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*********************************************** 
STATE OF CONNECTICUT v. GEORGE

MICHAEL LENIART

(SC 19809)

(SC 19811)

Palmer, McDonald, Robinson, D’Auria, Mullins, Kahn and Vertefeuille, Js.*

Syllabus

The defendant, who was convicted of capital felony and murder following the

disappearance of the victim, appealed from the judgment of conviction,

claiming, inter alia, that certain evidentiary rulings substantially affected

the jury’s verdict and that there was insufficient evidence to sustain his

conviction under the common-law corpus delicti rule. At trial, the state

presented testimony from A, who had been serving a ten year sentence

for a sexual assault involving another victim at the time of the defendant’s

trial. A testified that he and the defendant had sexually assaulted the

victim, a fifteen year old girl, after the three had driven to a secluded

wooded location in the defendant’s truck. A testified that he last saw

the victim in the defendant’s truck and that, when he met the defendant

the following day, the defendant, who was a lobster fisherman, had

confessed to killing the victim, placing her remains in a lobster trap,

and dropping the trap into a river. In order to impeach A’s credibility,

the defendant sought to admit a video recording depicting a police

officer interviewing A prior to the administration of a polygraph examination. The defendant claimed that the video was relevant because it

showed that A had been promised favorable treatment in exchange for

his cooperation. The trial court, however, excluded the video on the

ground that it constituted inadmissible polygraph evidence under State

v. Porter (241 Conn. 57). The state also presented testimony from three

individuals who previously had been incarcerated with the defendant.

The first of those witnesses, B, testified that the defendant had admitted

to choking an intoxicated young girl to death while having sex with her,

dismembering her body, and disposing of it in lobster pots in Long Island

Sound. The second of those witnesses, D, testified that the defendant

told him that the victim’s body was in a river and had been eaten by

crabs. A, B, and D all testified that they hoped to receive some consideration from the state in exchange for their testimony. The third of those

witnesses, C, who was no longer incarcerated at the time of trial, testified

that the defendant had admitted to raping and killing a fifteen year old

girl on his boat and hiding the body in a well before ultimately dumping

it in Long Island Sound. The state also elicited testimony at trial from

a thirteen year old victim in a separate case indicating that, six months

before the victim’s disappearance, the defendant had choked her while

raping her. Finally, the state called S, the defendant’s ex-wife, who

testified that she had asked the defendant whether he was involved in

the victim’s disappearance and that the defendant had told her that, the

less she knew, the better off she was. At trial, the defendant sought to

introduce testimony from N, a law professor who had studied issues

related to use of incarcerated informants as witnesses in criminal prosecutions. The state objected, and N testified, outside the presence of the

jury, that, among other things, the use of such informants is a significant

source of wrongful convictions and that inmates may gather information

from gossip, other inmates’ legal files, or the media in order to fabricate

believable, incriminating stories in exchange for favorable treatment.

Although N was able to testify about the use of such witnesses in certain

other jurisdictions, she acknowledged that she had not studied customs

or practices in Connecticut. The trial court ultimately excluded N’s

testimony, concluding that it invaded the exclusive province of the jury

by assessing the credibility of the state’s witnesses and that it did not

convey any relevant information beyond the ken of the average juror.

After closing arguments, the trial court instructed the jury regarding the

credibility of criminal informants. On appeal, the defendant raised an

unpreserved claim under the corpus delicti rule that the state had failed

to set forth sufficient evidence at trial to corroborate his alleged confessions and to establish that the victim was, in fact, dead. The defendant
also claimed that the trial court had improperly excluded the video

recording and N’s testimony. Although the Appellate Court rejected the

defendant’s sufficiency claim for lack of preservation, it agreed with

both of the defendant’s evidentiary claims. Because the Appellate Court

found that those evidentiary errors were harmful, it reversed the trial

court’s judgment and remanded the case for a new trial. Both the state

and the defendant, on the granting of certification, appealed to this

court. In his appeal, the defendant claimed that the Appellate Court

improperly rejected his sufficiency claim under the corpus delicti rule.

In its appeal, the state claimed that the Appellate Court incorrectly

concluded that the trial court had improperly excluded the video

recording and N’s testimony. Held:

1. The defendant could not prevail on his unpreserved sufficiency claim

under this state’s common-law corpus delicti rule: the purpose, history,

and scope of the corpus delicti rule, in this state as well as in other

jurisdictions, supported this court’s conclusion that the rule both bars

the admissibility of evidence of uncorroborated confessions and imposes

a substantive due process requirement, and, therefore, contrary to the

Appellate Court’s conclusion, the defendant’s corpus delicti claim was

reviewable on appeal even though it was not properly preserved at trial;

moreover, although this court declined the defendant’s invitation to

specifically require the state to prove the fact of death by evidence

independent of a defendant’s confession in a murder case under the

modern formulation of the corpus delicti rule, in light of circumstances

surrounding the victim’s disappearance, the testimony of A regarding

the sexual assault of the victim and related events, the fact that the

defendant had been convicted of sexually assaulting a thirteen year old

girl in a separate case, S’s testimony, and the similarities between the

defendant’s confessions as recounted by A, B, D, and C, this court

concluded that there was sufficient, corroborating evidence, independent of the defendant’s confessions, of the victim’s death and of the

credibility of those confessions for the jury to have found the defendant

guilty beyond a reasonable doubt.

2. The Appellate Court incorrectly concluded that the trial court’s improper

exclusion of the video recording constituted harmful error: the trial

court improperly excluded the video for all purposes under Porter, as

that case defined inadmissible polygraph evidence to include only the

results of a polygraph test and the willingness of a witness to undergo

such a test, and, accordingly, Porter did not categorically preclude the

admission of all evidence regarding the pretest interview process; nevertheless, the defendant failed to meet his burden of demonstrating that

the exclusion of the video substantially affected the verdict because the

polygrapher had repeatedly emphasized the importance of telling the

truth while making only infrequent, potentially troubling remarks, A’s

own testimony on cross-examination by defense counsel provided strong

evidence of the powerful incentives that he had to cooperate with the

state by freely admitting his own participation in the underlying crimes

and his desire for leniency in connection with the unrelated sexual

assault conviction, and the state’s case against the defendant was otherwise strong.

3. The Appellate Court incorrectly concluded that the trial court had abused

its discretion in precluding N’s testimony regarding the credibility of

incarcerated informants; although the trial court incorrectly concluded

that N’s testimony would have invaded the exclusive province of the

jury by assessing the credibility of witnesses, as N explicitly testified

that she had no knowledge of this particular case and that she was not

familiar with and did not intend to comment on the testimony of any

particular witness, the trial court reasonably concluded that the relevant

information presented through N’s testimony was not beyond the ken

of the average juror, as the trial court could have credited N’s testimony

that any fundamental concerns regarding the reliability of informant

testimony have been exposed by the media and are well understood

outside of the jailhouse, and as any concepts relating to the credibility

of incarcerated informants that were directly and specifically applicable

to this case would have been made familiar to the jury through common sense, other information presented at trial, and the trial court’s

instructions.

State v. Uretek, Inc. (207 Conn. 706), to the extent that it suggested that

corpus delicti claims do not implicate fundamental due process rights

and, therefore, are not reviewable on appeal unless preserved at trial,
overruled.

(One justice concurring separately; three justices

concurring in part and dissenting in part

in two separate opinions)

Argued May 2, 2018—officially released September 10, 2019

Procedural History

Substitute information charging the defendant with

three counts of the crime of capital felony and one

count of the crime of murder, brought to the Superior

Court in the judicial district of New London and tried

to the jury before Jongbloed, J.; thereafter, the court

granted the state’s motion to preclude certain evidence;

verdict and judgment of guilty, from which the defendant appealed; subsequently, the Appellate Court, Sheldon and Prescott, Js., with Flynn, J., concurring in part

and dissenting in part, reversed the judgment of the

trial court and remanded the case for a new trial, and the

state and the defendant, on the granting of certification,

filed separate appeals with this court. Reversed in part;

further proceedings.

Stephen M. Carney, senior assistant state’s attorney,

with whom, on the brief, were Michael L. Regan, state’s

attorney, and John P. Gravalec-Pannone, former senior

assistant state’s attorney, for the appellant in Docket

No. SC 19809 and the appellee in Docket No. SC 19811

(state).

Lauren Weisfeld, chief of legal services, for the appellee in Docket No. SC 19809 and the appellant in Docket

No. SC 19811 (defendant).
Opinion

MULLINS, J. Following a jury trial, the defendant,

George Michael Leniart, was convicted of murder in

violation of General Statutes § 53a-54a (a) and three

counts of capital felony in violation of General Statutes

(Rev. to 1995) § 53a-54b (5), (7), and (9), as amended

by Public Acts 1995, No. 95-16, § 4.1 The Appellate Court

reversed the judgment of conviction and remanded the

case for a new trial, holding that the trial court improperly excluded (1) a videotape that depicted a police

officer interviewing a crucial prosecution witness prior

to the administration of a polygraph examination, and

(2) certain expert testimony proffered by the defendant

regarding the reliability of jailhouse informant testimony. State v. Leniart, 166 Conn. App. 142, 146–47, 140

A.3d 1026 (2016). The Appellate Court also considered

and rejected the defendant’s claim regarding the sufficiency of the underlying evidence. Id. We granted both

the state’s and the defendant’s petitions for certification

to appeal.

In its certified appeal, the state challenges the conclusion of the Appellate Court that the videotape and

expert testimony were improperly excluded. In his

appeal, the defendant contends that he is entitled to a

judgment of acquittal because, under the common-law

corpus delicti rule, the state failed to set forth sufficient

evidence, independent of the defendant’s own admissions, to establish that the alleged victim was, in fact,

dead.

We reverse the judgment of the Appellate Court with

respect to the state’s appeal and affirm the judgment

with respect to the defendant’s appeal. Specifically, we

conclude that (1) although the defendant’s corpus

delicti claim is not merely evidentiary and, therefore,

is reviewable on appeal, the Appellate Court correctly

concluded that there was sufficient evidence to support

the conviction, (2) although the Appellate Court correctly concluded that the trial court’s exclusion of the

videotape was improper, the exclusion of that evidence

was harmless, and (3) the Appellate Court incorrectly

concluded that the trial court had abused its discretion

in precluding the expert testimony proffered by the

defendant.

The following facts, which the jury reasonably could

have found, and procedural history are relevant to the

claims before us. On May 29, 1996, the victim,2 who

was then fifteen years old, snuck out of her parents’

home to meet Patrick J. Allain, a teenage friend also

known as P.J., so that they could smoke marijuana,

drink alcohol, and have sex. The two teenagers were

picked up by the defendant, who at the time was thirtythree years old. They then drove to a secluded, wooded

location near the Mohegan-Pequot Bridge in the defendant’s truck.
While parked, the victim and Allain kissed, drank

beer, and smoked marijuana. At some point, the defendant, who had told Allain that he was in a cult, called

Allain aside and told him that he wanted ‘‘to do’’ the

victim and that he ‘‘wanted a body for the altar.’’

Allain, who feared the defendant, returned to the

truck and informed the victim that he and the defendant

were going to rape her. Allain then removed her clothes

and had sex with her in the truck while the defendant

watched through the windshield. After Allain and the

victim finished having sex, the defendant climbed into

the truck and sexually assaulted the victim while Allain

held her breast. After the assault, the victim pretended

not to be upset so that the defendant would not harm

her further.

The defendant then drove the teenagers back to

Allain’s neighborhood. The defendant dropped off

Allain near his home, and the victim remained in the

truck. The victim never returned home that night and

was never seen again, despite a protracted nationwide

search by law enforcement. The search also did not

recover her body.

Allain subsequently implicated the defendant in the

victim’s death. As a result, in 2008, the state charged

the defendant with murder in violation of § 53a-54a,

capital felony in violation of § 53a-54b (5) for murder

in the course of a kidnapping, capital felony in violation

of § 53a-54b (7) for murder in the course of a sexual

assault, and capital felony in violation of § 53a-54b (9)

for murder of a person under the age of sixteen. The

case was tried to a jury.

The state’s case against the defendant included the

testimony of four witnesses, who each testified that, at

different times, the defendant had admitted, directly or

indirectly, to killing the victim. Allain, the state’s key

witness, was serving a ten year sentence for an unrelated sexual assault at the time of trial. He testified that,

on the afternoon following the previously described

events, the defendant had asked to meet with him on

a path behind the Mohegan School in Montville. At that

meeting, the defendant admitted that ‘‘he had to do [the

victim]—to get rid of her.’’ The defendant described to

Allain how, after dropping Allain off the night before,

he had pretended to run out of gas near the path.3 He

then ripped the license plates off his truck, dragged the

frantic victim into the woods, and choked her. Later

that evening, at a second meeting, the defendant further

confessed to Allain that he had killed the victim and

had ‘‘erased’’ her by placing her remains in a lobster

trap and dropping them into the mud at the bottom of

the Thames River. The defendant was a lobster fisherman at the time.

Like Allain, the state’s three other confession witnesses either were inmates at the time of trial or pre-
viously had been incarcerated. Each of these three

witnesses had, at some point, been incarcerated with

the defendant while he was serving time for an unrelated sexual assault charge. Kenneth S. Buckingham

testified that the defendant confided in him that he

accidentally had choked an intoxicated young girl to

death while having sex with her and that he then dismembered the body and disposed of it in lobster pots

‘‘in the sound.’’ Buckingham also testified that a person

named P.J. had been with the defendant and that victim

prior to the death. Michael S. Douton, Jr., testified that

the defendant had told him that the victim ‘‘was in the

river’’ and that ‘‘they would never convict him because

they would never find [her] body,’’ which had been

eaten by crabs. Buckingham and Douton, like Allain,

each testified that they hoped to receive some consideration from the state in return for their testimony. Zee

Y. Ching, Jr., unlike the other witnesses, was not incarcerated or facing legal jeopardy at the time of trial.

Ching testified that the defendant admitted that he had

raped and killed a fifteen year old girl on his boat and

that he had hidden the body in a well before ultimately

dumping it in Long Island Sound.

The jury returned a verdict of guilty on all counts.

The court merged the verdicts into a single conviction

of capital felony and sentenced the defendant to a term

of life imprisonment without the possibility of release.

