dissenting. The majority today holds, for the first time under our state constitution, that the state may death qualify the jury that decides the guilt of the defendant in a capital case by allowing the court to excuse for cause those persons who, because of their opposition to the death penalty, are incapable of voting for it.1 The death qualified jury is “tilted in favor of the *717prosecution by the exclusion of a group of prospective jurors [who are] uncommonly aware of an accused’s constitutional rights but quite capable of determining his culpability without favor or bias.”2 Lockhart v. McCree, 476 U.S. 162, 185, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986) (Marshall, J., dissenting). Although the Lockhart court held that such a jury passes federal constitutional muster,3 I believe that the death qualification of the juiy violates article first of the Connecticut constitution, which, pursuant to § 8 and § 19, guarantees the right to an impartial jury drawn from a representative cross section of the people and due process of law.4
I
The majority would have us believe that in those cases in which the state seeks the death penalty, the accused cannot have the benefit of a jury selected from *718a cross section of the population that determines his guilt. Any other criminal defendant, that does not face this ultimate penalty, has the benefit of a group of persons summoned to serve potentially as jurors that includes those who are opposed to the death penalty on moral or other grounds and would not vote for it. Similarly, if the state decides not to seek the death penalty, the defendant is able to have a representative venire. The trial court in this case needlessly excluded those prospective jurors (venirepersons) from the guilt phase of the trial thereby violating the defendant’s state constitutional rights.5
The significance of that exclusion as explained by Justice Marshall (joined by Justices Brennan and Stevens), is that there is “overwhelming evidence that death-qualified juries are substantially more likely to convict or to convict on more serious charges than juries on which unalterable opponents of capital punishment are permitted to serve.” Id., 184 (Marshall, J., dissenting). I agree with Justice Marshall who cogently wrote in dissent: “With a glib nonchalance ill suited to the gravity of the issue presented and the power of [the] respondent’s claims, [this] Court upholds a practice that allows the State a special advantage in those prosecutions where the charges are the most serious and the possible punishments, the most severe. The State’s mere announcement that it intends to seek the death penalty if the defendant is found guilty of a capital offense will, under today’s decision, give the prosecution license to empanel a jury especially likely to return that very verdict. Because I believe that such a blatant disregard for the rights of a capital defendant offends logic, fairness, and the Constitution, I dissent.” Id., 185.
*719The consequences of the majority upholding this automatic exclusion can be significant — in Connecticut, those persons who are opposed to the death penalty and who potentially could not put that belief aside amount to approximately 39 percent of our state population6 as measured by the legislators who voted against the death penalty.7 Based on this assumption, Connecticut voters are less supportive of the death penalty than the national population.8
II
Before I proceed with my state constitutional analysis, let me put this case in its proper perspective. The defendant, Janet Griffin, like the defendant in Lockhart, does not claim that those who are opposed to the death penalty and cannot put that belief aside should not be excluded from the penalty phase of the trial if the defendant is found guilty of capital felony pursuant to General Statutes § 53a-54b. Rather, the defendant maintains that her constitutional rights are violated if the jury that deliberates her guilt at trial is death qualified. All that the defendant asks, as in Lockhart, is that her guilt or innocence be determined by a jury like those that sit in noncapital cases — one whose composition is not prosecution oriented and conviction prone.
Our state statutory scheme can accommodate both the defendant’s constitutional right to have her guilt *720or innocence decided by a jury that is drawn from a representative cross section of the population and the state’s right to exclude in the penalty phase of a capital case those who could not put aside their opposition in deciding whether to impose the death penalty. If the defendant is found guilty of a capital felony by a jury that includes jurors who would not vote for the penalty of death based upon moral or other grounds, General Statutes § 53a-46a (b) clearly authorizes the trial court to impanel a second jury that could be death qualified to determine the penalty.9 Similarly, the United States Supreme Court, in Witherspoon v. Illinois, 391 U.S. 510, 520 n.18, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), recognized the appropriateness of a bifurcated trial when a death qualified jury could not be impartial.10
We have in the past insulated the jury from being exposed to prejudicial information by bifurcating capital trials. In State v. Jones, 234 Conn. 324, 334, 662 A.2d 1199 (1995), the defendant moved to bifurcate the trial to prevent the jury from hearing evidence of his prior murder conviction before they determined whether he was guilty of the capital felony that was at issue before them. This court determined that the trial court should bifurcate the trial in cases where there was a risk of *721substantial prejudice. Id., 343-51. Because the trial court failed to bifurcate the trial in Jones, we reversed his conviction and ordered a new trial. Id., 359. We made clear that “the risk of such substantial prejudice is not outweighed by the state’s interest in judicial economy.” Id., 346. The majority simply ignores the precedential effect of Jones, which requires that the trial court bifurcate the trial when there is a risk of substantial prejudice.
Indeed, because of the risk of substantial prejudice and in the interests of doing justice, there should be no need to rely on the state constitution to require bifurcation. Rather, under our “inherent supervisory authority over the administration of justice”; State v. Patterson, 230 Conn. 385, 397, 645 A.2d 535 (1994), on appeal after remand, 236 Conn. 561, 674 A.2d 416 (1996); common sense mandates that the guilt phase should be bifurcated and if the defendant is found guilty, the penalty phase be tried before another jury to exclude those jurors who would not vote for the penalty of death under any circumstances.
