State v. Dickson

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STATE OF CONNECTICUT v. ANDREW DICKSON

(SC 19385)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and

Robinson, Js.

Argued December 11, 2015—officially released August 9, 2016

Andrew S. Liskov, for the appellant (defendant).

Laurie N. Feldman, special deputy assistant state’s

attorney, with whom, on the brief, were John C. Smriga,

state’s attorney, and Joseph T. Corradino, senior assis-

tant state’s attorney, for the appellee (state).

Charles D. Ray, James L. Brochin, Marques S. Tracy

and Laura E. Sedlak filed a brief for The Innocence

Project as amicus curiae.

Opinion

ROGERS, C. J. The issue that we must resolve in

this certified appeal is whether we should overrule this

court’s holding in State v. Smith, 200 Conn. 465, 469,

512 A.2d 189 (1986),1 and hold that inherently suggestive

in-court identifications are inadmissible even in the

absence of a suggestive pretrial identification proce-

dure. The defendant, Andrew Dickson, was charged

with a variety of offenses after he shot the victim, Albert

Weibel, during an attempted robbery. Before trial, the

defendant filed a motion to preclude Weibel from mak-

ing an in-court identification of the defendant on the

ground that in-court identification procedures are

unnecessarily suggestive. In the alternative, the defen-

dant requested that the trial court require that Weibel

select him from a group of individuals of similar appear-

ance. The trial court denied the motion pursuant to

Smith, and Weibel identified the defendant as his assail-

ant in court. The jury found the defendant guilty of

assault in the first degree and conspiracy to commit

robbery in the first degree, and the trial court rendered

judgment accordingly.

Thereafter, the defendant appealed to the Appellate

Court claiming, among other things, that the trial court

had abused its discretion by denying his motion to pre-

clude Weibel’s in-court identification of him or, in the

alternative, to order an alternative identification proce-

dure. The Appellate Court rejected the defendant’s

claim pursuant to Smith; State v. Dickson, 150 Conn.

App. 637, 644–47, 91 A.3d 958 (2014); and, having also

rejected the defendant’s other claims on appeal,

affirmed the judgment of conviction. Id., 654.

We then granted the defendant’s petition for certifica-

tion to appeal, limited to the following issues: (1) ‘‘Did

the Appellate Court properly determine that the in-court

identification procedure used at trial was proper under

this court’s decision in State v. Smith, [supra, 200 Conn.

465], and, if so, should the Smith precedent be over-

turned?’’; and (2) ‘‘If we conclude that the in-court iden-

tification was improper, was the impropriety harmless

in light of the other state’s evidence?’’ State v. Dickson,

314 Conn. 913, 100 A.3d 404 (2014). We conclude that,

contrary to our holding in Smith, in cases in which

identity is an issue, in-court identifications that are not

preceded by a successful identification in a nonsugges-

tive identification procedure2 implicate due process

principles and, therefore, must be prescreened by the

trial court.3 We also conclude that the admission of the

in-court identification here was harmless and, accord-

ingly, affirm the judgment of the Appellate Court on

this alternative ground.

The record reveals the following facts that the jury

reasonably could have found and procedural history.

Akeem Lyles arranged to meet Weibel and Matthew

Shaw at Terrace Circle in Bridgeport on the night of

January 9, 2010, for the purpose of selling them an all-

terrain vehicle. Shortly before the arranged meeting

time, Lyles met with Jovanni Reyes and the defendant

in a nearby apartment, explained that he planned to rob

Weibel and Shaw and asked Reyes and the defendant if

they would help him. Reyes and the defendant agreed.

The three men left the apartment armed with guns at

approximately 9:30 p.m. At that point, Weibel, who was

in a pickup truck with Shaw at the arranged meeting

place, called Lyles. Lyles told Weibel that he was outside

in back of the building with the all-terrain vehicle and

that Weibel should come and ‘‘check it out.’’ As Weibel

approached Lyles, Lyles put a gun to Weibel’s head and

demanded money. Weibel then turned around and saw

Reyes and the defendant with guns. They also

demanded money. As Weibel covered his head, called

for help and attempted to return to the pickup truck, the

men hit him, demanded money and took his cell phone.

Lyles then broke from the group and approached the

pickup truck. He tapped on the window with his gun

and pointed the gun at Shaw’s head. Shaw got out of

the pickup truck and Lyles grabbed him, threw him

against a parked car and demanded ‘‘the money.’’ When

Shaw told Lyles that he did not have the money, Lyles

took Shaw’s cell phone and wallet. Lyles also took

between $40 and $50, an iPod and a global positioning

system from the pickup truck. Someone then yelled

‘‘this is taking too long’’ and Lyles and Reyes ran from

the scene. At that point, the defendant held a gun to

Weibel’s head, threw him against a dumpster near the

pickup and said, ‘‘You’re a dead man.’’ The defendant

then shot Weibel in the leg and neck. Weibel was seri-

ously injured but survived. When Lyles later asked the

defendant why he had shot Weibel, the defendant

replied, ‘‘because we didn’t get any money.’’

Approximately one year after the shooting, Weibel

viewed a police photographic array that included a pho-

tograph of the defendant, but he was unable to identify

the defendant as his assailant. Both Weibel and Shaw,

however, were able to identify Lyles from a photo-

graphic array as the person who had first approached

Weibel and who had approached Shaw while he was

in the pickup truck.

The defendant was arrested and charged with numer-

ous offenses arising from the incident. Before trial, the

defendant filed a motion in limine in which he con-

tended that any in-court identification of the defendant

by Weibel would be so highly and unnecessarily sugges-

tive and conducive to an irreparable misidentification of

the defendant as to violate the defendant’s due process

rights under article first, § 8, of the Connecticut consti-

tution. In the alternative, the defendant, who is African-

American, requested that the court order that Weibel

be required to select him from a group of individuals

of similar age, weight, height, complexion and hair style.

The defendant orally renewed the motion in limine after

the jury was selected and before the presentation of

evidence. The trial court denied the motion.

At trial, the prosecutor asked Weibel if he saw the

person who had shot him in court. Weibel responded

in the affirmative and identified the defendant, who was

sitting next to counsel at the defense table. Except for

a judicial marshal who was in uniform, the defendant

was the only African-American male in the courtroom.

The jury found the defendant guilty of assault in the

first degree and conspiracy to commit robbery in the

first degree, and the trial court rendered judgment

accordingly.

On appeal to the Appellate Court, the defendant

claimed that the trial court had violated his due process

rights under the fifth and fourteenth amendments to

the federal constitution when it denied his motion in

limine.4 State v. Dickson, supra, 150 Conn. App. 642–43.

The Appellate Court rejected this claim pursuant to

State v. Smith, supra, 200 Conn. 469–70; State v. Dick-

son, supra, 644; and affirmed the judgment of convic-

tion. State v. Dickson, supra, 654. This appeal followed.

The defendant contends that the Appellate Court

improperly concluded that Weibel’s in-court identifica-

tion of the defendant as his assailant was admissible

under Smith.5 In the alternative, he claims that this

court should overrule Smith and hold that first time

in-court identifications trigger due process protections

because they are inherently suggestive and are the

result of state action.6 Finally, he claims that the state

cannot prove that the improper admission of the in-

court identification was harmless beyond a reason-

able doubt.

I

DEFENDANT’S CLAIM THAT FIRST TIME IN-COURT

IDENTIFICATIONS IMPLICATE DUE

PROCESS PRINCIPLES

To provide context for the defendant’s claims, we

begin our analysis with an overview of the legal princi-

ples governing the admission of eyewitness identifica-

tion testimony. In the absence of unduly suggestive

procedures conducted by state actors, the potential

unreliability of eyewitness identification testimony

ordinarily goes to the weight of the evidence, not its

admissibility, and is a question for the jury. See Perry

v. New Hampshire, U.S. , 132 S. Ct. 716, 730, 181

L. Ed. 2d 694 (2012) (‘‘we hold that the [d]ue [p]rocess

[c]lause does not require a preliminary judicial inquiry

into the reliability of an eyewitness identification when

the identification was not procured under unnecessarily

suggestive circumstances arranged by law enforce-

ment’’). Principles of due process require exclusion of

unreliable identification evidence that is not the result

of an unnecessarily suggestive procedure ‘‘[o]nly when

[the] evidence is so extremely unfair that its admission

violates fundamental conceptions of justice . . . .’’

(Citation omitted; internal quotation marks omitted.)

Id., 723, citing Napue v. Illinois, 360 U.S. 264, 269, 79 S.

Ct. 1173, 3 L. Ed. 2d 1217 (1959) (due process prohibits

state’s knowing use of false evidence because such use

violates any concept of ordered liberty). To assist the

jury in determining what weight to give to an eyewitness

identification that is not tainted by an unduly suggestive

identification procedure, the defendant is entitled as a

matter of state evidentiary law to present expert testi-

mony regarding a variety of factors that can affect the

reliability of such testimony. State v. Guilbert, 306

Conn. 218, 248, 49 A.3d 705 (2012) (‘‘[an] expert should

be permitted to testify . . . about factors that generally

have an adverse effect on the reliability of eyewitness

identifications and are relevant to the specific eyewit-

ness identification at issue’’).

A different standard applies when the defendant con-

tends that an in-court identification followed an unduly

suggestive pretrial identification procedure that was

conducted by a state actor. In such cases, both the

initial identification and the in-court identification may

be excluded if the improper procedure created a sub-

stantial likelihood of misidentification. Perry v. New

Hampshire, supra, 132 S. Ct. 724. ‘‘A primary aim of

excluding identification evidence obtained under

unnecessarily suggestive circumstances . . . is to

deter law enforcement use of improper lineups, show-

ups, and photo arrays in the first place.’’ Id., 726.

‘‘In determining whether identification procedures

violate a defendant’s due process rights, the required

inquiry is made on an ad hoc basis and is two-pronged:

first, it must be determined whether the identification

procedure was unnecessarily suggestive; and second,

if it is found to have been so, it must be determined

whether the identification was nevertheless reliable

based on examination of the totality of the circum-

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

Marquez, 291 Conn. 122, 141, 967 A.2d 56, cert. denied,

558 U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163 (2009).

The first suggestiveness prong involves the circum-

stances of the identification procedure itself; id.,

142–43; and the critical question is whether the proce-

dure was conducted ‘‘in such a manner as to emphasize

or highlight the individual whom the police believe is

the suspect.’’ Id., 143. If the trial court determines that

there was no unduly suggestive identification proce-

dure, that is the end of the analysis, and the identifica-

tion evidence is admissible. State v. Outing, 298 Conn.

34, 54, 3 A.3d 1 (2010), cert. denied, 562 U.S. 1225, 131

S. Ct. 1479, 179 L. Ed. 2d 316 (2011).

If the court finds that there was an unduly suggestive

procedure, the court goes on to address the second

reliability prong, under which ‘‘the corruptive effect of

the suggestive procedure is weighed against certain

factors, such as the opportunity of the [eyewitness] to

view the criminal at the time of the crime, the [eyewit-

ness’] degree of attention, the accuracy of [the eyewit-

ness’] prior description of the criminal, the level of

certainty demonstrated at the [identification] and the

time between the crime and the [identification].’’ (Inter-

nal quotation marks omitted.) State v. Ledbetter, 275

Conn. 534, 553, 881 A.2d 290 (2005), cert. denied, 547

U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006),

citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct.

