concurring1 and dissenting. This court does today what I feared it would do in Summerville v. Warden, 229 Conn. 397, 641 A.2d 1356 (1994) — that is, place “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.” Id., 441 (Berdon, J., dissenting).2 Specifically, the court adopts a standard *808under the guise of the clear and convincing standard of proof that, in actuality, comes dangerously close to requiring the petitioner to establish his or her innocence beyond a reasonable doubt. Indeed, some of the abstruse language employed by the majority can be read to require the petitioner to prove that he is absolutely innocent before he is entitled to relief. Because this standard applies to all crimes, including those in which the death penalty has been prescribed, the majority would allow the state to execute a person even if he could demonstrate that he is probably innocent.3 The thought of taking a person’s life or even depriving him of his liberty when he is probably innocent is repulsive.
The majority holds that “taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence, as that standard is properly understood and applied in the context of such a claim, that the petitioner is actually innocent of the crime of which he stands convicted.” The court takes great pains to emphasize that, under its new standard for habeas relief, this “clear and convincing evidence” standard means proof substantially greater than what this court previously has considered necessary to have established for this intermediate standard. See State v. Davis, 229 Conn. 285, 293, 641 A.2d 370 (1994); State v. Jarzbek, 210 Conn. *809396, 397-98, 554 A.2d 1094 (1989); J. Frederick Scholes Agency v. Mitchell, 191 Conn. 353, 358, 464 A.2d 795 (1983). The majority places “[i]ts emphasis on the high probability and the substantial greatness of the probability of the truth of the facts asserted [and] indicates that it is a very demanding standard and should be understood as such . . . .” (Emphasis in original.) The court further underscores this heightened standard it adopts by citing to pronouncements of various courts. See Herrera v. Collins, 506 U.S. 390, 417, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993) (“a truly persuasive demonstration of ‘actual innocence’ ”); id., 426 (O’Connor, J., concurring) (“extraordinarily high and truly persuasive demonstration [s] of actual innocence” [internal quotation marks omitted]); Carriger v. Stewart, 95 F.3d 755, 757 (9th Cir. 1996) (petitioner must “ ‘unquestionably establish [his] innocence’ ”); Ex parte Elizondo, 947 S.W.2d 202, 206 (Tex. Crim. App. 1996) (requiring “an exceedingly persuasive case that [the petitioner] is actually innocent”).
Although this standard is, in itself, impossibly high, the majority proceeds to create an additional requirement that habeas petitioners must satisfy. Specifically, the court states that “the petitioner must establish that, after considering all of [the] evidence and the inferences drawn therefrom, as the habeas court did, no reasonable fact finder would find the petitioner guilty.” In other words, the court adopts, as an additional requirement, a variation of the standard that Justice White proposed in his concurring opinion in Herrera, v. Collins, supra, 506 U.S. 429 (“no rational trier of fact could [find] proof of guilt beyond a reasonable doubt” [internal quotation marks omitted]). In essence, the majority requires that the habeas petitioner jump through two hoops.
The majority claims that “all of the courts and jurists that have addressed claims of actual innocence have imposed some component that focuses on the likely *810effect on a juiy or trial court of the evidence of actual innocence.” The majority, however, has failed to cite to any case that has required a habeas petitioner to satisfy these two components that the majority adopts. Indeed, the cases to which the majority cites utilize this second “component” — that is, “no reasonable fact finder would find the petitioner guilty” — as the sole test in reviewing claims of actual innocence. See, e.g., id. (White, J., concurring) (petitioner must “show that based on proffered newly discovered evidence and the entire record before the jury that convicted him, no rational trier of fact could [find] proof of guilt beyond a reasonable doubt” [internal quotation marks omitted]); In re Clark, 5 Cal. 4th 750, 766, 855 P.2d 729, 21 Cal. Rptr. 2d 509 (1993) (“[a]t the guilt phase, such evidence [pointing to actual innocence], if credited, must undermine the entire prosecution case and point, unerringly to innocence”); Ex parte Elizondo, supra, 947 S.W.2d 209 (“petitioner must show . . . that no reasonable [fact finder] would have convicted him in light of the new evidence”). Moreover, the majority cites Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995), as supportive of this second component, however, that case involved a gateway claim of actual innocence, not, as here, a freestanding claim of actual innocence.4 In other words, the majority imposes upon habeas petitioners an additional requirement that has no basis in the law of habeas corpus.