Ill
Despite the majority’s failure to ensure that the defendant’s trial was fair by ordering a bifurcation of her trial under our supervisory powers, the state constitution requires that a death qualified jury cannot decide the defendant’s guilt or innocence in a capital case. Justice Glass eloquently reminded us in State v. Oquendo, 223 Conn. 635, 649, 613 A.2d 1300 (1992), that “[i]t is well established that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights. . . . Although we have often relied upon decisions of the United States Supreme Court interpreting the [federal constitution] to define *722the protections provided by related provisions of our state constitution, we have at times determined that the state constitution affords greater protections to the citizens of Connecticut than does the federal constitution, as interpreted by the United States Supreme Court. . . . We have stated, moreover, that [t]he 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.” (Citations omitted; internal quotation marks omitted.)
Our interpretation of when the state constitution affords greater individual rights than the federal constitution is guided by the Geisler factors: “In order to construe the contours of our state constitution and reach reasoned and principled results, the following tools of analysis should be considered to the extent applicable: (1) the textual approach; see, e.g., Stolberg v. Caldwell, 175 Conn. 586, 597-98, 402 A.2d 763 (1978), appeal dismissed sub nom. Stolberg v. Davidson, 454 U.S. 958, 102 S. Ct. 496, 70 L. Ed. 2d 374 (1981) (‘Unless there is some clear reason for not doing so, effect must be given to every part of and each word in the constitution.’); (2) holdings and dicta of this court, and the Appellate Court; see, e.g., Doe v. Maher, 40 Conn. Sup. 394, 448-49, 515 A.2d 134 (1986) (trial court used strict scrutiny to analyze sex discrimination claim based on the equal protection clause of the state constitution, relying, in part, on dicta from the Connecticut Supreme Court regarding what standard would be used once Connecticut’s equal rights amendment was adopted); (3) federal precedent; see, e.g., State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990) (‘The adoption of federal constitutional precedents that appropriately illuminate open textured provisions in our own organic document in no way compromises our obligation independently to construe the provisions of our state constitution.’); (4) sister state decisions or sibling approach; *723see, e.g., State v. Gethers, 197 Conn. 369, 386-87, 497 A.2d 408 (1985); Cologne v. Westfarms Associates, [192 Conn. 48, 58-59, 469 A.2d 1201 (1984)]; (5) the historical approach, including the historical constitutional setting and the debates of the framers; see, e.g., State v. Lamme, supra, 178-80; Cologne v. Westfarms Associates, supra, 60-62; Palka v. Walker, 124 Conn. 121, 126, 198 A. 265 (1938); and (6) economic/sociological considerations. See State v. Barton, [219 Conn. 529, 546, 594 A.2d 917 (1991)]; State v. Dukes, [209 Conn. 98, 114-15, 547 A.2d 10 (1988) (‘Constitutional provisions must be interpreted within the context of the times. . . . We must interpret the constitution in accordance with the demands of modern society or it will be in constant danger of becoming atrophied and, in fact, may even lose its original meaning.’ [Citations omitted; internal quotation marks omitted.]); see generally State v. Jewett, 146 Vt. 221, 500 A.2d 233 (1985); M. Margulies, ‘Connecticut’s Free Speech Clauses: A Framework and an Agenda,’ 65 Conn. B.J. 437 (1991) (an analytical framework for state constitutional analysis in the context of the free speech clauses); E. Peters, ‘State Constitutional Law: Federalism in the Common Law Tradition,’ 84 Mich. L. Rev. 583 (1986) (book review).” (Emphasis in original.) State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992). Although the majority purports to be guided by these factors, they do so with their heads buried deeply in the sand. In my view, under an appropriate analysis of our state constitution, bifurcation of the guilt and penalty phases in a capital trial are mandated if necessary to assure that the jurors for the guilt phase are not death qualified.
A
Text of the Constitution
The plain language of the state constitution guarantees a criminal defendant the right to a trial by an *724impartial jury. Article first, § 8, expressly provides that the criminal defendant has a “right to . . . public trial by an impartial jury,” and § 19 adds that this “right of trial by jury shall remain inviolate.” The right to an impartial jury is grounded on the concern that the criminal defendant not be “deprived of life, liberty or property without due process of law . . . .” Conn. Const., art. I, § 8. Thus, the constitution guarantees to a criminal defendant certain due process rights before exacting the ultimate punishment of death.
When a trial court death qualifies the jury, it guarantees the state that the pool from which the jury is selected will be more prosecution oriented and conviction prone.11 This compels the conclusion that the defendant’s right to a trial by an impartial jury drawn from a venire based upon a representative cross section of our population and due process rights are violated when the jury is death qualified.
B
Holding and Dicta of Connecticut Courts
The right to an impartial jury has been interpreted to mean that the jury must be drawn from a representative cross section of the community. See State v. Nims, 180 Conn. 589, 594-95, 430 A.2d 1306 (1980) (“[a]n essential component of the right to trial by jury is the right to select a petit jury from a representative cross section of the community”). The fair cross section requirement “is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community.” Smith v. Texas, 311 U.S. 128, 130, 61 S. Ct. 164, 85 L. Ed. 84 (1940); Williams v. Coppola, 41 Conn. Sup. 48, 54, 549 A.2d 1092 (1986).12
*725When a jury is derived from a cross section of the community, it ensures “diffused impartiality.” Thiel v. Southern Pacific Co., 328 U.S. 217, 227, 66 S. Ct. 984, 90 L. Ed. 1181 (1946); Williams v. Coppola, supra, 41 Conn. Sup. 54. “The rationale of these decisions, often unstated, is that in our heterogeneous society jurors will inevitably belong to diverse and often overlapping groups defined by race, religion, ethnic or national origin, sex, age, education, occupation, economic condition, place of residence, and political affiliation; that it is unrealistic to expect jurors to be devoid of opinions, preconceptions, or even deep-rooted biases derived from their life experiences in such groups; and hence that the only practical way to achieve an overall impartiality is to encourage the representation of a variety of such groups on the jury so that the respective biases of their members, to the extent they are antagonistic, will tend to cancel each other out.” (Internal quotation marks omitted.) Williams v. Coppola, supra, 54-55.
