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*********************************************** 
STATE OF CONNECTICUT v. STEPHANIE U.*

(AC 41793)

Bright, C. J., and Prescott and Elgo, Js.

Syllabus

Convicted of various crimes in connection with her actions while attempting

to pick up her child from day care while allegedly under the influence

of intoxicating liquor or drugs, the defendant appealed to this court.

The defendant testified on her own behalf at trial. During cross-examination, the prosecutor asked the defendant whether she had an interest

in the outcome of the trial and implied that the defendant had the

opportunity to tailor her testimony by taking the stand after observing

the testimony of all of the other witnesses. Additionally, during the

rebuttal portion of her closing argument, the prosecutor argued that the

defendant was the only witness who had the opportunity to hear the

testimony of the other witnesses prior to giving her own testimony, that

she had a vested interest in the outcome of the case, and that the jurors

could consider that interest in their decision-making process. On appeal,

the defendant claimed, inter alia, that the prosecutor’s questioning and

argument constituted generic tailoring, which violated her right to confrontation and her right to testify on her own behalf under both the

state and federal constitutions. Held:

1. The defendant failed to prove her unpreserved claim that the prosecutor

violated her state constitutional rights to confront witnesses against her

and to testify on her own behalf: although the state’s tailoring questions

and argument were generic because they were not tied to evidence that

specifically gave rise to an inference of tailoring and instead focused

on the defendant’s presence in the courtroom, her ability to observe

the proceedings, and her interest in the outcome of the trial, the defendant failed to prove that the state constitution offered greater protection

than the federal constitution and, accordingly, failed to establish a constitutional violation under State v. Geisler (222 Conn. 672), as the language

of article first, § 8, of the Connecticut constitution was virtually identical

to that of the sixth amendment to the federal constitution, Connecticut’s

early recognition of a defendant’s right to testify provided no insight as

to whether the state historically viewed generic tailoring as improper,

most of the cases that the defendant claimed were persuasive precedent

from other states relied on the supervisory authority of the courts and

on public policy to prohibit generic tailoring arguments or questions

rather than on their state constitutions, the United States Supreme Court

in Portuondo v. Agard (529 U.S. 61) held that generic tailoring arguments

did not violate the federal constitution, Connecticut precedent after

Portuondo did not demonstrate that the state courts considered generic

tailoring arguments to raise state constitutional issues, and the defendant’s argument that public policy considerations required a conclusion

that generic tailoring arguments violated the state constitution was not

compelling.

2. The prosecutor did not deny the defendant her due process of law under

either the federal or state constitutions: the defendant’s claim was unpreserved and it failed under the third prong of State v. Golding (213 Conn.

233); moreover, our Supreme Court in State v. Medrano (308 Conn.

604) held that a trial court’s instruction that a jury could consider the

defendant’s interest in the outcome of the case did not implicate the

defendant’s right to due process, and the defendant in this case failed

to demonstrate that a prosecutor’s similar argument could have more

of an impact on her due process rights than a court’s jury instruction.

3. The prosecutor did not deprive the defendant of a fair trial when she

argued that the defendant had tailored her testimony and that she had

a motive to lie: the defendant failed to establish a claim of prosecutorial

impropriety because she failed to prove that the prosecutor’s argument

and questions infringed on her constitutional rights.

4. This court declined to employ its supervisory authority over the administration of justice to expand the Supreme Court’s decision in State v.

Medrano (308 Conn. 604) to prohibit a prosecutor from making argu-
ments about the defendant’s interest in the outcome of his or her criminal

trial, the defendant having failed to persuade this court that such argument merits the exercise of that authority.

5. Although the defendant was not entitled to a new trial because the prosecutor’s generic tailoring questions and comments did not affect the fairness

of her trial, this court exercised its supervisory authority over the administration of justice to prohibit prosecutors from employing generic tailoring arguments in future criminal cases: this court determined that

generic tailoring arguments should be prohibited because they were

likely to implicate the perceived fairness of the judicial system and

could give rise to a danger of juror misunderstanding; accordingly, this

court held that, prior to asking tailoring questions or before making

such comments in closing arguments in the future, a prosecutor must

inform the trial court and the defendant of her intention to do so and,

if the defendant objects, the trial court must determine that the prosecutor’s questions or argument are specific before allowing the state to proceed.

6. The defendant could not prevail on her claim that her conviction of

attempt to commit risk of injury to a child should be vacated because

the crime was cognizable: our Supreme Court determined in State v.

Sorabella (277 Conn. 155) that attempt to commit risk of injury to a

child was a cognizable offense and this court was bound by that decision.

Argued January 5—officially released August 24, 2021

Procedural History

Substitute information charging the defendant with

the crimes of operating a motor vehicle while under

the influence of intoxicating liquor or drugs, operating

a motor vehicle while her license was under suspension

and attempt to commit risk of injury to a child, brought

to the Superior Court in the judicial district of Tolland,

geographical area number nineteen, and tried to the

jury before Seeley, J.; verdict and judgment of guilty,

from which the defendant appealed to this court.

Affirmed.

Laila M. G. Haswell, senior assistant public defender,

for the appellant (defendant).

James M. Ralls, assistant state’s attorney, with whom

were Matthew C. Gedansky, state’s attorney, and Jaclyn

Dulude, assistant state’s attorney, for the appellee

(state).
Opinion

BRIGHT, C. J. The defendant, Stephanie U., appeals

from the judgment of conviction of operating a motor

vehicle while under the influence of intoxicating liquor

or drugs in violation of General Statutes § 14-227a (a)

(1), operating a motor vehicle while her operator’s

license was under suspension in violation of General

Statutes § 14-215 (a), and attempt to commit risk of

injury to a child in violation of General Statutes §§ 53-

21 (a) (1) and 53a-49 (a) (2). On appeal, the defendant

claims that (1) the prosecutor violated her state constitutional rights to confront witnesses against her and to

testify on her own behalf by improperly attacking her

credibility during cross-examination and in her closing

rebuttal argument by suggesting that she had tailored

her testimony to conform to the evidence she had overheard during her trial, (2) the prosecutor denied her

due process of law under both the federal and state

constitutions when, during cross-examination, the prosecutor asked the defendant whether she had an interest

in the outcome of the trial, and when, during rebuttal

argument, the prosecutor told the jury that it could

consider the defendant’s vested interest in the outcome

of the trial, (3) prosecutorial impropriety deprived her

of a fair trial when the prosecutor argued that she had

tailored her testimony and that she had a motive to lie,

(4) this court, in the alternative, should order a new trial

after we employ our supervisory authority to prohibit

questions and arguments that amount to generic tailoring and/or telling or implying to the jury that it can or

should discredit the defendant’s trial testimony because

she has an ‘‘interest in the outcome’’ of her trial, and

(5) her conviction of attempt to commit risk of injury to

a child should be vacated because it is not a cognizable

crime. We reject the defendant’s claims, although we

agree with her request to exercise our supervisory

authority over the administration of justice on the issue

of generic tailoring. Nevertheless, because we conclude

that the prospective rules we articulate regarding

generic tailoring would not have changed the outcome

of the defendant’s trial, we affirm the judgment of the

trial court.

The following facts, as reasonably could have been

found by the jury on the basis of the evidence presented

at trial, and the relevant procedural history, inform our

review of the defendant’s claims. On October 30, 2015,

at approximately 5 p.m., the defendant arrived to pick

up her one year old child at a Vernon day care center.

Jessica Woodruff also was there to pick up her own

child, and she witnessed the defendant stumbling out

of a vehicle, having difficulty walking into the day care,

repeatedly stumbling, having difficulty ‘‘hold[ing] herself up,’’ and falling backward. Woodruff believed that

the defendant was intoxicated. Once inside, several people, including Woodruff; the assistant director of the
day care, Kathleen Wheeler; and a teacher at the day

care, Elyse DeGemmis, observed the defendant slur,

mumble, and grab onto various objects in an effort

to support herself. Wheeler and DeGemmis were so

concerned that they called 911.

Detective John Divenere of the Vernon Police Department was dispatched to the day care on a report of an

intoxicated woman attempting to pick up her child. On

his arrival, someone pointed out the defendant. When

Divenere asked the defendant for identification, she

handed him her state identification card and, when

asked about her driver’s license, she told him that it

had been suspended. Divenere observed that the defendant’s eyes were glassy, her speech was slow and

slurred, and she was having difficulty maintaining her

balance. The defendant denied to Divenere that she had

taken drugs or alcohol, or that she had medical issues,

disabilities, or diabetes. Divenere administered two

‘‘preliminary’’ tests that are not part of the field sobriety

tests, namely, the ‘‘alphabet’’ test and the ‘‘counting

backwards’’ test. At his request, the defendant performed each test several times. The defendant slurred

her speech and skipped letters and numbers during

each of the tests. The defendant appeared intoxicated to

Divenere, who then administered several field sobriety

tests, all of which the defendant failed. Officer David

Provencher, who also had arrived at the day care,

recorded on his body camera the defendant performing

the field sobriety tests. Divenere arrested the defendant

and took her to the police station.1

At approximately 6 p.m., while at the police station,

Divenere advised the defendant of her rights. The defendant again denied that she had any medical issues or

that she had consumed alcohol. She did state that she

was prescribed Xanax but that she had not taken it that

day. Divenere observed that the defendant did not smell

of alcohol or marijuana, her eyes were not bloodshot

or red, and her pupils were not dilated or constricted.

