dissenting. I would reverse the conviction of the defendant, Michael Watson, on the ground that his due process rights were violated when the trial court instructed the jury that the reasonable doubt standard and the presumption of innocence are “designed to protect the innocent and not the guilty”1 (protect-the-innocent instruction). Although the majority has finally agreed with me that the protect-the-innocent instruction should not have been given, they refuse to reverse the defendant’s conviction because, in the context in which the jury was instructed, it did not reach constitutional proportions. The majority reaches this amazing conclusion based upon two recent cases — State v. Delvalle, 250 Conn. 466, 736 A.2d 125 (1999), and State v. Schiappa, 248 Conn. 132, 728 A.2d 466 (1999).2 The *240constitutional aspects of the protect-the-innocent instruction were wrongly decided in Schiappa and Delvalle, standing the holding of United States v. Doyle, 130 F.3d 523 (2d Cir. 1997), on its head.
As early as 1992,1 urged this court to disapprove of this problematic protect-the-innocent instruction because it unconstitutionally dilutes the presumption of innocence and the reasonable doubt standard. See State v. Stanley, 223 Conn. 674, 702-703, 613 A.2d 788 (1992) (Berdon, J., dissenting);3 see also State v. Hines, 243 Conn. 796, 824, 709 A.2d 522 (1998) (Berdon, J., dissenting). Justice Borden, writing for the majority in Stanley, sharply rejected the defendant’s argument that the court should “change its mind” about allowing the protect-the-innocent instruction by tersely stating, “[w]e do not change our mind.” State v. Stanley, supra, 695. Seven years later, in State v. Schiappa, supra, 248 Conn. 168, this court finally started to change its mind by holding that “[although we disapprove of the challenged language and, pursuant to our supervisory authority over the administration of justice, direct our trial courts to refrain from using the challenged language in future cases, we nevertheless reject the defendant’s constitutional claim.” See also State v. Delvalle, supra, 250 Conn. 475. As I will discuss later in this dissent, I do not think Schiappa was decided correctly. I agree with the majority in Schiappa that the protect-the-innocent instruction should not be given under any *241circumstance but I disagree that the instruction did not reach constitutional proportions.
Unfortunately, over the course of the years, this jury instruction, which the majority has finally recognized as being improper, probably misled many jurors. Of course, we will never know the true extent of the injustice caused by the protect-the-innocent instruction. Indeed, in addition to the present case, this court certified for appeal a review of a similar jury instruction that “ ‘the law is made to protect society and innocent persons, and not to protect guilty ones.’ ” State v. Coleman, 245 Conn. 907, 718 A.2d 15 (1998). So long as the trial courts continue to use it and this court continues to find no reversible error, we will convict criminal defendants without regard to their constitutional rights.
Any doubt as to the unconstitutionality of the protect-the-innocent instruction was put to rest by the Second Circuit Court of Appeals in United States v. Doyle, supra, 130 F.3d 523. In Doyle, the court held that an instruction violated the defendant’s federal constitutional right to due process and, consequently, reversed the defendant’s conviction. Id., 539. Several other federal circuit courts have reversed convictions based on similar jury instructions that imply that the reasonable doubt standard does not apply to guilty individuals. See, e.g., United States v. Bridges, 499 F.2d 179 (7th Cir. 1974); Reynolds v. United States, 238 F.2d 460 (9th Cir. 1956); Gomila v. United States, 146 F.2d 372 (5th Cir. 1944). We should join the Second Circuit and “reaffirm the proposition that the presumption of innocence and the beyond-a-reasonable doubt standard apply to all criminal defendants without regard to their actual guilt or innocence.” United States v. Doyle, supra, 538.
As I have advocated since my dissent in State v. Stanley, supra, 223 Conn. 702-703, this jury instruction *242violates a defendant’s due process rights by impermissibly diluting the presumption of innocence and the state’s burden to prove the defendant guilty beyond a reasonable doubt. See also United States v. Doyle, supra, 130 F.3d 533. The due process clause protects the criminal defendant’s right to a presumption of innocence until proven guilty. It also requires that this presumption continues until the prosecution satisfies its evidentiary burden of proof. See In re Winship, 397 U.S. 358, 361-64, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); United States v. Doyle, supra, 538-39. Thus, when a jury is instructed improperly on the presumption of innocence, it dilutes the state’s burden of proving guilt beyond a reasonable doubt.