As long as the venire is derived from a cross section of the community, there is no constitutional guarantee that the jury composition will be representative. “The random drawing of petit jurors from the venire is by its very nature inconsistent with any guarantee of a particular resulting composition. . . . Not every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community. . . . Indeed, the impracticability of attempting to achieve a [particular composition] is obvious.” (Citations omitted; internal quotation marks omitted.) Id., 55-56.
“This, however, does not mean that the constitutional right to an impartial jury ceases to be operative during *726the selection of the petit jury. If this were so there would be no purpose for mandating that the venire be composed of a cross section of the population. No defendant has ever been tried before a venire; the venire is not the body that deliberates in the jury room; no defendant has ever been found guilty by a venire. If there is a . . . [constitutional] requirement that the venire represent a fair cross section of the community, it must logically be because it is important that the defendant have the chance that the petit jury will be similarly constituted.” (Internal quotation marks omitted.) Id., 56.
“It follows, then, that the state constitutional right to trial by an impartial jury guarantees a party not the right to a jury composed of a cross section of the population, but a fair chance of obtaining such a jury. . . . In other words, a petit jury is inevitably . . . affected by the vicissitudes of the draw .... Accordingly, those procedures used to select the petit jury during the voir dire that may interfere with the chance that the petit jury will represent a fair cross section of the community are subject to constitutional scrutiny of the right to trial by jury under both §§ 8 (criminal) and 19 (civil) of article first [of the Connecticut constitution].” (Citations omitted; internal quotation marks omitted.) Id.
Guaranteeing that the jury that determines the guilt of the defendant be drawn from a representative cross section of the community is essential for all criminal cases but particularly in a capital case because “a jury that must choose between life imprisonment and capital punishment can do little more — and must do nothing less — than express the conscience of the community on the ultimate question of life or death.” Witherspoon v. Illinois, supra, 391 U.S. 519.
*727c
Federal Precedent
The United States Supreme Court has held that a jury cannot be representative when certain groups are systematically excluded from the jury selection process. In Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979), the court established “a prima facie violation of the fair-cross-section requirement, [where] the defendant [shows] (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” This court has recognized that the jury must be drawn from a fair cross section of the community. See, e.g., State v. Webb, 238 Conn. 389, 450-52, 680 A.2d 147 (1996); State v. Robinson, 227 Conn. 711, 717-18, 631 A.2d 288 (1993); State v. Tillman, 220 Conn. 487, 492, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992); State v. McCarthy, 197 Conn. 247, 250, 496 A.2d 513 (1985); State v. Castonguay, 194 Conn. 416, 421-22, 481 A.2d 56 (1984). While the United States Supreme Court has rejected the argument that death qualified jurors are a distinctive group whose exclusion violates the fair cross section requirement under Lockhart v. McCree, supra, 476 U.S. 162,13 in my view we should reach the *728conclusion that their exclusion does violate that requirement under a state constitutional analysis.
I am not alone in asking “whether an impartial jury can exist when a distinct group in the community is excluded by systematically challenging them for cause” from the jury selection process. Grigsby v. Mabry, 758 F.2d 226, 241-42 (8th Cir. 1985), rev’d sub nom. Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986). In Grigsby, a decision eventually reversed in Lockhart,14 the Eighth Circuit Court of *729Appeals addressed “whether the exclusion of jurors who hold absolute scruples against the death penalty creates a ‘conviction prone’ jury as to the guilt of a defendant in a capital case.” Grigsby v. Mabry, supra, 228. The Eighth Circuit, in a compelling analysis, held “that substantial evidence supports the court’s finding that a capital jury, with [Witherspoon-excludables]15 stricken for cause, is in fact conviction prone and, therefore, does not constitute a cross-sectional representation in a given community.” Id., 229; see also Keeten v. Garrison, 578 F. Sup. 1164, 1181 (W.D.N.C.) (“persons who are unwilling to impose the death penalty share a unique set of attitudes toward the criminal justice system which separate them as a group not only from persons who favor the death penalty, but also from persons who are generally opposed to the death penalty, but [will] consider it in some cases”), rev’d, 742 F.2d 129 (4th Cir. 1984), cert. denied, 476 U.S. 1145, 106 S. Ct. 2258, 90 L. Ed. 2d 702 (1986).
D
Sociological Considerations
A distinctive group of death qualified jurors emerges from the examination of sociological studies. This evidence suggests that death qualified jurors are systematically excluded from the jury selection process in violation of the fair cross section requirement.
Under the first part of the Duren test,16 death qualified jurors form a distinctive group in the community.17 The *730results of a national survey indicate that 22 percent of the population are against the death penalty for aperson convicted of murder.18 After the Witherspoon decision, researchers who sought to put a face on those who opposed the death penalty found that more African-Americans and women are excluded because of their opposition to the death penalty despite their ability to serve impartially during the guilt phase. See Lockhart v. McCree, supra, 476 U.S. 186-87 (Marshall, J., dissenting).