Divenere did not find any drugs, drug paraphernalia, or

alcohol in the defendant’s vehicle or purse. Divenere

administered a Breathalyzer test, which resulted in a

reading of zero. He then asked the defendant to take

a urine test, which the defendant initially agreed to take

but then declined.2

On the basis of this evidence, the jury found the defendant guilty of illegal operation of a motor vehicle while

under the influence of intoxicating alcohol or drugs,

illegal operation of a motor vehicle while her license

was under suspension, and attempt to commit risk of

injury to a child. The court accepted the jury’s verdict

and sentenced the defendant to a total effective term

of five years of imprisonment, execution suspended

after eighteen months, followed by five years of probation. This appeal followed. Additional facts will be set

forth as necessary.
I

The defendant claims that the prosecutor violated

her state constitutional rights, under article first, § 8,

to confront witnesses against her and to testify on her

own behalf by improperly attacking her credibility when

engaging in a generic tailoring argument, by suggesting

during cross-examination and during closing rebuttal

argument that she had tailored her testimony to conform to the evidence that she heard during her criminal

trial. The defendant did not preserve her claim and asks

for review pursuant to State v. Golding, 213 Conn. 233,

239–240, 567 A.2d 823 (1989), as modified by In re

Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).3

We conclude that the defendant’s claim is reviewable

but that it fails under the third prong of Golding. In

particular, we conclude that the defendant has failed

to prove that the state constitution offers greater protection than the federal constitution with respect to confrontation rights, and, therefore, she cannot establish

that a state constitutional violation exists.

The following additional facts are necessary to our

consideration of the defendant’s claim. During trial, the

defendant testified on her own behalf. She explained to

the jury that she had experienced mental health issues,

including mood disorders, anxiety, and bipolar disorder, since she was a child, and that she takes Xanax

as needed. She also testified that the day before this

incident, she had gotten into a verbal altercation with

a coworker and quit her job. The defendant further

explained that, on the day of the incident, she met with

her manager and someone from human resources to

ask for her job back, but she was not successful. She

testified that, later in the day, when it was time to pick

up her child from day care, her grandmother, who had

been providing transportation, was unavailable; so,

despite knowing that her license was under suspension,

she drove to the day care to pick up her child. She

denied that she had been disorientated when she went

to the day care, but she testified that the body camera

video convinced her that she had undergone a mental

health episode while at the day care center. She

explained that the video showed her experiencing tics

and pulling her hair, which signaled a mental health

episode.

During cross-examination, the prosecutor asked the

defendant:

‘‘Q. And you’ve had an opportunity to sit in court and

listen to all of the witnesses testify in this case; correct?

‘‘A. Yes.

‘‘Q. So you’ve been able to listen to their testimony

and figure out what you’re going to say today; correct?

‘‘A. What I’m going to say today?

‘‘Q. Yeah; during your testimony.
‘‘A. No.

‘‘Q. You haven’t listened to their testimony?

‘‘A. Yes. I’ve listened to what they’ve had to say.

‘‘Q. Okay. And you have a lot riding on this case,

don’t you?

‘‘A. Today?

‘‘Q. Sure.

‘‘A. Well, yeah. I have my son, my apartment. I have

a life. My son is everything to me.’’

The next day, during the rebuttal portion of her closing argument, the prosecutor argued in relevant part:

‘‘Also consider the fact that the only witness to have

sat in on the testimony of all the other witnesses in this

case is the defendant. None of the other witnesses got

to hear the others’ testimony. The defendant knew what

everyone said and had that knowledge when she testified. She has a vested interest in the outcome of this

case. And that can also be taken into account when

you’re deliberating this case.

b‘‘Does it make sense, with regard to the day care

workers,

that three independent individuals who have no interest

in this case would tell you similar stories and describe

similar behaviors of the defendant; that this would be

untruthful or lying testimony, as indicated by defense

counsel?

‘‘The defendant testified that she did not act in any

way as described by the day care workers. Totally

unequivocal; I did not act that way at all. These are

individuals out in the community, going about their dayto-day lives, going to work, picking up children. Think

about how those witnesses testified, as opposed to the

defendant.’’

On appeal, the defendant argues that, ‘‘[d]uring crossexamination, the state asked the defendant point blank

whether she had listened to all of the witnesses who

had testified beforehand and ‘figured out’ what she was

going to say. Furthermore, in its rebuttal, the state

argued that the defendant was the only witness who

heard all of the other testimony, and she tailored her

evidence accordingly. These generic tailoring arguments violated the defendant’s right of confrontation

and right to testify because they turned the defendant’s

unassailable rights to be present during all the testimony and to testify on her own behalf into a weapon

used against her. This court must hold, under the Connecticut constitution article [first], § 8 . . . that the

state may not raise generic tailoring claims at any point

in the trial.’’

A

We first consider whether the questions and remarks
of the prosecutor amounted to generic tailoring.

‘‘A prosecutor makes a tailoring argument when he

or she attacks the credibility of a testifying defendant

by asking the jury to infer that the defendant has fabricated his testimony to conform to the testimony of

previous witnesses. See Portuondo v. Agard, 529 U.S.

61, 73, 120 S. Ct. 1119, 146 L. Ed. 2d 47 (2000). The term

most frequently is used to refer to a prosecutor’s direct

comment during closing argument on the defendant’s

opportunity to tailor his testimony, although a prosecutor sometimes also will use cross-examination to convey a discrediting tailoring message to the jury. There

are two types of tailoring arguments: generic and specific. The former occurs when the prosecutor argues

the inference solely on the basis of the defendant’s

presence at trial and his accompanying opportunity to

fabricate or tailor his testimony. State v. Alexander, 254

Conn. 290, 300, 755 A.2d 868 (2000); see also State v.

Daniels, 182 N.J. 80, 98, 861 A.2d 808 (2004) ([g]eneric

accusations occur when the prosecutor, despite no specific evidentiary basis that [the] defendant has tailored

his testimony, nonetheless attacks the defendant’s credibility by drawing the jury’s attention to the defendant’s

presence during trial and his concomitant opportunity

to tailor his testimony). A specific tailoring argument,

by contrast, occurs when a prosecutor makes express

reference to the evidence, from which the jury might

reasonably infer that the substance of the defendant’s

testimony was fabricated to conform to the state’s case

as presented at trial. See State v. Daniels, supra, 98

([a]llegations of tailoring are specific when there is

evidence in the record, which the prosecutor can identify, that supports an inference of tailoring).’’ (Footnote

omitted; internal quotation marks omitted.) State v.

Weatherspoon, 332 Conn. 531, 543–44, 212 A.3d 208

(2019).

In Weatherspoon, our Supreme Court concluded that

the prosecutor’s tailoring argument was specific

because it ‘‘contained two different but related evidence-based assertions: first, the discrepancy between

the defendant’s pretrial statement to [the police] and

his in-court trial testimony supports the inference that

his in-court testimony is false; and second, the defendant’s false testimony about his memory allowed him

to conform his recitation of events to that of [another

witness’] trial testimony, thereby supporting a reasonable inference of tailoring.’’ Id., 549–50. By contrast,

‘‘[g]eneric tailoring arguments occur when the prosecution attacks the defendant’s credibility by simply drawing the jury’s attention to the defendant’s presence at

trial and his resultant opportunity to tailor his testimony.’’ (Internal quotation marks omitted.) State v.

Papantoniou, 185 Conn. App. 93, 99 n.11, 196 A.3d 839,

cert. denied, 330 Conn. 948, 196 A.3d 326 (2018).

Our Supreme Court in Weatherspoon was asked to
decide whether generic tailoring arguments, which do

not violate the federal constitution; see Portuondo v.

Agard, supra, 529 U.S. 70–73; violate a defendant’s right

to confrontation under article first, § 8, of the Connecticut constitution. State v. Weatherspoon, supra, 332

Conn. 543. The court did not reach the question because

it concluded that the tailoring argument made by the

prosecutor in that case was a specific tailoring argument and the defendant had not claimed on appeal that

specific tailoring arguments violate the state constitution. Id., 549–50.

In the present case, the defendant argues that the

prosecutor’s questions during cross-examination of the

defendant and her remarks during her rebuttal closing

argument were generic tailoring, and she asks that we

address the state constitutional question not reached

by our Supreme Court in Weatherspoon. The state

argues that we should not reach the constitutional question because, as in Weatherspoon, the state’s tailoring

argument in the present case was specific and not

generic. We agree with the defendant that the state’s

tailoring argument was generic.

During cross-examination, the prosecutor asked the

defendant about her ability to listen to all of the arguments and figure out what she was going to say before

she testified. Such questioning focused the jury’s attention, not on any specific evidence that the defendant

tailored her testimony but, instead, on the defendant’s

mere presence in the courtroom, her opportunity to

observe the proceedings, her ability to tailor her testimony on the basis of her presence in the courtroom and

her observations, and the fact that she had a vested

interested in the outcome of her criminal trial.

Then, during the rebuttal portion of her closing argument, the prosecutor similarly called to the jury’s attention the fact that the defendant was the only testifying

witness to have heard all of the trial testimony, and

that she knew the substance of each witness’ testimony

before she, herself, testified. The prosecutor then again

tied that argument to the fact that the defendant had

a vested interest in the proceedings.

The state argues that the defendant is viewing the

tailoring questions and remarks of the prosecutor out of

context. According to the state, the tailoring comments

were anchored sufficiently to evidence presented at

trial to make them specific and not generic. With respect

to the tailoring questions asked during cross-examination, the state argues that those questions followed the

prosecutor’s questions about the defendant’s mental

health, to which the defendant attributed her behavior

on the day of her arrest. The state argues that the prosecutor’s questions were intended to show that ‘‘the defendant tailored her testimony to the state’s evidence of

intoxication when she claimed, for the first time at trial,

that her long-standing psychiatric problems mimicked
drug induced intoxication.’’ With respect to the comments made during the prosecutor’s rebuttal closing

argument, the state argues that, immediately following

the prosecutor’s ‘‘generic remarks,’’ she compared the

defendant’s testimony to the consistency of the evidence from the day care workers, the police and the

video recordings of the defendant’s behavior. We are

not persuaded that the record supports either of the

state’s arguments.

First, the prosecutor’s questions that preceded her

generic tailoring questions were unrelated to the defendant’s testimony that her psychiatric problems caused

her behavior that led to her arrest. Instead, the prosecutor’s questions focused on the defendant’s performance

of the field sobriety tests, whether the defendant

refused to provide a urine sample because she knew

that it would show the presence of Xanax in her system,

her long history of taking Xanax, and whether she took

it on the day she was arrested to cope with the stressful

situation at work. The fact that the defendant was present in court and heard the testimony of others was

wholly unrelated to the inferences the state was asking

the jury to draw from the defendant’s answers to these

questions. Because there is no connection between the

tailoring questions asked by the state and the questions

that preceded them, the tailoring questions were

generic and not specific.

