dissenting in part and concurring in part. Although there is much in the majority opinion with which I disagree, I will limit myself to a discussion of three issues. First, I believe it is beyond doubt that the jury’s verdict was coerced. Second, I dissent from the majority’s determination that the defendant’s confession was voluntary. Finally, I concur with the majority’s belated acceptance of a standard of review that I suggested three and one-half years ago in dissent. See State v. Atkinson, 235 Conn. 748, 773, 670 A.2d 276 (1996) (Berdon, J., dissenting) (arguing that “we must make an independent legal determination of whether the defendant was ‘in custody’ [for purposes of Miranda] based upon the facts found by the trial court”).
I
A criminal defendant is entitled to a jury verdict that is not coerced. Lowenfield v. Phelps, 484 U.S. 231, 241, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988). Jury coercion *430violates the defendant’s right to a fair and impartial trial as guaranteed by the sixth and fourteenth amendments to the federal constitution and article first, § 8, of the state constitution. In my view, the trial court’s actions in this case violated the defendant’s constitutional rights.
In order to determine whether the trial court’s conduct and statements coerced the jury verdict, the entire record must be examined. Jenkins v. United States, 380 U.S. 445, 446, 85 S. Ct. 1059,13 L. Ed. 2d 957 (1965); Hyde v. United States, 225 U.S. 347, 383, 32 S. Ct. 793, 56 L. Ed. 1114 (1912); State v. Stankowski, 184 Conn. 121, 147, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981); State v. Ralls, 167 Conn. 408, 421, 356 A.2d 147 (1974).
A critical issue for the jury in this case was whether the defendant, James Pinder, was guilty of intentional murder or manslaughter as a result of being under the influence of extreme emotional disturbance. Substantial medical and psychological testimony was offered by both the defendant and the state as to the defendant’s state of mind and his physical problems.
The jurors deliberated over the course of three days. While the jurors never reported a deadlock, their requests and comments suggest that their deliberations were difficult. The jurors initially received instructions on April 11, 1997. On the first day of deliberations, the jury asked for the psychiatric testimony to be read back to it. In addition, the jury requested clarification on the interrogatories for murder and manslaughter verdicts. A question was raised about how extreme emotional disturbance related to the element of intent. After the weekend, on Monday, April 14, 1997, the jury convened for the second day of deliberations. Noting the previous questions from a juror, the trial court reinstructed the jury on the elements of murder and extreme emotional disturbance. Later that same day, the jurors reported *431that deliberations were not progressing. In particular, they indicated that there were differences in opinion regarding the conflicting testimony of the psychiatrists. They initially asked the court to clarify its extreme emotional disturbance instruction. Shortly thereafter, the jurors requested reinstructions on extreme emotional disturbance and credibility. On the third day of deliberations, April 15, 1997, jurors requested to hear the tape recordings of the testimony of the psychiatrists. Also upon their request, the jury reheard the instructions on extreme emotional disturbance at 4:30 p.m.
When the trial judge responded to this latest request, he stated: “I have your question, ladies and gentlemen. ‘The jury would like to hear, once again, the tape made for us yesterday on the charge of extreme emotional disturbance.’ We’ll certainly give that to you. We are also going to keep you tonight. We’re going to work later. We’ll order food for you and give you a choice in about an hour from now as to what you’d like, so with that we’ll get this for you. You can hear it up in the deliberation room .... A juror, in response, asked “Your Honor, can I make a comment on that?” The judge responded that the jurors should write a note. After returning to the deliberation room, the jurors delivered the following written request to the court: “Prior to a juror requesting to hear tape again, we were going to ask to leave at this time. At least [three] jurors need time to be alone and reflect on their thoughts, without being under the pressure of the other jurors.” The jurors’ note was delivered at 4:40 p.m. Both the state and defense counsel objected to keeping the jury late. Despite these objections, the trial judge decided not to grant the jurors’ request to adjourn for the day2 because he was concerned about the possibility of jury “contamination,” notwithstanding the fact that the note from the jury expressly stated that “[a]t least [three] *432jurors need time to be alone . . . (Emphasis added.)3 Less than one hour later, the jury returned a verdict finding the defendant guilty of murder.