On appeal to the Appellate Court, the defendant raised

various challenges to the trial court’s evidentiary rulings

and also claimed, relying in part on the common-law

corpus delicti rule, that the evidence was insufficient

to sustain his conviction. State v. Leniart, supra, 166

Conn. App. 146–49. The Appellate Court rejected the

defendant’s sufficiency claim but concluded that the

trial court incorrectly had excluded the polygraph pretest interview videotape, as well as expert testimony

relating to the credibility of jailhouse informants. The

Appellate Court then concluded that those evidentiary

rulings substantially affected the verdict and, accordingly, remanded the case for a new trial.4

We granted the state’s petition for certification to

appeal, limited to the questions of whether the Appellate Court correctly concluded that the trial court had

erroneously excluded the polygraph pretest interview

videotape and expert testimony regarding jailhouse

informant testimony and that those rulings substantially

affected the verdict. State v. Leniart, 323 Conn. 918,

150 A.3d 1149 (2016). We also granted the defendant’s

petition for certification to appeal, limited to the question of whether the Appellate Court properly applied

the corpus delicti rule in concluding that there was

sufficient evidence to sustain his conviction of murder

and capital felony. State v. Leniart, 323 Conn. 918, 918–

19, 149 A.3d 499 (2016). Additional facts and procedural

history will be set forth as necessary.
I

CORPUS DELICTI RULE

We first consider the claim raised in the defendant’s

appeal. Before the Appellate Court, the defendant

argued, for the first time; see footnote 7 of this opinion; that the evidence was insufficient to sustain his

conviction because, under the common-law corpus

delicti rule, the state had failed to establish beyond a

reasonable doubt each element of the crimes charged.

As we explain more fully hereinafter, the corpus delicti

rule, although defined and applied differently in other

jurisdictions, and even in our prior cases, generally

‘‘prohibits a prosecutor from proving the [fact of a transgression] based solely on a defendant’s extrajudicial

statements.’’5 Black’s Law Dictionary (7th Ed. 1999) p.

346. In the present case, the defendant argued that

there was no evidence, aside from his various alleged

admissions, that the victim actually was dead, which

is the corpus delicti of murder. See State v. Tillman,

152 Conn. 15, 20, 202 A.2d 494 (1964) (‘‘[T]he corpus

delicti consists of the occurrence of the specific kind

of loss or injury embraced in the crime charged. . . .

[I]n a homicide case, the corpus delicti is the fact of

the death, whether or not feloniously caused, of the

person whom the accused is charged with having killed

or murdered.’’ [Footnote omitted.]).

In order to identify the specific version of the rule

to be applied in the present case, the Appellate Court

reviewed the purpose and history of the corpus delicti

rule. Believing itself to be bound by cases such as State

v. Uretek, Inc., 207 Conn. 706, 543 A.2d 709 (1988) (Uretek), a majority of the Appellate Court held that the

corpus delicti rule is merely an evidentiary rule that

bars the use of a defendant’s own uncorroborated extrajudicial confessions or admissions6

to prove the corpus

delicti of a crime. State v. Leniart, supra, 166 Conn.

App. 151, 159. Because, in its view, the rule is one of

admissibility, the Appellate Court majority concluded

that the defendant had abandoned his corpus delicti

claim by failing to object at trial to the testimony of

Allain, Buckingham, Ching, and Douton, each of whom

testified that the defendant had confessed to killing the

victim. Id., 151.

Judge Flynn, writing a separate opinion concurring

in part and dissenting in part, concluded that the corpus

delicti rule is a hybrid rule—it is an evidentiary rule,

insofar as it provides that a defendant’s confession is

inadmissible in the absence of some corroborating evidence that a crime has been committed, but it also

is a substantive rule of criminal law providing that a

defendant cannot be convicted of a crime when the

only evidence that the crime has been committed is the

defendant’s own uncorroborated confession. See id.,

236–37. Judge Flynn also opined that the rule should
be applied more strictly with respect to murder than

with respect to other crimes, in that the state should

be required to set forth independent evidence of the

victim’s death and not simply extrinsic evidence that

tends to establish the credibility of the defendant’s confession. Id., 236. All three members of the Appellate

Court panel agreed, however, that the state had, in any

event, set forth sufficient, independent evidence of the

victim’s death to satisfy the corpus delicti rule, regardless of how that rule is defined. Id., 171–75; id., 237

(Flynn, J., concurring in part and dissenting in part).

In his certified appeal, the defendant asks us to clarify

that (1) the corpus delicti rule is, at least in part, a

substantive rule and, therefore, that his claim is reviewable on appeal despite his failure to object to the admission of testimony regarding the confessions at trial, and

(2) the rule bars a murder conviction on the basis of a

defendant’s confession in the absence of independent

evidence that the alleged victim is dead. The defendant

further contends that, in the present case, there was

not sufficient extrinsic evidence to establish that the

victim was dead. We agree with the defendant and Judge

Flynn that our state’s common-law corpus delicti rule

is a hybrid rule that has both substantive and evidentiary

components, and that unpreserved corpus delicti claims

are, therefore, reviewable on appeal. We agree with the

Appellate Court majority, however, that the rule does

not impose a higher standard of proof with respect to

murder than with respect to other crimes. Finally, we

conclude that there was sufficient, independent corroborating evidence both of the victim’s death and of the

credibility of the defendant’s confessions for the jury

to have found the defendant guilty beyond a reasonable doubt.7 Accordingly, we affirm the judgment of the

Appellate Court with respect to this claim.

A

Assuming, arguendo, that the state is correct that the

defendant’s corpus delicti claim was not preserved at

trial, we must determine as a threshold matter whether

the corpus delicti rule is merely evidentiary or whether

it encompasses a substantive component that invokes

the defendant’s due process rights. If it is merely an

evidentiary rule of admissibility, then the defendant’s

failure to raise his claim at trial precludes appellate

review. See, e.g., State v. Gonzalez, 315 Conn. 564, 591,

109 A.3d 453, cert. denied, U.S. , 136 S. Ct. 84,

193 L. Ed. 2d 73 (2015). On the other hand, if the rule

establishes, as a substantive matter, the type or degree

of evidence necessary to establish that elements of a

crime have been proven beyond a reasonable doubt,

then the defendant’s claim is reviewable on appeal

regardless of whether he raised it at trial.8 See, e.g.,

State v. Adams, 225 Conn. 270, 275–76 n.3, 623 A.2d 42

(1993) (unpreserved insufficiency of evidence claims

implicate due process rights and are reviewable on
appeal). Whether the corpus delicti rule is evidentiary,

substantive, or a hybrid of the two is a question of law

that we review de novo.

The parties and the Appellate Court have identified

four factors that are relevant to the question of whether

our state’s corpus delicti rule has both evidentiary and

substantive components: this court’s precedents, the

approach followed by other jurisdictions, the rationales

that underlie the rule, and issues regarding how the

rule is applied in practice. Our review of these factors

compels the conclusion that corpus delicti is a hybrid

rule and, therefore, that the defendant’s corpus delicti

claim is reviewable.9

1

The Appellate Court began by comprehensively

‘‘reviewing the purpose, history, and present scope of

the corpus delicti rule in Connecticut.’’ State v. Leniart,

supra, 166 Conn. App. 151–52. Although we have not

previously analyzed the issue in any depth, our corpus

delicti decisions, if not entirely consistent, generally

support the conclusion that the rule is a hybrid one

that both bars the admissibility of uncorroborated confession evidence and imposes a substantive due process

requirement. In one case, for example, the defendant

claimed that ‘‘there was insufficient extrinsic evidence

of the corpus delicti to warrant the court’s admission

of his confessions . . . .’’ State v. Doucette, 147 Conn.

95, 97, 157 A.2d 487 (1959), overruled in part by State

v. Tillman, 152 Conn. 15, 20, 202 A.2d 494 (1964). In

Doucette, this court agreed that ‘‘[p]roperly this [extrinsic] evidence should be introduced and the court satisfied of its substantial character and sufficiency to

render the confession admissible, before the latter is

allowed in evidence.’’ (Internal quotation marks omitted.) State v. Doucette, supra, 100. At the same time,

we made clear in describing the rule that it not only

governs the admission of confession evidence but also

sets the conditions for obtaining a conviction. ‘‘[T]he

corpus delicti,’’ we said, ‘‘cannot be established by the

[extrajudicial] confession of the defendant unsupported

by corroborative evidence.’’ (Internal quotation marks

omitted.) Id., 98–99. ‘‘The Connecticut rule, which we

reaffirm, is that, although the confession is evidence

tending to prove both the fact that the crime [charged]

was committed . . . and the defendant’s agency

therein, it is not sufficient of itself to prove the former,

and, without evidence aliunde of facts also tending to

prove the corpus delicti, it is not enough to warrant a

conviction . . . .’’ (Emphasis added; internal quotation

marks omitted.) Id., 99.10

Since this court decided Doucette, a number of our

decisions have stated or implied that the corpus delicti

rule encompasses both substantive and evidentiary

components and, therefore, that corpus delicti claims

are reviewable even if not raised at trial. See, e.g., State
v. Farnum, 275 Conn. 26, 33, 878 A.2d 1095 (2005);

State v. Grant, 177 Conn. 140, 144, 411 A.2d 917 (1979);

State v. Tillman, supra, 152 Conn. 18; but see State v.

Oliveras, 210 Conn. 751, 757, 557 A.2d 534 (1989) (leaving open reviewability question with respect to recently

reformulated corpus delicti rule). By contrast, in no

recent decision have we indicated that the rule is exclusively evidentiary or that unpreserved corpus delicti

claims are unreviewable on appeal.

The Appellate Court majority, concluding that the

corpus delicti rule is purely evidentiary, understandably

believed itself to be bound by State v. Uretek, Inc.,

supra, 207 Conn. 706.11 See State v. Leniart, supra, 166

Conn. App. 161. In Uretek, we declined to consider the

named defendant’s corpus delicti argument because the

defendant had not preserved the argument at trial. State

v. Uretek, Inc., supra, 713. Our review of the issue was

limited to the following sentence: ‘‘[The defendant’s]

corpus delicti claim does not implicate a fundamental

constitutional right, and, therefore, this court will not

review this contention. State v. George, 194 Conn. 361,

372, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191,

105 S. Ct. 963, 83 L. Ed. 2d 968 (1985); State v. Gooch,

186 Conn. 17, 18, 438 A.2d 867 (1982); State v. Evans,

165 Conn. 61, 70, 327 A.2d 576 (1973).’’ State v. Uretek,

Inc., supra, 713.

We agree with the defendant that Uretek must be

overruled to the extent that it suggested that corpus

delicti claims do not implicate fundamental due process

rights and, therefore, are not reviewable on appeal

unless preserved at trial. The decision provided no support for that conclusory proposition, which, as we have

discussed, was inconsistent with both our prior and

subsequent corpus delicti cases. Notably, none of the

three cases that Uretek cited in support of that proposition involved or even referenced the corpus delicti rule.

In addition, Uretek was decided prior to State v. Adams,

supra, 225 Conn. 275–76 n.3, in which we ruled that

unpreserved insufficiency of the evidence claims are

always reviewable on appeal.

2

It also is instructive to consider how the corpus delicti

rule has been construed and applied by our sister states

and the federal courts. Of those states that continue to

apply a corpus delicti rule, the vast majority treat the

rule as either substantive or a substantive and evidentiary hybrid. See, e.g., Langevin v. State, 258 P.3d 866,

873 (Alaska App. 2011) (‘‘[M]ost American jurisdictions

follow the implicit element approach to corpus delicti.

. . . Under this approach, corpus delicti is an element

of the government’s proof—and the general rule is that

a defendant is entitled to a [judgment] of acquittal if

the government fails to offer proof of each element of

the crime.’’ [Citations omitted; internal quotation marks

omitted.]); see also 1 K. Broun, McCormick on Evidence
(7th Ed. 2013) § 145, p. 804; 1 W. LaFave, Substantive

Criminal Law (2d Ed. 2003) § 1.4 (b), p. 31. By contrast,

only a handful of our sister states treat the rule solely

as one of admissibility.12

In addition, although the United States Supreme

Court has not expressly resolved the question, several

federal circuit courts of appeals understand the high

court to have adopted a hybrid version of the rule. See,

e.g., United States v. Dickerson, 163 F.3d 639, 642 (D.C.

Cir. 1999) (explaining that United States Supreme Court

has ‘‘created something of a hybrid rule having elements

both of admissibility and sufficiency’’); see also United

States v. McDowell, 687 F.3d 904, 912 (7th Cir. 2012)

(‘‘[t]he corroboration principle sometimes comes into

play in the trial court’s decision to admit the defendant’s

confession and also if he later challenges the sufficiency

of the evidence’’); United States v. Singleterry, 29 F.3d

733, 737 (1st Cir.) (discussing dual nature of rule), cert.

denied, 513 U.S. 1048, 115 S. Ct. 647, 130 L. Ed. 2d 552

(1994). Moreover, every federal circuit treats the corpus delicti rule as having some substantive component.

See generally United States v. Marshall, 863 F.2d 1285,

1287 (6th Cir. 1988) (reviewing topic and citing cases).

That so many of our sister courts treat the rule as substantive not only provides persuasive authority for following that approach but also mitigates any concerns

that the state has raised; see part I A 4 of this opinion;

that applying the rule substantively would be impracticable or inappropriate.

3

We also agree with McCormick on Evidence, which

posits that the rationales that gave rise to and continue

to justify the corpus delicti rule support treating that

rule as substantive. See 1 K. Broun, supra, § 145, p. 805.13

‘‘The rationale for the requirement is that inculpatory

confessions and admissions are frequently unreliable

for many reasons, including coercion, delusion, neurosis, self-promotion, or protection of another person.

Jurors find such statements inherently powerful, however, and may vote to convict based upon such statements alone. . . . The [corpus delicti] rule, which is

intended to prevent convictions of innocent defendants,

also encourages better law enforcement because police

and prosecutors cannot rely solely on a defendant’s

statements to prove a case.’’ (Citation omitted.) United

States v. Bryce, 208 F.3d 346, 354–55 (2d Cir. 1999).

Treating the corpus delicti rule as evidentiary is fully

consistent with the purpose of the rules of evidence,

which is to bar unreliable evidence offered to influence

the trier of fact. See, e.g., Pagano v. Ippoliti, 245 Conn.