Second, the prosecutor’s tailoring comments during

her rebuttal closing argument were similarly generic

because the argument that followed, on which the state

relies, was not based on evidence that had any correlation to the defendant’s presence in court. In particular,

the prosecutor argued that the testimony of other witnesses regarding the defendant’s behavior was more

believable than the defendant’s because the testimony

of those witnesses was consistent with each other and

those witnesses had no motivation to lie. In making

this argument, the prosecutor made specific reference

to the defendant’s testimony that she did not act as

those witnesses described. Thus, unlike in Weatherspoon, the prosecutor in the present case did not

argue that defendant tailored her testimony to be consistent with the testimony of the state’s witnesses. To

the contrary, she argued that the defendant’s testimony

was flatly contrary to the testimony of more believable

witnesses. Because the prosecutor’s tailoring comments

were not tied to specific evidence that gave rise to an

inference of tailoring, the tailoring comments were

generic, not specific.

B

Having concluded that the prosecutor’s tailoring

arguments were generic and not specific, we consider

the question not reached in Weatherspoon—whether

the prosecutor’s generic tailoring questions and argument violated the defendant’s state constitutional rights
to confront witnesses and to testify on her own behalf

in violation of article first, § 8.4 The defendant argues

that under the factors set forth in State v. Geisler, 222

Conn. 672, 684–85, 610 A.2d 1225 (1992), she has established a state constitutional violation. We are not persuaded.

‘‘In . . . Geisler . . . we identified six nonexclusive

tools of analysis to be considered, to the extent applicable, whenever we are called on as a matter of first

impression to define the scope and parameters of the

state constitution: (1) persuasive relevant federal precedents; (2) historical insights into the intent of our constitutional forebears; (3) the operative constitutional text;

(4) related Connecticut precedents; (5) persuasive precedents of other states; and (6) contemporary understandings of applicable economic and sociological

norms, or, as otherwise described, relevant public policies. . . . These factors, [commonly referred to as the

Geisler factors and] which we consider in turn, inform

our application of the established state constitutional

standards . . . to the defendant’s claims in the present

case.’’ (Citation omitted; internal quotation marks omitted.) State v. McCleese, 333 Conn. 378, 387–88, 215 A.3d

1154 (2019). Because ‘‘[i]t is not critical to a proper

Geisler analysis that we discuss the various factors in

any particular order or even that we address each factor’’; id., 388; we review the Geisler factors in the order

briefed by the defendant.

1

The first Geisler factor the defendant discusses is

the operative constitutional text. See id., 387. Article

first, § 8, of the Connecticut constitution provides in

relevant part: ‘‘In all criminal prosecutions, the accused

shall have a right to be heard by himself and by counsel

. . . [and] to be confronted by the witnesses against

him . . . . No person shall be compelled to give evidence against himself, nor be deprived of life, liberty

or property without due process of law . . . .’’ The

defendant concedes that this Geisler factor favors the

state. We agree.

As the defendant acknowledges, the language of article first, § 8, regarding the right to confrontation is

virtually identical to that in the sixth amendment to the

federal constitution. Compare U.S. Const., amend. VI

(‘‘[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses

against him’’), with article first, § 8, of the Connecticut

constitution (‘‘[i]n all criminal prosecutions, the

accused shall have a right . . . to be confronted by

the witnesses against him’’). Because the United States

Supreme Court has concluded that generic tailoring

arguments do not violate federal constitutional rights;

State v. Weatherspoon, supra, 332 Conn. 545–46; we

agree with the defendant that this factor favors the state.
2

The next Geisler factor that the defendant discusses

is the historical insights into the intent of our constitutional forebears. See State v. McCleese, supra, 333 Conn.

387. She concedes that the right to confrontation in the

sixth amendment to the United States constitution and

in article first, § 8, are nearly identical. She argues,

however, that Connecticut has a long history of concern

regarding a defendant’s rights under article first, § 8;

see State v. Cassidy, 236 Conn. 112, 122–24, 672 A.2d

899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L.

Ed. 2d 196 (1996), overruled in part by State v. Alexander, 254 Conn. 290, 295–96, 755 A.2d 868 (2000); and

that this court should conclude that generic tailoring

arguments impermissibly burden a defendant’s right to

testify. She contends that this Geisler factor favors the

defendant. We conclude that this factor favors the state.

The defendant cites to historical facts in Connecticut

that demonstrate the importance of the right to testify

on one’s own behalf throughout our history. We readily

acknowledge the historical and continued importance

of such a right. Nevertheless, Connecticut’s early recognition of a defendant’s right to testify provides no insight

into whether generic tailoring was historically viewed

as improper. In fact, the United States Supreme Court

rejected a similar argument in Portuondo v. Agard,

supra, 529 U.S. 65–66.

In Portuondo, the defendant argued that the prosecutor’s generic tailoring argument violated his right to due

process in the same way that a prosecutor violates a

defendant’s due process rights by commenting on a

defendant’s refusal to testify. Id., 64–65. In rejecting the

defendant’s argument, the court stated: ‘‘As an initial

matter, [the defendant’s] claims have no historical foundation, neither in 1791, when the Bill of Rights was

adopted, nor in 1868 when, according to our jurisprudence, the [f]ourteenth [a]mendment extended the

strictures of the [f]ifth and [s]ixth [a]mendments to

the [s]tates. The process by which criminal defendants

were brought to justice in 1791 largely obviated the

need for comments of the type the prosecutor made

here. Defendants routinely were asked (and agreed) to

provide a pretrial statement to a justice of the peace

detailing the events in dispute. See Moglen, The Privilege in British North America: The Colonial Period to

the Fifth Amendment, in The Privilege Against SelfIncrimination 109, 112, 114 (R. Helmholz et al. eds.

1997). If their story at trial—where they typically spoke

and conducted their defense personally, without counsel, see J. Goebel & T. Naughton, Law Enforcement

in Colonial New York: A Study in Criminal Procedure

(1664–1776), p. 574 (1944); A. Scott, Criminal Law in

Colonial Virginia 79 (1930)—differed from their pretrial

statement, the contradiction could be noted. See [L.]

Levy, Origins of the Fifth Amendment and Its Critics,
19 Cardozo L. Rev. 821, 843 (1997). Moreover, what

they said at trial was not considered to be evidence,

since they were disqualified from testifying under oath.

See 2 J. Wigmore, Evidence § 579 (3d. [E]d. 1940).

‘‘The pretrial statement did not begin to fall into disuse until the [1830s], see Alschuler, A Peculiar Privilege

in Historical Perspective, in The Privilege Against SelfIncrimination, supra, [198], and the first [s]tate to make

defendants competent witnesses was Maine, in 1864,

see 2 Wigmore, supra, § 579, [701]. In response to these

developments, some [s]tates attempted to limit a defendant’s opportunity to tailor his sworn testimony by

requiring him to testify prior to his own witnesses. See

3 J. Wigmore, Evidence §§ 1841, 1869 (1904); Ky. Stat.,

ch. 45, § 1646 (1899); Tenn. Code Ann., ch. 4, § 5601

(1896). Although the majority of [s]tates did not impose

such a restriction, there is no evidence to suggest they

also took the affirmative step of forbidding comment

upon the defendant’s opportunity to tailor his testimony.’’ Portuondo v. Agard, supra, 529 U.S. 65–66.

Consistent with this history, in State v. Weatherspoon,

supra, 332 Conn. 545, our Supreme Court explained

that the issue of generic tailoring was not addressed in

Connecticut until 1996: ‘‘Our court first addressed the

constitutionality of tailoring arguments in State v. Cassidy, [supra, 236 Conn. 120–29].’’ (Emphasis added.)

We conclude that this factor favors the state.

3

The next Geisler factor discussed by the defendant

is the persuasive precedents of other states. See State v.

McCleese, supra, 333 Conn. 387. She argues that several

states that have considered generic tailoring since the

United States Supreme Court decided Portuondo barred

its use as violative of their state constitution or public

policy. The defendant, citing, as examples, Martinez v.

People, 244 P.3d 135 (Colo. 2010) (en banc); State v.

Walsh, 125 Hawaii 271, 260 P.3d 350 (2011); Commonwealth v. Gaudette, 441 Mass. 762, 808 N.E.2d 798

(2004), which relied on Commonwealth v. Person, 400

Mass. 136, 508 N.E.2d 88 (1987); State v. Swanson, 707

N.W.2d 645 (Minn. 2006); State v. Daniels, supra, 182

N.J. 80; People v. Pagan, 2 App. Div. 3d 879, 769 N.Y.S.2d

741 (2003); and State v. Wallin, 166 Wn. App. 364, 269

P.3d 1072 (2012), contends that this factor favors the

defendant.

The state responds that the few jurisdictions cited

by the defendant either fail to explain their rationale

or utilize ‘‘conclusory’’ reasoning, and they often ignore

the ‘‘legitimate concerns’’ voiced by the majority in Portuondo. Furthermore, the state argues, ‘‘only one [state],

Hawaii, seems to have [banned generic tailoring] as a

matter of state constitutional law.’’ The state contends,

therefore, that this Geisler factor favors the state. We

conclude that, although several states prohibit generic
tailoring, our review of the cases relied on by the defendant reveals that nearly all of them do so on policy,

rather than state constitutional, grounds. See also K.

Kumor, ‘‘State Criminal Procedure Rights: How Much

Should the U.S. Supreme Court Influence?,’’ 89 Fordham L. Rev. 931, 939 (2020) (‘‘[O]nly five states have

expanded on this federal precedent, and only one has

used its state constitution to do so. The five states are

Colorado, Hawaii, Massachusetts, Minnesota, and New

Jersey, with Hawaii being the only state to rely on its

state constitution. All other states with opinions on this

issue have conformed to the Supreme Court’s holding.’’

(Footnotes omitted.)).

A review of the cases relied on by the defendant

confirms the state’s argument. In Commonwealth v.