The court’s decision today signals the continued evisceration of the writ of habeas corpus, the “Great Writ”5 of liberty. Indeed, since the time that I expressed “my concern on the direction of the majority with regard to the future of the great protector of liberty — the writ of *811habeas corpus”; Safford v. Warden, 223 Conn. 180, 205, 612 A.2d 1161 (1992) (Berdon, J., concurring); this court’s jurisprudence has consistently undermined the Great Writ. See Summerville v. Warden, supra, 229 Conn. 431 (rejecting standard of proof in habeas proceedings that, “considering the evidence and claims now brought before [the habeas court], together with the evidence produced at the original trial, there is a probability of a different, result” [emphasis in original]); Carpenters. Meachum, 229 Conn. 193, 202, 640 A.2d 591 (1994) (holding that General Statutes § 52-273, which deprives this court of subject matter jurisdiction over writ of error brought to review denial of habeas petition after habeas court has denied certification to appeal, is not unconstitutional); Simms v. Warden, 229 Conn. 178, 181-85, 640 A.2d 601 (1994) (holding that this court does not have subject matter jurisdiction over writ of error brought to review denial of petition of habeas corpus after habeas court has denied certification to appeal); Jackson v. Commissioner of Correction, 222 Conn. 124, 131-35, 629 A.2d 413 (1993) (holding that in order for habeas petitioner to be entitled to review of claim not raised on direct appeal, he must show that some objective factor external to defense caused procedural default and that default was prejudicial, thereby abandoning former rule that procedurally defaulted claims were reviewable in habeas proceedings so long as petitioner had not deliberately bypassed his right to review of these claims); Bunkley s. Commissioner of Correction, 222 Conn. 444, 454, 610 A.2d 598 (1992) (holding that in order to prevail on claim of ineffective assistance of appellate counsel, habeas petitioner must show not only that his appeal would have been sustained but for counsel’s deficient, performance, but also that there is reasonable probability that trial verdict would have been different); Johnson v. Commissioner of Correction, 218 Conn. 403, 411-19, 589 A.2d 1214 *812(1991) (abandoning “deliberate bypass” standard in favor of “cause and prejudice” standard for claims not raised at trial). Because the right to petition for a writ of habeas corpus is protected by our state constitution; see Conn. Const., art. I, § 12;6 the majority does indirectly what it could not do directly. In other words, instead of a direct assault, the majority cripples the Great Writ’s effectiveness so that, as a result, it is nothing more than a paper tiger.
Although the court today chooses to cull out of Herreras. Collins, supra, 506 U.S. 429, an extreme standard, I point out that Chief Justice Rehnquist himself suggested in Herrera that the states may, and probably should, establish a lower standard of proof than the federal courts when determining the validity of a state court conviction. “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. . . . 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 . . . because [fjederal courts are not forums in which to relitigate state trials. . . . 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. . . . State courts face no such limitation.
*813“Although 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).” (Citations omitted; internal quotation marks omitted.) Summerville v. Warden, supra, 229 Conn. 442-43 (Berdon, J., dissenting). The majority simply ignores this distinction, clings to Herrera, and then proceeds to raise the burden higher than suggested by Herrera.
As I pointed out in my dissent in Summerville, this court should adopt the “probably innocent” standard in reviewing habeas petitions with respect to freestanding claims of innocence.7 Id., 444. “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 *814the 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).” Summerville v. Warden, supra, 229 Conn. 443 (Berdon, J., dissenting).
The majority adopts a heightened clear and convincing standard of proof in deference to the interests of judicial expediency. In balancing the relevant interests at stake, however, it is clear that judicial expediency pales in comparison to the societal interest in assuring that a habeas petitioner is not deprived of life or liberty as a result of an unjust conviction. The concern about the injustice that results from the conviction of an innocent person has been expressed in the “fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” In re Winship, 397 U.S. 358, 372, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) (Harlan, J., concurring). Indeed, it has been stated that it is better that ten guilty persons go free than that one innocent person is convicted. See 4 W. Blackstone, Commentaries on the Laws of England (1769) c. 27, p. 352; see also Furman v. Georgia, 408 U.S. 238, 367 n.158, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (Marshall, J., concurring).8 Simply put, “[t]he *815policy of finality . . . must yield, as a matter of fundamental due process, to the manifest injustice that would result from the continued incarceration of a demonstrably innocent person.” People v. Washington, 171 Ill. 2d 475, 493, 665 N.E.2d 1330 (1996) (McMorrow, J., concurring).