The majority acknowledges that “the propriety of the trial court’s denial of the [jury’s] request is doubtful.” In my view, it is beyond doubt that the trial court’s refusal to grant an adjournment coerced the verdict that the jury rendered less than one hour later. The trial court did not respond to the jury’s request for a period of forty seven minutes (4:40 p.m. to 5:27 p.m.) after it became known that the jurors wanted to conclude for the evening to reflect on the case. It is reasonable to assume that the jurors understood that their request was denied at 5 p.m., the customary end of the business day. This court has recognized that 5 p.m. is “a time at which, traditionally, juries are excused for the day and in most instances even during their deliberations after a case has been submitted to them . . . .” State v. Ralls, supra, 167 Conn. 420. Indeed, during the days of deliberation prior to the day the jury delivered its verdict in the present case, they were released before 5 p.m. Their request to stop deliberations was reasonable. By constructively denying their request, the trial judge coerced the jury into reaching a verdict. For all the jurors knew, they would be kept there until midnight if they had not yet reached a verdict.
In Ralls, this court held that it is not coercive to keep a jury beyond 5 p.m. Id., 420-26. Ralls, however, is distinguishable on the facts. The trial judge requested that the jurors have dinner and continue to deliberate until a verdict was reached. Id., 420-21. In response to this request, however, jurors did not ask to end deliberations. The only juror response was “ T think it is going *433to be a while,’ ” which confirmed the need to continue deliberating that day. Id., 421. Significantly, in Ralls, our holding that the trial judge did not act coercively depended, in part, upon the fact that there was “no hint as to division.” Id., 423. In the present case, in contrast, the jurors explicitly told the trial judge that they needed to end their deliberations for the day because at least three jurors “need[ed] time to be alone and reflect on their thoughts, without being under the pressure of the other jurors.”
In sum, the trial court’s failure to respond to the jury’s request coerced the jury into reaching its verdict. On this basis alone, the defendant’s conviction should be reversed.
II
The defendant also claims that the state failed to prove that his inculpatory statements were voluntary. I continue to believe that the state has the burden to prove beyond a reasonable doubt that a criminal defendant’s inculpatory statements were made voluntarily, knowingly and intelligently. State v. Fernandez, 249 Conn. 913, 733 A.2d 229 (1999) (Berdon, J., dissenting); State v. Lapointe, 237 Conn. 694, 747, 678 A.2d 942 (Berdon, J., dissenting), cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996); State v. James, 237 Conn. 390, 453, 678 A.2d 1338 (1996) (Berdon, J., dissenting). I raise this issue of the state’s burden because of the majority’s emphasis that the state need only prove the voluntariness of a confession by a preponderance of the evidence. In the present case, questions about the defendant’s confession arise in the context of police officers’ conduct during a polygraph examination. The police officers’ questioning of the *434defendant and the resulting confession cannot withstand scrutiny through the lens of the heightened standard of proof that should be applied to assess voluntariness.4
On appeal, in order to determine whether the defendant’s constitutional rights have been violated, we review the record in its entirety. State v. Toste, 198 Conn. 573, 576, 504 A.2d 1036 (1986). Indeed, we must make an independent and scrupulous examination of the record to determine whether a confession is admissible. State v. Smith, 200 Conn. 465, 478, 512 A.2d 189 (1986). We do not ask whether the fact finder’s decision was clearly erroneous, but rather whether the state has proven that the confession was voluntary. State v. James, supra, 237 Conn. 445 (Berdon, J., dissenting); State v. Medina, 228 Conn. 281, 324, 636 A.2d A.2d 351 (1994) (Berdon, J., dissenting); State v. Roman, 224 Conn. 63, 77, 616 A.2d 266 (1992) (Berdon, J., dissenting), cert. denied, 507 U.S. 1039, 113 S. Ct. 1868, 123 L. Ed. 2d 488 (1993).5
The Connecticut constitution provides that “[n]o person shall be compelled to give evidence against himself . . . .” Conn. Const., art. I, § 8. It follows that the state has the burden of proving that a defendant’s confession was voluntary. In addition, this court has held that an individual who is not in custody during police questioning “retains the underlying privilege not to incriminate himself and the right to assistance of counsel in support of that privilege.” State v. Wilson, 199 Conn. 417, 444, 513 A.2d 620 (1986). Thus, in addition to proving that there was a voluntary confession, the state must prove that there was a voluntary waiver of a right *435to an attorney. State v. Lapointe, supra, 237 Conn. 745 (Berdon, J., dissenting).
By continuing to accept this minimal standard when evaluating whether a confession was voluntary, the majority does little to support these constitutional guarantees. Id., 745-48 (Berdon, J., dissenting). By applying a toothless standard of review, the majority turns a blind eye to the fact that admission of a confession into evidence is, in the real world, tantamount to a conviction. Id., 747 (Berdon, J., dissenting); State v. Phinney, 117 N.H. 145, 147, 370 A.2d 1153 (1977) (acceptance of confession basically amounts to conviction). The United States Supreme Court has recognized that “confessions of guilt, whether coerced or freely given, may be . . . potent evidence.” Lego v. Twomey, 404 U.S. 477, 483, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972). The majority’s standard raises serious concerns regarding the fairness of the defendant’s murder conviction. This standard also potentially threatens the general public by eroding the foundational premises of our criminal justice system.