Person, supra, 400 Mass. 139, a case decided before

Portuondo, the prosecutor had argued to the jury that

‘‘because the defendant [had] sat through all the [c]ommonwealth’s evidence he was able to fabricate a cover

story tailored to answer every detail of the evidence

against him . . . .’’ The Supreme Judicial Court of Massachusetts held that such argument amounted to prosecutorial impropriety because ‘‘[t]he defendant is entitled to hear the [c]ommonwealth’s evidence and to

confront the witnesses against him.’’ Id., 139–40. The

court, however, declined to consider the constitutional

implications, if any, of the prosecutor’s generic tailoring

argument. Id., 142 n.7.

Seventeen years after Person, the Supreme Judicial

Court of Massachusetts decided Commonwealth v.

Gaudette, supra, 441 Mass. 762. In Gaudette, which was

decided after Portuondo, the state requested, in light

of Portuondo, that the court reconsider its Person prohibition on the prosecutor’s use of generic tailoring arguments. Id., 763. The court, without considering whether

generic tailoring violated the Massachusetts constitution, reaffirmed its holding in Person, stating that ‘‘it is

impermissible for a prosecutor to argue in closing that

the jury should draw a negative inference from the

defendant’s opportunity to shape his testimony to conform to the trial evidence unless there is evidence introduced at trial to support that argument.’’ Id., 767.

In Martinez v. People, supra, 244 P.3d 136–37, ‘‘[d]uring closing rebuttal argument, the prosecutor twice

[had] accused the defendant of tailoring his testimony

to meet the facts testified to by prior witnesses. The

prosecutor did not, however, tie these accusations of

tailoring to evidence presented at trial. Rather, the prosecutor said that the defendant’s mere presence at trial

enabled him to tailor his testimony.’’ Although the

defendant objected to this argument, he did not raise

a constitutional ground in his objection. Id., 139. The

Supreme Court of Colorado, therefore, would not consider whether the prosecutor’s argument infringed on

the defendant’s rights under the Colorado constitution.
Id. Nevertheless, the court held that such argument was

improper ‘‘as a matter of sound trial practice’’ due to

‘‘constitutional concerns.’’ Id., 141.

In State v. Daniels, supra, 182 N.J. 88, 98, the Supreme

Court of New Jersey, although not ruling on whether

generically tailored comments by the prosecutor were

‘‘constitutionally permissible’’ concluded that ‘‘[p]rosecutorial comment suggesting that a defendant tailored

his testimony inverts [several constitutional] rights, permitting the prosecutor to punish the defendant for exercising that which the [c]onstitution guarantees.’’ The

court also opined that generic tailoring arguments

‘‘undermine the core principle of our criminal justice

system—that a defendant is entitled to a fair trial’’—

and ‘‘debase the truth-seeking function of the adversary

process, violate the respect for the defendant’s individual dignity, and ignore the presumption of innocence

that survives until a guilty verdict is returned. . . . We

simply cannot conclude that generic accusations are a

legitimate means to bring about a just conviction. . . .

Therefore, pursuant to our supervisory authority, we

hold that prosecutors are prohibited from making

generic accusations of tailoring during summation.’’

(Citations omitted; internal quotation marks omitted.)

Id., 98. The court, thereafter, held that such argument

is prohibited during cross-examination as well. Id., 99.

Similarly, in State v. Swanson, supra, 707 N.W.2d

657–58, the Minnesota Supreme Court concluded: ‘‘We

believe, however, that although not constitutionally

required, the better rule is that the prosecution cannot

use a defendant’s exercise of his right of confrontation

to impeach the credibility of his testimony, at least in

the absence of evidence that the defendant has tailored

his testimony to fit the state’s case.’’ The court noted

that the Supreme Judicial Court of Massachusetts had

taken the same approach in Gaudette. Id., 658 n.2.

The only case offered by the defendant that clearly

held that generic tailoring violated the state constitution

is State v. Walsh, supra, 125 Hawaii 286–87.5

In Walsh,

‘‘the prosecutor [had] accused [the defendant] of tailoring his testimony when, in discussing credibility, she

argued that [the defendant] benefitted from hearing the

testimony of the other witnesses before he testified.

Manifestly the prosecutor’s remarks drew the jury’s

attention to [the defendant’s] presence at trial and his

resultant opportunity to tailor his testimony . . . .’’

(Internal quotation marks omitted.) Id., 286. The

Supreme Court of Hawaii held in relevant part: ‘‘(1)

in the criminal trial of a defendant, the prosecution’s

statements that a testifying defendant benefitted from

his trial presence and, thus, is less credible because he

heard the testimony of other witnesses . . . constitute[s] prohibited generic tailoring arguments; (2) prohibited generic tailoring arguments are reviewable as

plain error inasmuch as they affect a defendant’s sub-
stantial constitutional rights; (3) standard jury instructions regarding witness testimony and counsel’s arguments do not cure such improper arguments; (4)

accordingly, whenever a defendant testifies, the jury

must be instructed that the defendant has a right to be

present during trial; and (5) in this case the error is not

harmless beyond a reasonable doubt.’’ (Internal quotation marks omitted.) Id., 274. The court explained:

‘‘[U]pholding a defendant’s rights under the confrontation clause is essential to providing a defendant with

a fair trial . . . and . . . a prosecutor’s comments

may not infringe on a defendant’s constitutional rights

. . . . The right of confrontation is a substantial right.

. . . The confrontation right provides the criminal

defendant with the opportunity to defend himself [or

herself] through our adversary system by prohibiting

ex parte trials, granting the defendant an opportunity

to test the evidence in front of a jury, and guaranteeing

the right to face-to-face confrontation. . . .

‘‘Generic accusations of tailoring also discourage a

defendant from exercising his constitutional right to

testify6 on his own behalf. . . . Additionally, [i]t is well

settled that an accused has a fundamental right to be

present at each critical stage of the criminal proceeding.

. . . The right of a criminal defendant to be present at

his trial is of no less than constitutional magnitude, and

is founded upon the [c]onfrontation and [d]ue [p]rocess

clauses of both the United States and Hawaii [c]onstitutions. . . . It is a right of fundamental importance.’’

(Citations omitted; emphasis omitted; footnote in original; internal quotation marks omitted.) Id., 284–85.

Although all of these cases speak to constitutional

issues and concerns, with the exception of Walsh and

Wallin, none of them relies on a state constitution to

support the prohibition of generic tailoring arguments

or questions. Rather, they rely on the supervisory

authority of those courts and on public policy grounds.

Furthermore, as demonstrated by the cases discussed

herein, Walsh and Wallin appear to represent a minority

of states that have chosen to depart from Portuondo

in some fashion. We conclude, therefore, that this factor

favors the state.

4

The next Geisler factor that the defendant discusses

is the persuasive relevant federal precedents. See State

v. McCleese, supra, 333 Conn. 387. The defendant concedes that the United States Supreme Court in Portuondo held that ‘‘generic tailoring arguments do not

violate the federal constitution’’ and that, therefore, this

factor favors the state. See Portuondo v. Agard, supra,

529 U.S. 73. We agree.

5

The fifth factor briefed by the defendant concerns

related Connecticut precedent. See State v. McCleese,
supra, 333 Conn. 387. In her main appellate brief, the

defendant argues, in toto: ‘‘The first time this issue came

up in Connecticut was in Cassidy, where this court

strongly disapproved of generic tailoring arguments

because [i]nviting the fact finder to draw an inference

adverse to a defendant solely on account of the defendant’s assertion of a constitutional right impermissibly

burdens the free exercise of that right and, therefore,

may not be tolerated. [State v.Cassidy, supra, 236 Conn.

127]. However, the court in [State v.] Alexander, [supra]

254 Conn. 290, overruled Cassidy. Subsequent attempts

to revisit this issue were unsuccessful. State v. Perez,

[78 Conn. App. 610, 629, 828 A.2d 626 (2003), cert.

denied, 271 Conn. 901, 859 A.2d 565 (2004)]; State v.

Papantoniou, [supra, 185 Conn. App. 93].7 Recently, as

discussed in more detail above, [our Supreme Court]

readdressed this issue [in] Weatherspoon, where [the]

court indicated that, should the practice of generic tailoring arguments persist, a rule prohibiting them may

become necessary. [State v. Weatherspoon, supra] 332

Conn. 554. Based upon the decision in Weatherspoon,

this factor favors the defendant.’’ (Footnote added;

internal quotation marks omitted.) The state concedes

that this factor ‘‘appears to favor the defendant.’’ We

agree.

In Weatherspoon, our Supreme Court explained:

‘‘[We] first addressed the constitutionality of tailoring

arguments in State v. Cassidy, [supra, 236 Conn. 120–

29]. We held in Cassidy that generic tailoring arguments

violate the sixth amendment’s confrontation clause

. . . but specific tailoring arguments are constitutionally permissible because they are linked solely to the

evidence and not, either directly or indirectly, to the

defendant’s presence at trial. . . . This court’s reasoning was straightforward: Inviting the fact finder to draw

an inference adverse to a defendant solely on account

of the defendant’s assertion of a constitutional right

impermissibly burdens the free exercise of that right

and, therefore, may not be tolerated. . . . Cassidy,

however, reassured the state that the prohibition

against generic tailoring arguments did not prevent the

prosecution from aggressively attacking a testifying

defendant’s credibility. We stated that the prosecutor,

in his closing argument . . . was not free to assert that

the defendant’s presence at trial had enabled him to

tailor his testimony to that of other witnesses. Such

argument exceeded the bounds of fair comment

because it unfairly penalized the defendant for asserting

his constitutionally protected right to confront his

accusers at trial. . . .

‘‘Four years later, the sixth amendment underpinning

of Cassidy was removed when the United States

Supreme Court held that generic tailoring arguments

do not violate any federal constitutional rights. Portuondo v. Agard, supra, 529 U.S. 75–76. In Portuondo

. . . [t]he court pointed out that generic tailoring argu-
ments pertain to the defendant’s credibility as a witness,

and [are] therefore in accord with our [long-standing]

rule that when a defendant takes the stand, his credibility may be impeached and his testimony assailed like

that of any other witness. . . .