2243, 53 L. Ed. 2d 140 (1977); see Manson v. Brathwaite,

supra, 114 (reliability factors include ‘‘the witness’

degree of attention, the accuracy of his prior description

of the criminal, the level of certainty demonstrated at

the confrontation, and the time between the crime and

the confrontation’’); Neil v. Biggers, 409 U.S. 188, 199–

200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972) (same).7

‘‘[A]n out-of-court eyewitness identification should be

excluded on the basis of the procedure used to elicit

that identification . . . if the court is convinced that

the procedure was so suggestive and otherwise unrelia-

ble as to give rise to a very substantial likelihood of

irreparable misidentification.’’ (Emphasis omitted.)

State v. Marquez, supra, 291 Conn. 142.

With this general background in mind, we now turn

to the case law governing in-court identifications that

are not preceded by an unnecessarily suggestive identi-

fication procedure, which is the case here. The United

States Supreme Court has not yet addressed the ques-

tion of whether first time in-court identifications are in

the category of unnecessarily suggestive procedures

that trigger due process protections.8 See Galloway v.

State, 122 So. 3d 614, 663 (Miss. 2013) (‘‘[t]he United

States Supreme Court has not decided whether Biggers

applies to an in-court identification not preceded by an

impermissibly suggestive pretrial identification’’), cert.

denied, U.S. , 134 S. Ct. 2661, 189 L. Ed. 2d 209

(2014). This court, however, addressed the issue in State

v. Smith, supra, 200 Conn. 467. In that case, this court

held that despite the inherent suggestiveness of an in-

court identification procedure; id., 468–69 (‘‘[a]ny one-

on-one in-court identification of an accused conveys

the message that the state has arrested and placed on

trial a person it believes has committed the crime’’); an

in-court identification ‘‘need be excluded, as violative

of due process, only when it is tainted by an out-of-

court identification procedure which is unnecessarily

suggestive and conducive to irreparable misidentifica-

tion.’’ Id., 469; see also State v. Nelson, 4 Conn. App.

514, 516, 495 A.2d 298 (1985) (where there had been

no pretrial out-of-court identification procedure, there

was no basis to suppress eyewitness’ in-court identifica-

tion because there would have been nothing to taint

it). Thus, under Smith, first time in-court identifications

are treated in the same way as identifications that are

not tainted by an unnecessarily suggestive identification

procedure conducted by a state actor.

The defendant in the present case claims that first

time in-court identifications are inherently suggestive

and implicate a defendant’s due process rights no less

than unnecessarily suggestive out-of-court identifica-

tions. Accordingly, he contends, such identifications

should be subject to prescreening by the court, just

like other identifications that are the result of unduly

suggestive identification procedures. This is a question

of law over which our review is plenary. Commissioner

of Environmental Protection v. Farricielli, 307 Conn.

787, 819, 59 A.3d 789 (2013) (‘‘[w]hether [a party] was

deprived of his due process rights is a question of law,

to which we grant plenary review’’ [internal quotation

marks omitted]).

We agree with the defendant. First, and most impor-

tantly, we are hard-pressed to imagine how there could

be a more suggestive identification procedure than plac-

ing a witness on the stand in open court, confronting

the witness with the person who the state has accused

of committing the crime, and then asking the witness

if he can identify the person who committed the crime.9

If this procedure is not suggestive, then no procedure

is suggestive. Indeed, the present case starkly demon-

strates the problem, in that Weibel was unable to iden-

tify the defendant in a photographic array, but had

absolutely no difficulty doing so when the defendant

was sitting next to defense counsel in court and was

one of only two African-American males in the room.

Second, because the extreme suggestiveness and

unfairness of a one-one-one in-court confrontation is

so obvious, we find it likely that a jury would naturally

assume that the prosecutor would not be allowed to

ask the witness to identify the defendant for the first

time in court unless the prosecutor and the trial court

had good reason to believe that the witness would be

able to identify the defendant in a nonsuggestive setting.

Indeed, such an assumption would be correct in the

case of an in-court identification following an unneces-

sarily suggestive out-of-court identification procedure.

Thus, a first time in-court identification procedure

amounts to a form of improper vouching. See United

States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993)

(‘‘[v]ouching consists of placing the prestige of the gov-

ernment behind a witness through . . . suggesting that

information not presented to the jury supports the [wit-

ness’] testimony’’). Third, this court previously has rec-

ognized that mistaken eyewitness identifications are

a significant cause of erroneous convictions; State v.

Guilbert, supra, 306 Conn. 249–50 (‘‘mistaken eyewit-

ness identification testimony is by far the leading cause

of wrongful convictions’’);10 and the risk of mistake

is particularly acute when the identification has been

tainted by an unduly suggestive procedure. United

States v. Wade, 388 U.S. 218, 229, 87 S. Ct. 1926, 18

L. Ed. 2d 1149 (1967) (‘‘[t]he influence of improper

suggestion upon identifying witnesses probably

accounts for more miscarriages of justice than any other

single factor—perhaps it is responsible for more such

errors than all other factors combined’’ [internal quota-

tion marks omitted]). Fourth, we cannot perceive why,

if an in-court identification following an unduly sugges-

tive pretrial police procedure implicates the defendant’s

due process rights because it is the result of state action,

the same would not be true when a prosecutor elicits

a first time in-court identification. Cf. State v. Warholic,

278 Conn. 354, 361, 897 A.2d 569 (2006) (prosecutor’s

conduct in court can constitute due process violation).

Our research has revealed no case holding that this

conduct does not constitute state action and, indeed,

the state makes no such claim. Fifth, the rationale for

the rule excluding identifications that are the result

of unnecessarily suggestive procedures—deterrence of

improper conduct by a state actor—applies equally

to prosecutors.

Accordingly, we conclude that first time in-court

identifications, like in-court identifications that are

tainted by an unduly suggestive out-of-court identifica-

tion, implicate due process protections and must be

prescreened by the trial court.11 See United States v.

Greene, 704 F.3d 298, 308 (4th Cir.) (applying Biggers

constitutional analysis to in-court identification), cert.

denied, U.S. , 134 S. Ct. 419, 187 L. Ed. 2d 279

(2013); United States v. Rogers, 126 F.3d 655, 658 (5th

Cir. 1997) (same); United States v. Hill, 967 F.2d 226,

232 (6th Cir.) (‘‘We hold that the Biggers [constitutional]

analysis applies to . . . in-court identifications for the

same reasons that the analysis applies to impermissibly

suggestive [pretrial] identifications. The due process

concerns are identical in both cases and any attempt

to draw a line based on the time the allegedly suggestive

identification technique takes place seems arbitrary.

All of the concerns that underlie the Biggers analysis,

including the degree of suggestiveness, the chance of

mistake, and the threat to due process are no less appli-

cable when the identification takes place for the first

time at trial.’’), cert. denied, 506 U.S. 964, 113 S. Ct. 438,

121 L. Ed. 2d 357 (1992); United States v. Rundell, 858

F.2d 425, 427 (8th Cir. 1988) (noting ‘‘suggestiveness

inherent in the witnesses’ knowing that [the defendant]

was the sole [person] charged with the [crime]’’ and

applying Biggers factors to in-court identification);12

United States v. Archibald, 734 F.2d 938, 943 (witness’

in-court identification suggestive when on cross-exami-

nation, witness stated he had ‘‘feeling he would be sit-

ting next to’’ defense counsel, and applying Biggers

factors), modified, 756 F.2d 223 (2d Cir. 1984); E. Man-

dery, ‘‘Due Process Considerations of In-Court Identifi-

cations,’’ 60 Alb. L. Rev. 389, 423 (1997) (‘‘[t]here is

no sound basis for this distinction’’ between in-court

identifications and suggestive out-of-court identifica-

tions); see also Commonwealth v. Crayton, 470 Mass.

228, 241–42 and n.16, 21 N.E.3d 157 (2014) (concluding

pursuant to ‘‘[c]ommon law principles of fairness’’ that

first time in-court identifications are inadmissible

except for ‘‘good reason,’’ as when identity is not at

issue or eyewitness knew defendant before crime [inter-

nal quotation marks omitted]). Thus, we conclude that

the holding of Smith must be limited to its facts, that

is, to cases in which the in-court identification has been

preceded by an admissible out-of-court identification.13

We recognize that a number of courts have concluded

otherwise.14 Nevertheless, we conclude that this is an

issue for which the arc of logic trumps the weight of

authority. For all of the reasons that we have explained,

we simply see no reason to distinguish inherently sug-

gestive in-court identifications from inherently sugges-

tive out-of-court identifications.

II

STATE’S ARGUMENTS IN SUPPORT OF CLAIM THAT

FIRST TIME IN-COURT IDENTIFICATIONS

ARE ADMISSIBLE

The state raises numerous arguments in support of

its claim to the contrary. We first address the state’s

claim that our conclusion is inconsistent with the

United States Supreme Court’s decision in Perry v. New

Hampshire, supra, 132 S. Ct. 716. Specifically, the state

contends that the court in Perry held that an identifica-

tion that is the result of an unduly suggestive identifica-

tion procedure is excludable only when the procedure

has been conducted by ‘‘law enforcement actors

involved in extrajudicial investigation, not prosecutors

presenting evidence in court.’’15 We disagree. The ques-

tion of whether a first time in-court identification

orchestrated by a prosecutor could trigger due process

protections simply was not before the court in Perry.

Rather, the issue was whether an identification that

was the result of suggestive private conduct triggered

due process protections. Perry v. New Hampshire,

supra, 721. Accordingly, we do not believe that the

court’s repeated statements that due process protec-

tions are triggered only when unduly suggestive identifi-

cation procedures are arranged by the police means

that due process protections are not triggered when

state actors other than the police conduct unfair identi-

fication procedures. Indeed, the court in Perry

expressly stated that its prior decisions on this issue

‘‘turn on the presence of state action’’; (emphasis

added) id.; and, as we have indicated, the state in the

present case does not dispute that a prosecutor’s con-

duct in court constitutes state action. We further note

that, since the court’s decision in Perry, at least one

court has assumed that a first time in-court identifica-

tion triggers due process protections. See United States

v. Greene, supra, 704 F.3d 308 (applying Biggers factors

to in-court identification); see also United States v.

Correa-Osorio, 784 F.3d 11, 19–20 (1st Cir. 2015) (‘‘[o]ne

could argue either way’’ whether Biggers analysis

applies to in-court identifications after Perry); Gallo-

way v. State, supra, 122 So. 3d 663 (as of 2013, ‘‘[t]he

United States Supreme Court has not decided whether

Biggers applies to an in-court identification not pre-

ceded by an impermissibly suggestive pretrial identifi-

cation’’); but see United States v. Whatley, 719 F.3d

1206, 1216 (11th Cir.) (‘‘Perry makes clear that, for

those defendants who are identified under suggestive

circumstances not arranged by police [including in-

court identifications], the requirements of due process

are satisfied in the ordinary protections of trial’’), cert.

denied, U.S. , 134 S. Ct. 453, 187 L. Ed. 2d 303

(2013). Moreover, we are not persuaded by the state’s

argument that, if a prosecutor’s conduct in presenting

evidence in court triggers due process protections, the

court in Perry would have held that the admission of

the witness’ identification—or, indeed, any potentially

unreliable evidence—could be excluded. When, as in

Perry, a private party was responsible for the sugges-

tiveness of the initial identification procedure, the ratio-

nale for the exclusionary rule—deterrence of improper

conduct by a state actor—carries no force.

