concurring. I agree with the conclusion of the majority opinion, and with much of its reasoning. More specifically, I agree that the bad faith of the police, in failing to preserve potentially exculpatory evidence, is not the sole determinant as to whether the defendant’s right to due process of law under article *731first, § 8, of our state constitution has been violated by that failure. Thus, for the reasons aptly stated by the majority, I agree with the majority’s rejection of the federal constitutional bad faith test, as articulated by the United States Supreme Court in Arizona v. Youngblood, 488 U.S. 51, 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), and with the adoption of the balancing test under the state constitution, as articulated by the majority. I write separately, however, to elaborate further some aspects of the majority opinion. Also, with respect to part II of the majority opinion, I think that the discussion of the possible remedies once a due process violation is found to have occurred in a specific case requires more than the majority provides.
I
I believe that the majority’s statement of the relevant facts is unduly truncated. Because the balancing test we adopt requires an assessment of the strength or weakness of the state’s and the defendant’s cases, the majority opinion should disclose all of the evidence on the basis of which that assessment should be made. In addition to those facts stated by the majority, I therefore add the following.
The only evidence linking the defendant to the crimes charged was the testimony of the victim identifying him as her assailant. According to that testimony, she had several opportunities to view the defendant. The first was at the phone booth, where he first approached and conversed with her. The second was as she was walking on the street and he was following her; she looked at him face to face as he was “across the street” from her while she walked in the middle of the road. The third was when, according to her testimony, he punched her in the mouth before sexually assaulting her. The *732fourth was shortly after the attack, while she was in a car being driven by her girlfriend’s husband, who had been passing by and picked her up and drove her to the police station. The fifth was some time after the assault, when, according to her testimony, she was riding on a bus and saw the defendant on the sidewalk; the victim was with her boyfriend, but told him not to accost the defendant, to “just leave it alone.” The sixth was at the time of the defendant’s arrest, when she saw the defendant on the corner of Stratford Avenue and East Main Street, as described by the majority.
The victim positively identified the defendant in the courtroom as her assailant. Furthermore, in her written statement to the police on the day after the assault, she described the defendant as follows: “He was P/R [Puerto Rican] male about 30 or 31 years old about 5 [feet] 7 [inches] tall [medium] build, he had brown eyes and brown hair. His hair was curly and short to his head. He was top heavy and had skinny legs. He had a mustache that came below his top lip. He had short stubby hands and his nails were all black like he was a mechanic, his finger nails were all covered with grease. He had a wedding band on his left hand that was diamond cut and it had three stars in it. His front teeth were straight but he had like a fang in the middle of the front teeth.” (Emphasis added.) Her testimony was consistent with this description. She described the defendant’s tooth as “like a fang. It was like it came in the middle of his mouth, straight down in the middle of his two front teeth.” A photograph of the defendant, taken on March 8, 1991, is consistent with this description, particularly indicating a mustache that falls below the outer edges of the defendant’s lips, and a distinctively pointed tooth in the center between his two top teeth. The victim identified this photograph *733as indicating what she meant by her description of the defendant’s front tooth.1
On the other side of the ledger, the victim’s credibility was not unassailable. She had been convicted of failure to appear in the first degree, larceny in the second degree, larceny in the first degree and larceny in an unspecified degree. Furthermore, before encountering the defendant, she had been drinking in a bar for approximately three and one-half hours, and had consumed five or more drinks consisting of “forty-three liquor and milk.” Although she denied being drunk, she admitted that she was “feeling good.”
There were, moreover, some inconsistencies in her testimony. Although she testified that she had never seen the defendant before, she told the police in her statement that, when he had approached her at the phone booth he had told her his name, that he knew her father, and that he knew that her father had been shot, which was in fact true. Also, although she testified that the defendant had punched her in the mouth, causing “bad” bleeding, the hospital report did not confirm that injury. Furthermore, although she testified that the defendant had penetrated her anally, and not vaginally, and had described the assault that way to both the police and the examining physician, the nurse’s notes also indicated her having reported a vaginal penetration.2
*734Ultimately, the trial court, having heard all of the evidence, believed the victim’s identification of the defendant. In finding that the state had proven “beyond a reasonable doubt . . . that the defendant was responsible for the attack,” the court stated: “Her description was a very accurate and detailed one. There was plenty of opportunity, both outside the restaurant, at the phone booth and subsequently, for her to have seen this individual. The court heard her testimony, watched her as she identified the defendant very, very quickly and very adamantly as the person that was responsible.”