Beyond sheer numbers, researchers consistently find that the attitudes of death qualified jurors are distinguishable from those of other jurors. Attitudinal surveys that have sampled venirepersons, individuals who were eligible for jury service and members of the general population, consistently found that those who support the death penalty are more likely to hold prosecution perspectives.19 They are “more likely to believe that a *731defendant’s failure to testify is indicative of his guilt, more hostile to the insanity defense, more mistrustful of defense attorneys, and less concerned about the danger of erroneous convictions. [Grigsby v. Mabry, 569 F. Sup. 1273, 1283, 1293, 1304 (E.D. Ark. 1983)].” Lockhart v. McCree, supra, 476 U.S. 188 (Marshall, J., dissenting). In addition, “]t]his proprosecution bias is reflected in the greater readiness of death-qualified jurors to convict or to convict on more serious charges. [Grigsby v. Mabry, supra, 569 F. Sup. 1294-1302]; Grigsby v. Mabry, [supra, 758 F.2d 233-36].20 . . . [Even] *732the very process of death qualification — which focuses *733attention on the death penalty before the trial has even begun — has been found to predispose the jurors that survive the process to believe that the defendant is guilty. [Grigsby v. Mabry, supra, 569 F. Sup. 1302-1305; Grigsby v. Mabry, supra, 758 F.2d 234].” Lockhart v. McCree, supra, 188 (Marshall, J., dissenting).
The majority’s critique of the sociological evidence raises the question of whether any study would be satisfactory short of an admission by the jurors who sat on the case and who favored the death penalty that they have a bias for conviction. The majority maintains that their “own thorough examination . . . persuades [them] that the social science evidence presented in [Grigsby and Keeten, that is relied upon by the defendant] is not capable of establishing the defendant’s hypothesis . . . that in Connecticut in 1999, the removal for cause, prior to the guilt phase of a capital felony trial, of venirepersons whose beliefs concerning the death penalty would prevent or substantially impair the performance of their duties as jurors during the sentencing phase of a capital felony trial results in a more ‘conviction prone’ jury.” My simple answer to the majority’s conclusion is that, putting the studies aside, anyone with any common sense and who has the experience of life, would be compelled to come to the conclusion that venirepersons who favor the death penalty are more conviction prone than those who oppose it.
Furthermore, their criticism unfairly minimizes the value of those sociological studies examining the relationship between attitudes and human behavior. The majority argues that in five of the studies, researchers did not identify participants who would be death qualified. While this is true, the subjects of these studies *734were either jurors or members of the general population who are potentially members of the jury pool. The majority also criticizes the remaining studies that correlate subjects’ attitudes toward the death penalty with attitudes toward the criminal justice system but do not assess whether they would be more likely to vote for conviction. This criticism ignores the finding that the beliefs of those subjects are internally consistent; if subjects support the death penalty, they are more likely to hold proprosecution beliefs. A reasonable inference from these studies is that jurors with these beliefs are more likely to convict.
The majority fails to recognize the “essential unanimity of the results obtained by researchers using diverse subjects and varied methodologies.” Lockhart v. McCree, supra, 476 U.S. 189 (Marshall, J., dissenting). They would have us put common sense aside and a defendant’s life on hold while we wait for the definitive sociological study of whether jurors who hold positive attitudes toward the death penalty are more likely to favor the prosecution and thus, vote to convict. “The evidence thus confirms, and is itself corroborated by, the more intuitive judgments of scholars and of so many of the participants in capital trials — judges, defense attorneys, and prosecutors. [See Grigsby v. Mabry, supra, 569 F. Sup. 1322].” Lockhart v. McCree, supra, 188 (Marshall, J., dissenting).
Turning to the second prong of the Duren test,21 it is not fair and reasonable to allow our trial courts to *735exclude death qualified jurors from the jury pool given the significant number of persons who oppose the death penalty. In addition, by allowing prosecutors to eliminate these jurors there has been an expansion of the number of potential jurors who are excluded through peremptory challenges and those that are eliminated for cause.22 See Lockhart v. McCree, supra, 476 U.S. 190-92 (Marshall, J., dissenting).
*736Finally, the state of course does not deny that the third prong of the Duren test has been satisfied — that is, these venirepersons that are death qualified are systematically excluded for cause.23
Under the Duren test, once the defendant has established a prima facie case, the burden then shifts to the state to prove that the selection system resulting in a nonrepresentative array furthers a significant state interest. Duren v. Missouri, supra, 439 U.S. 368. The majority claims that “[t]he state has a valid and important interest in having the same jury serve at the guilt and penalty phases of a capital felony trial. . . . In most capital cases, the evidence presented to demonstrate the defendant’s guilt also will be relevant to the determination of the existence of aggravating factors.
. . . Thus, if different juries were required to consider the guilt and penalty issues, much of the same evidence would be likely to be presented to each of the juries.” (Citation omitted; internal quotation marks omitted.) The majority indicates that the state’s interest injudicial efficiency, that is, not presenting the same evidence to two different juries, is more important than the defendant’s right to an impartial jury. Clearly, the state has not satisfied their burden of proving a significant interest. *737Although I realize that Justice Borden, who votes with the majority in the present case, dissented in State v. Jones, supra, 234 Conn. 359, I thought we had indicated in Jones that when we must choose between justice and judicial efficiency, we come down strongly on the side of justice. To reiterate a point set forth by the majority in Jones, the “ [conservation of judicial resources is insufficient justification to deny the defendant’s request to bifurcate the trial where having the jury determine the truth of the prior murder conviction allegation concurrently with the currently charged murder poses a risk of substantial prejudice to the defendant.” Id., 346.