The state also points out that the court in Perry

specifically referred to in-court identifications when

discussing suggestive procedures that do not trigger

due process protections. Perry v. New Hampshire,

supra, 132 S. Ct. 727 (The court rejected the defendant’s

claim that any identification resulting from a suggestive

procedure must be prescreened by the court because

‘‘[m]ost eyewitness identifications involve some ele-

ment of suggestion. Indeed, all in-court identifications

do.’’). We agree that one-on-one in-court identifications

do not always implicate the defendant’s due process

rights, as when identity is not an issue or when there

has been a nonsuggestive out-of-court identification

procedure. As we have indicated, however, the specific

question that we are addressing here—whether the trial

court is constitutionally required to prescreen first time

in-court identifications—simply was not before the

court in Perry. Accordingly, we cannot conclude that

the passing, general reference by the court in Perry to

the propriety of in-court identifications forecloses our

conclusion that they can implicate due process con-

cerns under certain circumstances.

The state further claims that in-court identifications

do not violate due process principles because they are

necessary and, relatedly, because there is no feasible

alternative to them. In support of this claim, the state

relies on State v. Tatum, 219 Conn. 721, 725, 595 A.2d

322 (1991), in which the defendant contended that his

in-court identification by an eyewitness at trial was

tainted by the eyewitness’ earlier in-court identification

of him, for the first time, at a probable cause hearing.16

This court disagreed with the defendant’s claim, con-

cluding that, ‘‘[i]n order to try the defendant, it was

necessary for the prosecution to present evidence at

the preliminary hearing to establish probable cause to

believe that he had committed the crimes charged.

Conn. Const., art. I, § 8, as amended [by articles seven-

teen and twenty-nine of the amendments];17 General

Statutes [Rev. to 1991] § 54-46a.’’18 (Emphasis in origi-

nal; footnote altered.) State v. Tatum, supra, 728–29.

This court further stated that ‘‘[t]he fact that the prose-

cution might have taken extraordinary steps to lessen

the suggestiveness of the confrontation [at the probable

cause hearing] by using some other identification proce-

dure does not render the routine procedure that was

used unnecessary or impermissible. The defendant had

no constitutional right to a lineup; State v. Vaughn, 199

Conn. 557, 562, 508 A.2d 430, cert. denied, 479 U.S. 989,

107 S. Ct. 583, 93 L. Ed. 2d 585 (1986); nor did the state

have a constitutional duty to conduct one. State v. Vass,

191 Conn. 604, 611, 469 A.2d 767 (1983).’’ State v. Tatum,

supra, 729. Finally, the court stated that, ‘‘[a]lthough

the probable cause hearing held in this case was a one-

to-one pretrial confrontation, it was unlike a showup

or single photo[graphic] display in that it occurred in

a courtroom. The initial identification made at the prob-

able cause hearing, therefore, resembled an initial iden-

tification made at trial. While there is little doubt that

the trial setting is suggestive, for the same reasons that

a probable cause hearing is suggestive, ‘[t]he manner

in which in-court identifications are conducted is not

of constitutional magnitude but rests within the sound

discretion of the trial court.’ State v. Smith, supra, [200

Conn.] 470.’’ (Footnote omitted.) State v. Tatum,

supra, 730–31.

We conclude that the holding in Tatum that it was

‘‘necessary’’ for the state to present a first time in-court

identification of the defendant at the probable cause

hearing must be overruled. We simply can perceive

no reason why the state cannot attempt to obtain an

identification using a lineup or photographic array

before asking an eyewitness to identify the defendant

in court. Although the state is not constitutionally

required to do so, it would be absurd to conclude that

the state can simply decline to conduct a nonsuggestive

procedure and then claim that its own conduct rendered

a first time in-court identification necessary, thereby

curing it of any constitutional infirmity. See United

States v. Archibald, supra, 734 F.2d 941 (‘‘[w]e may

agree with the [trial] court that there was no obligation

to stage a lineup, but there was . . . an obligation to

ensure that the in-court procedure . . . did not simply

amount . . . to a show-up’’ [internal quotation marks

omitted]); see also United States v. Hill, supra, 967 F.2d

231 (same); United States v. Hill, supra, 232 (although

government is not required to conduct lineup, it ‘‘is

prohibited under the [d]ue [p]rocess [c]lause from intro-

ducing the fruits of an impermissibly suggestive and

inherently unreliable identification as evidence against

the accused’’). To the extent that the state claims that

first time in-court identifications are necessary in cases

where the eyewitness had a fair opportunity to identify

the defendant before trial but was unable to do so

because, otherwise, the state will not be able to present

an eyewitness identification to the jury, to state this

claim is to refute it. The state is not entitled to conduct

an unfair procedure merely because a fair procedure

failed to produce the desired result. Moreover, if the

state declines to conduct a nonsuggestive identification

procedure before the in-court confrontation, or if it

attempts to do so but the eyewitness is unable to iden-

tify the defendant, the state is not barred from pre-

senting any evidence regarding the defendant’s identity

and guilt. The state still can question the eyewitness

about his observations of the perpetrator at the time

of the crime, including his observations of the perpetra-

tor’s height, weight, sex, race, age and any other charac-

teristics that the eyewitness was able to observe,19 and

present any other evidence that is relevant.

We also are not persuaded by the state’s argument

that first time in-court identifications are necessary

because there is no feasible alternative. Specifically,

the state contends that it would be entirely impractical

to assemble a group of individuals who closely resemble

the defendant and arrange for them to appear in court,

that it would be dangerous to allow a defendant to sit

among the spectators in court, and that there is no

source of funds to pay individuals to participate in line-

ups. Although numerous courts have held that it is

within the trial court’s discretion to order a nonsugges-

tive in-court identification,20 we are compelled to con-

clude that such a procedure is no longer viable in this

state since the legislature’s enactment of General Stat-

utes § 54-1p, which governs the procedures for live line-

ups. Although that statute applies to identification

procedures conducted by police, and the defendant

makes no claim that it applies to in-court lineups, we

believe that it would be inconsistent with the will of

the legislature to allow a first time in-court identifica-

tion that does not comport with the statutory proce-

dures. We further conclude that it would be simply

impracticable in a courtroom setting to present the

lineup participants to the witness sequentially; see Gen-

eral Statutes § 54-1p (c) (1); and to give extensive

instructions to the witness. See General Statutes § 54-

1p (c) (3) (A) through (G). Nevertheless, we reject the

state’s claim that a traditional in-court identification is

the only feasible option. Specifically, the state has not

provided any convincing arguments as to why it would

not be feasible to arrange for a nonsuggestive out-of-

court lineup or photographic array, as is done routinely

in cases where identity is at issue.21 See United States

v. Wade, supra, 388 U.S. 230 (‘‘[l]ineups are prevalent

in rape and robbery prosecutions’’). Indeed, the state

could conduct either of these procedures at any point

up to the time of the witness’ testimony.

The state also claims that in-court identifications do

not implicate the same concerns as unduly suggestive

pretrial identification procedures because, when the

identification is in court, jurors are present to observe

the witness making the initial identification.22 See

United States v. Domina, 784 F.2d 1361, 1368 (9th Cir.

1986) (when initial identification is in court ‘‘[t]he jury

can observe the witness during the identification pro-

cess and is able to evaluate the reliability of the . . .

identification’’), cert. denied, 479 U.S. 1038, 107 S. Ct.

893, 93 L. Ed. 2d 845 (1987); State v. Hickman, 355 Or.

715, 735, 330 P.3d 551 (2014) (when identification is

made for first time in court, jury can observe ‘‘variables

such as indications of witness certainty or hesitation

during the identification process, including facial

expression, voice inflection and body language’’). These

courts fail to recognize, however, that the very reason

that first time in-court identifications are so problematic

is that, when the state places the witness under the glare

of scrutiny in the courtroom and informs the witness of

the identity of the person who has been charged with

committing the crime, it is far less likely that the witness

will be hesitant or uncertain when asked if that person

is the perpetrator. Moreover, cross-examination is

unlikely to expose any witness uncertainty or weakness

in the testimony ‘‘because cross-examination is far bet-

ter at exposing lies than at countering sincere but mis-

taken beliefs.’’ State v. Guilbert, supra, 306 Conn. 243;

see also Commonwealth v. Collins, 470 Mass. 255, 264,

21 N.E.3d 528 (2014) (‘‘cross-examination cannot

always be expected to reveal an inaccurate in-court

identification where most jurors are unaware of the

weak correlation between confidence and accuracy and

of witness susceptibility to manipulation by suggestive

procedures or confirming feedback’’ [internal quotation

marks omitted]). In any event, even if a first time in-

court identification is less likely to lead to error than an

identification resulting from an out-of-court suggestive

procedure, first time in-court identifications still create

a greater risk of error than nonsuggestive procedures.

See Commonwealth v. Crayton, supra, 470 Mass.

239–40 (‘‘even if we were persuaded that there were

evaluative benefits arising from the jury’s ability to see

the identification procedure, it would not justify admis-

sion of an inherently suggestive identification’’).

We next address the state’s claim that there is no need

for the trial court to prescreen in-court identifications

because they ‘‘were a routine and expected part of trials

at common law’’ and, up to the end of the nineteenth

century, ‘‘were the principal means of identifying the

perpetrator . . . because pretrial police investigations

and identification procedures are late developments

. . . .’’23 Again, we are not persuaded. First, it is beyond

dispute that the fact that a criminal procedure has roots

in tradition does not necessarily mean that it is constitu-

tional. See, e.g., United States v. Wade, supra, 388 U.S.

236–37 (holding for first time that pretrial lineup is

critical stage of prosecution at which defendant has

right to aid of counsel under sixth amendment);24 see

also Stovall v. Denno, 388 U.S. 293, 299–300, 87 S. Ct.

1967, 18 L. Ed. 2d 1199 (1967) (prior to court’s decision

in Wade, ‘‘[t]he overwhelming majority of American

courts [had] always treated the evidence question [aris-

ing from the absence of defense counsel during a pre-

trial lineup] not as one of admissibility but as one of

credibility for the jury’’); cf. United States v. Archibald,

supra, 734 F.2d 942–43 (‘‘[t]he in-court identification

procedure utilized here was so clearly suggestive as

to be impermissible, however traditional it may be’’

[emphasis added]). Second, it would appear that the

reason that eyewitness identifications played a predom-

inant role in early English and American history is that

a large proportion of criminals who were brought into

court had been caught in the act by private parties, not

because first time in-court eyewitness testimony was

deemed to be particularly reliable. See J. Langbein, ‘‘The

Criminal Trial before the Lawyers,’’ 45 U. Chi. L. Rev.

263, 281 n.56 (1978) (‘‘By today’s standards a striking

proportion of the Old Bailey [court of regular jurisdic-

tion for serious crime in London in the sixteenth and

seventeenth centuries] cases involved defendants

caught in the act or taken with stolen goods. We can

understand why identification evidence would predomi-

nate in an age before professional policing and well

before the development of scientific techniques for gen-

erating and evaluating many of the types of circumstan-

tial evidence now familiar to us [such as fingerprints].’’).

Third, first time in-court identifications became the

norm at a time when travel was by foot or by horse,

communications were by post, and official investigative

resources were very limited. Consequently, it presum-

ably would have been very burdensome both for the

government and for eyewitnesses to arrange for a pre-

trial identification of the defendant. Because the diffi-

culty of conducting a nonsuggestive identification

procedure before trial is greatly reduced by the avail-

ability of instantaneous electronic communications,

ready transportation and photography, the state’s inter-

est in continuing the tradition of first time in-court

identifications is similarly reduced. See In re Tremaine

C., 117 Conn. App. 521, 530, 980 A.2d 317 (due process

analysis generally ‘‘requires balancing the government’s

interest in existing procedures against the risk of erro-

neous deprivation of a private interest inherent in those

procedures’’ [internal quotation marks omitted]), cert.

denied, 294 Conn. 920, 984 A.2d 69 (2009).