II
In footnote 7 of the majority opinion, the court correctly rejects the state’s argument that the defendant’s failure to seek inspection of the victim’s jacket reflected a total pretrial indifference by the defendant to the possible inspection and testing of any stains on the jacket. As it stands, however, the footnote ignores a valid consideration on the other side of the equation that ought to be mentioned, a factor that the trial court in fact did take into consideration in denying the defendant’s motion to dismiss.
The police returned the jacket to the victim on February 13, 1991, approximately one month before the defendant was arrested on March 11, 1991. A public defender was appointed to represent the defendant at his arraignment on that day.3 The defendant, however, did not take any procedural step specifically regarding the jacket until he moved to dismiss the state’s case at the end of the state’s presentation of evidence at trial on April 27, 1992, more than one year later.
*735Thus, although the state is properly faulted for returning the jacket to the victim, the defendant is not entirely without fault. It is at least possible that, had the defendant asked for the return of the jacket for testing as early as March, 1991, when the defendant was arrested and counsel was appointed to represent him, or, at the latest, in February, 1992, when his special public defender was appointed, the jacket could then have been retrieved from the victim. If the jacket had not been cleaned or otherwise irreparably contaminated, at that time it could have been tested for the presence of semen and for any forensic evidence that any semen would have yielded. My point is that, although certainly the greater fault is attributable to the state for the unavailability of the jacket, some fault may be attributable to the defendant.
Ill
In analyzing the issue before the court under the state constitution, the majority opinion cites and quotes from Chief Justice Zephaniah Swift, presumably as support for the “historical approach” that we have identified as a tool of analysis for interpreting our state constitution. See footnote 13 of the majority opinion; State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992). I agree that the historical approach is one of the applicable tools of analysis for such questions of interpretation, when that history sheds light on the constitutional question involved. I also agree that Chief Justice Swift’s writing can at times be a useful source for that inquiry. I decline to join the part of the majority opinion referring to Swift in this case, however, because the particular passage from Swift has nothing to do with the question of state constitutional law that this case poses.
In the passage that the majority quotes, Swift pointed out that Connecticut had wisely expanded counsel’s role *736from arguing points of law to include the investigation and presentation of facts. That is an important historical point with respect to the history of the right to counsel in this state, but I fail to see how that expansion of counsel’s role sheds any historical light on the question before us in this case, namely, the contours of the state’s obligation to preserve important evidence. It is true that both the expanded right to counsel and the preservation of evidence—by anyone, the state, the defendant, or a third party—aid in the search for truth. The same is true, however, for the rules of evidence, the right to cross-examine, the right to argue to the jury, and most other trial procedures. The fact that both the right to counsel and the obligation to preserve evidence serve the same general end does not mean that we can draw any useful historical lesson in this case from the writings of Chief Justice Swift.
IV
I decline to join the majority’s overly broad statement that “as the United States Supreme Court observed in Brady v. Maryland, [373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)], a court that truly seeks justice ought not to be concerned about the punishment of society for the misdeed of its agents and employees, but rather the ‘avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.’ ” (Emphasis added.) I fully agree with the propositions that courts must ensure that an accused is given a fair trial, that society wins when criminal trials are fair, regardless of their outcomes, and that justice suffers when an accused is treated unfairly. I am not quite sure, however, what it means to say that “a court that truly seeks justice ought not to be concerned about the punishment of society” for its agents’ *737misdeeds. It seems to me to be a rhetorical flourish that is open to many interpretations, from the benign to the mischievous.
Furthermore, whatever it means, it is not what the United States Supreme Court “observed” in Brady. The court was discussing its holding that suppression of material exculpatory evidence that the defendant had sought to discover violated his due process rights. The court had drawn this holding from its earlier decision in Mooney v. Holohan, 294 U.S. 103, 112, 55 S. Ct. 340, 79 L. Ed. 791 (1935), and the progeny of that decision. In Mooney, the court reversed a conviction that had been based on knowingly perjured testimony, and in Brady the court was analogizing those cases to its holding regarding the suppression of exculpatory evidence, regardless of the good faith of the prosecution. The court then stated: “The principle of Mooney v. Holohan [supra] is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.” Brady v. Maryland, supra, 373 U.S. 87.1 agree fully with this principle, but I disagree that it means what it is characterized to say in the majority opinion.