E
Sibling Approach
Although our sister states who authorize the penalty of death consistently have held that the death qualification of a jury passes constitutional muster, the concurring and dissenting opinions in State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987), are compelling. Justice O’Hern, in his concurrence, pointed out the following: “I need not even dwell on the question of whether death-qualified juries are conviction-prone juries. The point is that a jury selection process that systematically excludes all jurors who cannot state a commitment to the death penalty results in a jury that ... is not a truly representative cross-section of the community and deprives the capital defendant of a jury of his peers on the fundamental question of guilt or innocence.” Id., 337. And Justice Handler, in his dissent in Ramseur, reasoned that death qualification violated New Jersey’s “constitutional guarantees of a fair and impartial juiy as a matter of fundamental fairness.” Id., 435. Justice Handler went on to state: “I agree with Justice O’Hem in his concurring opinion . . . that the inconvenience entailed in providing for a non death-qualified jury— *738one that is fair and impartial — in the trial of guilt is not too high a price to pay to vindicate [the] defendant’s constitutional interests. There can be no question that the use of completely separate juries would solve the problem because guilt would be determined by a normally composed jury but penalty would be determined by a death-qualified jury. A prohibition of death-qualifying the jury for the guilt phase of capital trials would impose relatively insubstantial burdens on the state.” (Citation omitted.) Id., 434 (Handler, J., dissenting).
The California Supreme Court likewise recognized the constitutional problem of death qualification: “Jurors undergoing death-qualification would have reason to infer that the judge and the attorneys personally believe the accused to be guilty or expect the jury to come to that conclusion. Only such an inference could serve to explain to the jurors why so much time and energy are devoted to an extensive discussion of penalty before trial. Provided with these cues from people who are not only experts in the courtroom but are also presumably acquainted with all the evidence in the case, the relevant law, and the ‘correct’ application of the one to the other, death-qualified jurors may themselves become more inclined to believe that the accused is guilty as charged.” Hovey v. Superior Court, 28 Cal. 3d 1, 71, 616 P.2d 1301, 168 Cal. Rptr. 128 (1980).
F
Historical Approach
In examining the intent of the framers of the state constitution, it is evident that the right to a trial by an impartial jury was a core principle in the development of our state constitution. Its inclusion reflects a profound understanding of how the state’s power to prosecute is tempered by the rights of the criminal defendant. William Blackstone, writing in the 18th century, observed that “the founders of the English law have, *739with excellent forecast, contrived that . . . the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen and superior to all suspicion.” (Emphasis added; internal quotation marks omitted.) Duncan v. Louisiana, 391 U.S. 145, 151-52, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968). Our founding fathers included in the Bill of Rights, later incorporated into the constitution by the sixth amendment to the United States constitution, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .” Soon after, every state, including Connecticut in its first formal constitution of 1818, mandated that the criminal defendant had the right to a trial by an impartial jury. See Conn. Const., art. I, §§ 8, 19.
“Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge . . . . [T]he jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power — a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the *740determination of guilt or innocence.” Duncan v. Louisiana, supra, 391 U.S. 156.
It is against this historical background that the state constitution needs to be viewed. The right to trial by an impartial jury was incorporated into the state’s first formal constitution in 1818. More recently, this court has reiterated that “[j]ury impartiality is a core requirement of the right to trial by jury guaranteed by the constitution of Connecticut, article first, § 8, and by the sixth amendment to the United States constitution. . . . [T]he right to a jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors.” (Internal quotation marks omitted.) State v. Rhodes, 248 Conn. 39, 46, 726 A.2d 513 (1999). When a jury is selected from a pool that is conviction prone, it baffles me how anyone could determine such a potential juror could possibly be impartial.
G
Conclusion of Discussion of Geisler Factors
In short, the death qualification of a jury that determines the guilt or innocence of the criminal defendant in a capital trial cannot pass state constitutional muster. Even if the costs of having separate juries to determine guilt and the penalty could be considered, they are insignificant. I thought it was “settled that a State may not entrust the determination of whether a man is innocent or guilty to a tribunal ‘organized to convict.’ Fay v. New York, 332 U.S. 261, 294 [67 S. Ct. 1613, 91 L. Ed. 2043 (1947)]. See Tumey v. Ohio, 273 U.S. 510 [47 S. Ct. 437, 71 L. Ed. 749 (1927)]. It requires but a short step from that principle to hold, as we do today, that a State may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death.” Witherspoon v. Illinois, supra, 391 U.S. 521.
*741IV
Although I do not believe that the death penalty can be constitutionally imposed under our state constitution, common decency should dictate that, at the very least, when this extreme and barbaric punishment is sought by the state, we level the playing field so the defendant can at least receive a fair trial in the determination of his guilt or innocence. Today, the majority compounds the brutality of the penalty of death by ensuring that a jury is death qualified and, therefore, more likely to convict the defendant at the guilt phase of the trial. In order to gain this tactical advantage, the state will from this day forward be encouraged to seek death in those marginal cases in which such a penalty should not have been sought.
This probably will be the last case before my retirement in which I will have the opportunity to express my views with respect to the dreadful punishment of death and related matters. Civilized nations have barred this horrible punishment. Some of our sister states have also banned death as a punishment, including all of the New England states except one — Connecticut. I have pointed out in my dissents in State v. Cobb, 251 Conn. 285, 523, 743 A.2d 1 (1999), State v. Webb, 238 Conn. 389, 552-54, 680 A.2d 147 (1996), State v. Breton, 235 Conn. 206, 262, 663 A.2d 1026 (1995), and State v. Ross, 230 Conn. 183, 294, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995), that the penalty of death fails to comport with contemporary standards of decency and that it constitutes cruel and unusual punishment in violation of our state constitution. I leave this court heartbroken because, as a result of one vote,24 Connecticut is not among those enlightened states and nations to put an end to the *742death penalty. But those who would have it must live with this stain of blood. The determination of the constitutionality of the death penalty is not in the control of the legislature but, rather, in this court and the majority has failed to recognize its unconstitutionality.
I dissent.
“A death-qualified jury is one from which prospective jurors have been excluded for cause in light of their inability to set aside their views about the death penalty that would prevent or substantially impair the performance of [their] duties as [jurors] in accordance with [their] instructions and [their] oath.” (Internal quotation marks omitted.) Buchanan v. Kentucky, 483 U.S. 402, 408 n.6, 107 S. Ct. 2906, 97 L. Ed. 2d 336 (1987).