‘‘The Portuondo majority emphasized that its ruling

was limited to federal constitutional grounds and did

not address whether generic tailoring arguments were

always desirable as a matter of sound trial practice,

which, the court explained, was an inquiry best left to

trial courts, and to the appellate courts which routinely

review their work. . . . This caveat also was noted in

a concurrence by Justice Stevens, in which he expressed

the view that generic tailoring arguments should be discouraged rather than validated, and emphasized that the

majority’s holding does not, of course, deprive [s]tates

or trial judges of the power . . . to prevent such argument[s] altogether. . . .

‘‘Because Cassidy was decided under the federal constitution, Portuondo required us to overrule its holding,

which we did in State v. Alexander, supra, 254 Conn.

296. We stated in Alexander that generic tailoring comments on the defendant’s presence at trial and his

accompanying opportunity to fabricate or tailor his testimony were permissible under the federal constitution.

. . . Although the defendant in Alexander raised a state

constitutional claim through supplemental briefing, this

court was not persuaded by his argument.’’ (Citations

omitted; emphasis omitted; footnotes omitted; internal

quotation marks omitted.) State v. Weatherspoon,

supra, 332 Conn. 545–47.

The court further explained: ‘‘Although the present

case does not require us to decide at this time whether

to adopt a formal rule prohibiting generic tailoring arguments as an exercise of our supervisory authority, such

a rule may become necessary if future cases reveal that

tailoring arguments are being made indiscriminately

and without an appropriate evidentiary basis. Likewise,

the fact that generic tailoring arguments do not burden

federal constitutional rights does not mean that they

pass constitutional muster under our state constitution.

We express no view on these issues, but observe that

a number of our sister states have determined that

generic tailoring arguments are impermissible as a matter of sound trial practice or state law.’’ Id., 554.

Although this history indicates that it may be time

for us to exercise our supervisory authority to prohibit

generic tailoring arguments or cross-examination in

criminal cases, we conclude that this history does not

necessarily demonstrate that our appellate courts, after

Portuondo, consider this a matter of state constitutional

law. Nevertheless, because it is obvious that we have

recognized in our case law the possibility that such

generic tailoring arguments and questions on crossexamination during a criminal trial potentially could
impact a defendant’s state constitutional rights, we conclude that this factor, on balance, slightly favors the

defendant.

6

The final Geisler factor briefed by the defendant

requires us to consider relevant public policies, including economical and sociological considerations. See

State v. McCleese, supra, 333 Conn. 387. The defendant

argues that generic tailoring comments violate Connecticut public policy, stating: ‘‘As [B.] Gershman’s Prosecutorial Misconduct § 11.16 (2d Ed. 2015) warns, a generic

tailoring insinuation may impinge on a defendant’s right

to take the stand and his right to confront witnesses

because the comment implies that a truthful defendant

would have stayed out of the courtroom before testifying. Furthermore, the argument violates the defendant’s right to testify because the state can only make

the argument when the defendant takes the stand.’’

(Internal quotation marks omitted.) She also argues in

her reply brief that ‘‘[t]elling the jury that it may . . .

use the defendant’s presence to find her less believable

sends [a] . . . message . . . that her presence [at her

criminal trial] means she is less believable. . . . [This]

tie[s] the defendant’s credibility to her presence at trial,

burdening her rights to confront and testify. . . . Mentioning that the defendant was the only witness to watch

the other witnesses exacerbates the problem because

it implies that the other witnesses are automatically

more believable because they were sequestered.’’ (Citations omitted.)

Although we agree in part with the defendant’s argument concerning the implications of generic tailoring

on the jury’s perception of the defendant during her

criminal trial; see part IV of this opinion; we are not

persuaded, in light of our analysis in parts I B 1 through 5

of this opinion, by the defendant’s argument that public

policy considerations compel a conclusion that generic

tailoring violates our state constitution.

C

On the basis of our analysis of the Geisler factors, the

defendant has not persuaded us that article first, § 8, of

the Connecticut constitution affords greater protection

than its federal counterparts, the fifth and sixth amendments, on the issue of generic tailoring as to the defendant’s right of confrontation and her right to testify on

her on own behalf. Consequently, her claim that the

prosecutor’s generic tailoring comments violated her

rights under the article first, § 8, of our state constitution fails.

II

The defendant next claims that the prosecutor violated her federal and state constitutional rights to due

process of law8 when, during cross-examination, she

asked the defendant whether she had a vested interest
in the outcome of the trial, and when, during rebuttal,

the prosecutor told the jury that it could consider the

defendant’s vested interest in the outcome of the trial.

She argues that ‘‘[t]hese questions and comments

improperly infringed upon the defendant’s presumption

of innocence. Furthermore, they are contrary to the

rule of State v. Medrano, 308 Conn. 604, [629–31, 65 A.3d

503] (2013), in which the court, under its supervisory

powers, instructed the trial courts not to instruct the

jury as to the defendant’s special interest in the outcome

of the case. This error was not harmless and this court

must overturn the defendant’s convictions on that

basis.’’ Because this claim is unpreserved, the defendant

requests Golding review. See footnote 3 of this opinion.

The defendant’s claim fails under the third prong of

Golding.

The following additional facts are relevant to our

discussion. During cross-examination of the defendant,

the following colloquy occurred:

‘‘[The Prosecutor]: And you have a lot riding on this

case, don’t you?

‘‘[The Defendant]: Today?

‘‘[The Prosecutor]: Sure.

‘‘[The Defendant]: Well, yeah. I have my son, my apartment. I have a life. My son is everything to me.’’ The

defendant did not object.

During the prosecutor’s summation, it argued to the

jury, inter alia, that the defendant had a ‘‘vested interest

in the outcome of this case. And that can also be taken

into account when you’re deliberating this case.’’ The

defendant did not object to this argument.

On appeal, the defendant claims that the prosecutor

violated her right to due process of law and that such

questions and comments violate the spirit of Medrano,

which, she argues, should be read to include an implied

prohibition on the prosecutor telling the jury that the

defendant has a vested interest in the outcome of the

case, in addition to its explicit prohibition on such statements in the context of the trial court’s jury instructions.

In Medrano, our Supreme Court considered, in relevant part, whether the defendant had been deprived of

his right to a fair trial and to present a defense when

the trial court instructed the jury that it could consider

whether the defendant had an interest in the outcome

of the case when assessing the credibility of his trial

testimony. State v. Medrano, supra, 308 Conn. 624–25.

The court held that the instruction ‘‘was not unduly

repetitive, nor did it transcend the bounds of evenhandedness.’’ Id., 626. Nevertheless, because such an instruction ‘‘could give rise to a danger of juror misunderstanding,’’ the court employed its supervisory authority

over the administration of justice by directing the trial

court, in the future, ‘‘to refrain from instructing jurors,
when a defendant testifies, that they may specifically

consider the defendant’s interest in the outcome of the

case and the importance to him of the outcome of the

trial.’’ Id., 630–31; see also State v. Courtney G.,

Conn. , n.9, A.3d (2021) (explaining holding

in Medrano).

In the present case, the defendant has not persuaded

us that the questions and argument of the prosecutor

implicated her right to due process of law. Our Supreme

Court in Medrano held that the trial court’s instructions,

specifically telling the jury that it could consider the

defendant’s interest in the outcome of the case and the

importance to him of the outcome of the trial, did not

implicate the defendant’s right to due process of law.

State v. Medrano, supra, 308 Conn. 625. The defendant

in the present case has failed to persuade us that a

prosecutor’s similar argument could have more of an

implication on the defendant’s right to due process of

law than a court’s jury instructions.

In the alternative, the defendant requests that we

employ our supervisory authority to expand on our

Supreme Court’s decision in Medrano by making the

prohibition set forth therein applicable to comments by

prosecutors. We will discuss the use of our supervisory

authority over the administration of justice in part IV

of this opinion.

III

The defendant also claims that the prosecutor committed improprieties that deprived her of a fair trial

when she argued that the defendant had tailored her

testimony, implied that she had a motive to lie, and

infringed on her right to the presumption of innocence.

Having concluded in parts I and II of this opinion that

the questions and argument of the prosecutor did not

infringe on the defendant’s constitutional rights, we

need not consider this claim further. See id., 610 (‘‘[I]n

analyzing claims of prosecutorial [impropriety], we

engage in a two step analytical process. The two steps

are separate and distinct: (1) whether [impropriety]

occurred in the first instance; and (2) whether that

[impropriety] deprived a defendant of his due process

right to a fair trial.’’ (Internal quotation marks omitted.)). The defendant has failed to establish her claim.

IV

We next consider the defendant’s requests that we

employ our supervisory authority over the administration of justice to prohibit the prosecutor from making

generic tailoring arguments and comments and that we

expand on our Supreme Court’s decision in Medrano

to prohibit the prosecutor from making ‘‘interest in

the outcome’’ arguments about the defendant.9 As for

prosecutorial argument on the defendant’s ‘‘interest in

the outcome’’ of her criminal trial, the defendant has failed

to persuade us that such argument merits the exercise
of our supervisory authority. See State v. Courtney G.,

supra, Conn. n.9. On the issue of generic tailoring,

we agree to exercise our supervisory authority over the

administration of justice to prohibit such questions and

arguments because they are likely to implicate the perceived fairness of the judicial system and they could

give rise to a danger of juror misunderstanding.

‘‘It is well settled that [a]ppellate courts possess an

inherent supervisory authority over the administration

of justice. . . . Under our supervisory authority, we

have adopted rules intended to guide the lower courts

in the administration of justice in all aspects of the

criminal process.’’ (Internal quotation marks omitted.)

State v. Weatherspoon, supra, 332 Conn. 552. ‘‘The exercise of our supervisory powers is an extraordinary remedy to be invoked only when circumstances are such

that the issue at hand, while not rising to the level

of a constitutional violation, is nonetheless of utmost

seriousness, not only for the integrity of a particular

trial but also for the perceived fairness of the judicial

system as a whole. . . .

‘‘We recognize that this court’s supervisory authority

is not a form of free-floating justice, untethered to legal

principle. . . . Rather, the rule invoking our use of

supervisory power is one that, as a matter of policy, is

relevant to the perceived fairness of the judicial system

as a whole, most typically in that it lends itself to the

adoption of a procedural rule that will guide lower

courts in the administration of justice in all aspects of

the [adjudicatory] process. . . . Indeed, the integrity

of the judicial system serves as a unifying principle

behind the seemingly disparate use of [this court’s]

supervisory powers.’’ (Citations omitted; internal quotation marks omitted.) In re Yasiel R., supra, 317

Conn. 789–90.