Powerful considerations of public policy counsel the adoption of the reasonable doubt standard; these concerns are not adequately addressed by the majority opinion. See, e.g., State v. Lapointe, supra, 237 Conn. 745-48 (Berdon, J., dissenting); State v. James, supra, 237 Conn. 445-53 (Berdon, J., dissenting); State v. Stanley, 223 Conn. 674, 696-703, 613 A.2d 788 (1992) (Berdon, J., dissenting). The necessity of requiring the state to prove the voluntariness of a confession beyond a reasonable doubt — rather than by a mere preponderance of the evidence — reflects society’s unwillingness to accept the risk of an erroneous determination in a criminal case. See, e.g., Lego v. Twomey, supra, 404 U.S. 493 (Brennan, J., dissenting); State v. Lapointe, supra, 745-46 (Berdon, J., dissenting). Justice Brennan, *436in a dissenting opinion, cogently argued that this minimal standard does not sufficiently protect the constitutional privilege against self-incrimination. “If we permit the prosecution to prove by a preponderance of the evidence that a confession was voluntary, then . . . 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. . . . Compelled self-incrimination is so alien to the American sense of justice that I see no way that such a view could ever be justified.” Lego v. Twomey, supra, 494 (Brennan, J., dissenting).
In adopting the reasonable doubt standard, Connecticut would join our enlightened neighbors of the northeast — such as Maine, Massachusetts, New Hampshire, New York, New Jersey and Rhode Island — who currently require a heightened standard of proof in cases involving the voluntariness of a confession. See State v. Collins, 297 A.2d 620 (Me. 1972) (reasonable doubt); Commonwealth v. Mandile, 397 Mass. 410, 492 N.E.2d 74 (1986) (same); State v. Benoit, 126 N.H. 6, 490 A.2d 295 (1985) (same); State v. Franklin, 52 N.J. 386, 245 A.2d 356 (1968) (same); People v. Huntley, 15 N.Y.2d 72, 204 N.E.2d 179, 255 N.Y.S.2d 838 (1965) (same); State v. Arpin, 122 R.I. 643, 410 A.2d 1340 (1980) (clear and convincing).
The facts of the present case -underscore the need for the reasonable doubt standard. At trial, James Merikangas, a neurologist and psychiatrist, assessed the effect of the defendant’s psychological condition on his ability to make a voluntary confession. Merikangas conducted neurological psychiatric examinations, blood tests, and various scans of the defendant’s brain. Merikangas concluded that the defendant’s psychological condition is a result of significant brain damage. Even though the defendant has normal intelligence, he *437has problems with basic mental and emotional functioning; in particular, he has difficulty controlling his behavior and making independent decisions. According to Merikangas, the defendant’s psychological and medical deficiencies were particularly extreme in stressful situations.
C. Scott Grove, a psychiatrist with a specialty in forensic psychiatry, also conducted a general psychiatric evaluation of the defendant at the state’s direction. He testified that the defendant suffered from a dependent personality disorder that affected his mental and emotional functioning and described the defendant as pathological.
The defendant and the victim shared a long-term relationship. Their friendship began when they were children and continued into adulthood. Up until the time of the victim’s death, they lived together in an apartment in the basement of the victim’s family home. There was increasing separation, however, because the victim had recently quit his job at their common employer and had become engaged to be married.
The victim was found shot to death in the early morning hours of November 15, 1994. At the time that the victim’s body was discovered, the state police considered both suicide and homicide. The defendant was a subject of the police department’s early investigations given his preexisting relationship with the victim. The detectives were concerned with certain evidence and discrepancies that emerged in early interviews.
On November 17, 1994, the defendant, upon request of the state police, submitted to a polygraph examination at the Southbury state police barracks. As a matter of state police policy, police officers read the defendant his Miranda6 warnings early on in the examination. In *438response to additional questions about whether he was represented by an attorney, the defendant inquired, “What about a public defender?” The defendant was told that the state police did not appoint a public defender at this point in the process. While I am willing to assume that the state attempted to combat the potentially intimidating context of the polygraph examination by giving the defendant Miranda warnings, these warnings rang hollow when the defendant attempted to exercise his right to an attorney. At best, the defendant received conflicting messages about his rights.
Throughout his polygraph examination, the police thwarted the defendant’s continuing inquiries. During the interview, the defendant inquired into continuing the examination the next day if he felt uncomfortable. The police officers’ initial response was that the test could not be conducted the next day. The police emphasized the importance of completing the examination at that time. They added that rescheduling could only take place in emergency situations.