The state also disputes that mistaken eyewitness

identifications are a significant source of erroneous

convictions. As we have indicated, this court recently

concluded otherwise. State v. Guilbert, supra, 306

Conn. 249–50 (‘‘mistaken eyewitness identification tes-

timony is by far the leading cause of wrongful convic-

tions’’). In addition, the legislature’s enactment of § 54-

1p, governing procedures for photographic arrays and

live lineups, demonstrates that the legislature has con-

cerns that suggestive procedures are a significant

source of error. Even if the state were correct, however,

that the emerging social science casts doubt on the

earlier cases and studies that supported our statement

in Guilbert, it is black letter law that an unnecessarily

suggestive out-of-court identification triggers due pro-

cess protections, and that will presumably continue to

be the case until the courts are convinced that eyewit-

ness identifications are so inherently reliable that sug-

gestive procedures can have no significant effect on

them.25 We certainly are not prepared to make that

determination in the present case and, as we have

explained, if unnecessarily suggestive pretrial identifi-

cation procedures trigger due process protections, we

can perceive no reason why the same should not be

true of unnecessarily suggestive in-court identifi-

cations.

Finally, the state raises two claims that require little

analysis. With respect to the state’s claim that in-court

identifications do not require prescreening because the

sixth amendment’s confrontation clause ‘‘guarantees

the defendant a face-to-face meeting with witnesses

appearing before the trier of fact’’; (internal quotation

marks omitted) State v. Arroyo, 284 Conn. 597, 622, 935

A.2d 975 (2007); it does not follow from this principle

that the state has a right to conduct an unnecessarily

suggestive identification during the guaranteed con-

frontation. The state further claims that a defendant

has no right to absent himself from court to avoid being

identified.26 Again, however, it simply does not follow

from the fact that the defendant cannot invoke his fifth

amendment right against self-incrimination as a shield

against a nonsuggestive in-court or out-of-court identifi-

cation that the state has the right to conduct an unneces-

sarily suggestive in-court identification procedure. See

E. Mandery, supra, 60 Alb. L. Rev. 414 (noting that courts

have confused ‘‘the privilege against self-incrimination

issue presented by in-court identifications and the due

process question’’ and concluding that, ‘‘[w]hile a defen-

dant’s presence can be compelled for purposes of identi-

fication, it is a separate issue whether a defendant can

be compelled to submit to a suggestive identification’’

[footnote omitted]).

III

PROCEDURES FOR PRESCREENING FIRST TIME IN-

COURT IDENTIFICATIONS

Having concluded that first time in-court identifica-

tions must be prescreened for admissibility by the trial

court, we now set forth the specific procedures that

the parties and the trial court must follow.27 Preliminar-

ily, we take this opportunity to emphasize that, in cases

in which the identity of the perpetrator is at issue and

there are eyewitnesses to the crime, the best practice

is to conduct a nonsuggestive identification procedure

as soon after the crime as is possible. See United States

ex rel. Stovall v. Denno, 355 F.2d 731, 738 (2d Cir. 1966)

(‘‘interests of the accused and society alike demand that

the opportunity to identify be afforded at the earliest

possible moment when the likelihood of an accurate

identification is greatest’’), aff’d, 388 U.S. 293, 87 S.

Ct. 1967, 18 L. Ed. 2d 1199 (1967). It is our hope and

expectation that this decision will provide an incentive

for the state to conduct an out-of-court identification

procedure before seeking an in-court identification,

thereby obviating the need to resort to the procedures

that we delineate herein.

In cases in which there has been no pretrial identifica-

tion, however, and the state intends to present a first

time in-court identification, the state must first request

permission to do so from the trial court. See Common-

wealth v. Crayton, supra, 470 Mass. 243 (‘‘[a]lthough

we generally place the burden on the defendant to move

to suppress an identification, that makes little sense

where there is no out-of-court identification of the

defendant by a witness and only the prosecutor knows

whether he or she intends to elicit an in-court identifica-

tion from the witness’’). The trial court may grant such

permission only if it determines that there is no factual

dispute as to the identity of the perpetrator, or the

ability of the particular eyewitness to identify the defen-

dant is not at issue.28 Id., 241 (holding under supervisory

powers that, ‘‘[w]here an eyewitness has not partici-

pated before trial in an identification procedure, we

shall treat the in-court identification as an [impermissi-

ble] in-court showup, and shall admit it in evidence

only where there is ‘good reason’ for its admission’’);

id., 242 (first time in-court identification may be allowed

when eyewitness knew defendant before crime). For

example, in cases in which the trial court determines

that the only issue in dispute is whether the acts that

the defendant admittedly performed constituted a

crime, the court should permit a first time in-court iden-

tification. In cases in which the defendant concedes

that identity or the ability of a particular witness to

identify the defendant as the perpetrator is not in dis-

pute, the state may satisfy the prescreening requirement

by giving written or oral notice to that effect on the

record.

If the trial court determines that the state will not

be allowed to conduct a first time identification in court,

the state may request permission to conduct a nonsug-

gestive identification procedure, namely, at the state’s

option, an out-of-court lineup or photographic array,

and the trial court ordinarily should grant the state’s

request.29 If the witness previously has been unable to

identify the defendant in a nonsuggestive identification

procedure, however, the court should not allow a sec-

ond nonsuggestive identification procedure unless the

state can provide a good reason why a second bite at

the apple is warranted.30 If the eyewitness is able to

identify the defendant in a nonsuggestive out-of-court

procedure, the state may then ask the eyewitness to

identify the defendant in court.31

If the trial court denies a request for a nonsuggestive

procedure, the state declines to conduct one, or the

eyewitness is unable to identify the defendant in such

a procedure, a one-on-one in-court identification should

not be allowed. The prosecutor may still examine the

witness, however, about his or her observations of the

perpetrator at the time of the crime, but the prosecutor

should avoid asking the witness if the defendant resem-

bles the perpetrator. See United States v. Greene, supra,

704 F.3d 304 (‘‘if there is a line between resemblance

and identification testimony it is admittedly thin’’ [inter-

nal quotation marks omitted]).

The state raises a number of objections to these pro-

cedures. First, the state contends that it is unclear what

level of certainty at a prior nonsuggestive identification

procedure would eliminate the need for prescreening

of an in-court identification. We recognize that this

question may require the exercise of judgment. We con-

clude however, that, as a general rule, if the state has

conducted a nonsuggestive out-of-court identification

procedure and the witness has identified the defendant,

even with some uncertainty, the in-court identification

need not be prescreened for admissibility and the wit-

ness’ level of uncertainty at the initial procedure should

go to the weight of the evidence.32 If the level of certainty

was so low that it amounted to a failure to identify the

defendant, the in-court identification should be pre-

screened and ordinarily disallowed.

Second, the state contends that it is unclear what the

consequence would be if a witness who is going to

identify the defendant in court during trial had learned

that the defendant had been charged with the crime

by attending pretrial proceedings and observing the

defendant. If the state was not responsible for the pre-

trial confrontation, this situation is analogous to any

other situation in which a witness has learned the iden-

tity of the person who has been charged with the crime

under suggestive circumstances that are not the result

of state action. Such circumstances go to the weight

of the identification testimony, not its admissibility. See

Perry v. New Hampshire, supra, 132 S. Ct. 728. If the

state was responsible for the suggestive pretrial con-

frontation, however, it must be treated in the same

manner as a suggestive identification procedure, and

the trial court must determine under the totality of the

circumstances whether the witness would have been

able to identify the defendant in court even without the

prior suggestive confrontation. Cf. State v. Ledbetter,

supra, 275 Conn. 553. If the answer to that question is

yes, the court should allow the in-court identification,

subject to cross-examination and argument. If the

answer is no, an in-court identification should be pre-

cluded, just as an in-court identification that was irrepa-

rably tainted by an unnecessarily suggestive

identification procedure would be.

Third, the state contends that, if the trial court pre-

cludes the state from obtaining a first time in-court

identification, fairness requires that the trial court give

a jury instruction explaining that the identification was

not permitted. We conclude that, if the state requests

such an instruction, the trial court may provide the jury

with an accurate statement of the law, specifically, that

an in-court identification was not permitted because

inherently suggestive first time in-court identifications

create a significant risk of misidentification and

because either the state declined to pursue other, less

suggestive means of obtaining the identification or the

eyewitness was unable to provide one. The state is not

entitled to an instruction that would suggest to the

jury that the eyewitness could have made a reliable

identification of the defendant in court if the state had

been permitted to request the witness to do so.

Finally, the state contends that, if we preclude first

time in-court identifications pursuant to our supervi-

sory powers, the new rule must be prospective only.

We have concluded, however, that first time in-court

identifications implicate constitutional due process

rights. It is well established that ‘‘new [constitutional]

rules of criminal procedure must be applied in future

trials and in cases pending on direct review . . . .’’

Danforth v. Minnesota, 552 U.S. 264, 266, 128 S. Ct.

1029, 169 L. Ed. 2d 859 (2008); see also Griffith v.

Kentucky, 479 U.S. 314, 322–23, 107 S. Ct. 708, 93 L.

Ed. 2d 649 (1987) (‘‘Unlike a legislature, we do not

promulgate new rules of constitutional criminal proce-

dure on a broad basis. Rather, the nature of judicial

review requires that we adjudicate specific cases, and

each case usually becomes the vehicle for announce-

ment of a new rule. But after we have decided a new

rule in the case selected, the integrity of judicial review

requires that we apply that rule to all similar cases

pending on direct review.’’); Griffith v. Kentucky,

supra, 328 (‘‘a new rule for the conduct of criminal

prosecutions is to be applied retroactively to all cases,

state or federal, pending on direct review or not yet

final, with no exception for cases in which the new

rule constitutes a clear break with the past’’ [internal

quotation marks omitted]).33 Accordingly, the new rule

that we adopt today applies to the parties to the present

case and to all pending cases.34 It is important to point

out, however, that, in pending appeals involving this

issue, the suggestive in-court identification has already

occurred. Accordingly, if the reviewing court concludes

that the admission of the identification was harmful,

the only remedy that can be provided is a remand to

the trial court for the purpose of evaluating the reliabil-

ity and the admissibility of the in-court identification

under the totality of the circumstances.35 Cf. United

States v. Wade, supra, 388 U.S. 242 (when in-court iden-

tification is preceded by out-of-court identification

without aid of counsel, proper procedure on review is

to vacate conviction and to remand to trial court for

hearing to determine whether in-court identification

was independently reliable); see also State v. Ledbetter,

supra, 275 Conn. 553 (‘‘corruptive effect of suggestive

procedure [regarding eyewitness identification] is

weighed against certain factors’’). If the trial court con-

cludes that the identification was sufficiently reliable,

the trial court may reinstate the conviction, and no new

trial would be required.