Furthermore, in considering a petitioner’s request for a new trial, this court has always adhered to the standard that such a new trial is ordered if there is a reasonable probability that he or she would be acquitted if retried. In Bunkley v. Commissioner of Correction, supra, 222 Conn. 445-46, this court applied the reasonable probability standard in the context of a habeas claim of ineffective assistance of counsel. The retrials in such cases pose the same “stale evidence” problems to the state that a new trial based on a claim of actual innocence would involve. In Summerville v. Warden, supra, 229 Conn. 429-30, this court, in rationalizing why it did not adopt the probability standard in habeas claims of actual innocence but did so in ineffective assistance cases, stated that the latter cases constituted “a breakdown of the traditional adversarial process on which we rely to produce just results.” As I stated in my dissent in Summerville: “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.” Id., 445. Indeed, as one commentator has stated, “[e]ach case of an innocent defendant is ‘extraordinary’ because in each such case a fundamental miscarriage of justice has occurred. In fact, in each such case, the ultimate failure of justice *816has occurred.” B. Ledewitz, “Habeas Corpus as a Safety Valve for Innocence,” 18 N.Y.U. Rev. L. & Soc. Change 415, 449 (1990-91).
Moreover, the very reasons given by the majority to justify its heightened clear and convincing standard of proof should require the adoption of the “probably innocent” standard. The majority concedes that, although the relevant interests at stake — those of the petitioner and the state — are nearly “evenly weighted,” the scale tips in favor of the petitioner’s interest. Although the state’s interest in finality is a laudable goal, it must yield to basic principles of fundamental fairness, equity and the integrity of the criminal justice system. E. Margolis, “Habeas Corpus: The No-Longer Great Writ,” 98 Dick. L. Rev. 557, 586 (1994). Indeed, in capital cases in which the death penalty is sought, the policy interest in making convictions “final” is not only irrelevant; Teague v. Lane, 489 U.S. 288, 321 n.3, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989) (Stevens, J., concurring); but also is potentially barbaric in light of the awesome finality of the punishment. See State v. Ross, 230 Conn. 183, 316, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995) (Berdon, J., dissenting). In my view, the petitioner’s interest in vindication from wrongful incarceration is so great in comparison to the state’s interest in finality that a “probably innocent” standard is essential.
Consistent with the gravity of the petitioner’s interest in challenging his or her wrongful incarceration or sentence of death, I would adopt a standard that would inquire whether, in light of newly discovered evidence, it is more likely than not that the petitioner is actually innocent. Indeed, if the habeas court incorrectly grants the petitioner’s claim and a guilty person is released, the state still has the opportunity to retry him. In light of the potential grave risk of error that a petitioner has *817been wrongfully incarcerated and in light of the fact that the state has the ability to retry a successful petitioner following release, I fail to understand why the majority deems it necessary to adopt such a stringent test that will preclude otherwise meritorious habeas petitions.
Furthermore, other jurisdictions have adopted the “probably innocent” standard with respect to the review of habeas petitions. See, e.g., Enoch v. Gramley, 861 F. Sup. 718, 730 (C.D. Ill. 1994), aff';d, 70 F.3d 1490 (7th Cir. 1995), cert. denied, 519 U.S. 829, 117 S. Ct. 95, 136 L. Ed. 2d 50 (1996) (“The Supreme Court in Herrera did not set forth the precise burden of proof applicable in an actual innocence claim. The Court finds, however, that to be entitled to relief based upon actual newly discovered or newly presented evidence and the record as a whole, [the petitioner] is probably innocent.”); Jones v. State, 591 So. 2d 911, 915 (Fla. 1991) (“we hold that, henceforth, in order to provide relief, the newly discovered evidence must be of such a nature that it would/probably produce an acquittal on retrial” [emphasis in original]); People v. Washington, supra, 665 N.E.2d 1337 (“relief has been held to require that the supporting evidence be new, material, noncumulative and, most importantly, of such conclusive character as would probably change the result on retrial” [internal quotation marks omitted]).