640, 656, 716 A.2d 848 (1998) (McDonald, J., dissenting);

see also State v. Beverly, 224 Conn. 372, 375, 618 A.2d

1335 (1993) (‘‘[t]he corpus delicti rule is a rule of evidence’’). However, as we discuss at greater length hereinafter; see part I B 1 of this opinion; the rule did not
originate exclusively, or even primarily, to assist the

jury in assessing the credibility of confession evidence,

or even to ensure that false confessions are not entered

into evidence. Rather, the rule has a more fundamental

purpose, namely, to avoid the patent injustice of convicting an innocent person—frequently one who either

is mentally ill or has been subject to coercive interrogation—of an imaginary crime. See State v. Arnold, 201

Conn. 276, 287, 514 A.2d 330 (1986); D. Moran, ‘‘In

Defense of the Corpus Delicti Rule,’’ 64 Ohio St. L.J.

817, 817 (2003). Those concerns lie at the core of our

due process protections, and we can perceive no reason

why the injustice of trying and convicting a possibly

troubled individual for a nonexistent crime should be

compounded by denying that individual the opportunity

for appellate review when his or her attorney fails to

raise a timely and appropriate objection.

Furthermore, to the extent that a purpose of the rule

is to eliminate incentives for law enforcement to obtain

false confessions through coercive means, while at the

same time promoting more thorough investigative practices, corpus delicti fairly may be characterized as a

type of constitutional prophylactic rule. See T. Mullen,

‘‘Rule Without Reason: Requiring Independent Proof

of the Corpus Delicti as a Condition of Admitting an

Extrajudicial Confession,’’ 27 U.S.F. L. Rev. 385, 401

(1993) (describing purposes of rule); see also C. Rogers,

‘‘Putting Meat on Constitutional Bones: The Authority

of State Courts To Craft Constitutional Prophylactic

Rules Under the Federal Constitution,’’ 98 B.U. L. Rev.

541, 548, 555–56 (2018) (defining constitutional prophylactic rules). We are not aware of any such rule the

alleged violation of which must be raised at trial in

order to be reviewable on appeal. See State v. Golding,

213 Conn. 233, 239–40, 567 A.2d 823 (1989) (establishing

requirements for defendant to prevail on claim of constitutional error not preserved at trial). Accordingly, the

rationales that underlie the rule are fully consistent with

the majority position that corpus delicti is a substantive

rule of criminal law to be applied in reviewing the sufficiency of the state’s evidence and not merely an evidentiary rule regarding the admissibility of confessions.

4

We next consider several reasons offered by the state

and the Appellate Court majority as to why corpus

delicti should be treated solely as a rule of admissibility.

First, the Appellate Court decision starts with the premise that, if the rule implicates the sufficiency of the

evidence, then the jury must be involved in some way in

resolving corpus delicti questions. See State v. Leniart,

supra, 166 Conn. App. 166. But, that line of reasoning

proceeds, courts typically do not instruct jurors that

they must find the corpus delicti of a crime established

independent of the defendant’s own incriminating statements. Id. In addition, the Appellate Court majority
reasoned that, if jurors are to be tasked with finding

that the corpus delicti has been established independent

of any confession evidence, then they, having already

heard the defendant’s confessions, would be required to

set those confessions aside while objectively evaluating

the strength of any independent, corroborating evidence. The Appellate Court majority opined that that

expectation is not realistic. Id., 167–68. Thus, the court

concluded, the rule must not be substantive.

We are not persuaded that the Appellate Court’s starting premise is correct. Many of the courts that treat

the corpus delicti rule as a substantive rule that implicates the sufficiency of the evidence do not involve

the jury in its application. See, e.g., United States v.

McDowell, supra, 687 F.3d 912 (‘‘[W]e have held that

the district court is not obligated to instruct the jury

on the requirement of corroboration. . . . Following

the lead of two other circuits, we concluded . . . that

the matter was better left to the trial judge, and that

the standard instructions regarding the government’s

burden of proof and the presumption of innocence are

generally sufficient.’’ [Citation omitted.]). In those jurisdictions, the trial court makes an initial determination

as to whether there is sufficient corroboration to allow

the jury to hear the defendant’s confessions. If the court

allows the confessions—and thus the case—to reach

the jury, the jury is then tasked with assessing whether

all of the evidence, including the confessions and any

extrinsic evidence, is sufficient to establish the defendant’s guilt beyond a reasonable doubt.

In United States v. Dickerson, supra, 163 F.3d 642–43,

the United States Court of Appeals for the Tenth Circuit

explained why the fact that the rule involves a substantive component that implicates the defendant’s due process rights does not require the involvement of the jury

in its application. Corpus delicti, that court explained,

is ‘‘essentially . . . a duty imposed upon courts to

ensure that the defendant is not convicted on the basis

of an uncorroborated out-of-court-statement.’’ Id., 642.

In this respect, the rule places the trial court in the

same gatekeeping role that it occupies in deciding a

motion for a judgment of acquittal. Id., 643. In that

capacity, the court must determine whether there is

sufficient evidence to support a finding of guilt before

sending the case to the jury. As the court noted in

Dickerson, however, ‘‘no one thinks it follows from this

that the jury must be given an opportunity to reconsider

for itself the judge’s decision on a motion for judgment

of acquittal.’’ Id. The same logic applies, a fortiori, to

the corpus delicti rule, which requires only that the trial

court make the threshold determination that there are

some ‘‘corroborating facts [that] tend to produce a confidence in the truth of the confession . . . .’’ (Internal

quotation marks omitted.) State v. Hafford, 252 Conn.

274, 317, 746 A.2d 150, cert. denied, 531 U.S. 855, 121

S. Ct. 136, 148 L. Ed. 2d 89 (2000); see also id. (‘‘it is
sufficient if the corroboration merely fortifies the truth

of the confession’’ [internal quotation marks omitted]).

The Appellate Court majority also was of the view

that, because ‘‘the rule itself is not constitutional in

nature and jurisdictions are free to abandon it altogether . . . it makes little sense to characterize it as

an implicit element of the state’s case that is subject

to appellate review like all other unpreserved sufficiency of the evidence claims.’’ State v. Leniart, supra,

166 Conn. App. 167. In a footnote, the majority acknowledged, however, that the rule could take on constitutional implications if the legislature were to formally

adopt it. Id., 167 n.19.

We do not agree that the question of whether the

corpus delicti rule is substantive in nature and, thus,

implicates the defendant’s constitutional rights, hinges

on whether it has been formally codified. It is true that

‘‘[t]he adoption of the comprehensive Penal Code in

1969 abrogated the common-law authority of Connecticut courts to impose criminal liability for conduct not

proscribed by the legislature.’’ Luurtsema v. Commissioner of Correction, 299 Conn. 740, 772, 12 A.3d 817

(2011). At the same time, however, the savings clause

to the Penal Code provides, and our cases recognize,

that the common law is preserved under the code unless

clearly preempted; the code does not bar our courts

from ‘‘recognizing other principles of criminal liability

or other defenses not inconsistent with’’ statute. General Statutes § 53a-4; see, e.g., State v. Terwilliger, 314

Conn. 618, 654, 104 A.3d 638 (2014) (self-defense); State

v. Courchesne, 296 Conn. 622, 679–88 and n.44, 998 A.2d

1 (2010) (born alive principle); State v. Walton, 227

Conn. 32, 45, 630 A.2d 990 (1993) (vicarious liability of

conspirator). As the cited examples indicate, commonlaw rules and principles that are neither constitutionally

required nor expressly adopted by statute nevertheless

may clarify the elements of, or defenses to, a crime in

ways that have constitutional implications. The corpus

delicti rule is no different.

Finally, the state argues that it would be fundamentally unfair to review unpreserved corpus delicti claims

because prosecutors will not have been put on notice

at the time of trial that there may be a corpus delicti

problem and, therefore, will not have the opportunity

to identify and introduce the additional evidence necessary to corroborate a defendant’s naked confession.

We trust that the present opinion will serve as adequate

notice. See Burks v. United States, 437 U.S. 1, 16, 98 S.

Ct. 2141, 57 L. Ed. 2d 1 (1978) (‘‘the prosecution cannot

complain of prejudice, for it has been given one fair

opportunity to offer whatever proof it could assemble’’).

For all of these reasons, we conclude that the corpus

delicti rule is a hybrid rule that not only governs the

admissibility of confession evidence but also imposes
a substantive requirement that a criminal defendant

may not be convicted solely on the basis of a naked,

uncorroborated confession. Accordingly, the defendant’s corpus delicti claim is reviewable even though

it was not properly preserved at trial.

B

Having established that our corpus delicti rule has a

substantive component that implicates the defendant’s

due process rights and, therefore, that his claim is

reviewable, we now turn our attention to the merits of

his claim. To resolve the claim, we first must address

another dispute between the parties, and among the

Appellate Court panel, regarding how the rule applies

in murder cases.

1

The defendant contends, in essence, that the corpus

delicti rule imposes different, more stringent standards

with respect to murder than with respect to less serious

crimes. Before we set forth the defendant’s argument,

it will be helpful briefly to review the evolution of the

corpus delicti rule in Connecticut.

Although our cases contain earlier references to the

rule; see, e.g., State v. Carta, 90 Conn. 79, 83, 96 A. 411

(1916); the corpus delicti rule was first fully articulated

in 1933. See State v. LaLouche, 116 Conn. 691, 166 A.

252 (1933), overruled in part by State v. Tillman, 152

Conn. 15, 20, 202 A.2d 494 (1964). In LaLouche, this

court characterized the rule as follows: ‘‘Undoubtedly

the general rule is that the corpus delicti cannot be

established by the [extrajudicial] confession of the

defendant unsupported by corroborative evidence.

. . . There are cases which hold in effect that it must be

established by evidence independent of the defendant’s

confession and that without such proof evidence of the

confession is inadmissible. . . .

‘‘The overwhelming weight of authority and of reason, however, recognizes that such a confession or

admission may be considered in connection with other

evidence to establish the corpus delicti, and that it is

not necessary to prove it by evidence entirely independent and exclusive of the confession. . . . In order to

warrant a conviction in a given case, it must be shown

(1) that a crime has been committed, and (2) that the

person charged therewith was the active agent in the

commission thereof. But, while it is necessary that both

of said essential facts should be proved beyond a reasonable doubt, it does not follow that each must be

proved independently of, and apart from, the other, or

that either must be proved independently of, and without regarding the confession of the person charged with

the crime. The confession is evidence tending to prove

both the fact that the crime was committed and the

defendant’s agency therein. . . . But it is not sufficient

of itself to prove the former, and, without [independent]
evidence . . . of facts also tending to prove the corpus

delicti, it is not enough to warrant a conviction. There

must be such extrinsic corroborative evidence as will,

when taken in connection with the confession, establish this fact in the minds of the jury beyond a reasonable doubt.

‘‘The independent evidence must tend to establish

that the crime charged has been committed and must

be material and substantial, but need not be such as

would establish the corpus delicti beyond a reasonable

doubt apart from the confession. . . . [T]his evidence

should be introduced and the court satisfied of its substantial character and sufficiency to render the confession admissible, before the latter is allowed in evidence.’’ (Citations omitted; internal quotation marks

omitted.) State v. LaLouche, supra, 116 Conn. 693–95;

see also State v. Doucette, supra, 147 Conn. 98–100

(reaffirming rule).

In the decades since we decided LaLouche and

Doucette, and consistent with the modern trend, we

have reduced in several respects the burden that the

corpus delicti rule imposes on the state in prosecuting

a crime.14 First, in State v. Tillman, supra, 152 Conn.

20, we joined a small handful of jurisdictions to have

departed from the traditional rule that the state must

establish, by independent evidence,15 both that an injury

or loss occurred and that the loss was feloniously

caused.16 In Tillman, we held that the corpus delicti

that must be established by independent evidence

encompasses only the former element, namely, the specific kind of loss or injury embraced in the crime

charged. Id. ‘‘Under [this definition], in a homicide case,

the corpus delicti is the fact of the death, whether or

not feloniously caused, of the person whom the accused

is charged with having killed or murdered.’’ Id.; but see

State v. Courchesne, supra, 296 Conn. 791 n.5 (Zarella,

J., concurring in part and dissenting in part) (adhering

to traditional rule that corpus delicti includes fact that

‘‘death was produced through criminal agency’’ [internal quotation marks omitted]).

Next, in State v. Harris, 215 Conn. 189, 193–94, 575

A.2d 223 (1990), we modified the rule as it applies to

crimes, such as driving under the influence, that proscribe certain undesirable conduct but do not necessarily entail any particular injury or loss. Specifically,

relying on the decision of the United States Supreme

Court in Opper v. United States, 348 U.S. 84, 75 S. Ct.

158, 99 L. Ed. 101 (1954), we concluded that, for crimes

of that sort, the state need not establish the corpus

delicti of the crime through extrinsic evidence. Rather,

the state need only ‘‘introduce substantial independent

evidence [that] would tend to establish the trustworthiness of the [defendant’s] statement.’’ (Internal quotation

marks omitted.) State v. Harris, supra, 194.

Most recently, in State v. Hafford, supra, 252 Conn.
317, we held that this trustworthiness rule set forth

in Harris, also known as the corroboration rule, now

‘‘applies to all types of crimes, not only those offenses

that prohibit conduct and do not result in a specific loss

or injury.’’ In other words, post-Hafford, a confession

is now sufficient to establish the corpus delicti of any

crime, without independent extrinsic evidence that a

crime was committed, as long as there is sufficient

reason to conclude that the confession is reliable.

In Hafford, we justified this departure from our established corpus delicti jurisprudence by observing that

the corroboration rule (1) has been embraced both by

the federal courts and by an increasing number of state

courts, (2) is favored by a number of respected commentators, and (3) is more reasonable and more workable than the traditional corpus delicti rule. Id., 316–17.

At the same time, we expressed confidence that the

corroboration rule, as applied in Harris, would continue to ‘‘fulfill the avowed purpose and reason for the

existence of the corpus delicti rule [by] protect[ing]

accused persons against conviction of offenses that

have not in fact occurred . . . and prevent[ing] errors

in convictions based upon untrue confessions alone.’’

(Internal quotation marks omitted.) Id., 316.