‘‘Generally, cases in which we have invoked our

supervisory authority for rule making have fallen into

two categories . . . . In the first category are cases

wherein we have utilized our supervisory power to articulate a procedural rule as a matter of policy, either

as [a] holding or dictum, but without reversing [the

underlying judgment] or portions thereof. . . . In the

second category are cases wherein we have utilized our

supervisory powers to articulate a rule or otherwise

take measures necessary to remedy a perceived injustice with respect to a preserved or unpreserved claim

on appeal.’’ (Internal quotation marks omitted.) State

v. Weatherspoon, supra, 332 Conn. 552–53; id. (deciding

it was unnecessary to consider defendant’s request for

exercise of supervisory authority because prosecutor’s

tailoring argument was specific rather than generic).

A

The defendant requests that we employ our supervisory authority over the administration of justice to
expand on our Supreme Court’s decision in Medrano

to prohibit the prosecutor from employing ‘‘interest in

the outcome’’ questions and arguments about a defendant who exercises her or his right to testify. She argues

that ‘‘ ‘[i]nterest in the outcome’ arguments apply to

both guilty and innocent defendants and therefore are of

minimal value in assessing the defendant’s credibility.

Furthermore, [the] court in Medrano banned jury

instructions that emphasize the defendant’s interest in

the outcome of the case, and it significantly defeats the

purpose of this rule to then allow the state to argue

about the defendant’s interest in the outcome and tell

the jury that it may take that interest into consideration.’’ We are not persuaded by the defendant’s arguments in support of this request.

In Medrano, our Supreme Court held that the trial

court’s instructions, telling the jury that it could consider the defendant’s interest in the outcome of the

case and the importance to him of the outcome of

the trial, did not implicate the defendant’s right to due

process of law but that they could give rise to a danger

of juror misunderstanding. State v. Medrano, supra,

308 Conn. 629–31. In the present case, the defendant’s

attempts to equate the court’s instructions with the

argument of the prosecutor are not persuasive. In cases

where a criminal defendant has taken the witness stand,

the jury is well aware that the defendant is the one on

trial and that he or she has an interest in the outcome

of the case. The argument of the prosecutor, reminding

the jury that the defendant has an interest does not

carry the inherent danger of misunderstanding that a

judge’s instruction would have on the jury. As our

Supreme Court recently noted: ‘‘Our holding in

Medrano was predicated on the trial court’s role as a

neutral and detached arbiter of justice and its duty to

instruct the jurors on the law in a fair, impartial, and

dispassionate manner. Although a prosecutor is a minister of justice . . . she is not neutral, detached, impartial, or dispassionate. Instead, a prosecutor is an advocate with a professional obligation to argue zealously,

albeit fairly, on behalf of the state.’’ (Citation omitted.)

State v. Courtney G., supra, Conn. n.9. The jury

understands the difference between advocacy by the

state on one hand and an instruction of law by the

court on the other, which it is told it must follow. The

argument of counsel is just that, argument, and the jury

in the present case specifically was instructed as such.

Accordingly, we are not persuaded by the defendant’s

argument.

B

The defendant also requests that, for policy reasons,

we employ our supervisory authority over the administration of justice to prohibit the prosecutor from making

generic tailoring arguments. She argues that if we were

to prohibit such remarks, ‘‘[t]he prosecutor would still
be free to challenge a defendant’s overall credibility

by making specific tailoring arguments. In closing, the

prosecutor could comment on the defendant’s testimony, and how it matched or conflicted with other

evidence. The prosecutor [however] could not refer

explicitly to the fact that the defendant was in the courtroom or that he [or she] heard the testimony of other

witnesses, and was thus able to tailor his [or her] testimony. . . . This is a rule that can be readily fashioned

and easily followed in a trial setting.’’ (Citation omitted;

internal quotation marks omitted.) We agree that there

are important public policy reasons that make it necessary for us to employ our supervisory authority over

the administration of justice to set forth a procedure

to ensure that prosecutors make only specific and not

generic tailoring remarks during a criminal trial.

In reaching this conclusion, we are guided by the

rationale that our Supreme Court has set forth for the

exercise of appellate supervisory authority. ‘‘We deem

it appropriate, in light of concerns of fundamental fairness, to consider the substance of this issue pursuant to

our supervisory authority for the purpose of providing

guidance to trial courts in future cases. As an appellate

court, we possess an inherent supervisory authority

over the administration of justice. . . . The standards

that we set under this supervisory authority are not

satisfied by observance of those minimal historic safeguards for securing trial by reason which are summarized as due process of law . . . . Rather, the standards are flexible and are to be determined in the

interests of justice. . . . We previously have exercised

our supervisory powers to direct trial courts to adopt

judicial procedures that will address matters that are

of utmost seriousness, not only for the integrity of a

particular trial but also for the perceived fairness of the

judicial system as a whole.’’ (Citations omitted; internal

quotation marks omitted.) Duperry v. Solnit, 261 Conn.

309, 326–27, 803 A.2d 287 (2002); id., 329–31 (employing

supervisory authority to enact new rule mandating that

trial court must canvass defendant who, with no contestation by prosecutor, pleads not guilty by reason of

insanity, but declining to apply that rule to present

case); see also State v. Carrion, 313 Conn. 823, 847–49,

100 A.3d 361 (2014) (although defendant failed to prove

that jury charge deprived him of fair trial, our Supreme

Court exercised its supervisory authority over administration of justice to direct trial court to refrain from

giving that particular instruction in future).

In Carrion, our Supreme Court explained that ‘‘the

cases in which this court has invoked its supervisory

authority can be divided into two different categories.

In the first category are cases [in which] we have utilized

our supervisory power[s] to articulate a procedural rule

as a matter of policy, either as holding or dictum, but

without reversing convictions or portions thereof. In

the second category are cases [in which] we have uti-
lized our supervisory powers to articulate a rule or

otherwise take measures necessary to remedy a perceived injustice with respect to a preserved or unpreserved claim on appeal. Although we . . . have noted

that [o]ur cases have not always been clear as to the

reason for this distinction . . . a review of the cases

in both categories demonstrates that, in contrast to the

second category, the first category consists of cases

[in which] there was no perceived or actual injustice

apparent on the record, but the facts of the case lent

themselves to the articulation of prophylactic procedural rules that might well avert such problems in the

future. . . .

‘‘For purposes of the second category of cases—cases

in which we reverse a conviction—the defendant must

establish that the invocation of our supervisory authority is truly necessary because [o]ur supervisory powers

are not a last bastion of hope for every untenable appeal.

. . . In such circumstances, the exercise of our supervisory powers is an extraordinary remedy to be invoked

only when circumstances are such that the issue at

hand, while not rising to the level of a constitutional

violation, is nonetheless of [the] utmost seriousness,

not only for the integrity of a particular trial but also

for the perceived fairness of the judicial system as a

whole. . . . Because [c]onstitutional, statutory and

procedural limitations are generally adequate to protect

the rights of the defendant and the integrity of the

judicial system, this court will invoke its supervisory

powers to reverse a conviction only in the rare circumstance [in which] these traditional protections are inadequate to ensure the fair and just administration of

the courts. . . . This demanding standard is perfectly

appropriate when we are asked to reverse a conviction

under our supervisory powers.

‘‘The first category of cases, however, presents an

entirely different set of circumstances. We invoke our

supervisory authority in such a case . . . not because

the use of that authority is necessary to ensure that

justice is achieved in the particular case. Rather, we

have determined that the defendant in that case

received a fair trial and therefore is not entitled to the

extraordinary remedy of a new trial. Nevertheless, it

may be appropriate, in such circumstances, to direct

our trial [judges] to conduct themselves in a particular

manner so as to promote fairness, both perceived and

actual, in future cases. As we tacitly have recognized

by invoking our supervisory authority in such cases,

because we are not imposing any remedy in the case

[on appeal]—let alone the extraordinary remedy of a

new trial—there is no need for this court to justify the

use of extraordinary measures prior to exercising its

supervisory authority. Rather . . . we are free to

invoke our supervisory authority prospectively when

prudence and good sense so dictate.’’ (Citations omitted; emphasis altered; internal quotation marks omit-
ted.) State v. Carrion, supra, 313 Conn. 850–52; see also

State v. Elson, 311 Conn. 726, 768–70 n.30, 91 A.3d 862

(2014). This is such a case.

First, this case does not fit into the second category

of cases requiring the extraordinary remedy of a retrial

because the record reflects that the generic tailoring

comments of the prosecutor did not affect the fairness

of the defendant’s trial. The defendant admitted to driving while her license was under suspension, and, as

to the crimes of driving while under the influence of

intoxicating drugs or alcohol and attempt to commit

risk of injury to a child, the evidence demonstrates that

the people with whom she had come into contact at

the day care believed that her behavior and demeanor

exhibited intoxication, that she failed the field sobriety

tests that were administered, and that she was unsteady

on her feet and confused. Furthermore, Divenere testified that the medication Xanax is used for anxiety and

panic disorders and that the defendant told him that

she was taking Xanax, although she did not admit to

having taken it that day. Divenere also testified that

‘‘Xanax can impair one’s ability to drive,’’ and that, after

the defendant tested negative for alcohol, he asked her

to provide a urine sample so that he could test for drugs,

but she refused. The jury reasonably could infer from

the defendant’s refusal to provide the requested urine

sample that she was concerned that such a sample

would show the presence of Xanax in her system. Furthermore, the prosecutor’s generic tailoring comments

were limited in nature, compromising only a few questions and only three sentences of the prosecutor’s rebuttal argument. Because we have concluded that generic

tailoring does not implicate the defendant’s constitutional rights, the burden to prove any harm from the

prosecutor’s use of generic tailoring is on the defendant,

and she has failed to prove that the prosecutor’s limited

use of generic tailoring during her criminal trial was

harmful.