IV

APPLICATION OF NEW PROCEDURES TO

PRESENT CASE

We now apply the foregoing principles to the present

case. Because Weibel’s in-court identification of the

defendant was preceded by an unsuccessful attempt to

identify the defendant in a photographic array, it was

a first time in-court identification. In addition, the iden-

tity of the person who assaulted Weibel was in dispute

and the defendant was not known to Weibel before the

assault. Accordingly, we conclude that the identifica-

tion testimony should have been prescreened and the

state should have been required either to conduct a

nonsuggestive identification procedure—in the event

that the trial court concluded that the state was entitled

to such a procedure even though Weibel had failed to

identify the defendant in the photographic array—or

to refrain from seeking an in-court identification. We

further conclude that the failure to follow these proce-

dures potentially violated the defendant’s due pro-

cess rights.36

V

HARMLESS ERROR ANALYSIS

Even if we were to assume that Weibel’s in-court

identification of the defendant was improperly admit-

ted, however, we conclude that any due process viola-

tion was harmless beyond a reasonable doubt. See State

v. Artis, 314 Conn. 131, 154, 101 A.3d 915 (2014)

(‘‘because of the constitutional magnitude of the error,

the burden falls on the state to prove that the admission

of the tainted identification was harmless beyond a

reasonable doubt’’). A constitutional error is harmless

when it is ‘‘clear beyond a reasonable doubt that the

jury would have returned a guilty verdict without the

impermissible [evidence] . . . .’’ (Internal quotation

marks omitted.) State v. Montgomery, 254 Conn. 694,

718, 759 A.2d 995 (2000). ‘‘That determination must be

made in light of the entire record [including the strength

of the state’s case without the evidence admitted in

error].’’ (Internal quotation marks omitted.) Id.

The following facts and procedural history, some of

which we have already discussed, are relevant to our

analysis. Lyles testified at trial that, before the robbery

at issue in the present case, he had engaged in similar

robberies with the help of a friend whom he knew only

as ‘‘Black.’’ On the evening of January 9, 2010, at about

8 p.m., he was at the apartment of a friend, Stephanie

Perez, at 455 Trumbull Avenue in Bridgeport. Reyes

was also at the apartment. At approximately 9 p.m., the

defendant and the defendant’s sister arrived. Lyles had

known the defendant his entire life because their moth-

ers were close friends. At some point, Lyles left the

apartment and the defendant and Reyes followed him.

Lyles told the men that he was planning a robbery and

they indicated that they wanted to participate. Lyles was

armed with a .40 caliber Smith and Wesson handgun,

the defendant carried a .38 caliber revolver, and Reyes

carried a paintball gun that looked like an assault rifle.

Lyles had supplied the weapons. After leaving the apart-

ment, the three men proceeded to Terrace Circle in

Bridgeport, where the events previously described in

this opinion occurred. As Lyles and Reyes were leaving

the scene after the robbery, the defendant was holding

his gun to Weibel’s head. Lyles then heard two gunshots.

He and Reyes returned to the parking lot behind the

apartment building at 455 Trumbull Avenue and got

into a Cadillac owned by Perez. Approximately two

minutes later, the defendant joined them. They then

drove to the residence of Lyles’ friend ‘‘L’’ on Louis

Street in the south end of Bridgeport. At that point,

Lyles asked the defendant about the shooting and the

defendant stated that he had shot Weibel in the head

and leg ‘‘because we didn’t get any money.’’ Both Weibel

and Shaw were able to identify Lyles and their testimony

at trial corroborated Lyles’ testimony concerning the

events at Terrace Circle, specifically, that Lyles was not

the shooter.

Lyles further testified at trial that he was currently

incarcerated and that, as a result of the incident on the

night of January 9, 2010, he had been charged with

accessory to assault in the first degree, robbery in the

first degree, larceny in the fifth degree, violation of

probation, attempted murder and conspiracy to commit

robbery. He had negotiated a tentative plea agreement

with the state, which had not yet been signed, pursuant

to which he would be sentenced to fifteen years impris-

onment, suspended sometime between three and seven

years, with five years probation. He had also signed an

agreement to cooperate with the state in its investiga-

tion of the present case. Pursuant to that agreement,

if Lyles testified untruthfully at trial, he would serve

the maximum sentence.

On cross-examination, defense counsel asked Lyles

how he could be sentenced to the maximum sentence of

approximately forty years imprisonment if he testified

untruthfully when he had not yet pleaded guilty to the

charges. Lyles acknowledged that the maximum sen-

tence was not reflected in his agreement to testify. He

also acknowledged that the police were investigating

the three robberies that he had committed with ‘‘Black’’

and that he would not be charged in any of those cases.

Lyles denied that ‘‘Black’’ was his cousin, Rasheem

Davis, who was the only other person who had access

to the e-mail account that Lyles had used to lure his

robbery victims. Lyles admitted that he had been

arrested in December, 2009, after he helped Perez steal

items from a department store where he was employed,

and that he had not been charged with another theft

from that store. He further admitted that he had lied

repeatedly to the police during their investigation of the

present case.37 On redirect examination, Lyles testified

that he had lied to the police before he entered into

the agreement to cooperate with the state requiring him

to speak truthfully.

The defendant presented alibi evidence in the form

of testimony by his mother and his aunt that he had been

with his family at a sports bar in Bridgeport watching a

playoff game between the Philadelphia Eagles and the

Dallas Cowboys on the evening of January 9, 2010.

The defendant’s mother testified that kickoff was at

approximately 8:30 or 9 p.m., but she did not testify as

to whether the defendant was in the bar at that time.38

The defendant’s aunt testified that the defendant arrived

at the bar before kickoff, but she could not remember

the precise time.39 The defendant left the bar with his

mother when the game ended at approximately 11:30

p.m. The defendant’s mother remembered the evening

very clearly because she was an ardent Eagles fan and

her husband was an ardent Cowboys fan. When the

Cowboys defeated the Eagles in that football game, the

defendant’s mother and father had an intense argument.

The defendant’s aunt specifically recalled that the

defendant left the bar with his mother because he stated

that he was going to have to act as a referee when they

got home.

As we have indicated previously, Weibel acknowl-

edged at trial that he had been unable to identify the

defendant from a photographic array approximately

one year after the shooting. During closing argument,

the prosecutor argued that Weibel’s in-court identifica-

tion of the defendant was nevertheless credible because

‘‘[l]ooking at photographs is very different from looking

at people. We look different from photographs.’’ The

prosecutor also stated, ‘‘What kind of an impression

did those moments of being hit with the gun and being

shot make on [Weibel]? What burned into his mind—

what image burned into his mind at that point, but the

face of the person who shot him.’’ Defense counsel

argued that, to the contrary, the in-court identification

was unreliable because Weibel had been unable to iden-

tify the defendant in the photographic array, the crime

scene was dark, and the identification was not corrobo-

rated by other evidence. Defense counsel further con-

tended that, because the defendant was the only black

male sitting in the courtroom other than the uniformed

marshal, and because the defendant was sitting at the

table with defense counsel, the in-court identification

‘‘[was] practically a neon light pointed to the [defen-

dant] . . . .’’ The trial court gave a lengthy instruction

on eyewitness identification testimony in which it

stated that certainty did not correlate to accuracy and

that, in determining what weight to give to Weibel’s

identification, the jury could consider the sugges-

tiveness of the identification procedure, the fact that

the eyewitness had failed to identify the defendant in

a photographic array, and the fact that a lineup proce-

dure is generally more reliable than a one-on-one

showup.40

We conclude on the basis of this record that it is

clear beyond a reasonable doubt that the jury would

have returned a guilty verdict even without Weibel’s in-

court identification of the defendant. First, although

the defendant presented evidence that Lyles had lied

to the police in the past, there is no evidence that Lyles

made any material misrepresentations or misstate-

ments during his testimony at trial. Second, although

Lyles clearly had a motive to cooperate with the state,

the record does not reveal any motive for Lyles to have

falsely identified the defendant as Weibel’s assailant.41

Both Weibel and Shaw testified unequivocally that Lyles

was not the person who had shot Weibel, and Lyles

did not deny his involvement in the crime. Thus, Lyles

clearly was not attempting to shift blame from himself

to the defendant. In addition, the undisputed evidence

shows that Lyles had known the defendant his entire

life and had been on friendly terms with him. Thus,

there is no evidence that Lyles had a motive to harm

the defendant. Third, Lyles’ testimony regarding the

events on the night in question was corroborated in all

material respects by Weibel and Shaw. Fourth, neither

of the alibi witnesses testified unequivocally that the

defendant had been in the sports bar with his family

at 9:30 p.m. on January 9, 2010, when the crime

occurred. See footnotes 38 and 39 of this opinion. More-

over, to the extent that the testimony of the defendant’s

mother and aunt would support that conclusion, both

witnesses had a clear motive to attempt to convince

the jury that the defendant was in the bar at that time.

Finally, the weaknesses in Weibel’s identification testi-

mony were highlighted both by the defendant during

closing argument and by the trial court in its jury

instructions. Accordingly, we conclude that the

improper admission of Weibel’s first time in-court iden-

tification was harmless. We therefore affirm the judg-

ment of the Appellate Court upholding the defendant’s

conviction on this alternative ground.

The judgment of the Appellate Court is affirmed.

In this opinion PALMER, EVELEIGH and McDON-

ALD, Js., concurred.

1

This court held in State v. Smith, supra, 200 Conn. 469, that ‘‘an in-court

testimonial identification need be excluded, as violative of due process,

only when it is tainted by an out-of-court identification procedure which is

unnecessarily suggestive and conducive to irreparable misidentification.’’

2

For purposes of this opinion, we refer to an identification procedure

that is not unnecessarily suggestive as a nonsuggestive procedure.

3

Hereinafter, we refer to in-court identifications in cases in which the

witness has not successfully identified the defendant in a prior out-of-court

identification procedure as first time in-court identifications.

4

The Appellate Court concluded that the defendant had abandoned his

claim under the state constitution. State v. Dickson, supra, 150 Conn. App.

642 n.5.

5

Because we agree with the defendant’s alternative claim that Smith must

be overruled to the extent that it applies to cases in which the state has

conducted a first time in-court identification, we need not address this claim.

6

In his concurring opinion, Justice Robinson, quoting Moore v. McNamara,

201 Conn. 16, 20, 513 A.2d 660 (1986), contends that ‘‘[t]his court has a basic

judicial duty to avoid deciding a constitutional issue if a nonconstitutional

ground exists that will dispose of the case.’’ (Internal quotation marks omit-

ted.) In most of the cases that he cites in support of this principle, however,

the court had been asked to invalidate a legislative enactment as unconstitu-

tional when there were nonconstitutional grounds on which the case could

be decided. In such circumstances, respect for a coordinate branch of govern-

ment and constitutional separation of powers principles mandate that we

avoid reaching the constitutional question. See Moore v. McNamara, supra,

21 (‘‘[a]ppropriate deference to a coordinate branch of government exercis-

ing its essential functions demands that we refrain from deciding constitu-

tional challenges to its enactments until the need to do so is plainly evident’’

[internal quotation marks omitted]).

These principles have no application in cases in which the state action

is claimed to be unconstitutional, but may be found harmless beyond a

reasonable doubt. Rather, the principle underlying the avoidance of constitu-

tional questions in such cases is judicial economy and convenience. See

United States v. Hasting, 461 U.S. 499, 509, 103 S. Ct. 1974, 76 L. Ed. 2d 96

(1983) (purpose of avoiding constitutional questions when unconstitutional

act was harmless ‘‘is to conserve judicial resources by enabling appellate

courts to cleanse the judicial process of prejudicial error without becoming

mired in harmless error’’ [internal quotation marks omitted]); State v. Gold-

ing, 213 Conn. 233, 242, 567 A.2d 823 (1989) (same); see also State v. Jordan,

314 Conn. 89, 101, 101 A.3d 179 (2014) (‘‘we conclude that the present case

does not require us to weigh in on this debate’’ because, even assuming that

action was unconstitutional, it was harmless [emphasis added]). Because this

principle is for the benefit of the reviewing court, the court is free to disregard

it when appropriate. Indeed, this court and the Appellate Court have not

hesitated to find a constitutional violation when the violation was harmless.