More than a century ago, the United States Supreme Court stated in Ex parte Yerger, 75 U.S. (8 Wall.) 85, 95 (1868), that “[t]he great writ of habeas corpus has been for centuries esteemed the best and only sufficient defense of personal freedom.” This court, however, continues to trample on the Great Writ. It undermines a fundamental foundation of our democracy — no person shall be denied liberty or life unless that person is guilty beyond a reasonable doubt. The finding that the person is probably innocent is the antithesis of guilt beyond *818a reasonable doubt, requiring that his conviction be set aside.
Accordingly, I concur in the judgment,9 but I dissent with respect to the standard of proof.
agree with the majority’s result, granting a writ of habeas corpus to the petitioner, Lawrence J. Miller. The evidence of his probable innocence is overwhelming. I disagree, however, that a petitioner must meet the standard set forth by the majority in order to be successful.
In Summeruille v. Warden, supra, 229 Conn. 436-37, the majority did not determine the standard because, in their opinion, they “conclude[d] that,, under any one of them . . . [the] testimony was insufficient to trigger an evaluation of it by the habeas court for the purpose of determining *808whether the petitioner had made a showing of actual innocence sufficient to require a new trial.”
Justice Blackmun, writing in dissent in Herrera v. Collins, 506 U.S. 390, 442-45, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993), and joined by Justices Stevens and Souter, urged the court to adopt a “probably innocent” standard for habeas petitions based on actual innocence. In that capital case, he wrote: “Of one thing, however, I am certain. Just as an execution without adequate safeguards is unacceptable, so too is an execution when the condemned prisoner can prove that he is innocent. The execution of a person who can show that he is innocent comes perilously close to simple murder.” Id., 446 (Blackmun, J., dissenting).
See footnote 7 of this opinion.
This phrase was first used to refer to the writ of habeas coipus by Chief Justice Marshall in Ex parte Bollman, 8 U.S. (4 Cranch) 75, 95 (1807).
Article first, § 12, of the constitution of Connecticut provides: “The privileges of the writ of habeas coitus shall not be suspended, unless, when in case of rebellion or invasion, the public safety may require it; nor in any case, but by the legislature.”
A “freestanding claim of innocence” is defined as a claim of innocence “in the absence of proof by the petitioner of an antecedent constitutional violation that affected the result of his criminal trial.” Summerville v. Warden, supra, 229 Conn. 422. A claim based on an antecedent constitutional violation that affects the results of the criminal trial is generally referred to as a “gateway claim of innocence.” See footnote 28 of the majority opinion.
Whether “ ‘new evidence,’ that is, evidence that is not cumulative, was not available to the petitioner at his criminal trial, and could not have been discovered by him at that time through due diligence,” is required for a freestanding claim of innocence is an open issue as the majority states in footnote 29 of its opinion. Although the issue came before us in Williams v. Commissioner of Correction, 240 Conn. 547, 692 A.2d 1231 (1997), by way of a certified issue from the Appellate Court, we summarily ruled that certification was improperly granted. In that case, the special public defender who requested certification came before this court and argued the state’s position that such new evidence is required. Simply put, in the strange case of Williams, there was no case or controversy.
Alternative formulations of this fundamental determination consisting of greater ratios reflect the important interest in preventing the erroneous deprivation of one’s liberty. See, e.g., J. Fortescue, Commendation of the Laws of England (translation by F. Grigor 1917) c. 27, p. 45 (“[i]ndeed, one would much rather that twenty guilty persons should escape the punishment of death, than that one innocent person should be condemned”); J. May, *815“Some Rules of Evidence: Reasonable Doubt in Civil and Criminal Cases,” 10 Am. L. Rev. 642, 654 (1876), citing T. Starkie, Evidence (8th Amer. Ed., G. Sherwood, ed.) p. 756 (“[t]he maxim of the law is . . . that it is better that ninety-nine . . . offenders shall escape than that one innocent man be condemned” [internal quotation marks omitted]).
I agree with the majority that, with respect to the scope of review to be applied by this court in reviewing the findings of the habeas court, this court should conduct an “independent and scrupulous examination of the entire record . . . .” See part II B of the majority opinion.