During the several hours that the polygraph examination consumed, the police used interrogation tactics designed to elicit incriminating responses. For example, the police officers made misrepresentations concerning the status of the investigation and the available evidence. The police officers also misstated how the polygraph results might be used against the defendant. After several hours of police questioning, the defendant was confronted with the polygraph results and was accused of committing the murder of his friend. During the examination, the defendant became increasingly emotional and incoherent. Police officers exploited the defendant’s emotional vulnerability and his relationship with the victim and the victim’s family.
Over the course of the examination, the defendant was subjected to questioning by multiple police officers. *439He was placed in two sparsely furnished and windowless interview and polygraph rooms. The polygraph examination took approximately two and one-half to three hours.
For the reasons discussed herein, this case exemplifies the need for the state to prove the voluntariness of a confession beyond a reasonable doubt. The defendant suffers from a psychological disorder and from brain damage characterized by a dependent personality. These infirmities strongly suggest that the defendant’s confession was not voluntary under any standard. This conclusion is reinforced by the fact that the mentally disabled defendant was called upon to hold his own during a three hour polygraph examination administered by police officers who were expert in the use of interrogation tactics and who gave him mixed messages concerning his rights under the constitution.
In my view, the trial court erred by declining to suppress the defendant’s confession.
Ill
I agree with my colleagues in the majority that we must conduct an independent analysis in order to determine whether a defendant was in custody at the time that he incriminated himself. The answer to this question, of course, provides answers to the related questions of whether a defendant was; (1) entitled to receive Miranda warnings (which the United States Supreme Court designed to protect citizens from the inherently coercive environment of custodial interrogation7); and (2) entitled to the cluster of protections associated with the administration of these warnings.
*440In the dissenting opinion that I wrote three and one-half years ago in State v. Atkinson, supra, 235 Conn. 773, I argued that, “like the [United States] Supreme Court, we must make an independent legal determination of whether the defendant was ‘in custody’ based upon the facts found by the trial court. Thompson v. Keohane, [516 U.S. 99, 116 S. Ct. 457, 465, 133 L. Ed. 2d 383 (1995)].”8 (Emphasis added.) At long last, my colleagues in the majority have finally acknowledged the force of my argument. My only regret is that they have done so too late in the day to do justice for the defendants who have suffered the consequences of decisions such as the one in Atkinson.
In a closely related matter, I hope that the majority of this court will soon acknowledge the force of my argument that — because a confession is tantamount to a conviction — “our state constitution requires the state to prove two matters beyond a reasonable doubt: (1) the defendant did in fact make a confession; and (2) this confession was made voluntarily, knowingly and intelligently.”9 State v. Fernandez, supra, 249 Conn. 913 *441(Berdon, J., dissenting); see also State v. Lapointe, supra, 237 Conn. 739 (Berdon, J., dissenting).
Accordingly, I dissent in part and concur in part.
Justice McDonald joins only in part I of this concurring and dissenting opinion.
The trial court never communicated this ruling to the jury.
The jury began its deliberations on a Friday. Intriguingly, the trial court was unconcerned about the perils of contamination over the two weekend days that intervened before the jury resumed its deliberations on the following Monday.
Even if a preponderance of the evidence standard were applied, I would still conclude that the confession was not voluntary.
The majority of this court consistently has problems with correctly articulating and applying the appropriate standard of review. See footnote 8 of this dissenting and concurring opinion.
Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
“The Miranda Court . . . presumed that interrogation in certain custodial circumstances is inherently coercive and held that statements made under those circumstances are inadmissible unless the suspect is specifically informed of his Miranda rights and freely decides to forgo those rights.” New York v. Quarles, 467 U.S. 649, 654, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984).
In my dissent in Atkinson, I explained that “the language we have used in our cases on this matter has been confusing, if not incorrect. State v. Greenfield, 228 Conn. 62, 68, 634 A.2d 879 (1993) (At the suppression hearing, the trial court determined that the defendant [was not in custody] at any point prior to his formal arrest. The trial court’s determination was a finding of fact that will not be overturned unless it was clearly erroneous.); State v. Ostroski, 186 Conn. 287, 292, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982) ([w]hether there [is custody] in an individual case is a question of fact); State v. Derrico, 181 Conn. 151, 158, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980) ([precisely when an arrest occurs is a question of fact).” (Internal quotation marks omitted.) State v. Atkinson, supra, 235 Conn. 777 n.3 (Berdon, J., dissenting).
“Every state but one in the northeast has adopted a standard of proof in excess of the preponderance of the evidence to determine the voluntariness of a confession.” State v. James, supra, 237 Conn. 452 (Berdon, J., dissenting).