See part III D of this dissent.
Nevertheless, even under the federal constitution “a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against i1s infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.” Witherspoon v. Illinois, 391 U.S. 510, 522-23, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968).
Article first, § 8, of the Connecticut constitution provides: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except, in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury, except in the armed forces, or in the militia when in actual service in time of war or public danger.”
Article first, § 19, of the Connecticut constitution provides: “The right of trial by jury shall remain inviolate.”
As a result of the trial court’s voir dire of the venirepersons regarding their opposition to the death penalty in this case, twelve out of 157, or nearly 8 percent, were excused from serving because they opposed the death penalty and could not put that belief aside if selected.
In 1973, there was a vote on House Bill No. 8297, the bill underlying General Statutes § 53a-54b, which provides for the penalty of death. In the House of Representatives, 37 percent of the legislators and in the Senate, 47 percent of the senators voted against the death penalty. Overall, based on the total number of senators and representatives, 39 percent were not in favor of the death penalty.
See footnote 6 of this dissent.
According to a Gallup Poll conducted in 1999, 22 percent of the population answered that they were “against” when asked: “Are you in favor of the death penalty for a person convicted of murder?” The sample was 543 adults. The statistic’s margin of error was plus or minus five percentage points. See M. Gillespie, Public Opinion Supports Death Penalty, Gallup News Service, February 24, 1999, p. 2.
General Statutes § 53a-46a (b) (2) (C) provides that such hearing to determine the penalty shall be conducted before another jury “if the jury which determined the defendant’s guilt has been discharged by the court for good cause . . .
“Even so, a defendant convicted by such a jury in some future case might still attempt to establish that the jury was less than neutral with respect to guilt. If he were to succeed in that effort, the question would then arise whether the State’s interest in submitting the penalty issue to ajury capable of imposing capital punishment may be vindicated at the expense of the defendant’s interest in a completely fair determination of guilt or innocence — given the possibility of accommodating both interests by means of a bifurcated trial, using one jury to decide guilt and another to fix punishment. That problem is not presented here, however, and we intimate no view as to its proper resolution.” Witherspoon v. Illinois, supra, 391 U.S. 520 n.18.
See part III D of this dissent.
In Williams v. Coppola, supra, 41 Conn. Sup. 60, the trial court held that, a party’s “use of peremptory challenges to exclude prospective jurors solely on the basis of membership in a cognizable group, within the meaning *725of the representative cross-section rule, violates aparty’s state constitutional right to trial by jury in both civil and criminal cases.”
The United States Supreme Court, in Lockhart, addressed the issue of whether “death qualification or the removal for cause of the so-called Witkerspoon-exciadable prospective jurors” violated the fair cross section requirement. (Internal quotation marks omitted.) Lockhart v. McCree, supra, 476 U.S. 167. A Witherspoon-excludable is a prospective juror who would answer affirmatively that his “views [on the death penalty] would prevent or substantially impair the performance of his duties as ajuror in accordance with his instructions and his oath” and, as a result, who would be excluded from serving on the jury. (Internal quotation marks omitted.) Id., 167 n.1; Wainwright v. Witt, 469 U.S. 412, 420, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985); *728Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980); Witherspoon v. Illinois, supra, 391 U.S. 522-23 n.21. The Lockhart court held that “[t]he essence of a fair-cross-section claim is the systematic exclusion of a distinctive group in the community. Duren [v. Missouri, supra, 439 U.S. 364]. In our view, groups defined solely in terms of shared attitudes that would prevent or substantially impair members of the group from performing one of their duties as jurors, such as the Witherspoon-excludables at issue here, are not distinctive groups for fair-cross-section purposes.” (Internal quotation marks omitted.) Lockhart v. McCree, supra, 174.
The United States Supreme Court in Lockhart v. McCree, supra, 476 U.S. 173, held that the constitution does not prohibit the removal for cause, during the guilt phase, of prospective jurors whose opposition to the death penalty would prevent or substantially impair the performance of their duties as jurors. The court assumed, arguendo, that the social science studies introduced by the respondent; see footnotes 19 and 20 of this dissent for a discussion of those same studies; established that death qualified juries are “more conviction-prone than non-death-qualified juries.” Id.
The Lockhart court held that death qualified juries do not violate the fair cross section requirement of the sixth amendment. Id., 177. The sixth amendment applies to jury panels or venires but does not require that petit juries actually reflect the composition of the community at large. Id., 173. Furthermore, the essence of a fair cross section claim is the systematic exclusion of a distinctive group in the community — such as African-Americans, women and Mexican-Americans — for reasons completely unrelated to their ability to serve as jurors in aparticular case. Id., 175. Distinctive groups, in the view of the United States Supreme Court, do not include people whose attitudes would prevent or substantially impair the performance of their duties as jurors, such as the Witherspoon-excludables. Id., 174. Death qualification serves “the State’s legitimate interest in obtaining a jury that can properly and impartially apply the law to the facts of the case at both the guilt and sentencing phases of a capital trial.” Id., 175-76.
It is interesting to note that, although Arkansas law does not provide for a bifurcated trial, as pointed out by the United States Supreme Court in *729Lockhart, Connecticut, law does authorize such bifurcation. See General Statutes § 53a-46a.
See footnote 13 of this dissent for a discussion of Witherspoonexcludables.
See part III C of this dissent,.