See, e.g., State v. Hampton, 293 Conn. 435, 463, 988 A.2d 167 (2009); State

v. Montgomery, 254 Conn. 694, 716, 759 A.2d 995 (2000); State v. Daugaard,

231 Conn. 195, 213, 647 A.2d 342 (1994), cert. denied, 513 U.S. 1099, 115 S.

Ct. 770, 130 L. Ed. 2d 666 (1995); State v. Peloso, 109 Conn. App. 477, 495,

952 A.2d 825 (2008); State v. Coleman, 14 Conn. App. 657, 675–76, 544 A.2d

194, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988).

In the present case, because the constitutional issue raised by the defen-

dant is of such great importance, and because first time in-court identifica-

tions are occurring on a regular basis, we do not have the luxury of waiting

for a case in which this practice actually deprived the defendant of his

constitutional right to a fair trial. Rather, the pressing need for guidance in

the trial court through a constitutional rule outweighs considerations of

judicial economy or convenience. Accordingly, we conclude that we must

address the issue.

Finally, contrary to Justice Robinson’s contention, we have not defended

our decision to address the constitutional issue raised by the defendant by

relying on the United States Supreme Court’s certiorari process. By pointing

out that that court has the authority to overrule our decision, either in an

appeal from our decision in the present case or in an appeal from the

decision of another court on the same issue, we are simply responding to

Justice Zarella’s contention that we have somehow exceeded our authority

to interpret the federal constitution by adopting a prophylactic constitutional

rule. See footnote 11 of this opinion. To the contrary, our conclusion is

entirely consistent with the notion that state courts provide valuable incuba-

tors for federal constitutional issues. S. Woodward, ‘‘The Remedy for A

‘Nollan/Dolan Unconstitutional Conditions Violation,’ ’’ 38 Vt. L. Rev. 701,

713 n.75 (2014) (‘‘[s]tate courts have been the incubators for what later

becomes incorporated into the [f]ederal [c]onstitution’’).

7

Hereinafter, we refer to these factors as the Biggers factors.

8

We address the state’s claim that the United States Supreme Court’s

decision in Perry v. New Hampshire, supra, 132 S. Ct. 716, addressed this

question later in this opinion.

9

See Gilbert v. California, 388 U.S. 263, 272 n.3, 87 S. Ct. 1951, 18 L. Ed.

2d 1178 (1967) (out-of-court ‘‘identification has greater probative value than

an identification made in the courtroom after the suggestions of others and

the circumstances of the trial may have intervened to create a fancied

recognition in the witness’ mind’’ [internal quotation marks omitted]); United

States v. Greene, 704 F.3d 298, 306 (4th Cir.) (‘‘ ‘[P]ressured to help solve

a heinous crime, often conscious of a duty to do so, and eager to be of

assistance, a potential witness may be readily receptive to subtle, even

circumstantial, insinuation that the person viewed is the culprit. Unless such

a witness is far more introspective than most, and something of a natural-

born psychologist, he is usually totally unaware of all of the influences that

result in his [saying], ‘‘That is the man.’’ ’ ’’), cert. denied, U.S. , 134 S.

Ct. 419, 187 L. Ed. 2d 279 (2013); United States v. Rogers, 126 F.3d 655, 658

(5th Cir. 1997) (‘‘it is obviously suggestive to ask a witness to identify a

perpetrator in the courtroom when it is clear who is the defendant’’); United

States v. Archibald, 734 F.2d 938, 941 (‘‘[a]ny witness, especially one who

has watched trials on television, can determine which of the individuals in

the courtroom is the defendant’’), modified, 756 F.2d 223 (2d Cir. 1984);

State v. Smith, supra, 200 Conn. 468–69 (‘‘[a]ny one-on-one in-court identifi-

cation of an accused conveys the message that the state has arrested and

placed on trial a person it believes has committed the crime’’); State v.

Frost, 105 Conn. 326, 341, 135 A. 446 (1926) (‘‘[a]n identification of an

accused made publicly for the first time by a witness in court . . . may be

open to question, but if it be shown that the witness identified the accused

previously and the first time after his arrest or incarceration and under

circumstances which removed the suspicion of unfairness or unreliability,

the prior identification, together with the circumstances surrounding its

making, will be of utmost aid in determining the trustworthiness of the

identification made in the court room’’); State v. Frost, supra, 341 (‘‘Ordi-

narily, when a witness is asked to identify the assailant, or thief, or other

person who is the subject of his testimony, the witness’ act of pointing out

then and there the accused [or other person] is of little testimonial force.

After all that has intervened, it would seldom happen that the witness would

not have come to believe in the person’s identity.’’ [Emphasis omitted;

internal quotation marks omitted.]); Middleton v. United States, 401 A.2d

109, 132 (D.C. App. 1979) (in-court identification is ‘‘by its very nature . . .

extremely suggestive’’); Commonwealth v. Wheeler, 3 Mass. App. 387, 390,

331 N.E.2d 815 (1975) (‘‘any in-court identification confrontation . . . car-

ries with it the stigma of the inevitable suggestion that the state thinks the

defendant has committed the crime’’ [internal quotation marks omitted]);

E. Mandery, ‘‘Due Process Considerations of In-Court Identifications,’’ 60

Alb. L. Rev. 389, 416 (1996) (‘‘[t]he pressure of being asked to make an

identification in the formal courtroom setting and the lack of anonymity,

create conditions under which a witness is most likely to conform his or

her recollection to expectations, either by identifying the particular person

whom he or she knows the authorities desire identified, or by acting in

conformity with the behavior of others they may have seen on television

or in movies or read of in books’’).

We recognize that a number of courts have concluded otherwise. See E.

Mandery, supra, 60 Alb. L. Rev. 405 n.122 (collecting cases). In our view,

however, to conclude that telling an eyewitness who is on the stand and

who previously had not had an opportunity to identify the defendant, or

who had such an opportunity, but was unable to do so, that the state believes

that this is the person who committed the crime is not suggestive simply

defies common sense.

10

We also note that, in 2011, the legislature enacted General Statutes § 54-

1p; see Public Acts 2011, No. 11-252, § 1; which governs the procedures that

the police must use when conducting photographic arrays and live lineups.

This statute demonstrates a clear legislative concern that suggestive identifi-

cation procedures are a significant cause of erroneous convictions and

should be eliminated to the extent possible.

11

Thus, we conclude for the first time today that any first time in-court

identification by a witness who would have been unable to reliably identify

the defendant in a nonsuggestive out-of-court procedure constitutes a proce-

dural due process violation. This is contrary to the holding of Smith that

only in-court identifications that are tainted by an unduly suggestive out-

of-court identification violate due process principles. Although we recognize

that, when the witness could have identified the defendant in a nonsuggestive

procedure, a first time in-court identification does not constitute an actual

violation of due process principles, this court has an obligation to adopt

procedures that will eliminate the risk that the defendant will be deprived

of a constitutionally protected right by being identified in court by a witness

who could not have identified the defendant in a fair proceeding. Indeed,

it is well established that courts have the duty not only to craft remedies for

actual constitutional violations, but also to craft prophylactic constitutional

rules to prevent the significant risk of a constitutional violation. See Montejo

v. Louisiana, 556 U.S. 778, 793, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009)

(recognizing authority of court to create prophylactic constitutional rule

when benefits of rule outweigh costs); Oregon v. Elstad, 470 U.S. 298, 305,

105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985) (rule set forth in Miranda v. Arizona,

384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966], is prophylactic and was

intended to provide ‘‘practical reinforcement for the [f]ifth [a]mendment

right’’ [internal quotation marks omitted]); State v. Jenkins, 298 Conn. 209,

280, 3 A.3d 806 (2010) (considering defendant’s request for prophylactic

constitutional rule); see also B. Landsberg, ‘‘Safeguarding Constitutional

Rights: The Uses and Limits of Prophylactic Rules,’’ 66 Tenn. L. Rev. 925,

950 (1999) (prophylactic constitutional rules ‘‘are predicated on a judicial

judgment that the risk of a constitutional violation is sufficiently great that

simple case-by-case enforcement of the core right is insufficient to secure

that right’’); S. Klein, ‘‘Identifying and (Re)formulating Prophylactic Rules,

Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure,’’

99 Mich. L. Rev. 1030, 1032–33 (2001) (‘‘A ‘constitutional prophylactic rule’

is a judicially-created doctrinal rule or legal requirement determined by the

[c]ourt as appropriate for deciding whether an explicit or ‘true’ federal

constitutional rule is applicable. It may be triggered by less than a showing

that the explicit rule was violated, but provides approximately the same

result as a showing that the explicit rule was violated. It is appropriate only

upon two determinations: first, that simply providing relief upon a showing

that the explicit right was violated is ineffective; second, that use of this

rule will be more effective and involve only acceptable costs.’’). In the

present case, we conclude that the practice of allowing first time in-court

identifications creates a significant risk of a due process violation and that

the procedures that we adopt herein are more effective at preventing such

violations, less costly and more in keeping with the legislative will than any

other alternative.

We further note that, as the United States Supreme Court recognized in

Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed. 2d 405

(2000), the fact that a rule is designed to prophylactically prevent constitu-

tional violations and is not itself constitutionally mandated ‘‘in the sense

that nothing else will suffice to satisfy constitutional requirements’’; id., 442;

does not mean that the rule does not have the force of a constitutional rule.

See id., 444 (‘‘Miranda announced a constitutional rule that Congress may

not supersede legislatively’’). Thus, the adoption of prophylactic constitu-

tional rules does not constitute an exercise of supervisory authority. See

id., 437 (‘‘[t]his case . . . turns on whether the Miranda [c]ourt announced

a constitutional rule or merely exercised its supervisory authority’’); id., 438

(Miranda is binding on state courts, which would not be true if rule were

merely supervisory). In the present case, for example, although it is arguable

that the legislature constitutionally could enact procedures that are different

from the procedures that we adopt herein if the procedures were equally

effective at preventing inherently unreliable first time in-court identifica-

tions, the legislature could not constitutionally enact legislation providing

that first time in-court identifications are categorically admissible, because

we have concluded that first time in-court identifications violate constitu-

tional due process principles when the witness would have been unable to

identify the defendant in a fair procedure. See id., 442 (federal statute

overruling Miranda was unconstitutional because it created test for admissi-

bility of confession that court had found constitutionally unacceptable in

Miranda); B. Landsberg, supra, 66 Tenn. L. Rev. 950 (Prophylactic rules

‘‘are best characterized as hybrid rules. They are based on the [c]onstitution

because they are predicated on a judicial judgment that the risk of a constitu-

tional violation is sufficiently great that simple case-by-case enforcement

of the core right is insufficient to secure that right. . . . However, there

may be myriad ways to reach the objective of safeguarding constitutional

rights. The [c]ourt acts in a legislative fashion when it chooses a particular

method. The [c]onstitution may demand imposition of a prophylactic rule,

but it does not demand a particular one.’’ [Emphasis in original.]).

We are not persuaded by the Justice Zarella’s reliance on Justice Gins-

burg’s concurring opinion in Ohio v. Robinette, 519 U.S. 33, 40, 117 S. Ct.