Despite our conclusion that the prosecutor’s generic

tailoring comments did not prejudice the defendant, we

are convinced that, to ensure the perceived and actual

fairness of trials in the future, generic tailoring arguments should be avoided. Under our criminal justice

system, a defendant has both federal and state constitutional rights, including the rights to be present at trial,

to confront the state’s witnesses, to call witnesses and

present evidence, and to testify, or to not testify, on

his or her own behalf. See U.S. Const., amends. V, VI

and XIV; Conn. Const., art. I, § 8. ‘‘[A] criminal defendant

is not simply another witness. Those who face criminal

prosecution possess fundamental rights that are essential to a fair trial. Pointer v. Texas, 380 U.S. 400, 403,

[85 S. Ct. 1065, 13 L. Ed. 2d 923] (1965) . . . . Indeed,

a criminal defendant has the right to be present at trial,

see Illinois v. Allen, 397 U.S. 337, 338, [90 S. Ct. 1057,

25 L. Ed. 2d 353] (1970), to be confronted with the
witnesses against him and to hear the [s]tate’s evidence,

see Pointer [v. Texas], supra, [403], to present witnesses

and evidence in his defense, see Washington v. Texas,

388 U.S. 14, 18–19, [87 S. Ct. 1920, 18 L. Ed. 2d 1019]

(1967), and to testify on his own behalf, see Rock v.

Arkansas, 483 U.S. 44, 49, [107 S. Ct. 2704, 97 L. Ed.

2d 37] (1987).’’ (Internal quotation marks omitted.) State

v. Daniels, supra, 182 N.J. 97–98.

Under our rules of practice, a criminal defendant is

required to be present at his or her criminal trial, unless

excused under Practice Book § 44-8.10 Additionally, the

order of the presentation of evidence at a criminal trial,

unless there is cause to permit otherwise, must proceed

as follows: ‘‘(1) The prosecuting authority shall present

the case-in-chief. (2) The defendant may present a casein-chief. (3) The prosecuting authority and the defendant may present rebuttal evidence in successive rebuttals, as required. The judicial authority for cause may

permit a party to present evidence not of a rebuttal

nature, and if the prosecuting authority is permitted to

present further evidence in chief, the defendant may

respond with further evidence in chief. (4) The prosecuting authority shall be entitled to make the opening

and final closing arguments. (5) The defendant may

make a single closing argument following the opening

argument of the prosecuting authority.’’ Practice Book

§ 42-35; see also General Statutes § 54-88. Accordingly,

for a defendant to exercise his or her rights to be present

at trial and to confront that state’s witnesses, he or

she necessarily must sit through the state’s case before

exercising the right to testify. See Practice Book § 42-

35. That is the way our system is designed.

Although the United States Supreme Court in Portuondo declined to recognize a federal constitutional

prohibition against a prosecutor making comments concerning a testifying defendant’s opportunity to tailor

his or her testimony because of his or her mere presence

in the courtroom during the state’s case, the ‘‘Portuondo

majority emphasized that its ruling was limited to federal constitutional grounds and did not address whether

generic tailoring arguments were always desirable as

a matter of sound trial practice, which, the court

explained, was an inquiry best left to trial courts, and

to the appellate courts which routinely review their

work. Portuondo v. Agard, supra, 529 U.S. 73 n.4. This

caveat also was noted in a concurrence by Justice Stevens, in which he expressed the view that generic tailoring arguments should be discouraged rather than

validated, and emphasized that the majority’s holding

does not, of course, deprive [s]tates or trial judges of

the power . . . to prevent such argument[s] altogether.

Id., 76.’’ (Internal quotation marks omitted.) State v.

Weatherspoon, supra, 332 Conn. 546–47.

‘‘Justice Ginsburg dissented in Portuondo on the basis

of her belief that generic tailoring arguments in closing
arguments unduly burden a defendant’s sixth amendment right to be present at trial and to confront the

accusers against him, and do not aid the jury in its

truth-seeking function because a prosecutorial comment . . . tied only to the defendant’s presence in the

courtroom and not to his actual testimony does not

assist the jury in sort[ing] those who tailor their testimony from those who do not, much less the guilty from

the innocent. [Portuondo v. Agard, supra, 529 U.S. 77–

78].’’ (Internal quotation marks omitted.) State v. Weatherspoon, supra, 332 Conn. 547 n.8. Justice Ginsburg

contended, instead, that the majority was ‘‘transform[ing] a defendant’s presence at trial from a [s]ixth

[a]mendment right into an automatic burden on his

credibility.’’ Portuondo v. Agard, supra, 76 (Ginsburg,

J., dissenting).

Our Supreme Court in Weatherspoon carefully

explained that ‘‘a tailoring argument does not automatically become appropriate just because a defendant

chooses to testify in his or her criminal trial, and prosecutors and trial courts must take care to ensure that

any such argument is tied expressly and specifically

to evidence that actually supports the inference of tailoring. It is true that the United States Supreme Court

held in Portuondo that tailoring arguments do not violate the sixth amendment, but the court made equally

clear, however, that state courts may prohibit or limit

tailoring arguments by local decree as a matter of sound

trial practice. See [id.] 73 n.4; id., 76 (Stevens, J., concurring).’’ (Emphasis added.) State v. Weatherspoon, supra,

332 Conn. 553–54.

Although the United States Supreme Court has determined that generic tailoring arguments are not violative

of the federal constitution, and our appellate courts,

since shortly after Portuondo; see State v. Alexander,

supra, 254 Conn. 295–96 (overruling State v. Cassidy,

supra, 236 Conn. 112); have not been persuaded that

such arguments are violative of the Connecticut constitution, we, nonetheless, agree with the defendant that

these remarks should be prohibited because they are

likely to implicate the perceived fairness of the judicial

system and they could give rise to a danger of juror

misunderstanding.

In State v.Cassidy, supra, 236 Conn. 120, our Supreme

Court determined that generic tailoring arguments,

made by the prosecutor during closing argument to the

jury, ‘‘invited the jury to draw an inference adverse to

the defendant solely because he asserted his constitutional right to be present at trial and, consequently,

that those comments unreasonably interfered with the

defendant’s free exercise of that right.’’ The court

explained: ‘‘The right to confrontation is fundamental to

a fair trial under both the federal and state constitutions.

Pointer v. Texas, [supra, 380 U.S. 403]; State v. Jarzbek,

204 Conn. 683, 707, 529 A.2d 1245 (1987) [cert. denied,
484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988)];

State v. Reardon, 172 Conn. 593, 599–600, 376 A.2d

65 (1977). It is expressly protected by the sixth and

fourteenth amendments to the United States constitution; Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105,

39 L. Ed. 2d 347 (1974); Pointer v. Texas, supra, [403];

and by article first, § 8, of the Connecticut constitution.

State v. Torello, 103 Conn. 511, 513, 131 A. 429 (1925).

State v. Hufford, 205 Conn. 386, 400–401, 533 A.2d 866

(1987). The right of physical confrontation is a . . .

fundamental component of the [federal and state confrontation] clauses . . . State v. Jarzbek, supra, 692;

and guarantees an accused the right to be present in

the courtroom at every stage of his trial. Illinois v.

Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 25 L. Ed. 2d

353 (1970).

‘‘Like cross-examination, face-to-face confrontation

[at trial] . . . ensure[s] the integrity of the [fact-finding] process . . . Coy v. Iowa, 487 U.S. 1012, 1019–20,

108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988); because [i]t

is always more difficult to tell a lie about a person to

his face than behind his back. Id., 1019. Thus, [i]t is

widely recognized that physical confrontation contributes significantly, albeit intangibly, to the truth-seeking process . . . . In addition, physical confrontation

furthers other goals of our criminal justice system, in

that it reflects respect for the defendant’s dignity and

the presumption of innocence until proven guilty. State

v. Jarzbek, supra, 204 Conn. 695. Indeed, the literal right

to confront one’s accusers is so deeply rooted in human

feelings of what is necessary for fairness [that] the right

of confrontation contributes to the establishment of a

system of criminal justice in which the perception as

well as the reality of fairness prevails. Coy v. Iowa,

supra, 1018–19, quoting Lee v. Illinois, 476 U.S. 530,

540, 106 S. Ct. 2056, 90 L. Ed. 2d 514 (1986). Because

of the important goals furthered by an accused’s right

to encounter adverse witnesses face-to-face, the free

exercise of that right may not be impaired absent a

compelling justification for the infringement. See, e.g.,

Maryland v. Craig, 497 U.S. 836, 850, 110 S. Ct. 3157,

111 L. Ed. 2d 666 (1990) (defendant’s right to confront

accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial

of such confrontation is necessary to further an

important public policy and only where the reliability

of the testimony is otherwise assured); State v. Jarzbek,

supra, 704–705 (exclusion of defendant during testimony of minor victim of sexual assault warranted only

upon clear and convincing showing by state of compelling need to do so).’’ (Emphasis omitted; footnotes omitted; internal quotation marks omitted.) State v. Cassidy,

supra, 236 Conn. 122–24.

Although our Supreme Court overruled Cassidy in

State v. Alexander, supra, 254 Conn. 296, it did so in

light of Portuondo; see id., 296, 299–300; and it was not
asked to use its supervisory authority to ban generic

tailoring arguments. Nevertheless, the concerns regarding the use of generic tailoring expressed by the court

in Cassidy have not gone away since Portuondo and

have led a number of state appellate courts to use their

supervisory authority to prohibit such arguments. We

join those courts today.

In particular, we agree with the New Jersey Supreme

Court that ‘‘[p]rosecutorial comment suggesting that a

defendant tailored his testimony inverts [her rights to

be present at trial, confront the witnesses presented

against her and to hear the state’s case], permitting the

prosecutor to punish the defendant for exercising that

which the [c]onstitution guarantees. Although, after

Portuondo, prosecutorial accusations of tailoring are

permissible under the [f]ederal [c]onstitution, we nonetheless find that they undermine the core principle of

our criminal justice system—that a defendant is entitled

to a fair trial.’’ State v. Daniels, supra, 182 N.J. 98. We

also are mindful that our Supreme Court in Weatherspoon noted the importance of tying a tailoring argument specifically to evidence that gives rise to an inference of tailoring. See State v. Weatherspoon, supra, 332

Conn. 544. When it did so, the court also stated: ‘‘Our

approval of specific tailoring arguments should not be

taken as a blanket approval of all tailoring arguments.