The defendant does not deny that, under Hafford,

the state may rely, in most instances, on the accused’s

statements to establish all of the elements of a charged

crime, as long as there is sufficient, independent evidence to establish the trustworthiness of those statements. The defendant emphasizes, however, that, in

Hafford, we left open the possibility that extrinsic evidence of the corpus delicti still might be required before

a defendant can be convicted of murder on the basis

of a confession. Specifically, he draws our attention to

a footnote in which this court noted that ‘‘proving the

trustworthiness of a defendant’s confession to a crime

resulting in injury or loss often will require evidence

of that injury or loss. For example, a confession to

a homicide likely would not be trustworthy without

evidence of the victim’s death.’’ Id., 317 n.23. The Appellate Court majority in the present case dismissed the

importance of that statement, concluding that the ‘‘cryptic footnote,’’ which was merely dictum, was too conclusory and equivocal to indicate that we intended to carve

out an exception to the corroboration rule for murder

prosecutions. State v. Leniart, supra, 166 Conn. App.

156–58. Judge Flynn disagreed, writing that, in his view,

independent proof of death should be required in any

murder case. Id., 229–32 (Flynn, J., concurring in part

and dissenting in part).

At first blush, requiring the prosecution to prove the

fact of death by extrinsic evidence in a murder case

would seem to be consistent with the history of the

corpus delicti rule, which was inspired by two cases—

centuries and continents apart—in which defendants
were wrongly convicted of the murders of victims who

were still very much alive.17 See D. Moran, supra, 64

Ohio St. L.J. 829–30; T. Mullen, supra, 27 U.S.F. L. Rev.

399–401; R. Perkins, ‘‘The Corpus Delicti of Murder,’’

48 Va. L. Rev. 173, 173–75 (1962). The first, known as

Perry’s Case, arose from the disappearance of William

Harrison from his home in Chipping Campden, England,

in 1660. See generally J. Paget, Legal Recreations: Judicial Puzzles (1876) pp. 37–67. When the septuagenarian

Harrison failed to return from his regular two mile walk

to collect rents for the Viscountess Campden, a servant,

John Perry, was sent to search for him. Id., p. 39. A

bloodied band, a torn hat, and a comb belonging to

Harrison were found, and Perry was arrested. Id., p.

40. After several interrogations, however, John Perry

confessed that he had conspired with his mother and

brother to rob Harrison, that his brother had choked

Harrison to death, and that he had disposed of the body

in a swamp. Id., p. 41. The three Perrys were tried,

convicted of Harrison’s murder, and hanged within the

week. Id., p. 43. Several years later, a haggard Harrison

mysteriously reappeared in Campden, claiming to have

been captured by men on horseback, transferred to a

Turkish ship, and sold into slavery, from which he had

ultimately escaped.18 Id., pp. 44–49.

The second case centers on equally incredible but

somewhat less tragic events that took place in Manchester, Vermont. See E. Borchard, Convicting the Innocent:

Sixty-Five Actual Errors of Criminal Justice (1932) pp.

14–21. Two brothers, Stephen Boorn and Jesse Boorn,

were known to be ill-inclined toward Russel Colvin,

their eccentric brother-in-law. Id., p. 14. Colvin vanished

one day in May, 1812, while his wife was away, and,

after a time, suspicion of foul play fell on Stephen and

Jesse. Id., pp. 14–15. Seven years and many rumors and

superstitions later, after a dog had dug up some animal

bones near the Boorn property, Jesse was interrogated

by a justice of the peace and implicated Stephen in

Colvin’s ‘‘murder.’’ Id., pp. 15–16. A jailhouse informant,

Silas Merrill, subsequently informed a grand jury that

Jesse had confessed to him that both Stephen and Jesse

had been involved in Colvin’s death. Id., p. 17. Stephen

subsequently confessed to killing Colvin and disposing

of his remains in a river and under an old tree stump.

Id., pp. 17–18. Stephen then was tried, convicted, and

sentenced to hang. Id., p. 18.

In that case, however, fortune, together with the

slower and more cautiously moving wheels of justice

in nineteenth century Vermont, spared Stephen the

same fate as the Perrys. Two months before the scheduled execution, one of Stephen’s attorneys published

an article in the New York Evening Post in an attempt

to locate Colvin. Id., p. 18. Through an unlikely confluence of events, Colvin, who may have been mentally

ill, was found to be living in New Jersey under a different

identity, and Stephen was exonerated. Id., pp. 14, 20–21.
Returning to the question before us, courts and commentators have articulated several rationales for the

corpus delicti rule: ‘‘(1) protecting the mentally unstable

from the consequences of their false confessions, (2)

avoiding reliance on repudiated confessions out of concern for voluntariness, and (3) promoting better police

work by requiring the prosecution to prove its case

without the aid of confessions.’’ T. Mullen, supra, 27

U.S.F. L. Rev. 401. As the Perry and Boorn cases demonstrate, however, the rule originated in response to, and

was most powerfully justified by, ‘‘a narrow, practical

problem: how to ensure that after a murderer was executed the supposed murder victim did not show up to

cast doubt on the propriety of the execution.’’ Id., 399.

Those cases also reveal, we think, why it is not necessary to apply the rule more stringently in murder cases

than with regard to other crimes. Already, from the

time of Perry’s Case to that of the Boorns, social progress was such that Stephen Boorn was able to evade

the gallows. The longer delay between conviction and

execution in nineteenth century Vermont gave Stephen’s attorneys a reasonable opportunity to investigate

Colvin’s disappearance after the condemned repudiated

his earlier confession. At the same time, newspapers

of mass circulation, such as the New York Evening

Post, allowed for a broad and efficient search for the

missing ‘‘victim.’’

Now consider modern Connecticut. The horrible that

first inspired the rule—a disturbed individual executed

after confessing to an imaginary murder—is no longer

a concern following the repeal of the death penalty in

this state. Although false conviction remains a tragic

and ever present possibility, it is no longer a completely

irreparable one.

Further, the technological tools that are now available to locate missing persons are truly impressive.

When the Internet was still in its infancy, the United

States Court of Appeals for the Third Circuit recognized

that ‘‘[w]orldwide communication and travel today are

so facile that a jury may properly take into account the

unlikelihood that an absent person, in view of his health,

habits, disposition and personal relationships would

voluntarily flee, go underground, and remain out of

touch with family and friends. The unlikelihood of such

a voluntary disappearance is circumstantial evidence

entitled to weight equal to that of bloodstains and concealment of evidence.’’ (Internal quotation marks omitted.) Virgin Islands v. Harris, 938 F.2d 401, 418 (3d

Cir. 1991). That statement is all the more true today,

with new technologies running the gamut from ‘‘Amber

Alerts,’’ to biometric identification databases, to social

media platforms such as Facebook and Twitter. See

McDuff v. State, 939 S.W.2d 607, 623 (Tex. Crim. App.)

(‘‘it is less likely in today’s mobile and technological

society that a person might vanish and never be heard
from again’’), cert. denied, 522 U.S. 844, 118 S. Ct. 125,

139 L. Ed. 2d 75 (1997). That is not to say that people

do not still go missing, sometimes for many years. With

modern tools and expertise, however, many, if not most,

are located quickly.19 Accordingly, the abolition of the

death penalty and the increasing unlikeliness that a

living person will disappear without a trace for an

extended period of time have mitigated the two most

compelling rationales for retaining the traditional, more

stringent corpus delicti rule solely with respect to murder prosecutions.

In addition, the same general considerations that

have led courts and commentators20 to question the

ongoing vitality of the corpus delicti rule—mostly the

fact that the Miranda warnings21 and related constitutional protections have curtailed the use of coercive

interrogation techniques by law enforcement—apply to

murder no less than to other crimes. Those considerations counsel against carving out a special exception

for murder.

Finally, we note that, unlike with many other crimes,

in any murder prosecution there necessarily will be at

least some modicum of extrinsic evidence to support

a defendant’s confession, namely, a missing person. We

are not aware of, and we doubt that due process would

permit, any prosecution charging the murder of a wholly

unspecified victim. A person charged with murder must

be charged with the murder of some specific victim

who must, at the very least, have gone missing for some

not insignificant period of time. Accordingly, we decline

the defendant’s invitation to carve out a special exception to the rule set forth in State v. Harris, supra, 215

Conn. 193–94, for the crime of murder.

2

We now turn our attention to the defendant’s claim

that the state failed to set forth sufficient evidence at

trial to corroborate his alleged confessions and establish that the victim was, in fact, dead. As previously

discussed, the corpus delicti rule, as most recently clarified by this court in Harris and Hafford, required that

the state introduce ‘‘substantial independent evidence

[that] tend[s] to establish the trustworthiness of the

[defendant’s] statement[s].’’ (Emphasis omitted; internal quotation marks omitted.) State v. Hafford, supra,

252 Conn. 316; see also R. Perkins, supra, 48 Va. L.

Rev. 181 (‘‘[prima facie] evidence is sufficient for this

purpose, and there are indications in the direction of

accepting even less than this’’ [footnote omitted]). The

Appellate Court concluded, and we agree, that there

was sufficient, independent corroborating evidence

both to permit the trial court to allow the defendant’s

alleged confessions into evidence and, when considered

in tandem with the various confessions, for the jury to

find, beyond a reasonable doubt, that the defendant

was guilty of the victim’s murder. That evidence, which
is more fully set forth in the opinion of the Appellate

Court, may be briefly summarized as follows.

First, although it was not required under the rule that

we have articulated today; see part I B 1 of this opinion;

substantial circumstantial evidence was introduced at

trial, wholly independent of the defendant’s alleged confessions, tending to show that the victim died around

the time of the alleged murder. The fifteen year old

victim disappeared suddenly and without warning on

May 29, 1996. She left home that night without taking

any money, clothing, or personal belongings, despite

the fact that nearly $1000 was available in the house.

The jury also reasonably could have found, on the basis

of the evidence presented at trial, that she enjoyed her

family, friends, life, and routines in Montville and had

no desire to run away from home or to commit suicide.

At the time of trial, she had been missing for more

than thirteen years, without having made any known

contact with family or friends, and a nationwide search

had failed to locate her or to flag any use of her social

security number.22 See Virgin Islands v. Harris, supra,

938 F.2d 417 (in murder cases in which body is never

found, victim’s failure to maintain habits and regular

contact with family and friends is important extrinsic

evidence of corpus delicti). In addition, Allain testified

that, the day after the victim disappeared, he discovered

her shoe on the wooded path where the defendant had

taken him. All of this tended to support the conclusion

that the victim had been murdered rather than running

away from home.

In addition, aside from relating several of the defendant’s alleged confessions, Allain provided other independent support for the conclusion that the victim had

been killed. Allain testified that both he and the defendant had raped the victim on the evening in question,

and that he had left the victim alone in the defendant’s

company. That testimony, if credited, established that

the defendant already had assaulted the victim that

night and that he had both the motive and the opportunity to kill her. See, e.g., State v. Farnum, supra, 275

Conn. 34 (evidence of motive deemed corroborative

of confession).

Allain also testified that the defendant, prior to sexually assaulting the victim, had stated that he ‘‘wanted

to do her’’ and that ‘‘we need a body.’’ The corpus delicti

rule generally does not apply so as to bar statements

that an accused made prior to committing the alleged

crime. See Warszower v. United States, 312 U.S. 342,

347, 61 S. Ct. 603, 85 L. Ed. 876 (1941); see also State

v. Farnum, supra, 275 Conn. 35 (prior statement of

intent to commit crime deemed corroborative of confession). At the same time, the defendant, when interviewed by the police, acted in a manner that could be

interpreted as evidencing a consciousness of guilt, such

as by questioning whether Allain had implicated him
in the victim’s disappearance and volunteering information to cast aspersions on Allain.

Moreover, at the time of trial, the defendant already

had been convicted of sexually assaulting a thirteen

year old girl. That victim testified in the present case

that the defendant, six months prior to the victim’s

disappearance, had choked her into unconsciousness

while raping her. She further testified that the defendant, after raping her in his trailer, threatened that, if

she tried to leave, he would hunt her down, find her,

and kill her. Where, as here, there is a question as

to whether a crime has been committed and of the

improbability of alternative, innocuous explanations for

a loss, the fact that the accused has committed other,

similar crimes may help to establish the corpus delicti

of the charged offense. United States v. Woods, 484

F.2d 127, 136 (4th Cir. 1973), cert. denied, 415 U.S. 979,

94 S. Ct. 1566, 39 L. Ed. 2d 875 (1974); Matthews v.

Superior Court, 201 Cal. App. 3d 385, 392, 247 Cal. Rptr.

226 (1988); see also Conn. Code Evid. § 4-5 (c) (evidence

of other crimes admissible to demonstrate absence of

accident and to corroborate crucial prosecution testimony).

Second, aside from this independent evidence that

tends to establish that the victim was dead (and that the

defendant was her killer), the Appellate Court identified

various facts and factors that corroborate the defendant’s inculpatory statements. See State v. Leniart,

supra, 166 Conn. App. 170–74. Four different witnesses—Allain, Buckingham, Douton, and Ching—all

testified that the defendant had admitted to them that he

had killed the victim, or someone fitting her description,

and disposed of her remains in a body of water.23 Several

of these witnesses testified that the defendant claimed

to have disposed of the body in a lobster trap or fed

the victim’s remains to crabs. That testimony is consistent with the fact that the defendant was employed as

a lobster fisherman.

The jury may have found Ching’s testimony to be

especially credible insofar as that witness was no longer

in prison, on probation or parole, and had no charges

pending against him when he came forward to relate the

defendant’s confession to law enforcement. In addition,

the fact that the defendant’s most significant and substantial confessions were volunteered to Allain, an

accomplice to the sexual assault of the victim, rather

than to an investigating officer, endows those confessions with ‘‘a strong inference of reliability . . . .’’24

(Internal quotation marks omitted.) Kaneshiro v.

United States, 445 F.2d 1266, 1270 (9th Cir.), cert.

denied, 404 U.S. 992, 92 S. Ct. 537, 30 L. Ed. 2d 543

(1971).

Finally, the defendant’s ex-wife, Vicki Staplins, testified that, when she asked the defendant whether he

was involved in the victim’s disappearance, ‘‘[h]e told
me the less I knew, the better off I was.’’ The jury

reasonably may interpret statements of this sort as evidence of the defendant’s consciousness of guilt. See,

e.g., People v. Ortiz, Docket No. B257413 (LDR), 2016

WL 1178972, *16 (Cal. App. March 25, 2016), review

denied, California Supreme Court, Docket No. S234113

(July 13, 2016).