417, 136 L. Ed. 2d 347 (1996), which, according to Justice Zarella, supports

the proposition that a state court lacks the authority to craft prophylactic

rules to protect rights guaranteed by the United States constitution. Justice

Ginsburg wrote that the rule under review in Robinette ‘‘seem[ed] to be a

prophylactic measure not so much extracted from the text of any constitu-

tional provision as crafted by the Ohio Supreme Court to reduce the number

of violations of textually guaranteed rights. In Miranda v. Arizona, [supra,

384 U.S. 436], this [c]ourt announced a similarly motivated rule as a minimal

national requirement without suggesting that the text of the [f]ederal [c]onsti-

tution required the precise measures the [c]ourt’s opinion set forth. See id.,

[467] (‘[T]he [c]onstitution [does not] necessarily requir[e] adherence to any

particular solution’ to the problems associated with custodial interroga-

tions.); see also Oregon v. Elstad, 470 U.S. 298, 306 [105 S. Ct. 1285, 84 L.

Ed. 2d 222] (1985) (‘The Miranda exclusionary rule . . . sweeps more

broadly than the [f]ifth [a]mendment itself.’). Although all parts of the United

States fall within this [c]ourt’s domain, the Ohio Supreme Court is not

similarly situated. That court can declare prophylactic rules governing the

conduct of officials in Ohio, but it cannot command the police forces of

sister [s]tates.’’ Ohio v. Robinette, supra, 43. We do not agree with Justice

Zarella that this language clearly indicates that Justice Ginsburg believed

that state courts lack the authority to adopt prophylactic rules to protect

rights guaranteed by the federal constitution. Rather, it appears to us that

Justice Ginsburg may have incorrectly assumed both that prophylactic rules,

like the one adopted in Miranda, are adopted pursuant to a court’s supervi-

sory powers and that supervisory rules adopted by the United States

Supreme Court are binding on the states. Although our decisions announcing

federal constitutional rules are, for reasons of federalism, not binding on

other state courts, it is beyond dispute that this court has the authority to

announce federal constitutional rules that, in our opinion, have force in all

jurisdictions; see, e.g., Giaimo v. New Haven, 257 Conn. 481, 509, 778 A.2d

33 (2001) (for purposes of invoking due process provisions of federal consti-

tution, ‘‘an applicant for a statutory benefit . . . has a protected property

interest in the benefit when, under the governing statute, the decision-

making body would have no discretion to deny the application if the applicant

could establish at a hearing that it met the statutory criteria’’); and we have

concluded in the present case that the procedures that we adopt herein are

required to protect due process rights under the federal constitution. Of

course, if other states disagree with our decision, they can decline to follow

it and, if the United States Supreme Court disagrees, that court has the

authority to overrule our decision. That would not mean, however, that we

lacked the authority to adopt prophylactic rules that we believe are necessary

to protect rights guaranteed by the federal constitution in the first instance.

In her concurring opinion, Justice Espinosa states that, by adopting this

prophylactic rule, we have ‘‘[laid] claim to a power that is without any

foundation,’’ and she suggests that our decision is ‘‘part of an emerging

pattern of judicial activism in this court.’’ There simply is no doubt, however,

that this court has the power to interpret the federal constitution and to

apply its interpretation to actions of the state and its constituent parts,

including prosecutors and trial courts. Indeed, Justice Espinosa and Justice

Zarella make no claim to the contrary, but simply disagree with our conclu-

sion that first time in-court identifications violate the due process provisions

of the federal constitution when the witness would not have been able to

identify the defendant in a nonsuggestive out-of-court procedure. In our

view, having found that first time in-court identifications implicate the due

process provisions of the federal constitution, it is indisputable that our

power to take steps to prevent such constitutional violations is an inherent

aspect of our basic constitutional function of interpreting the law, and

certainly does not constitute judicial activism. See Marbury v. Madison, 5

U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803) (‘‘[i]t is emphatically the province

and duty of the judicial department to say what the law is’’). To the contrary,

to stand back and permit prosecutors and trial courts to engage in a practice

that creates a significant risk that defendants will be deprived of their

constitutional right to a fair trial would be an abdication of our constitu-

tional duty.

12

But see United States v. Davis, 103 F.3d 660, 670 (8th Cir. 1996) (conclud-

ing that in-court identification procedure, although suggestive, is ‘‘not so

impermissibly suggestive as to lead to a likelihood of irreparable misidentifi-

cation’’), cert. denied, 520 U.S. 1258, 117 S. Ct. 2424, 138 L. Ed. 2d 187 (1997).

In Davis, the United States Court of Appeals for the Eighth Circuit did not

refer to its prior holding to the contrary in United States v. Rundell, supra,

858 F.2d 427.

13

Although the witness in Smith was not entirely certain of her identifica-

tion of the defendant in the pretrial identification procedure; see State v.

Smith, supra, 200 Conn. 467; we conclude later in this opinion that uncertain

identifications are admissible unless the witness was so uncertain that the

identification amounted to a failure to identify the defendant.

14

See, e.g., United States v. Bush, 749 F.2d 1227, 1232 (7th Cir. 1984) (first

time in-court identification is not so inherently suggestive that, standing

alone, it triggers due process protections), cert. denied, 470 U.S. 1058, 105

S. Ct. 1771, 84 L. Ed. 2d 831 (1985); Baker v. Hocker, 496 F.2d 615, 617 (9th

Cir. 1974) (‘‘[t]he danger posed by a courtroom identification is insufficient

to require’’ due process protections); Byrd v. State, 25 A.3d 761, 767 (Del.

2011) (‘‘we join the majority of courts in concluding that the two-step Biggers

analysis does not apply to in-court identifications that do not come following

an impermissibly suggestive pretrial identification’’); State v. King, 156 N.H.

371, 376, 934 A.2d 556 (2007) (‘‘we join the apparent majority of courts in

concluding that . . . Biggers does not apply to in-court identifications’’

[internal quotation marks omitted]); State v. Lewis, 363 S.C. 37, 42, 609

S.E.2d 515 (2005) (‘‘[w]e conclude, as the majority of courts have, that . . .

Biggers does not apply to in-court identifications’’); E. Mandery, supra, 60

Alb. L. Rev. 400 (as of 1997, majority of courts had concluded that in-

court identifications ordinarily do not trigger due process protections); E.

Mandery, supra, 402–404 and nn.108 through 113, and 115 (citing cases).

15

See, e.g., Perry v. New Hampshire, supra, 132 S. Ct. 723 (referring to

‘‘suggestive circumstances not arranged by the police’’); id., 723–24 (referring

to ‘‘police-arranged identification procedures’’); id., 724 (‘‘[e]ven when the

police use [an unfair identification] procedure . . . suppression of the

resulting identification is not the inevitable consequence’’).

16

Before the probable cause hearing, the eyewitness had been shown ‘‘a

photographic array that included the defendant’s picture, but he declined

to identify anyone, explaining that he preferred to see the individuals in

person.’’ State v. Tatum, supra, 219 Conn. 724. The court in Tatum stated

that, ‘‘[a]t the probable cause hearing, both parties referred to [a previous

in person lineup] . . . from which [the eyewitness] failed to select anyone

as his assailant. Since there is no other mention of such a procedure any-

where in the trial record or in any of the appellate briefs, we exclude it

from our recitation of the background facts.’’ Id., 724–25 n.7.

17

The constitution of Connecticut, article first, § 8, as amended by articles

seventeen and twenty-nine of the amendments, provides: ‘‘In all criminal

prosecutions, the accused shall have a right to be heard by himself and by

counsel; to be informed of the nature and cause of the accusation; to be

confronted by the witnesses against him; to have compulsory process to

obtain witnesses in his behalf; to be released on bail upon sufficient security,

except in capital offenses, where the proof is evident or the presumption

great; and in all prosecutions by information, to a speedy, public trial by

an impartial jury. No person shall be compelled to give evidence against

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

law, nor shall excessive bail be required nor excessive fines imposed. No

person shall be held to answer for any crime, punishable by death or life

imprisonment, unless upon probable cause shown at a hearing in accordance

with procedures prescribed by law, except in the armed forces, or in the

militia when in actual service in time of war or public danger.’’

18

General Statutes (Rev. to 1991) § 54-46a (a) provides: ‘‘No person

charged by the state, who has not been indicted by a grand jury prior to

May 26, 1983, shall be put to plea or held to trial for any crime punishable

by death or life imprisonment unless the court at a preliminary hearing

determines there is probable cause to believe that the offense charged has

been committed and that the accused person has committed it. The accused

person may knowingly and voluntarily waive such preliminary hearing to

determine probable cause.’’

19

Of course, if an eyewitness was unable to provide any of these details

before the court proceeding, asking him to provide them at the proceeding

would present the same problem as a first time in-court identification.

Specifically, the witness could simply describe the defendant who was facing

the witness in court. Because this problem is not presented in the present

case, we need not address it.

20

See, e.g., United States v. Domina, 784 F.2d 1361, 1368–69 (9th Cir.

1986) (trial court has discretion to allow in-court lineup or other procedure

to reduce suggestiveness of in-court identification), cert. denied, 479 U.S.

1038, 107 S. Ct. 893, 93 L. Ed. 2d 845 (1987); United States v. Sebetich, 776 F.2d

412, 420–21 (3d Cir. 1985) (requiring government to conduct nonsuggestive

identification procedures in lieu of one-on-one in-court identification ‘‘will

not be unduly burdensome, and their potential benefits would . . . out-

weigh any additional time or complexity at trial’’), cert. denied, 484 U.S.

1017, 108 S. Ct. 725, 98 L. Ed. 2d 673 (1988); United States v. Archibald,

supra, 734 F.2d 942 (‘‘[a] fairly short delay of proceedings was all that would

have been required to rearrange the seating in the courtroom and to secure

the presence of some people of the defendant’s approximate age and

skin color’’).

21

The state contends that it is unclear what type of procedure would

qualify as nonsuggestive and whether the persons in the lineup or photo-

graphic array should resemble the defendant at the time of trial or at the

time of the crime. The case law is replete, however, with guidance on what

constitutes a suggestive identification procedure. See United States v. Wade,

supra, 388 U.S. 232–33, 232 nn.18 through 23 (citing cases in which suggestive

procedures are described). Moreover, § 54-1p expressly describes proce-

dures for avoiding undue suggestiveness. If the defendant’s appearance has

changed since the time of the crime, the state has the option of producing

a photographic array with photographs of the defendant as he appeared at

the time of the crime and similar looking individuals or of conducting a

lineup with individuals who look similar to the defendant at the time of the

trial. If the defendant’s appearance has changed so much from the time of

the crime that the eyewitness would not be able to recognize the defendant

in a nonsuggestive lineup, it is no solution to allow the state to conduct a

suggestive in-court identification. The possibility of the defendant’s appear-

ance changing over time is one of many reasons that the state should conduct

an identification procedure at the earliest possible time when identity is at

issue in a case. United States ex rel. Stovall v. Denno, 355 F.2d 731, 738

(2d Cir. 1966) (‘‘interests of the accused and society alike demand that the

opportunity to identify be afforded at the earliest possible moment when

the likelihood of an accurate identification is greatest’’), aff’d, 388 U.S. 293,

87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967).

The state also contends in its supplemental brief that ‘‘[p]olice have largely

stopped using live lineups because of the practical obstacles, and, even

more importantly, because the criteria for nonsuggestiveness have tightened

so much that live lineups can rarely satisfy them.’’ (Emphasis in original.)

Even if it is true that police have stopped using lineups because it is difficult

to conduct them in a nonsuggestive manner, that, again, is no reason to

allow a highly suggestive in-court identification. Indeed, if police have

stopped using live lineups, it may be because they know that, under Smith,

a suggestive lineup may result in the exclusion of both the out-of-court and

the in-court identification, while, if there is no pretrial lineup, the witness can

be asked to identify the defendant for the first time in the highly suggestive

courtroom setting.

