnote 25 of their opinion that they are not attempting to undermine the writ of habeas corpus. The record, however, speaks for itself. See Carpenter v. Meachum, 229 Conn. 193, 206-207, 640 A.2d 591 (1994) (Berdon, J., dissenting) (discussing several recent cases that have undermined the writ).
It is undisputed that the writ of habeas corpus had a narrower function in the days of the Magna Charta and, indeed, in 1818 when the writ was enshrined in our state constitution. Nevertheless, I hope the majority is not suggesting that we return to the dark ages of our jurisprudence to determine the level of individual rights that should be afforded as we enter the twenty-first century. Connecticut Supreme Court Justice Arthur Healey’s words concerning our state constitution are equally applicable to the writ of habeas corpus: “Constitutional provisions must be interpreted within the context of the times. . . . The Connecticut constitution is an instrument of progress, it is intended to stand for a great length of time and should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness for all of our citizens.” State v. Dukes, 209 Conn. 98, 115, 547 A.2d 10 (1988).
Of course, by purporting not to adopt any particular standard this court leaves our trial courts without- guidance in future cases. More importantly, it could leave a petitioner claiming actual innocence without a remedy. Recently, in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and Carpenter v. Meachum, 229 Conn. 193, 640 A.2d 591 (1994), this court stripped habeas petitioners of the absolute right to appeal from habeas proceedings via a writ of error. Therefore, a future petitioner whose claim of actual innocence is rejected by the habeas court will not necessarily be able to obtain appellate review of whatever standard was used. If this court is going to deny appellate, review as of right to habeas petitioners, we must, at the very least, provide the trial courts with clear standards for evaluating habeas claims.
The majority’s refusal to adopt the Bunkley standard based on this distinction is inconsistent with its holding that a habeas petitioner’s claim of actual innocence is cognizable in the absence of an antecedent constitutional violation that affected the fairness of the trial. The majority uses the lack of an antecedent constitutional violation to raise the standard from Bunkley’s reasonable probability of acquittal on retrial to Herrera’s absolute certainty of innocence. This is tantamount to requiring an antecedent constitutional violation as a prerequisite to habeas review of an actual innocence claim.
The trial court stated in its memorandum of decision that it “is not for a habeas court to . . . ‘inquire into the sufficiency of the evidence’” to determine whether a new trial is warranted.