Jury instructions are the primary mechanism through which the trial court guides jurors in their deliberations. “To be a meaningful safeguard, the reasonable doubt standard must have a tangible meaning that is capable of being understood by those who are required to apply it. It must be stated accurately and with the precision owed to those whose liberty or life is at risk. Because of the extraordinarily high stakes in criminal trials, ‘[i]t is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.’ ” Victor v. Nebraska, 511 U.S. 1, 29, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994) (Blackmun, J., concurring and dissenting). Similarly, the Second Circuit in Doyle recognized the potential for this challenged language to interfere with jurors’ reasoning process. United States v. Doyle, supra, 130 F.3d 538-39. Ideally, jurors presume that the defendant is innocent until the prosecution satisfies its burden of proof. By instructing jurors that the presumption of innocence protects only the innocent and not the guilty, the trial court suggests to jurors that their assessment of the defendant’s guilt is separate and distinct from the prosecution’s burden of proving *243guilt beyond a reasonable doubt. “[I]t implies that a person who is actually guilty, in the sense of ‘what really happened,’ as opposed to the sense of having been legally determined to be guilty, is not entitled to the presumption of innocence through trial and deliberations.” Id., 538. The consequence of asking jurors to assess guilt too early is that “[t]he presumption of innocence and the reasonable doubt standard are eviscerated if the jury believes that it must, or even may, make a determination of the defendant’s guilt or innocence before evaluating the strength of the Government’s case.” Id.
The instruction may also undermine the allocation of decision-making authority by permitting the jury to infer that the judge herself believes that the defendant is guilty. “A natural inclination of some jurors may be to assume that, because the defendant has been selected for prosecution, he must be guilty. One of the greatest responsibilities of the trial judge is her duty to overcome that inclination by impressing upon the jury the importance of the presumption of innocence and of the Government’s burden to prove guilt beyond a reasonable doubt. ... As the Supreme Court noted in [In re Winship, supra, 397 U.S. 363-64], the reasonable doubt standard is vital in part because it ensures against unjust convictions and reduces the risk of factual error. ... In order to reduce those risks, then, the jurors must be made to see that the case against the defendant begins as a tabula rasa, a slate upon which may be written only such marks as derive from the evidence admitted at trial. Unless and until the Government meets its burden of proof beyond a reasonable doubt, the presumption of innocence remains with the accused regardless of the fact that he has been charged with the crime, regardless of what is said about him at trial, regardless of whether the jurors believe that he is likely guilty, regardless of whether he is actually guilty. The *244presumption attaches to those who are actually innocent and to those who are actually guilty alike throughout all stages of the trial and deliberations unless and until that burden is met. A jury charge which implies otherwise creates a serious risk of undermining that vital protection.” (Citations omitted.) United States v. Doyle, supra, 130 F.3d 538-39.
In the present case, the majority summarily concludes, as it did in Schiappa and Delvalle, that the trial court repeatedly and accurately explained those required principles in its preliminary and final instructions to the juiy. Therefore, according to the majority, the protect-the-innocent instruction was harmless. While the majority finds the present case is indistinguishable from Schiappa and Delvalle, from my perspective both those cases were wrongly decided.
In Schiappa, the court relied on the language in Doyle that if the jury instruction correctly and repeatedly explained the presumption of innocence and the state’s burden of proving guilt beyond a reasonable doubt it would pass constitutional muster. State v. Schiappa, supra, 248 Conn. 172-74; see United States v. Doyle, supra, 130 F.3d 539. The Schiappa court pointed out the numerous references that were made in the instructions to the burden of proof and the presumption of innocence. State v. Schiappa, supra, 172-73. But in the present case, as well as in Schiappa, those references cannot overcome the likelihood that the jury misinterpreted its instructions for several reasons.
First, although Doyle referred to the repeatedly correct instructions, in my view the Second Circuit did not merely have references to the constitutional guarantees but, rather it referred to complete statements of the presumption of innocence and the state’s burden of *245proof.4 United States v. Doyle, supra, 130 F.3d 539. By contrast, the so-called repeated instructions upon which the court in Schiappa, and the majority in this case, rely were mere fragmented references to those constitutional principles.5 State v. Schiappa, supra, 248 Conn. 168-69.