Finally, those statements in Brady were made in a different factual and legal context from this case. The Brady situation involves the suppression of exculpatory evidence. In that situation, we know that: (1) the evidence was suppressed—the state had it, and did not make it available to the defendant despite his request therefor; and (2) the evidence was in fact exculpatory, and the state knew it. In this case, by contrast: (1) the evidence was not suppressed, but was negligently given back to the victim by the state, and thus was just as *738unavailable to the state as it was to the defendant; (2) the nature of the state’s conduct, in the sense of whether it was done in good or bad faith, in losing the evidence is a factor to be weighed; and (3) we do not know, and can never know, whether the evidence was exculpatory or inculpatory—whether tests of the semen stains on the jacket would have exculpated or inculpated the defendant. Thus, we have no way of knowing whether the return of the jacket to the victim hurt the defendant or the state. I therefore think that the majority’s rhetorical flourish, which mischaracterizes the Brady court’s “observation,” is inappropriate, and I decline to join it.
V
My final remarks concern part II of the majority opinion, which is devoted to the remedies available to the trial court upon a conclusion that the state’s failure to preserve evidence amounted to a violation of the defendant’s due process rights. I think that some of the majority’s discussion warrants further elaboration.
A
I agree with the majority opinion that a trial court, having determined on a motion to dismiss or a motion to suppress that the state’s failure to preserve evidence violated the defendant’s due process rights, is not limited to the specific remedy sought by the defendant. I think, however, that the proposition is too broadly stated by the majority, because it implies that, even absent some suggestion by the defendant, the trial court has a sua sponte obligation to consider a remedy other than that sought by the defendant. I agree that, if a trial court does think of a different remedy than that sought by the defendant, it certainly has the power to impose it. I am loathe to imply, however, that a trial court, faced with a specific remedy sought in a specific motion, cannot also simply take the motion as presented *739and either grant or deny it. This point is particularly significant in this case because, when the defendant moved to dismiss after the state’s presentation of all of its evidence he asked only for dismissal, and did not ask for any other, less extreme sanction. He had not moved to suppress any evidence based on the loss of the jacket, and he did not request the court to employ the less drastic remedy of an adverse inference against the state in the court’s final determination of guilt or innocence. Thus, the trial court was never presented with a request to do anything but dismiss the case.
B
I also agree with the majority opinion that the appropriate remedy is a matter for the trial court in the first instance, and that the ultimate test is: “What remedy best serves the interests of justice?” Since we are, appropriately in my view, giving guidance to the trial courts regarding this issue, however, I would also suggest that the available remedies fall on a spectrum. At the least drastic end of the spectrum would be a remedy or combination of remedies such as affording the defendant unusually broad latitude on cross-examination, or employing an adverse inference against the state, or both. See, e.g., State v. Marra, 222 Conn. 506, 515-16, 610 A.2d 1113 (1992). Another, more severe, remedy would be the suppression of some or all of the other evidence that the defendant was arguably hampered in challenging as a result of the loss of the evidence. The most drastic remedy would be dismissal of the prosecution. There could, of course, be other remedies, or combinations thereof, at different points along the spectrum.
With respect to the remedy of dismissal, I would make it clear that, because it is the most drastic remedy available, it ought to be reserved for those cases in which no lesser remedy can plausibly vindicate the *740defendant’s right to a fair trial. We have referred to dismissal of the prosecution as a drastic remedy. State v. Bergin, 214 Conn. 657, 662, 574 A.2d 164 (1990). Although I agree that there may be cases in which dismissal of the prosecution would be the only appropriate remedy for the violation of the defendant’s due process rights, I would reserve that most drastic remedy for the most drastic and prejudicial violations.
This principle is particularly important in a case such as this because we are dealing with the unknowable. We can never know whether the loss of the evidence, the jacket in this case, in fact harmed the defendant or helped him. This is so because, as plausible as it is that forensic tests on the jacket could have exonerated him, it is equally plausible that they could have inculpated him. Thus, the trial court, in dismissing the case, would be dismissing a case in which the fact finder could have found the defendant guilty beyond a reasonable doubt based on the evidence that was available. Indeed, in the case at hand, the trial court found precisely that.
In final argument to the trial court, which was the fact finder in this case, the defendant’s counsel, although arguing that the state had failed specifically to prove that this was an unusual dental configuration among the general population, conceded the inculpatory value of the victim’s description of the defendant’s tooth: “and, in fact, you have the tooth for my defendant.”
There was also testimony, however, that could explain the presence of semen in the victim’s vagina that, by the scientific tests, could not have been deposited by the defendant. That evidence was that such tests could be the result of the presence of seminal fluid in the vagina for as long as seventy-two hours after intercourse. The victim was not asked whether she had engaged in sexual intercourse within the previous seventy-two hours.
A special public defender was appointed for the defendant on February 26, 1992, and he conducted the defendant’s defense at trial. Nonetheless, the defendant was represented by the public defender until that appointment took place.