Considered in the light most favorable to sustaining

the verdict, this evidence was more than sufficient to

corroborate the defendant’s various confessions and,

when viewed in tandem with those confessions, to sustain the conviction.

II

EXCLUSION OF PRETEST INTERVIEW VIDEOTAPE

We next consider the state’s appeal, in which it claims

that the Appellate Court improperly held that the defendant is entitled to a new trial because the trial court’s

exclusion of Allain’s polygraph pretest interview videotape constituted harmful error. The Appellate Court

concluded that (1) a recording of a polygraph pretest

interview does not qualify as ‘‘polygraph evidence’’ for

purposes of State v. Porter, 241 Conn. 57, 93–94, 698

A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct.

1384, 140 L. Ed. 2d 645 (1998) (holding that polygraph

evidence is per se inadmissible for all purposes in all

trial court proceedings), and (2) the trial court’s exclusion of the videotape pursuant to Porter was not harmless error. State v. Leniart, supra, 166 Conn. App. 182.

The state challenges both of those conclusions on

appeal. Although we agree with the Appellate Court

that polygraph pretest interview evidence is not per se

inadmissible under Porter and, therefore, that the video

was improperly excluded on that basis, we conclude

that any error in the exclusion of the video was harmless.

We begin by briefly summarizing the procedural history relevant to this issue, which was set forth in full

by the Appellate Court. Prior to trial, the state filed a

motion in limine seeking to exclude all testimony or

evidence pertaining to the polygraph examination of

any witnesses. Defense counsel opposed the motion,

arguing that he intended to offer, among other things,

a ninety minute videotape showing the standard pretest

interview that the polygrapher, state police Trooper Tim

Madden, had conducted with Allain prior to performing

Allain’s polygraph test in 2004. Defense counsel stated

that he would seek to offer the videotape on the ground

that it showed Madden giving Allain numerous assurances that Allain would receive favorable treatment if

he cooperated with the police, which, defense counsel

argued, ‘‘raises questions . . . about whether this

young man is coming into this courtroom with the intention to do anything other than save himself.’’

The trial court ruled that the videotape was inadmissi-
ble. The court’s oral ruling appeared to adopt the state’s

argument that a recording of a pretest interview or,

indeed, any reference to the fact that a polygraph examination has been conducted, constitutes polygraph evidence and is, therefore, per se inadmissible. The court

did, however, indicate that it would permit defense

counsel to cross-examine Allain regarding ‘‘any promises or benefits that were made to him during the course

of that interview.’’

A

We first consider whether the trial court properly

determined that the videotape of Allain’s pretest interview was not admissible for any purpose because it

constituted ‘‘polygraph evidence,’’ which we have held

to be per se inadmissible. See State v. Porter, supra,

241 Conn. 93–94. This presents a question of law that

we review de novo. See, e.g., State v. Saucier, 283 Conn.

207, 218, 926 A.2d 633 (2007).

In granting the state’s motion in limine to exclude

the pretest interview videotape, the trial court relied

solely on Porter, concluding that the videotape constituted polygraph evidence. Accordingly, we shall confine

our analysis to the question of whether the per se ban

on the admission of polygraph evidence articulated in

Porter extends to evidence of the conduct of the polygrapher and the witness during the pretest interview

process.

The Appellate Court concluded, and we agree, that

the phrase ‘‘polygraph evidence,’’ as used in Porter, does

not encompass documentation of the pretest interview

process. State v. Leniart, supra, 166 Conn. App. 182.

As the Appellate Court recognized, the question before

this court in Porter simply was whether we should

abandon the existing rule regarding the inadmissibility

of (1) the results of polygraph tests and (2) the willingness of a witness to submit to such a test. Id., 190–91.

In Porter, we characterized that rule as follows: ‘‘This

court has repeatedly held that neither the results of a

polygraph test nor the willingness of a witness to take

such a test is admissible in Connecticut courts.’’ (Internal quotation marks omitted.) State v. Porter, supra,

241 Conn. 93. Thus, our holding in Porter was limited

to barring the results of a polygraph test and the willingness of a witness to undergo such a test.

We also are not persuaded by the state’s argument

that, because the pretest interview is an integral component of a polygraph examination, evidence of what transpired during the interview must be subject to the same

per se rule as are examination results. Rather, we agree

with the Appellate Court that we used the term ‘‘polygraph evidence’’ narrowly in Porter, as a shorthand

reference only to the specific types of evidence the

admission of which was at issue in that case, namely,

evidence showing test results and a witness’ willingness
to submit to a polygraph test.

Thus, we agree with the Appellate Court that polygraph pretest interview evidence does not constitute

‘‘polygraph evidence’’ for purposes of Porter and is not,

therefore, per se inadmissible. Accordingly, it was for

the trial court, in the exercise of its discretion and in

light of the facts of this particular case, to determine

whether admission of part of Allain’s pretest interview

would have been more probative than prejudicial. To

the extent that the trial court failed to make such a

determination, exclusion of the entire videotape was

improper.

B

Having concluded that the trial court incorrectly

determined that the videotape of Allain’s pretest interview constituted inadmissible polygraph evidence, we

must consider whether the Appellate Court correctly

concluded that that error was harmful.25 The Appellate

Court recognized that, during his cross-examination of

Allain, defense counsel was able to establish both that

Allain had powerful incentives to cooperate with the

state in implicating the defendant and that Allain had

changed or augmented various aspects of his story on

a number of occasions. State v. Leniart, supra, 166

Conn. App. 195–96. Nevertheless, the Appellate Court

found that the failure to admit the videotape substantially affected the verdict because (1) the videotape

would have provided more direct evidence of Allain’s

motive and bias to implicate the defendant, including

‘‘the subtle but significant pressure placed on Allain by

law enforcement,’’ and (2) the jury was deprived of the

opportunity to understand that the pretest interview

was conducted in the context of a polygraph examination, which was significant to the defendant’s claim.

Id., 196–97. Although it is a close call, we are not persuaded that the defendant has met his burden of demonstrating that exclusion of the videotape substantially

affected the verdict.

1

We begin by setting forth the well established standards that guide our review. ‘‘When an improper evidentiary ruling is not constitutional in nature, the defendant

bears the burden of demonstrating that the error was

harmful. . . . [A] nonconstitutional error is harmless

when an appellate court has a fair assurance that the

error did not substantially affect the verdict.’’ (Internal

quotation marks omitted.) State v.Rodriguez, 311 Conn.

80, 89, 83 A.3d 595 (2014).

2

The following additional facts and procedural history

are relevant to this issue. Madden’s pretest interview

of Allain lasted for approximately ninety minutes. For

the first thirteen minutes or so, Madden and Allain discussed Allain’s reasons for submitting to the polygraph.
Specifically, a question arose as to whether Allain was

taking the test voluntarily, because he believed that

assisting the state was the right thing to do or, rather,

because he was facing a potential five year sentence

for having violated his probation through a failed drug

test and had been led to believe that the state might

not pursue a conviction if he cooperated in this matter.

Allain initially indicated that he had consented to the

polygraph primarily to avoid the conviction for violating

his probation. Madden promptly explained, in no uncertain terms, that he could not perform the polygraph on

those terms. Thus, before proceeding, Madden obtained

from Allain a statement that he was participating freely.

The remainder of the pretest interview consisted of

Madden’s asking Allain a series of background questions, reviewing the statements that Allain had given

to the police and Allain’s accounts of the events surrounding the victim’s disappearance, and explaining the

questions that Allain would be asked during the polygraph. During that time, Madden repeatedly emphasized

how ‘‘unbelievably important’’ it was for Allain to give

completely truthful answers during the examination.

Moreover, Madden consistently equated truthfulness

with successfully passing the test, doing ‘‘the right

thing,’’ and being a reliable witness. He emphasized in

this respect that the state would consider Allain to be

a useful witness, and Allain would qualify for potentially

favorable treatment, only if the polygraph results demonstrated that Allain was being completely truthful and

forthcoming. Madden referred several times during the

interview to the investigation of the 1997 gang rape and

murder of Maryann Measles. He informed Allain that

suspected participants in that crime who truthfully confessed their roles and then passed polygraph examinations were let off with ‘‘a slap on the wrist,’’ whereas

suspected participants who failed polygraph tests were

aggressively prosecuted.

At several points during the interview, Madden made

comments indicating that the police were interested in

obtaining Allain’s cooperation. In particular, Madden

explained that the police were interested in having

Allain on their ‘‘team’’ rather than on the defendant’s

team, and in procuring Allain’s assistance in ‘‘getting’’

the defendant, whom Madden described as the ‘‘bigger

fish.’’ In each instance, however, he made clear that

Allain could provide such assistance only by giving completely truthful testimony and passing the polygraph

test. Madden indicated, for example, that, if Allain failed

the polygraph, then he would be on the ‘‘other team,’’

aligned with the defendant, rather than ‘‘on our team.’’

In other words, Madden made clear that only truthful

statements would help Allain.

Throughout the interview, Madden made comments

that gave the impression that he believed that Allain

had not been completely forthcoming in his prior state-
ments to the police and that Allain still had something

to ‘‘get off [his] chest.’’ In a few instances, Madden

speculated that Allain felt intimidated or frightened by

the defendant. In most instances, however, Madden

appeared to believe that what Allain was withholding

was the extent of his own involvement in the crime.

Madden even suggested that this might be a cause of

Allain’s diagnosed clinical depression and speculated

that Allain, by telling the complete truth, might find

some relief. It is clear to us, then, that introduction of

the videotape into evidence would not have significantly

weakened the state’s case. See State v. Rodriguez,

supra, 311 Conn. 89 (import of excluded evidence was

important factor in assessing harmlessness).

After the trial court ruled the videotape inadmissible,

the state called Allain to testify. The prosecutor began

his direct examination by eliciting that Allain was then

serving a ten year sentence for felony sexual assault

involving a different victim, and that Allain was hoping

for ‘‘leniency’’ in connection with that sentence in

exchange for his cooperation with the state and testimony against the defendant in the present matter. Allain

acknowledged that ‘‘it would be nice’’ to receive some

consideration in exchange for his testimony.

On cross-examination, defense counsel effectively

developed all of the basic facts and themes that the

defendant sought to establish through use of the pretest

interview videotape. Defense counsel was able to demonstrate that Allain was generally unreliable as a witness. For example, defense counsel repeatedly returned

to the theme that Allain had two powerful incentives

to cooperate with the state in convicting the defendant,

namely, to divert attention from himself as a suspect

in the victim’s murder and to obtain a reduction of the

sentence that he was then serving for sexual assault.

With respect to the former, Allain admitted to having

raped the victim on the night she disappeared and to

having concealed that information from the police until

after the statute of limitations for rape had expired. He

also understood, however, that the statute of limitations

for a felony murder never runs.

Allain also acknowledged that he had found and concealed the victim’s shoe the day after she disappeared,

and that this could make him an accessory to her murder. He also admitted to telling the police that he had

previously indicated to the defendant that he was willing to kill the victim, and that he later told his father

that he was involved in the victim’s murder and that

he needed help moving her body.26 Allain admitted that

he was concerned because, if the police believed that

he had anything to do with the victim’s death, he still

could be charged with capital felony, and he believed

that he would face a likely death sentence if convicted.

At the same time, Allain, without expressly mentioning

the pretest interview, testified that Madden had repeat-
edly told him that even someone who had been involved

in rape and murder ‘‘could walk away . . . with a slap

on the hand’’ if they cooperated with the police.27

Accordingly, the jury was aware that Allain was a potential suspect in the victim’s murder, that he had implicated himself in the murder, and that he understood

that he could be charged with the crime if the defendant

were exonerated.

The jury also heard testimony suggesting that there

was an implicit agreement between Allain and the state

that he would receive leniency on his sexual assault

sentence if he fully cooperated with the state in this

matter and if his cooperation proved sufficiently helpful. Allain twice acknowledged that, at the time he was

sentenced on that conviction, the state’s attorney had

indicated that the state would not oppose a motion for

sentence modification at a later date if Allain met certain unstated requirements. Allain testified that he

understood that to mean that he might be allowed to

serve less time if he ‘‘played ball’’ and cooperated in

the defendant’s case.

At several points, Allain expressed hope that the state

would believe that he had provided substantial assistance in the case against the defendant and that, if

his cooperation was sufficiently valuable, he would be

released from prison early. Indeed, Allain complained

that he had been ‘‘blackmailed’’ by the state and that

an especially long sentence had been imposed for the

sexual assault conviction specifically to ensure that he

assisted the state in the defendant’s case.

Accordingly, the jury learned through cross-examination that Allain felt pressured to cooperate and that he

hoped that the state would deem his help sufficiently

valuable that he would obtain a sentence modification.

See State v. Rodriguez, supra, 311 Conn. 89 (opportunity to bring out content of excluded evidence on crossexamination was important factor in assessing harmlessness). Even though all of the basic facts and themes

that the defendant sought to show to the jury through

the pretest interview videotape were effectively elicited

during Allain’s cross-examination, the Appellate Court

concluded that the defendant had met his burden of

proving that exclusion of the videotape had substantially affected the verdict. State v. Leniart, supra, 166

Conn. App. 197.

3

The conclusion of the Appellate Court was based on

the dual determinations that (1) viewing the videotape

would have given the jury a more direct and persuasive

impression of Allain’s bias and motives, and of the pressures he was under to implicate the defendant, than

could have come out through during cross-examination,

and (2) the fact that the interview took place in the

specific context of a polygraph examination was criti-
cally important to the ability of the jury to assess the

credibility of the state’s key witness. Id., 196–97. We

consider each point in turn.

a

Our analysis is guided by the principle that ‘‘[t]he

credibility of a witness may be impeached by evidence

showing bias for, prejudice against, or interest in any

person or matter that might cause the witness to testify

falsely.’’ Conn. Code Evid. § 6-5. ‘‘Because evidence

tending to show a witness’ bias, prejudice or interest

is never collateral . . . impeachment of a witness on

these matters may be accomplished through the introduction of extrinsic evidence, in addition to examining

the witness directly.’’ (Citation omitted.) Conn. Code

Evid. § 6-5, commentary. ‘‘However, otherwise [r]elevant [impeachment] evidence may be excluded if its

probative value is outweighed by the danger of unfair

prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay,

waste of time or needless presentation of cumulative

evidence.’’ (Emphasis omitted; internal quotation marks

omitted.) State v. Brown, 273 Conn. 330, 342, 869 A.2d

1224 (2005); see also Conn. Code Evid. § 4-3.