Second, this case is even more compelling than Doyle, wherein a correct instruction was given at the end of the trial court’s substantive instructions to the jury. United States v. Doyle, supra, 130 F.3d 539 (“[wjhile [the] final section of the court’s instructions was undoubtedly more appropriately worded than was its *246reference to guilty defendants, we nevertheless agree . . . [that] ‘[w]hat influences juries, courts seldom know’ ”). In Schiappa and in this case, the improper instruction was given at the end of the substantive6 part of the jury instructions and after any further references were made to the burden of proof and presumption of innocence instructions.7 State v. Schiappa, supra, 248 Conn. 169-71.
The final instruction on the substantive law given by the trial court in this case was: “It is the sworn duty of the court and the jurors to safeguard the rights of persons charged with crimes by respecting the presumption of innocence which the law imputes to every person so charged by making the state meet its burden of proof beyond a reasonable doubt. But, you must keep in mind that this rule of law is made to protect the innocent and not the guilty. If and when the presumption of innocence has been overcome by evidence proving beyond a reasonable doubt that the accused is guilty of the crime or crimes charged, then it is the sworn duty of the jury to enforce the law and to render a verdict of guilty.” (Emphasis added.) This court has *247long noted the magnitude of the effect of the last words heard by a jury. See State v. Gallivan, 75 Conn. 326, 333-34, 53 A. 731 (1902) (“[wjhere the court . . . returns to a subject considered [earlier] and gives additional instructions in regard to it, the jury may naturally regard them, so far as they may state a new and different rule, to be intended to qualify, as a last word, that which had been previously said”). In effect, the incorrect statement of the law was followed by an admonition to find the defendant guilty. In this context, the jurors reasonably could have believed that if the defendant was guilty, then it was not necessary to apply the presumption of innocence until the state satisfied its burden of proving guilt beyond a reasonable doubt.
Third, notwithstanding the repeatedly correct instruction language in Doyle, the Second Circuit recognized that its prior opinion in United States v. Bifield, 702 F.2d 342 (2d Cir. 1983), on the protect-the-innocent instructions “addressed only the aspect of the presumption of innocence, and not the effect of the charge upon the reasonable doubt standard. For our purposes, [the Second Circuit recognized that] this is a critical distinction: the Supreme Court has provided new and definitive guidance reinforcing the importance of the reasonable doubt standard in the years since Bifield. For these reasons, we take a fresh look at whether this instruction violates a criminal defendant’s rights to the presumption of innocence and to have his guilt established by the Government beyond a reasonable doubt, while keeping in mind our repeated disapproval of the instruction in question in the past.
“ ‘The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of our criminal law.’ Coffin v. United States, 156 U.S. 432, 453, 15 S. Ct. 394, 403, 39 L. Ed. 481 (1895). This presumption ‘is a basic component of *248a fair trial,’ Estelle v. Williams, 425 U.S, 501, 503, 95 S. Ct. 1691, 1692, 48 L. Ed. 2d 126 (1976), and derives from the Due Process Clauses under the Fifth and Fourteenth Amendments of the Constitution, Taylor v. Kentucky, 436 U.S. 478, 485-86 n.13, 98 S. Ct. 1930, 1935 n.13, 56 L. Ed. 2d 468 (1978). Likewise, requiring the Government to carry the heavy burden of proving a defendant guilty beyond a reasonable doubt is sacrosanct law and derives from the Due Process Clause. In re Winship, [supra, 397 U.S. 361-64] (conviction requires proof beyond a reasonable doubt of every fact necessary to constitute the crime charged). See also Jackson v. Virginia, 443 U.S. 307, 313-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979) (habeas petition following state conviction) (proof beyond a reasonable doubt must be established for every element of the crime charged). [In re Winship] made clear that the reasonable doubt standard is the means by which the presumption of innocence is implemented. [In re Winship, supra, 363]. Because our system entrusts the jury with the primary responsibility of implementing the substantive protections promised by the reasonable doubt standard, reasonable doubt jury instructions which appropriately convey [In re Winship] concepts are critical to the constitutionality of a conviction. See, e.g., Cage v. Louisiana, 498 U.S. 39, 111 S. Ct. 328, 112 L. Ed. 2d 339 (1990). Similarly, the Court has recognized that ‘an instruction on the presumption [of innocence] is [the] one way of impressing upon the jury the importance of that right.’ Taylor [v. Kentucky, supra, 485] (collecting cases). The case at bar thus squarely implicates both principles of law.” United States v. Doyle, supra, 130 F.3d 534-35.