The Eighth Circuit has reasoned that according to “the specific elements of the Duren test, we find Witherspoon also is direct authority that the group of [Witherspoon-exdudables] excluded in this case is a distinctive group in the community. Witherspoon found a distinctive group in those venirepersons who were not ‘automatic-life’ but still had scruples against the death penalty. The district court found ‘that the [Witherspoon-exclud*730able] group is of substantial size both nationally and within the state of Arkansas. . . . So the group excluded is both distinct and sizeable.’ Grigsby [v. Mabry, 569 F. Sup. 1273, 1285 (E.D. Ark. 1983)].” Grigsby v. Mabry, supra, 758 F.2d 231.
See M. Gillespie, Public Opinion Supports Death Penalty, Gallup News Service, February 24, 1999, p. 2.
In Grigsby v. Mabry, supra, 758 F.2d 232-33, the court described the results of a number of “Attitudinal and Demographic Surveys” as follows:
“1. Bronson, ‘On the Conviction Proneness and Representativeness of the Death-Qualified Jury: An Empirical Study of Colorado Veniremen,’ 42 U. Colo. L. Rev. 1 (1970). (Bronson-Colorado).
“The subjects of this study were 718 Colorado venirepersons. Interviews were done by trained students from the University of Colorado in 1968 and 1969. Each subject was asked whether they strongly favored, favored, opposed, or strongly opposed the death penalty. This was followed by five questions regarding attitudes on criminal justice issues. On each of the five questions the survey found the stronger the subjects’ support for the death penalty, the stronger their support for positions most favorable to the prosecution.
“2. Bronson, ‘Does the Exclusion of Scrupled Jurors in Capital Cases Make the Jury More Likely to Convict? Some Evidence from California,’ 3 Woodrow Wilson L.J. 11 (1980). (Bronson-California). . . .
“Trained students interviewed 755 Butte County, California, venirepersons regarding their position on the death penalty. Seven attitudinal questions, much like those used in Bronson-Colorado, followed. Once again a direct *731and significant correlation between death penalty beliefs and criminal justice attitudes was found.
“The second survey involved interviews of 707 venirepersons from Los Angeles, Sacramento and Stockton, California. The results were consistent with the prior studies: the more strongly the subjects favored the death penalty, the more likely they were to endorse pro-prosecution positions.
“3. Louis Harris & Associates, Inc., Study No. 2016 (1971).
“Harris randomly polled 2,068 adults throughout the United States in 1971. The respondents were asked about their attitudes on the death penalty and other criminal justice issues. The results parallel those of the Bronson surveys. In addition, Harris found more blacks than whites, and more women than men, would be excluded from jury service by death qualification.
“4. Fitzgerald & Ellsworth, ‘Due Process vs. Crime Control: Death Qualification and -Jury Attitudes,’ 8 Law & Hum. Behav. 31 (1984). (Fitzgerald-1979).
“The survey upon which this article is based was a sample of 811 jury eligible persons in Alameda County, California, in 1979. An independent professional polling organization, Field Research Corporation of San Francisco, drew the sample and interviewed the subjects. Respondents who could not be fair and impartial, i.e., nullifiers, were excluded. Of the remaining 717 subjects, over seventeen percent were found to be [Witharspoon-exciadables]. Questions regarding attitudes on criminal justice issues showed that death qualified respondents were more favorable to the prosecution than the [Wif/ierspoofi-excludables].
“5. Precision Research, Inc., Survey No. 1286 (1981). (Precision Survey). “This survey was conducted by an Arkansas polling organization in 1981. A sample of407 adults in the state of Arkansas were asked the same questions used in Fitzgerald-1979. The survey found that approximately eleven percent of those who could be fair and impartial in determining guilt-innocence were [Wiilierspoon-excludables].”
The court in Grigsby v. Mabry, supra, 758 F.2d 233-34, noted the findings of several “Conviction-Proneness Surveys” as follows:
“1. H. Zeisel, Some Data on Juror Attitudes Toward Capital Punishment (University of Chicago Monograph 1968). (Zeisel).
*732“In 1954 and 1955 Zeisel questioned jurors who had served on felony juries in Brooklyn, New York, and Chicago, Illinois. The subjects were asked about the first ballot votes of their jury and whether they had scruples against the death penalty. The study controlled for the weight of evidence in each case and found jurors with conscientious scruples against the death penalty voted to acquit more often than jurors without such scruples.
“2. W. Wilson, Belief in Capital Punishment and Jury Performance (1964) (unpublished). (Wilson).
“This study presented 187 college students with written descriptions of five capital cases in 1964. Each student was asked whether he or she had scruples against the death penalty. They were then asked to assume that they were jurors in the five cases. The students without death penalty scruples voted for conviction more often than those with scruples.
“3. Goldberg, ‘Toward Expansion of Witherspoon: Capital Scruples, Jury Bias, and Use of Psychological Data to Raise Presumptions in the Law,’ 5 Harv. C.R.-C.L.L. Rev. 53 (1970).
“A set of sixteen written descriptions were given to 100 white and 100 black college students in Georgia Those without scruples voted to convict in seventy-five percent of cases, compared to sixty-nine percent for those with scruples.
“4. Jurow, ‘New Data on the Effect of a “Death Qualified” Jury on the Guilt Determination Process,’ 84 Harv. L. Rev. 567 (1971). (Jurow).
“Audio recordings of two simulated murder trials were played for 211 employees of Sperry Rand Corporation in New York. The subjects filled out questionnaires which measured their attitudes toward the death penally and various criminal justice issues. The subjects were then asked to listen to each ‘trial’ and vote on guilt-innocence. Those persons who more strongly favored the death penalty were found to be more likely to convict.
“5. Cowan, Thompson & Ellsworth, ‘The Effects of Death Qualification on Jurors’ Predisposition to Convict and on the Quality of Deliberation,’ 8 Law & Hum. Behav. 53 (1984). (Cowan-Deliberation).