Our impression of the videotape, and what the jury

likely would have gleaned therefrom, differs from that

of the Appellate Court. It is true that the first portion

of the pretest interview does not cast the polygrapher

in an especially favorable light. One could view the

videotape and conclude that Madden disregarded

Allain’s clear statement that he believed that he was

being coerced into taking the polygraph test, and that

Madden coaxed Allain into saying the magic words that

would allow the interview to proceed while permitting

Allain to obtain the benefits that he sought.

Equally apparent, though, is the diligence with which

Madden conducted the remainder of the interview. At

the outset, having ascertained that Allain suffers from

depression, Madden offered Allain numerous opportunities to terminate the interview if Allain believed that

it might exacerbate his condition. More importantly,

although Madden repeatedly encouraged Allain to cooperate with the state, cooperation was never framed in

terms of implicating the defendant, inventing stories,

or testifying falsely for the state. Rather, Madden repeatedly, consistently, and expressly instructed Allain that

cooperation consists of telling the truth. In fact, on

more than one dozen occasions, Madden emphasized

to Allain the importance of telling the complete truth

and that only truthful testimony would be of assistance

to the state or advantageous to Allain. Likewise, two

other officers who briefly questioned Allain during the

interview encouraged Allain to be completely truthful,

at one point telling him that ‘‘we don’t want you to tell

us what you think we want to hear.’’
Although this point is not discussed in the Appellate

Court opinion, it is critically important. Although

Allain’s motivation for participating in the state’s investigation and prosecution of the defendant may have

been of some interest to the jury, jurors’ primary concern must have been his veracity—whether he had been

pressured or induced to fabricate his account of the

defendant’s confessions. Allain’s trial testimony itself

provided the strongest evidence that he might have

reason not only to cooperate with the state but also to

actively help the state to convict the defendant. During

cross-examination, for example, Allain conceded that

he hoped ‘‘that the state believes that [he] provided

substantial assistance in [its] case against [the defendant] . . . .’’ He also expressed his hope that ‘‘the state

agrees that [his] cooperation in this case was valuable

enough’’ to obtain a sentence modification.

By contrast, even defense counsel, in arguing to the

trial court the importance of the videotape, emphasized

that the polygrapher’s primary focus was to encourage

Allain to testify truthfully: ‘‘Insofar as this witness was

taken, isolated for a period of ninety minutes, badgered

in my view into being told about all the benefits of

cooperation, about the need to be truthful, about everything he stood to gain up to and including a potential

walk—that . . . rate[s] a powerful argument that this

young man may have been promised more than a year

or two off if he tells the truth.’’ (Emphasis added.)

For this reason, we disagree with the Appellate Court

that the videotape provided the most compelling evidence that Allain had an undisclosed bias against or

motive to implicate the defendant. At trial, Allain himself freely admitted that he had powerful incentives to

cooperate with the state and to assist in convicting the

defendant. If anything, the videotape, with its constant

emphasis on the importance of truthfulness, undercuts

that narrative. The themes that the Appellate Court

found most troubling—Madden’s desire to keep Allain

on his team so as to catch ‘‘the big fish’’—are embodied

in just a few brief comments made in the course of a

ninety minute interview, all of which are expressly

linked to the ‘‘unbelievably important’’ need for Allain

to be completely truthful.

We also do not share the Appellate Court’s concern

that ‘‘the jury could reasonably conclude from the videotape that Madden attempted to shape Allain’s story

about the defendant’s actions on May 29, 1996, in order

to make it more plausible.’’ State v. Leniart, supra,

166 Conn. App. 195. It is true that, during the pretest

interview, Madden and the other officers pointed out

a few aspects of the defendant’s story that they found

difficult to believe. They found Allain’s story implausible, for example, on the point that the victim had not

said anything at all when the defendant approached

and began having sex with her. Also, after Allain
amended his statement to include the fact that he had

found and disposed of the victim’s shoe before meeting

with the defendant on the day after the assaults, the

officers questioned whether that discovery would not

have altered the tone of the ensuing conversation with

the defendant as Allain initially had reported it. We

have not identified any instance, however, in which it

appeared that Madden or other officers were attempting

to help Allain to more plausibly implicate the defendant.

Rather, the clear subtext to the entire interview was

that Madden believed that Allain had not come clean

with respect to his own role in the victim’s murder.28

b

We also do not share the Appellate Court’s concern

that cross-examination in this case was an inadequate

substitute for the videotape. The Appellate Court took

issue with the fact that, although the jury was able to

learn some of what had transpired during the interview

and was made aware of Allain’s incentives to falsely

implicate the defendant, the jury was not informed that

these events occurred in the specific context of a polygraph examination. State v. Leniart, supra, 166 Conn.

App. 196.

Although the Appellate Court frames the importance

of the videotape in terms of having occurred in the

context of a polygraph examination, the court’s explanation primarily addresses the content of the videotape

rather than the context. But, as we already have discussed, the handful of potentially troubling statements

that the Appellate Court highlights were made by Madden over the course of a ninety minute interview in

which he consistently emphasized that Allain would be

of assistance to the state, and eligible for the benefits

attendant to that assistance, only if he were completely

truthful. Moreover, all of Madden’s statements to that

effect either were, or could have been, elicited by

defense counsel on cross-examination.

Unlike the Appellate Court, we fail to see the significance of the fact that the pretest interview took place

in the specific context of a polygraph examination. If

anything, that context would appear to undermine the

defendant’s position. At the time of the polygraph, Allain

already had implicated the defendant in the victim’s

murder on several occasions. Madden’s clear purpose

in the interview was not to encourage Allain to implicate

the defendant, which he already had done, but, rather,

to impress on Allain the importance of fully disclosing

all details, including his own role in the victim’s disappearance. Madden repeatedly indicated that the state

would be able to depend on Allain’s credibility as a

witness only if Allain was completely forthcoming during the polygraph test. Accordingly, we do not think

the jury reasonably could have gleaned from the videotape that the police were pressuring or incentivizing

Allain either to falsely implicate the defendant in the
victim’s murder or to hew to the inculpatory statements

that he previously had given.

To summarize, all of the themes that the defendant

sought to develop by way of the videotape were adequately brought out during cross-examination and, if

anything, viewing the videotape in context would have

undermined the defendant’s theory that Allain had been

pressured to implicate the defendant falsely. See State

v. Rodriguez, supra, 311 Conn. 89 (likely impact on jury

is central factor in assessing harmlessness). We further

emphasize that, despite the lack of a body, the state’s

case against the defendant was strong, as it involved

four independent witnesses who testified that the defendant had admitted to killing the victim. See id. We

therefore conclude that any error by the trial court in

excluding the pretest interview videotape was harmless.

III

EXCLUSION OF EXPERT TESTIMONY

We next consider whether the Appellate Court correctly concluded that the trial court had abused its

discretion in precluding the testimony of Alexandra

Natapoff, a law professor whom the defendant offered

as an expert on the use, and questionable credibility,

of incarcerated informants as witnesses in criminal

prosecutions. The state contends, and we agree, that

the trial court did not abuse its discretion when it determined that Natapoff’s testimony would not have

assisted the jury in this case. We therefore conclude

that the Appellate Court incorrectly determined that

the trial court had abused its discretion in precluding

that testimony.

A

The following procedural history is relevant to this

issue. Prior to trial, the state filed a motion in limine

seeking to preclude Natapoff’s testimony. The state

argued that expert testimony regarding the dubious

credibility of jailhouse informants would (1) address

matters within the common knowledge of the jury, (2)

be more prejudicial than probative, and (3) invade a

core function of the jury, namely, assessing the credibility of witnesses. At trial, the state renewed its objection,

and Natapoff proffered the testimony outside the presence of the jury.

After establishing her bona fides as an expert on the

subject of jailhouse informants,29 Natapoff testified that

the use of such informants in criminal prosecutions

is pervasive, with prosecutors and the police offering,

and inmates seeking, an array of benefits in exchange

for incriminating testimony. She explained that the

informant testimony acquired in this ‘‘marketplace’’ is

‘‘sometimes’’ untruthful and, in fact, is a significant

source of wrongful convictions. Natapoff further testified that informants can be quite ‘‘entrepreneurial,’’
using various methods to obtain information about

another inmate’s case and to fabricate believable,

incriminating stories. For example, inmates may rely

on jailhouse gossip, steal files from other inmates,

obtain case information from newspapers and media

reports, or simply cooperate with other inmates to

invent and validate each other’s stories. Natapoff also

expressed doubts as to whether the usual methods used

to instruct and warn juries to be cautious about informant testimony are effective in preventing false convictions arising from the use of criminal informants.

Natapoff further described the marketplace for jailhouse informant testimony as ‘‘secretive’’ and testified

that the public learns little about how the criminal justice system uses informants. She opined that the public

is not familiar with jailhouse culture and is unaware of

how infrequently dishonest informants are prosecuted

for perjury. She also acknowledged, however, that several magazines have done expose ́s on the abuses associated with the use of jailhouse informants and that the

practice is now well understood ‘‘outside’’ of correctional facilities.

On cross-examination, Natapoff conceded that studies regarding the use of jailhouse informants are largely

limited to capital cases and that, even in those cases,

it is impossible to know how many wrongful convictions

have occurred as a result. The most she could say by

way of quantification is that estimates of the share of

wrongful convictions in capital cases range from 1 to

10 percent and that informant testimony was a factor

in 20 to 45 percent of those cases—so between 0.2

and 4.5 percent of all capital convictions. She also

described one study that concluded that criminal informant testimony was responsible for approximately

20 percent of all wrongful convictions in California.

Natapoff acknowledged, however, that the problems

associated with criminal informant testimony are not

uniform throughout the country and that she had not

studied Connecticut and was not aware of any particular customs and practices in Connecticut or, specifically, in New London. At no time did she opine as to

what percentage of criminal informants testify untruthfully, either in Connecticut or elsewhere.

Natapoff further conceded that she had never testified before a jury. In fact, she was aware of only two

cases in the country in which experts had been permitted to testify regarding the use of criminal informants, one in Wyoming and one in Louisiana. Moreover,

although she wrote a book on the subject of criminal

informants in which she offered various proposals for

reforming the system and preventing the abuses associated with dishonest informants, Natapoff admitted that

she had not recommended the use of expert testimony

as a prophylaxis. She also could not say whether stricter

regulation of the use of criminal informants had reduced
the number of wrongful convictions in Los Angeles, a

city that is closely associated with the use and abuse

of jailhouse informant testimony.

After permitting additional argument by the parties,

the trial court granted the state’s motion in limine and

precluded Natapoff’s testimony. The court articulated

three rationales for its decision.

First, the trial court concluded that allowing testimony as to the credibility of jailhouse informants would

be improper because credibility determinations are

within the exclusive province of the jury. Second, the

court found that, although Natapoff referenced certain

research about which the jury might not be aware, her

central conclusions—the marketplace for information

and informants’ incentives to testify falsely—were not

outside the ken of the average juror. Third, the court

emphasized that it had given the defense wide latitude

in cross-examining the state’s witnesses regarding any

consideration they might receive for their testimony

and that it intended to instruct the jury regarding the

credibility of incarcerated witnesses in accordance with

State v. Arroyo, 292 Conn. 558, 569, 973 A.2d 1254 (2009)

(jailhouse informant testimony is inherently suspect

and warrants special jury instruction), cert. denied, 559

U.S. 911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086 (2010).30

The Appellate Court, unpersuaded by these rationales,

reversed. That court held that ‘‘expert testimony concerning the reliability of informant testimony should be

admitted if the court . . . determines that the expert

is qualified and the proffered testimony is relevant to

the specific issues in the case.’’ State v. Leniart, supra,

166 Conn. App. 212.

B

We begin by setting forth the well established legal

principles that govern this claim. ‘‘The trial court has

wide discretion in ruling on the qualification of expert

witnesses and the admissibility of their opinions. . . .

The court’s decision is not to be disturbed unless [its]

discretion has been abused, or the error is clear and

involves a misconception of the law. . . . Generally,

expert testimony is admissible if (1) the witness has a

special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common

to the average person, and (3) the testimony would be

helpful to the court or jury in considering the issues.’’

(Internal quotation marks omitted.) State v. Taylor G.,

315 Conn. 734, 760, 110 A.3d 338 (2015); see also Conn.

Code Evid. § 7-2. ‘‘It is well settled that [t]he true test

of the admissibility of [expert] testimony is not whether

the subject matter is common or uncommon, or

whether many persons or few have some knowledge

of the matter; but it is whether the witnesses offered

as experts have any peculiar knowledge or experience,

not common to the world, which renders their opinions

founded on such knowledge or experience any aid to
the court or the jury in determining the questions at

issue. . . . Implicit in this standard is the requirement

. . . that the expert’s knowledge or experience . . .

be directly applicable to the matter specifically in

issue.’’ (Internal quotation marks omitted.) State v.

Guilbert, 306 Conn. 218, 230, 49 A.3d 705 (2012).

We also have explained that ‘‘[t]he determination of

the credibility of a witness is solely the function of the

jury. . . . It is the trier of fact [that] determines the

credibility of witnesses and the weight to be accorded

their testimony. . . . Expert witnesses cannot be permitted to invade the province of the jury by testifying

as to the credibility of a particular witness or the truthfulness of a particular witness’ claims.’’ (Internal quotation marks omitted.) State v. Taylor G., supra, 315

Conn. 760–61.

C

As previously noted, the trial court precluded Natapoff’s testimony on several different grounds. We agree

with the Appellate Court that the trial court incorrectly

concluded that Natapoff’s testimony would have

invaded the exclusive province of the jury by assessing

the credibility of the state’s witnesses. State v. Leniart,

supra, 166 Conn. App. 224. We do not agree, however,

that the trial court abused its discretion in concluding

that that Natapoff’s testimony was largely within the

ken of the jurors. Id., 227–28.