As pointed out in Doyle, “ [w] e cannot be sure whether [the] jury actually misunderstood its obligations under the presumption of innocence and the reasonable doubt standard. But . . . we need not be sure. We need only *249determine whether there is a reasonable likelihood, even if less than a probability, that the jury misunderstood these principles of law.” Id., 539. In sum, I conclude in this case that it was reasonably likely that the jury unconstitutionally applied the protect-the-innocent instruction. Therefore, I would hold that the defendant’s federal constitutional right to due process was violated, reverse the judgment of conviction and remand the case for a new trial.
Accordingly, I dissent.
A more extensive portion of the trial court’s instructions in this case appears later in this opinion.
I was not assigned to sit on the panel for Schiappa, which was decided by a full court of seven justices (a senior justice was selected to complete the panel of seven). Nor was I assigned to the panel of five justices that decided Delvalle.
I have long been of the view that every case heard in this court should *240be by an en banc panel consisting of the chief justice and six associate justices. Senior justices should participate on an en banc panel only if there is a disqualification of the chief justice or an associate justice. This will assure that all the justices of this court would have an opportunity to participate and express their views on all the issues that come before the court so that justice is not dispensed by the luck of the draw. Furthermore, if an issue is important enough to come to this court, an en banc panel should review it.
The protect-the-innocent instruction could well have influenced the jury’s determination that the defendant in Stanley was guilty of murder because the evidence to support an intent to kill was paper-thin.
Although the entire text ol' the instructions given to the jury in Doyle is not available to me, I suspect that there also were numerous fragmented references to the government’s burden of proof and the presumption of innocence.
In Sch'i appa, this court interpreted the challenged language in the context of the jury instruction as a whole. The court rationalized that “in light of the totality of the trial court’s instructions in this case, we see no compelling reason to deviate from our prior constitutional precedent. The court, in clear and legally correct terms, repeatedly apprised the jury regarding the presumption of innocence and the state’s burden of establishing guilt beyond a reasonable doubt.” State v. Schiappa, supra, 248 Conn. 172. It is important, however, to consider not just that references were made but the sufficiency of these repeated references.
The court in Schiappa summarized the applicable instructions noting that the jury received reminders that the state had a burden to prove guilt beyond a reasonable doubt and the defendant did not have a corresponding burden. See id., 168. Subsequently, the trial court gave explicit instructions as follows: (1) “ ‘every defendant in a criminal case is presumed to be innocent and this presumption of innocence remains with the defendant throughout the trial unless and until she is proven guilty beyond a reasonable doubt’ (2) “ ‘the state has the burden of proof as to all the necessary elements of the crimes charged beyond a reasonable doubt and the defendant has [no] burden to prove or disprove anything’ and (3) “[t]he jury must acquit the defendant if the state failed to establish ‘each and every element of the particular crime charged beyond a reasonable doubt Id., 168-69.
What the majority considers as repeated references to the defendant’s constitutional rights can be seen only as fragmented references to abstract legal concepts. In the spirit of more is better, the majority ignores the likelihood that abstract legal concepts may be meaningless to the lay juror no matter how many times they are repeated.
The remaining instructions by the trial court after the protect-the-innocent instruction referred to the requirement of a unanimous verdict and to procedural matters such as the selection of a foreperson.
I suspect that this was also the case in Schiappa because the protect-the-innocent instruction was part of the informal pattern jury instructions utilized by the trial judges. Indeed, in Justice Borden’s treatise on criminal jury instructions, which he authored with Professor Orland, the instructions recommended to be given at the conclusion of the charge were as follows: “It is the sworn duty of the courts and jurors to safeguard the rights of persons charged with crime by respecting the presumption of innocence, which the law gives to every person so charged. But the law is made to protect society and innocent persons, and not to protect guilty ones. If and when the presumption of innocence has been overcome by evidence proving beyond a reasonable doubt that an accused person is guilty of the crime charged, then it is the sworn duty of the jury to enforce the law and to render a verdict of guilty.” (Emphasis added.) D. Borden & L. Orland, 5 Connecticut Practice Series: Criminal Jury Instructions (2d Ed. 1997) § 4.3, pp. 222-23.