. . . Although the present case does not require us to

decide at this time whether to adopt a formal rule prohibiting generic tailoring arguments as an exercise of

our supervisory authority, such a rule may become necessary if future cases reveal that tailoring arguments are

being made indiscriminately and without an appropriate

evidentiary basis.’’ (Citation omitted.) Id., 553–54. Thus,

although our Supreme Court did not address explicitly

the propriety of generic tailoring arguments, it made

clear that it remains concerned, even after Alexander,

about the use of such arguments. We conclude that

the present case, which does involve generic tailoring

arguments by the prosecutor, requires us to decide

whether to exercise our supervisory authority, and, for

the reasons set forth in this part IV B, we do so to

prohibit generic tailoring arguments at all future criminal trials.

In announcing this new rule of procedure, we recognize that the line between generic and specific tailoring

arguments is not always clear. For this reason, we set

forth the following procedure to be used if the state

wishes to make a tailoring argument. Prior to asking

questions on cross-examination of the defendant that

suggest that the defendant has tailored his or her testimony or before making such comments in closing arguments, the prosecutor shall alert the defendant and the

court of the intention to do so. If the defendant objects

to such cross-examination or comments, the court must

rule on whether the proposed questions or comments

constitute generic or specific tailoring. If the court con-
cludes that the cross-examination or comments constitute specific tailoring because they are tied to specific

evidence that gives rise to an inference that the defendant has tailored his or her testimony, the questions

or comments, unless otherwise improper, should be

permitted. If the court concludes that the questions or

comments constitute generic tailoring, they shall be

prohibited. In addition, to the extent that the court

permits a specific tailoring argument to be made, the

defendant may request that the court instruct the jury

during its final charge that the defendant had an absolute right to be present throughout the entire trial and

that the jury may not draw an inference that the defendant’s testimony is not credible simply because the

defendant was present during the trial. The trial court

shall include such a charge in its final charge to the jury

if it is requested. This procedure strikes the appropriate

balance of ensuring that the state is not deprived of the

opportunity to ask questions or make comments based

on the evidence, while at the same time ensuring that

the defendant’s rights to be present at his or her criminal

trial and to confront the state’s witnesses are not burdened by a suggestion that he or she has taken unfair

advantage by exercising those rights.

V

The defendant’s final claim is that her conviction of

attempt to commit risk of injury to a child should be

vacated because it is not a cognizable crime. The defendant, although requesting review pursuant to State v.

Golding, supra, 213 Conn. 239–40; see footnote 3 of

this opinion; concedes that ‘‘the Appellate Court cannot

overrule a Supreme Court case and, therefore, [she]

makes this argument for the sake of future review.’’ We

conclude, as recognized by the defendant, that we are

bound by our Supreme Court’s decision in State v. Sorabella, 277 Conn. 155, 172–74, 891 A.2d 897 (rejecting

claim that ‘‘attempt to commit risk of injury to a child

. . . is not a cognizable offense’’), cert. denied, 549 U.S.

821, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006). Accordingly,

the defendant has preserved this issue should our

Supreme Court wish to revisit its decision. She, nonetheless, cannot prevail on that claim in this appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

* In accordance with our policy of protecting the privacy interests of the

victims of the crime of risk of injury to a child, we decline to use the

defendant’s full name or to identify the victim or others through whom the

victim’s identity may be ascertained. See General Statutes § 54-86e.

1 After Divenere arrested the defendant, a staff member of the day care

telephoned the defendant’s grandmother, who picked up the child.

2 The court instructed the jury that it could draw an adverse inference

from the defendant’s refusal but that it was not required to do so. The court

instructed: ‘‘Evidence was presented that after the defendant submitted to

a breath test, she refused to submit to a urine test. If you find that the

defendant did refuse to submit to the urine test, you may make any reasonable inference that follows from that fact, but you are not required to do so.’’

3

‘‘Pursuant to Golding, a defendant can prevail on a claim of constitutional

error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error; (2) the claim

is of constitutional magnitude alleging the violation of a fundamental right;

(3) the alleged constitutional violation . . . exists and . . . deprived the

defendant of a fair trial; and (4) if subject to harmless error analysis, the

state has failed to demonstrate harmlessness of the alleged constitutional

violation beyond a reasonable doubt. In the absence of any one of these

conditions, the defendant’s claim will fail. . . . State v. Golding, supra, 213

Conn. 239–40; see also In re Yasiel R., [supra, 317 Conn. 781] (modifying

third prong of Golding).’’ (Emphasis omitted; internal quotation marks omitted.) State v. Weatherspoon, 332 Conn. 531, 548 n.9, 212 A.3d 208 (2019).

‘‘The appellate tribunal is free, therefore, to respond to the defendant’s

claim by focusing on whichever condition is most relevant in the particular

circumstances.’’ (Internal quotation marks omitted.) State v. Papantoniou,

185 Conn. App. 93, 102–103, 196 A.3d 839, cert. denied, 330 Conn. 948, 196

A.3d 326 (2018).

4 Article first, § 8, of the constitution of Connecticut provides in relevant

part: ‘‘In all criminal prosecutions, the accused shall have a right to be heard

by himself and by counsel . . . [and] to be confronted by the witnesses

against him . . . . No person shall be compelled to give evidence against

himself, nor be deprived of life, liberty or property without due process of

law . . . .’’

5

In State v. Wallin, supra, 166 Wn. App. 376–77, the Court of Appeals of

Washington reversed the defendant’s conviction because the prosecutor had

made a generic tailoring argument. In doing so, the court noted that ‘‘Mattson

(Hawaii), Daniels (New Jersey), and Swanson (Minnesota) are helpful.’’ Id.,

376. The court further noted that the Mattson decision was based on an

analysis of the Hawaii constitution, whereas the courts in Daniels and

Swanson relied ‘‘on their ability to fashion a trial practice rule, which is

not something that we could do.’’ Id. Thus, it appears that the court in

Wallin relied on the Washington constitution in reaching its conclusion,

although it did not engage in a substantive analysis of the relevant provisions

of its state constitution.

6

‘‘The right of a defendant to testify is guaranteed by sections 5, 14, and

10 of article I of the Hawaii Constitution. . . . The right is essential to due

process of law as guaranteed under section 5 of article 1. . . . The right

to testify is also guaranteed through the compulsory process clause of

section 14, which states in pertinent part that the accused shall have compulsory process for obtaining witnesses in the accused’s favor . . . . Logically

included in the accused’s right to call witnesses . . . is a right to testify

himself, should he decide it is in his favor to do so . . . since the most

important witness for the defense in many criminal cases is the defendant

himself. . . . The opportunity to testify is a necessary corollary to the guarantee, under section 10, against compelled testimony since every criminal

defendant is privileged to testify in his or her defense.’’ (Citations omitted;

internal quotation marks omitted.) State v. Walsh, supra, 125 Hawaii 285 n.22.

7

In State v. Papantoniou, supra, 185 Conn. App. 100 n.14, this court did

not address the defendant’s claim that generic tailoring arguments violated

the defendant’s rights under the Connecticut constitution. Instead, we concluded that, even if we assumed that a constitutional violation had occurred,

the defendant could not prevail on his unpreserved constitutional claim

because the state had proved that the alleged constitutional violation was

harmless beyond a reasonable doubt. Id., 103.

8 The defendant does not brief separately a state constitutional due process

claim or contend that the state constitution affords greater protections than

its federal counterpart. Accordingly, we consider this claim only under the

federal constitution. See, e.g., State v. Scott, 158 Conn. App. 809, 814 n.4,

121 A.3d 742 (when analysis of rights under Connecticut constitution is not

briefed separately by appellant, we consider rights as coextensive with

federal constitution), cert. denied, 319 Conn. 946, 125 A.3d 527 (2015).

9 We note that the claims of error giving rise to these requests were not

preserved and that our supervisory authority ‘‘is not intended to serve as a

bypass to the bypass [doctrines], permitting the review of unpreserved

claims of case specific error—constitutional or not—that are not otherwise

amenable to relief under Golding or the plain error doctrine. . . . [A] defendant seeking review of an unpreserved claim under our supervisory authority

must demonstrate that his claim is one that, as a matter of policy, is relevant

to the perceived fairness of the judicial system as a whole, most typically

in that it lends itself to the adoption of a procedural rule that will guide the

lower courts in the administration of justice in all aspects of the criminal

process.’’ (Citation omitted; internal quotation marks omitted.) State v.
Elson, 311 Conn. 726, 768, 91 A.3d 862 (2014); see also Blumberg Associates

Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123,

155–61, 84 A.3d 840 (2014) (noting that ‘‘a reviewing court has the authority

to review [unpreserved] claims under its supervisory power’’ and setting

forth ‘‘general principles’’ of such review). We conclude that the record in

the present case is adequate for review of the defendant’s claims, both

parties have had the opportunity to be heard on these claims, neither party

will suffer unfair prejudice by our review of the claims, and the state, which

responded to these claims in its brief, does not object to review pursuant

to our supervisory authority. See In re Yasiel R., supra, 317 Conn. 790.

Furthermore, for the reasons that follow, we conclude that the defendant’s

claims implicate the perceived fairness of the judicial system as a whole

and merit review under our supervisory authority.

10 Practice Book § 44-8 provides: ‘‘The defendant must be present at the

trial and at the sentencing hearing, but, if the defendant will be represented

by counsel at the trial or sentencing hearing, the judicial authority may: (1)

Excuse the defendant from being present at the trial or a part thereof or

the sentencing hearing if the defendant waives the right to be present; (2)

Direct that the trial or a part thereof or the sentencing hearing be conducted

in the defendant’s absence if the judicial authority determines that the

defendant waived the right to be present; or (3) Direct that the trial or a

part thereof be conducted in the absence of the defendant if the judicial

authority has justifiably excluded the defendant from the courtroom because

of his or her disruptive conduct, pursuant to Section 42-46.’’ (Emphasis

added.)