1

We have had a number of opportunities to consider

whether the admission of expert testimony as to the

credibility and tendencies of a certain class of witnesses

would improperly usurp the role of the jury. See, e.g.,

State v. Taylor G., supra, 315 Conn. 734 (minor victims

of sexual abuse); State v. Favoccia, 306 Conn. 770, 51

A.3d 1002 (2012) (same); State v. Guilbert, supra, 306

Conn. 218 (eyewitnesses to crime); State v. Ali, 233

Conn. 403, 660 A.2d 337 (1995) (female victims of sexual

assault); State v. Borrelli, 227 Conn. 153, 629 A.2d 1105

(1993) (battered women syndrome). In those cases, we

have drawn a critical distinction between expert testimony that merely explains the behaviors or underlying

neuropsychology typical of the class of witnesses at

issue, and testimony that applies that knowledge so as

to pass judgment—directly or indirectly—on the veracity of particular witnesses. We consistently have held

that, although the former type of testimony is admissible if the trial court concludes that it otherwise satisfies

the standards for expert testimony; see part III B of

this opinion; testimony that speaks to the credibility of

specific witnesses typically is inadmissible insofar as

it invades the exclusive province of the jury. See, e.g.,

State v. Taylor G., supra, 761–65; State v. Favoccia,

supra, 787–90; State v. Ali, supra, 432–33; State v. Borrelli, supra, 173–74; State v. Spigarolo, 210 Conn. 359,
378–79, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S.

Ct. 322, 107 L. Ed. 2d 312 (1989). Accordingly, although

the jury is free to apply an expert’s generic testimony

about a class of witnesses to the specific witnesses who

testify in a particular case, an expert may not connect

those dots for the jury.

In the present case, Natapoff intended to testify only

with respect to the general characteristics of the marketplace for criminal informant testimony and the academic research indicating that unreliable informant

testimony contributes to many wrongful convictions.

During argument on the state’s motion, defense counsel

represented to the trial court that Natapoff had no

knowledge about this particular case and that she was

not familiar with, and did not intend to comment on,

the testimony of any of the state’s witnesses. Expert

testimony about the behavior of jailhouse informants

as a class is not per se inadmissible.31 For this reason,

we agree with the Appellate Court that the trial court

incorrectly concluded that Natapoff’s testimony would

have invaded the province of the jury. State v. Leniart,

supra, 166 Conn. App. 222–24.

2

We next consider whether the trial court abused its

discretion when it determined that Natapoff’s primary

conclusions were not of assistance to the jury. We have

explained that expert testimony is required only when

a disputed matter is ‘‘manifestly beyond the ken of the

average trier of fact, be it judge or jury.’’ (Emphasis

added.) State v. McClary, 207 Conn. 233, 245, 541 A.2d

96 (1988). At the other extreme, ‘‘[w]hen inferences or

conclusions are so obvious that they could be as easily

drawn by the jury as the expert from the evidence,

expert testimony regarding such inferences is inadmissible.’’ State v.Iban C., 275 Conn. 624, 639, 881 A.2d 1005

(2005). It also is well established that expert testimony

should be admitted only when the expert’s knowledge

or experience is directly applicable to a matter specifically at issue. Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 159, 971 A.2d 676 (2009); see

also Conn. Code Evid. § 7-2.

We are not aware of any studies supporting Natapoff’s

testimony that the typical juror may not be familiar

with the full scope of the marketplace for jailhouse

informant testimony, the specific means by which

inmates can fabricate believable incriminating stories,

the panoply of incentives that the state is able to offer

in exchange for such testimony, and the lack of any

meaningful deterrent for an inmate who is willing to

commit perjury. However, even if we were to assume,

for the sake of argument, that Natapoff is correct that

the typical juror is not aware of the full spectrum of

risks that attend to the use of jailhouse informants, we

would conclude for the following three reasons that

the trial court did not abuse its discretion in precluding
her testimony.

First, the trial court was free to credit Natapoff’s own

testimony that, although jurors may not be familiar with

all of the nuances of the academic research in this field,

the fundamental concerns regarding the reliability of

criminal informant testimony have been exposed by the

media and are well understood outside of the jailhouse.

Natapoff’s testimony in this regard is consistent with

our own understanding of the issue. Although we disagree with the Appellate Court that the state was

obliged to provide ‘‘empirical studies’’ to demonstrate

that Natapoff’s opinions are within the knowledge of

the average layperson; State v. Leniart, supra, 166

Conn. App. 224; we observe that the potential abuses

associated with jailhouse informant testimony have

been explored by investigative journalists and are generally engrained throughout the popular culture.32

Indeed, one federal court facing a similar question

recently cited to the Appellate Court’s decision in this

case, finding it unpersuasive for precisely this reason.

See United States v. Noze, 255 F. Supp. 3d 352, 354 (D.

Conn. 2017), aff’d sub nom. United States v. Dugue, 763

Fed. Appx. 93 (2d Cir. 2019). In that case, the defendants

proposed to call an expert who, like Natapoff, would

have testified as to the questionable credibility of cooperating witnesses. Id., 353. Judge Jeffrey A. Meyer

explained that he was unpersuaded by the Appellate

Court’s reasoning because, among other things, ‘‘I think

juries already understand that jails are miserable places.

Juries understand that cooperating witnesses have committed crimes and have powerful motives to say what

they can to stay out of or to be released from jail. I am

not convinced that juries need a law professor to teach

them more about the ‘true culture of jails.’ ’’ Id., 354;

see also State v. Woods, Docket No. C-130413 (LHH),

2014 WL 4437733, *7 (Ohio App. September 10, 2014)

(testimony was not beyond knowledge of jury), appeal

denied, 142 Ohio St. 3d 1422, 28 N.E.3d 121, cert. denied

U.S. , 136 S. Ct. 420, 193 L. Ed. 2d 329 (2015).

Second, and perhaps more significantly, the defendant’s proffer failed to establish that any of the specific

information of which the jury might not have been

aware is directly applicable to the present case. Unlike

in cases such as State v. Guilbert, supra, 306 Conn. 226–

27, in which the expert testimony at issue addressed

neuropsychological traits that can be expected to apply

to most, if not all, individuals, Natapoff’s testimony

hinged to a significant extent on research into the practices that are common to certain correctional facilities

and the procedures that are used by certain prosecutor’s offices in states such as California. Natapoff readily

conceded that these practices and procedures are not

uniform throughout the country and, further, that she

had not studied whether and to what extent they are

present in Connecticut. She was unable to say, for exam-
ple, whether there is a significant possibility that an

informant who lies under oath in a Connecticut trial

will be prosecuted for perjury; nor could she speak to

the specific benefits that the witnesses in this action

might reasonably have expected to receive.

Moreover, in the cases in which we have allowed

experts to testify as to the credibility of a class of

witnesses, the experts did not merely testify that certain

witnesses are, generally, of dubious credibility. Rather,

the experts provided the jury with a useful template,

describing patterns of behavior typical of such witnesses so that jurors could better assess whether particular conduct or statements demonstrated veracity or

mendacity. In Guilbert, for instance, the state’s expert

presented various factors that jurors could use to assess

the accuracy of an eyewitness identification: the degree

of stress to which the witness was exposed, the witness’

prior familiarity with the person, ‘‘the length of time

during which the eyewitness was able to observe the

person, lighting, distance, and whether the eyewitness

was paying attention.’’ State v. Guilbert, supra, 306

Conn. 227.

Similarly, in our cases addressing the credibility of

victims of domestic abuse, experts explained how such

victims tend to delay reporting to the police, recant or

provide inconsistent accounts of the abuse, and feel

powerless to leave an abusive relationship. See, e.g.,

State v. Taylor G., supra, 315 Conn. 755; State v. Ali,

supra, 233 Conn. 429; State v. Borrelli, supra, 227 Conn.

167–70. In several instances, we emphasized that the

defense had tried to impeach the complaining witness

by highlighting delayed or inconsistent reporting of the

alleged crime and that expert testimony was needed to

rebut those arguments and to help jurors understand

how conduct that might otherwise be thought to undermine a complainant’s credibility is actually typical of

victims of such crimes. See, e.g., State v. Ali, supra,

433; State v. Borrelli, supra, 170; State v. Spigarolo,

supra, 210 Conn. 377.

In the present case, by contrast, Natapoff did not

provide any template by which jurors could evaluate

the testimony of jailhouse informants. She opined that

some informants testify truthfully and others do not

but did not offer any practical guidance as to how a

jury might distinguish the former from the latter.

One could imagine a case in which Natapoff’s testimony might prove helpful to a jury. If, for example,

an informant witness claimed that a defendant had

revealed details about a crime that would appear to be

knowable only by the perpetrator, then learning that

inmates often glean such information by reading their

cellmates’ legal files or from outside sources could be

illuminating. Importantly, however, there is no suggestion in the present case that the state’s witnesses testified as to any details of the crime that, while appearing
to be knowable only by the perpetrator, could in fact

have been obtained via media reports or other means.

Rather, Allain’s statements and testimony were the only

source of detailed information about the alleged crime,

and he obtained that information from the defendant

at the time of the murder, rather than during his later

incarceration.33 Moreover, as the defendant himself

emphasizes, the testimony of Buckingham, Ching, and

Douton, while confirming the general outlines of

Allain’s account, differed with respect to certain details

of the alleged crime.

Ultimately, then, all a jury reasonably could glean

from Natapoff’s testimony is that it should be especially

skeptical of any jailhouse informant, given the abundant opportunities and incentives to fabricate confession stories and the fact that jailhouse informants sometimes do in fact testify falsely, which results in wrongful

convictions. But that is precisely how the trial court

instructed the jury, and we must assume that the jury

followed the court’s instructions.34 See, e.g., State v.

Booth, 250 Conn. 611, 626, 737 A.2d 404 (1999), cert.

denied sub nom. Brown v. Connecticut, 529 U.S. 1060,

120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000). In addition,

although jurors may have entered the courtroom ignorant of some of this information, the problems that

Natapoff described are readily understood and easily

probed on cross-examination. For example, Douton

conceded on cross-examination that he had followed

the victim’s case in the New London Day newspaper

while incarcerated, that he had looked at the defendant’s legal papers when they were in a holding cell

together, and that, in exchange for his testimony, he

hoped that the state would agree to modify his sentences to run concurrently rather than consecutively.

Indeed, the prosecutor himself acknowledged to the

jury in closing argument that ‘‘[a]ll these [prisoners] are

hoping for consideration or most of them are hoping

for consideration . . . .’’ Defense counsel also questioned the state’s other witnesses on multiple occasions

about any opportunities they may have had to read the

defendant’s legal papers or to collaborate. In short, it

was not unreasonable of the trial court to conclude

that, through common sense, the information presented

at trial, and the court’s instructions, the jurors would

have already been familiar with any concepts presented

in Natapoff’s testimony that were directly and specifically applicable to this case.

Third, agreeing with the Appellate Court that expert

testimony such as Natapoff’s must be admitted in any

case in which it is relevant—presumably any case in

which the testimony of an informant plays more than

a minimal role—would set a costly and troubling precedent. As one court has recognized, if defendants are

allowed to put on experts who will testify as to the

questionable credibility of criminal informants, then,

surely, the state will want to parry with experts of its
own. These counter experts would, undoubtedly, tell

the jury about the critical and generally reliable role

that informants play in many criminal prosecutions.

United States v. Noze, supra, 255 F. Supp. 3d 355. Criminal trials would devolve into expensive and time consuming ‘‘battles of [road show] experts . . . .’’ Id.

For these and other reasons, although Natapoff has

been permitted to testify in one civil trial subsequent

to the defendant’s conviction; see Larson v. State, 194

Wn. App. 722, 731 n.5, 375 P.3d 1096, review denied,

186 Wn. 2d 1025, 385 P.3d 117 (2016); other courts

generally have not permitted Natapoff or other experts

to testify regarding the credibility of criminal informants. See People v. Curl, 46 Cal. 4th 339, 360, 207 P.3d

2, 93 Cal. Rptr. 3d 537 (2009) (trial court did not abuse

discretion in precluding expert testimony on methods

used by jailhouse informants to fabricate testimony),

cert. denied, 559 U.S. 1009, 130 S. Ct. 1881, 176 L. Ed.

2d 369 (2010); People v. Vega, Docket No. G045613, 2013

WL 1736669, *8 (Cal. App. April 23, 2013) (Natapoff’s

testimony was properly excluded), review denied, California Supreme Court, Docket No. S210465 (June 26,

2013); State v. Woods, supra, 2014 WL 4437733, *7 (trial

court did not abuse its discretion by excluding expert

testimony when informant was cross-examined at

length); see also Servello v. Commissioner of Correction, 95 Conn. App. 753, 763, 899 A.2d 636 (upholding

habeas court’s conclusion that expert testimony would

not have assisted jury), cert. denied, 280 Conn. 904, 907

A.2d 91 (2006).

By contrast, in other instances in which we have

allowed or required expert testimony as to the reliability

of a class of witnesses, we relied on the fact that sister

states routinely admit such evidence. See, e.g., State v.

Guilbert, supra, 306 Conn. 233–39 and n.20 (eye witness

testimony); State v. Ali, supra, 233 Conn. 434 (reporting

delays by rape victims); State v. Borrelli, supra, 227

Conn. 170 (battered woman’s syndrome); State v.

Spigarolo, supra, 210 Conn. 377 (disclosure tendencies of sexually abused children). Accordingly, we are

unable to say that the trial court abused its discretion

in concluding that Natapoff would not have provided

any expert information that was both directly applicable

to the case at hand and beyond the ken of the average juror.35

The judgment of the Appellate Court is reversed with

respect to the evidentiary claims at issue in the state’s

certified appeal and the case is remanded to that court

with direction to consider the defendant’s remaining

claims on appeal; the judgment is affirmed in all other

respects.

In this opinion ROBINSON, KAHN and VERTEFEUILLE, Js., concurred.

* The listing of justices reflects their seniority status on this court as of

the date of oral argument.
1 For the sake of simplicity, we note that all references in this opinion to

§ 53a-54b are to General Statutes (Rev. to 1995) § 53a-54b, as amended by

Public Acts 1995, No. 95-16, § 4.

2

In accordance with our policy of protecting the interests of the victims

of sexual abuse, we decline to identify the victim or others through whom

the victim’s identity may be ascertained. See General Statutes § 54-86e.