“This 1979 study began by identifying the [Wii/ierspocw-excludables] in its sample of jury eligible residents of San Mateo and Santa Clara Counties, California. Those [Wiiferspoow-excludables] who could not be fair and impartial in determining guilt-innocence (nullifiers) were excluded from the sample. The remaining 288 subjects were shown a realistic two and one-half hour videotape of a murder trial. The subjects filled out questionnaires regarding their criminal justice attitudes and were assigned to panels of twelve in order to simulate jury deliberations. Some panels were death qualified, while others included [Wif/ierspocm.-excludables]. Ballot forms were filled out by each subject before and after the panel deliberations as a means of examining the qualify and importance of the deliberations.
“The study found that death penalty attitudes were closely linked to conviction proneness — subjects favoring the death penalty were more likely to convict. In addition, the study concluded that jury panels containing a *733mix of [Wtifterspoon-excludables] and death-qualified subjects tended to view all witnesses more critically and remember the facts of the case more accurately than death-qualified jury panels.”
The Eighth Circuit, in Grigsby v. Mabry, supra, 758 F.2d 231-32, considered that “ [t]he second element of the Duren test relates to venires. However, given our earlier discussion and finding that there is no practical difference between exclusion from the venire and systematic exclusion for cause from the petit jury, we analyze the resultant petit juries. In this case we find the representation of [Wif/ierspoow-excludables] on the juries is not ‘fair and reasonable in relation to the number of such persons in the community . . . Duren [v. Missouri, supra, 439 U.S. 364]. The district court found [Wii/ie?’spoore-excludables] constitute between eleven and seventeen percent of the population. However, [Wii/ierspoore-excludables] are totally excluded from guilt-innocence juries in Arkansas.”
“The true impact of death qualification on the fairness of a trial is likely even more devastating than the studies show. Witherspoon placed limits on the State’s ability to strike scrupled jurors for cause, unless they state ‘unambiguously that [they] would automatically vote against the imposition of capital punishment no matter what the trial might reveal,’ [Witherspoon v. Illinois, supra, 391 U.S. 516 n.9]. It said nothing, however, about the prosecution’s use of peremptory challenges to eliminate jurors who do not meet that standard and would otherwise survive death qualification. See Gillers, ‘Deciding Who Dies,’ 129 U. Pa. L. Rev. 1, 85 n.391 (1980). There is no question that peremptories have indeed been used to this end, thereby expanding the class of scrupled jurors excluded as a result of the death-qualifying voir dire challenged here. See, e.g., People v. Velasquez, 26 Cal. 3d 425 [438 n.9, 606 P.2d 341, 162 Cal. Rptr. 306] (1980) (prosecutor informed court during voir dire that if a venireperson expressing scruples about the death penalty ‘were not a challenge for cause, I would kick her off on a peremptory challenge’). The only study of this practice has concluded: ‘For the five-year period studied a prima facie case has been demonstrated that prosecutors in Florida’s Fourth .Judicial Circuit systematically used their peremptory challenges to eliminate from capital juries venirepersons expressing opposition to the death penalty.’ Winick, ‘Prosecutorial Peremptory Challenge Practices in Capital Cases: An Empirical Study and a Constitutional Analysis,’ 81 Mich. L. Rev. 1, 39 (1982).
“Judicial applications of the Witherspoon standard have also expanded the class of jurors excludable for cause. While the studies produced by respondent generally classified a subject as a Witherspoon-exdudable only upon his unambiguous refusal to vote death under any circumstance, the courts have never been so fastidious. Trial and appellate courts have frequently excluded jurors even in the absence of unambiguous expressions of their absolute opposition to capital punishment. Schnapper, ‘Taking Witherspoon Seriously: The Search for Death-Qualified Jurors,’ 62 Texas L. Rev. 977, 993-1032 (1984). And this less demanding approach will surely become more common in the wake of this Court’s decision in Wainwright v. Witt, 469 U.S. 412 [105 S. Ct. 844, 83 L. Ed. 2d 841] (1985). Under Witt, a juror who does not make his attitude toward capital punishment ‘unmistakably clear,’ Witherspoon [v. Illinois, supra, 391 U.S. 522 n.21], may nonetheless be excluded for cause if the trial court is left with the impression that his attitude will ‘ “prevent or substantially impair the performance of his duties *736as a juror in accordance with his instructions and his oath.” ’ [Wainwright v.] Witt, supra, [433] (quoting Adams v. Texas, 448 U.S. 38, 45 [100 S. Ct. 2521, 65 L. Ed. 2d 581] [1980]). It thus ‘seems likely that Witt will lead to more conviction-prone panels’ since ‘ “scrupled” jurors — those who generally oppose the death penalty but do not express an unequivocal refusal to impose it — usually share thepro-defendantperspective of excludable jurors.’ See Finch & Ferraro, ‘The Empirical Challenge to Death Qualified Juries: On Further Examination,’ 65 Neb. L. Rev. 21, 63 (1986).” Lockhart v. McCree, supra, 476 U.S. 190-92 (Marshall, J., dissenting).
The Eighth Circuit, in Grigsby v. Mabry, supra, 758 F.2d 232, considered that “Duren requires the petitioners to establish that the [Witherspoonexcludables] are systematically excluded. Here, the district court found the systematic exclusion results from the voir dire at trial. Grigsby [v. Mabry, supra, 569 F. Sup. 1286]. There is little argument offered by the state that in capital cases the exclusion is not systematic.”
See State v. Cobb, supra, 251 Conn. 285 (four to three decision); State v. Webb, supra, 238 Conn. 389 (four to three decision).