3 Although Allain’s testimony was unclear on this point, the jury reasonably

could have concluded that the path on which Allain and the defendant spoke

is the same path to which the defendant confessed having taken the victim.

4

Judge Flynn, writing separately, concluded that the Appellate Court

majority had, in some respects, improperly articulated and applied the corpus delicti rule, but he agreed that the defendant could not prevail on his

corpus delicti claim. See State v. Leniart, supra, 166 Conn. App. 228 (Flynn,

J., concurring in part and dissenting in part).

5 For the reasons discussed in part I B of this opinion, some courts and

commentators refer to Connecticut’s version of the corpus delicti rule as

the corroboration rule.

6 For brevity, subsequent references to ‘‘confessions’’ are intended to refer

to the alleged extrajudicial confessions or admissions of a criminal

defendant.

7 Because we agree with the defendant that the corpus delicti rule is a

hybrid rule that implicates his due process rights and, therefore, that his

failure to object to admission of his alleged confessions does not preclude

appellate review, we need not consider his alternative arguments that his

corpus delicti claim is properly preserved or should be reviewed for

plain error.

The defendant contends that there also is insufficient evidence to prove

that he sexually assaulted, kidnapped, and intentionally killed the victim.

Although those issues are not encompassed within the certified question,

we note that Allain’s testimony, if credited by the jury, and as corroborated

by independent evidence, was sufficient to establish the essential elements

of all of the charged crimes.

8 Aside from the question of reviewability, the distinction determines the

remedy that would be available to the defendant should he prevail on his

corpus delicti claim. If the confession testimony were found to have been

improperly admitted, then he would be entitled to a new trial, assuming

that the error was not deemed harmless, whereas a finding that the state’s

evidence was insufficient to sustain a conviction would require his acquittal.

See Burks v. United States, 437 U.S. 1, 16, 98 S. Ct. 2141, 57 L. Ed. 2d 1

(1978); State v. Ferrell, 191 Conn. 37, 46, 463 A.2d 573 (1983).

9 We note that it is not uncommon for substantive rules to have evidentiary

implications as well. See, e.g., Manderson v. Chet Morrison Contractors,

Inc., 666 F.3d 373, 381 (5th Cir. 2012) (collateral source rule ‘‘can apply as

evidentiary rule or as substantive rule of damages, or both’’); Strout v.

Paisley, Docket No. CIV. 00-107-B (MJK), 2000 WL 1900313, *4 (D. Me.

December 4, 2000) (‘‘any rule, whether [common-law] or statutory, may

have both substantive and evidentiary components’’).

10 As we discuss subsequently in this opinion, the nature of the burden

imposed on the prosecution under the corpus delicti rule was later refined

by this court in State v. Tillman, supra, 152 Conn. 20. See part I B 1 of

this opinion.

11 The Appellate Court believed that it was bound by Uretek, notwithstanding our subsequent decision in State v. Farnum, supra, 275 Conn. 26,

because, in State v. Heredia, 139 Conn. App. 319, 325 and n.3, 55 A.3d 598

(2012), cert. denied, 307 Conn. 952, 58 A.3d 975 (2013), a different panel of

the Appellate Court had announced that it would adhere to Uretek until

that decision was expressly overruled by this court. See State v. Leniart,

supra, 166 Conn. App. 161–62.

12 See, e.g., Langevin v. State, supra, 258 P.3d 873; People v. Konrad, 449

Mich. 263, 269, 536 N.W.2d 517 (1995); State v. Jones, 427 S.W.3d 191, 195

(Mo. 2014).

13 We note that McCormick on Evidence favors treating the rule as exclusively substantive. See 1 K. Broun, supra, § 145, p. 805. Other scholars,

however, adopt the hybrid approach. See, e.g., T. Mullen, ‘‘Rule Without

Reason: Requiring Independent Proof of the Corpus Delicti as a Condition

of Admitting an Extrajudicial Confession,’’ 27 U.S.F. L. Rev. 385, 386 and

n.5 (1993).

14 See D. Moran, supra, 64 Ohio St. L.J. 818 (‘‘[t]he corpus delicti rule has

fallen into disfavor in recent decades’’); id., 835 (‘‘the last half of the twentieth

century has produced a distinct trend away from the corpus delicti rule’’
[internal quotation marks omitted]); T. Mullen, supra, 27 U.S.F. L. Rev.

389 (noting modern trend ‘‘reducing the quantum of evidence necessary to

establish the corpus delicti’’); T. Mullen, supra, 418 (‘‘[m]ost courts have

acted with [half measures] to unburden themselves of the corpus delicti

rule’’).

15 Unless otherwise noted, we use the term ‘‘independent evidence’’ to

refer to evidence independent of any purported admissions, confessions,

or related extrajudicial statements of the accused.

16 See T. Mullen, supra, 27 U.S.F. L. Rev. 389 and n.17 (listing Connecticut

as one of only four states to adhere to narrower version of rule); see also

United States v. Woods, 484 F.2d 127, 132 (4th Cir. 1973) (describing this

view as ‘‘ ‘orthodox’ ’’ but noting that it has not found widespread acceptance), cert. denied, 415 U.S. 979, 94 S. Ct. 1566, 39 L. Ed. 2d 875 (1974).

17 We note that, although the term corpus delicti, which literally translates

to ‘‘body of the crime,’’ has led to some confusion, it never has been the

rule that a victim’s body must be produced before the state can secure a

murder conviction. See D. Moran, supra, 64 Ohio St. L.J. 828 and n.68; R.

Perkins, ‘‘The Corpus Delicti of Murder,’’ 48 Va. L. Rev. 173, 182 (1962). As

has been long recognized and frequently remarked, such a rule would serve

only to incentivize gangland style murders in which victim’s bodies are

incinerated, dissolved, or dumped in the sea. See Virgin Islands v. Harris,

938 F.2d 401, 415 (3d Cir. 1991) (‘‘[A] murderer should not be entitled to

acquittal simply because he successfully disposes of a victim’s body. That

is one form of success for which society has no reward.’’ [Internal quotation

marks omitted.]); United States v. Gibert, 25 F. Cas. 1287, 1290 (C.C.D.

Mass. 1834) (No. 15,204) (requiring production of body ‘‘would amount to

a universal condonation of all murders committed on the high seas’’).

18 Although the Perry tale apparently boasts sufficient indicia of historical

reliability to not be deemed apocryphal; see P. Clifford, The Campden Wonder, available at http://www.campdenwonder.plus.com/Sources.htm (last

visited September 4, 2019); details of the story vary from one account to

another. Compare State v. Bishop, 431 S.W.3d 22, 46 (Tenn. 2014), with A.

Howard, Rope: A History of the Hanged (2016) pp. 145–46.

19 M. Sullo, ‘‘Adult Missing Persons in Connecticut: Advocate Says Police

Aren’t Doing Enough,’’ Middletown Press (December 18, 2011), available at

https://www.middletownpress.com/news/article/Adult-missing-persons-inConnecticut-Advocate-11876085.php (last visited September 4, 2019).

20 See, e.g., D. Moran, supra, 64 Ohio St. L.J. 818–19.

21 See Miranda v. Arizona, 384 U.S. 436, 471–74, 86 S. Ct. 1602, 16 L. Ed.

2d 694 (1966).

22 We recognize that the record contains some troubling testimony and

exhibits regarding James Butler, a former Marine and family friend of the

victim, who claimed to have spoken with the victim at a video rental store

in Virginia, some three years after her disappearance. However, Butler did

not testify at trial, some questions were raised regarding his competence,

and the police were unable to verify key elements of his story. Accordingly,

and in light of the standard of review that governs this claim, we agree with

the Appellate Court that we must assume that the jury declined to credit

Butler’s statement.

23 We caution that the mere fact that more than one witness testifies that

the accused has confessed to a crime is not, by itself, sufficient corroboration

to satisfy the corpus delicti rule. See Wong Sun v. United States, 371 U.S.

471, 489–90 n.15, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); see also United States

v. Northrup, 482 F. Supp. 1032, 1037 (D. Nev. 1980) (‘‘[i]f two admissions,

in and of themselves, are untrustworthy, obviously they cannot be bootstrapped together to raise each other to the level of trustworthiness’’); State

v. Doucette, supra, 147 Conn. 100 (‘‘[e]ven two positive confessions of guilt,

without independent proof of the corpus delicti, would not be sufficient to

authorize a conviction’’ [internal quotation marks omitted]).

24 We note that the corpus delicti rule, as applied in Connecticut, governs

confessions made to and reported by laypersons as well as law enforcement

officers. See State v. Farnum, supra, 275 Conn. 33 (applying rule where

defendant confessed crime to jailhouse informant); see also 1 K. Broun,

supra, § 145, pp. 807–808. This reflects the fact that false confessions may

result not only from the use of oppressive interrogation tactics by law

enforcement but also from other causes—mental illness, publicity seeking,

etc.—that may lead an individual to falsely confess to family, friends, cellmates, or even complete strangers.

25 Because we conclude that exclusion of the videotape was not harmful

error, we need not address the state’s alternative argument that the trial
court also made a reasonable, discretionary determination that the prejudicial impact of the videotape outweighed its probative value.

26 Allain had previously repudiated that confession during his direct examination.

27 Allain initially testified that he did not recall discussing that subject with

Madden but ultimately acknowledged that, although he could not remember

exactly what Madden had said, he did recall the discussion.

28 Prior to asking Allain to review and verify his prior statements to the

police, for example, Madden instructed him as follows: ‘‘[L]et’s assume worst

case scenario, worst case scenario you go look, [the defendant] was choking

her and I was holding her feet. Not only did I witness him kill her, I helped

restrain her. . . . [A]s long as it comes out prior to, you’re going to pass

the polygraph.’’

29 The state does not dispute that Natapoff qualifies as an expert on

these matters.

30 Shortly after the trial court’s ruling in this case, this court decided State

v. Guilbert, 306 Conn. 218, 257–58, 49 A.3d 705 (2012), in which we held that,

although expert testimony on the reliability of eyewitness identifications is

presumptively admissible where relevant and directly applicable to the facts

and circumstances of a case, a court does not abuse its discretion in precluding such testimony if cross-examination and focused, informative jury

instructions provide an adequate substitute. We express no opinion as to

whether the rule articulated in Guilbert should apply to expert testimony

regarding the reliability of jailhouse informants.

31 Although we conclude in part III C 2 of this opinion that, to the extent

that Natapoff’s testimony was directly applicable to the present case, it was

not beyond the ken of the average juror, we do not foreclose the possibility

that testimony on the practices and procedures governing criminal informant

testimony in Connecticut could be presumptively admissible under other circumstances.

32 See, e.g., N. Yarris, The Fear of 13 (Arrow Books 2017) c.4; 60 Minutes:

Informant Says He Was Planted in Orange County Jail To Snitch (CBS television broadcast May 21, 2017), available at https://www.cbsnews.com/news/

informant-says-he-was-planted-in-orange-county-jail-to-snitch (last visited September 4, 2019); Frontline: Snitch, How Informants Have Become a Key Part

of Prosecutorial Strategy in the Drug War (PBS television broadcast January

12, 1999), available at https://www.pbs.org/wgbh/pages/frontline/shows/snitch/

etc/script.html (last visited September 4, 2019); G. Cothran, ‘‘Trial by Liar,’’ SF

Weekly, January 14, 1998, available at https://www.sfweekly.com/news/trialby-liar (last visited September 4, 2019); R. Reinhold, ‘‘California Shaken over

an Informer: He Shows How To Fabricate a Prisoner’s Confession,’’ N.Y. Times,

February 17, 1989, pp. A1, A17; see also Goldstein v. Long Beach, 715 F.3d

750, 758 (9th Cir. 2013) (referencing 60 Minutes broadcast from 1988).

33 For this reason, among others, we are not persuaded by Justice Palmer’s

attempt to distinguish United States v. Noze, supra, 255 F. Supp. 3d 352.

34 The court instructed the jury as follows: ‘‘In weighing the testimony of

an accomplice who is a self-confessed criminal, you should consider that

fact. It may be that you would not believe a person who has committed a

crime as readily as you would believe a person of good character.

‘‘In weighing the testimony of an accomplice who has not yet been sentenced or whose case has not yet been disposed of or who has not been

charged with offenses in which the state has evidence, you should keep in

mind that he may in his own mind be looking for some favorable treatment

in the sentence or disposition of his own case or hoping not to be arrested.

‘‘Therefore, he may have such an interest in the outcome of this case that

his testimony may have been colored by that fact. Therefore, you must look

with particular care at the testimony of an accomplice and scrutinize it very

carefully before you accept it.

‘‘There are many offenses that are of such a character that the only persons

capable of giving useful testimony are those who are themselves implicated

in the crime. It is for you to decide what credibility you will give to a witness

who has admitted his involvement in criminal wrongdoing; whether you

will believe or disbelieve the testimony of a person who by his own admission

has committed or contributed to the crime charged by the state here. Like

all other questions of credibility, this is a question you must decide based

on all the evidence presented to you.

‘‘Witnesses testified in this case as informants. An informant is someone

who has information regarding the crime and agrees to testify in exchange

for some benefit from the state. In evaluating an informant’s testimony, you

should consider the benefits that the state has promised the informant in
exchange for his cooperation.

‘‘It may be that you would not believe a person who is receiving benefits

in exchange for testimony as well as you might believe other witnesses. An

informant may have such an interest in the outcome of this case that his

testimony may have been colored by that fact.

‘‘Therefore, you must look with particular care at the testimony of an

informant and scrutinize it very carefully before you accept it. You should

determine the credibility of that witness in the light of any motive for

testifying falsely and inculpating the accused.

‘‘If you find that the witness is an informant who has been promised a

reduction in his sentence or other valuable consideration by the state in

return for his testimony or who hopes for or expects consideration by the

state in return for his testimony, you must decide whether you will believe

or disbelieve the testimony of a person who is testifying in exchange for

some benefit from the state. Like all other questions of credibility, this is

a question you must decide based on all the evidence presented to you.’’

35 Because the Appellate Court reversed the defendant’s conviction on

evidentiary grounds, it did not consider various constitutional challenges

that he raised. State v. Leniart, supra, 166 Conn. App. 182 n.28, 212 n.39.

On remand, the Appellate Court will have the opportunity to consider those

claims in the first instance.