22

The state also contends that in-court identifications pose no undue risk

of error because they are subject to cross-examination, expert testimony,

arguments and jury instructions. This does not distinguish in-court identifica-

tions from out-of-court identifications that are the result of unnecessarily

suggestive procedures, however, and such identifications trigger due pro-

cess protections.

23

The state further contends in its brief that, ‘‘[t]raditionally, in-court

identifications were the admissible identification evidence. Many courts held

that evidence of out-of-court identifications [were] inadmissible because

[they were] hearsay . . . [impermissible bolstering of in-court identifica-

tion] or prejudicial . . . .’’ (Citations omitted; emphasis in original.) In order

for that evidentiary rule to apply, however, there had to have been a prior

out-of-court identification. In such cases, the in-court identification would

not be unnecessarily suggestive.

24

See also Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158

L. Ed. 2d 177 (2004) (holding for first time that, under sixth amendment

confrontation clause, testimonial evidence is admissible only when witness

is unavailable to testify at trial and defendant had prior opportunity for

cross-examination); Ring v. Arizona, 536 U.S. 584, 609, 122 S. Ct. 2428, 153

L. Ed. 2d 556 (2002) (holding for first time that sixth amendment prohibits

sentencing judge from finding aggravating circumstance necessary for impo-

sition of death penalty); Taylor v. Louisiana, 419 U.S. 522, 534, 95 S. Ct.

692, 42 L. Ed. 2d 690 (1975) (holding for first time that defendant’s sixth

amendment right to jury drawn from fair cross section of community pre-

cludes state from systematically excluding women from jury service).

25

Thus, contrary to Justice Zarella’s suggestion, we do not rely on ‘‘evolving

social science.’’ See footnote 4 of Justice Zarella’s concurring opinion.

Rather, we rely on black letter law holding that suggestive identification

procedures raise due process concerns.

26

See United States v. Wade, supra, 388 U.S. 222 (‘‘[t]he prohibition of

compelling a man in a criminal court to be witness against himself is a

prohibition of the use of physical or moral compulsion to extort communica-

tions from him, not an exclusion of his body as evidence when it may be

material’’ [internal quotation marks omitted]); United States ex rel. Stovall

v. Denno, 355 F.2d 731, 737 (2d Cir. 1966) (‘‘[t]he principle that an arrested

person may be exhibited for identification to the person injured by the

commission of the crime . . . is so consistent with fundamental fairness

both to the accused and society that there is little point in further elaboration

except to take notice that the law sanctions many methods of identification

which do not invade the field of testimonial compulsion such as the use of

fingerprints and photographs, including photographs of body scars’’ [cita-

tions omitted; internal quotation marks omitted]), aff’d, 388 U.S. 293, 87 S.

Ct. 1967, 18 L. Ed. 2d 1199 (1967).

27

After oral argument before this court, the state filed a motion for permis-

sion to file a supplemental brief in which it argued that, because the only

remedies that the defendant sought in the present case were preclusion of

Weibel’s in-court identification or a nonsuggestive in-court identification

procedure, the state was not on notice that this court would adopt alternative

procedures to protect the due process rights of defendants if we overruled

State v. Smith, supra, 200 Conn. 465, and concluded that first time in-court

identifications implicate due process rights. Specifically, the state contended

that it had ‘‘no notice of the possibility that this [c]ourt would craft a rule

requiring the prescreening [of] lineups for some category of freestanding

in-court identifications outside the jury’s presence.’’ Accordingly, the state

sought permission to file a supplemental brief addressing the feasibility of

those alternative procedures. This court granted the state’s motion. As we

previously have indicated in this opinion, contrary to the state’s contention

in its supplemental brief, we see no reason why an out-of-court lineup or

photographic array would not be a feasible procedure to avoid the inherent

suggestiveness and potential unreliability of an in-court identification. In

any event, the state conceded in its motion for permission to file a supplemen-

tal brief that the defendant had asked this court to preclude in-court identifi-

cations entirely. Thus, by identifying procedures by which the state may

avoid preclusion of an in-court identification, we are broadening the range

of options that are available to the state. If the state believes in any particular

case that the costs of seeking an out-of-court identification will outweigh

the benefits of presenting an in-court identification, it may choose not to

take advantage of those procedures.

Justice Zarella states conclusorily that ‘‘the parties have not had the

opportunity to brief the issue of whether to adopt [the prescreening proce-

dures that we adopt herein] . . . .’’ See footnote 3 of Justice Zarella’s concur-

ring opinion. As the foregoing procedural history shows, however, the parties

were afforded ample opportunity to brief both the questions of whether

first time in-court identifications implicate due process principles and, if

so, what the proper remedy should be.

28

For example, in the present case, although the defendant disputes Lyles’

testimony that the defendant was Weibel’s assailant, he does not dispute

Lyles’ ability to identify him. Accordingly, Lyles was properly permitted to

make a first time in-court identification of the defendant.

29

We reject the defendant’s suggestion that a first time in-court identifica-

tion may be allowed if the trial court determines that the identification

would be reliable under the Biggers factors. Biggers traditionally has been

applied when the witness’ ability to make a reliable in-court identification has

already been tainted by an unnecessarily suggestive identification procedure

that the trial court was powerless to prevent. In our view, it would make

little sense for the trial court to perform a Biggers analysis to determine

whether it should permit the state to conduct an unnecessarily suggestive

procedure in the future when other, nonsuggestive alternatives are available.

30

Although it is impossible to catalogue all of the reasons that might

justify allowing an eyewitness to make another attempt to identify the

defendant, a second procedure might be justified, for example, when the

witness failed to identify the defendant in a photographic array and the

state wants to conduct a lineup, or when the witness was threatened or

intimidated before the first attempt.

31

Of course, if the state has conducted an out-of-court identification proce-

dure in compliance with the procedures that we adopt herein and the defen-

dant contends that the procedure was unnecessarily suggestive, the court

must then determine whether the identification procedure was, in fact,

unnecessarily suggestive and, if so, whether the identification was neverthe-

less sufficiently reliable to be admissible under the Biggers factors.

32

But see Commonwealth v. Collins, supra, 470 Mass. 262–63 (if eyewit-

ness lacked confidence in out-of-court identification, in-court identification

is barred because witness may ‘‘regard the defendant’s prosecution as confir-

mation that the defendant is the ‘right’ person and, as a result, may develop

an artificially inflated level of confidence in [his or her] in-court identifica-

tion’’). We disagree with the court’s conclusion in Collins. Rather, because

any inconsistencies between the eyewitness’ level of confidence at the initial

identification and at the in-court identification can be brought out on cross-

examination, that is a sufficiently effective tool under these circumstances

to counter the inherent suggestiveness of the in-court identification. More-

over, the defendant can present expert testimony that there is a weak

correlation between confidence and accuracy, that memory degrades over

time, and that ‘‘witnesses may develop unwarranted confidence in their

identifications if they are privy to postevent or postidentification information

. . . .’’ State v. Guilbert, supra, 306 Conn. 253.

33

Some older United States Supreme Court cases hold that prophylactic

constitutional rules are prospective only. See Michigan v. Payne, 412 U.S.

47, 93 S. Ct. 1966, 36 L. Ed. 2d 736 (1973) (declining to apply prophylactic

rule set forth in North Carolina v. Pearce, 395 U.S. 711, 723–26, 89 S. Ct.

2072, 23 L. Ed. 2d 656 [1969], retroactively to cases pending on direct review);

Johnson v. New Jersey, 384 U.S. 719, 732, 86 S. Ct. 1772, 16 L. Ed. 2d 882

(1966) (declining to apply prophylactic rule set forth in Miranda v. Arizona,

384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966], retroactively

to cases pending on direct review). We do not believe that these cases are

compatible with the United States Supreme Court’s later decision in Griffith.

See People v. Harris, 123 Ill. 2d 113, 130, 526 N.E.2d 335 (1988) (implying

that Johnson was overruled by Griffith); but see Cowans v. Bagley, 624 F.

Supp. 2d 709, 734–36 (S.D. Ohio 2008) (assuming that prophylactic rules,

such as that set forth in Miranda, are not grounded in federal constitution

and concluding that Griffith applies only to rules required by federal consti-

tution). No less than when a new rule is designed to remedy a constitutional

violation, when a new rule is designed to prevent the significant risk of a

constitutional violation, ‘‘the integrity of judicial review requires that we

apply that rule to all similar cases pending on direct review.’’ Griffith v.

Kentucky, supra, 479 U.S. 323; see also Dickerson v. United States, 530 U.S.

428, 444, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000) (‘‘Miranda announced a

constitutional rule’’). Indeed, the new rule that was at issue in Griffith was

the rule set forth in Batson v. Kentucky, 476 U.S. 79, 97, 106 S. Ct. 1712,

90 L. Ed. 2d 69 (1986), requiring a prosecutor to provide a neutral explanation

for the use of a peremptory challenge to strike a member of the defendant’s

race from the jury venire, reasonably could be characterized as a prophylac-

tic rule. See B. Landsberg, ‘‘Safeguarding Constitutional Rights: The Uses and

Limits of Prophylactic Rules,’’ 66 Tenn. L. Rev. 925, 939 (1999) (characterizing

Batson rule as at least partially prophylactic).

34

The new rule would not apply, however, on collateral review. This

question is governed by the framework set forth in Teague v. Lane, 489 U.S.

288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). See Casiano v. Commissioner

of Correction, 317 Conn. 52, 62, 115 A.3d 1031 (2015). Under Teague, a

‘‘new’’ constitutional rule, i.e., a rule that ‘‘was not dictated by precedent

existing at the time the defendant’s conviction became final,’’ generally does

not apply retroactively. (Internal quotation marks omitted.) Id. There are

two exceptions, however, to this general rule. Specifically, a new rule will

apply retroactively if it is substantive or, if the new rule is procedural, when

it is ‘‘a watershed [rule] of criminal procedure . . . implicit in the concept

of ordered liberty . . . .’’ (Citation omitted; internal quotation marks omit-

ted.) Id., 63. Because the rule that we adopt in the present case is a new

procedural rule, we must determine whether it is a watershed rule. To be

considered a watershed rule, the rule must ‘‘implicat[e] the fundamental

fairness and accuracy of [a] criminal proceeding’’; (internal quotation marks

omitted) id.; or ‘‘[alter] our understanding of the bedrock procedural ele-

ments essential to the fairness of a proceeding . . . .’’ (Citation omitted;

internal quotation marks omitted.) Id. Watershed rules ‘‘include those that

raise the possibility that someone convicted with use of the invalidated

procedure might have been acquitted otherwise.’’ (Internal quotation marks

omitted.) Id. The exception is ‘‘narrowly construed . . . and, in the twenty-

five years since Teague was decided, [the United States Supreme Court]

has yet to conclude that a new rule qualifies as watershed.’’ Id.; but see id., 64

(this court may construe Teague more liberally than United States Supreme

Court); id., 69 (concluding that new procedural rule requiring individualized

sentencing of juvenile before life sentence may be imposed is watershed

rule under Teague). In the present case we conclude that the rule requiring

prescreening of first time in-court identification does not fall within the

narrow exception because: (1) as we have explained, the rule is prophylactic

and a violation of the rule does not necessarily rise to the level of a due

process violation; and (2) the rule is merely an incremental change in identifi-

cation procedures. Cf. Beard v. Banks, 542 U.S. 406, 419–20, 124 S. Ct. 2504,

159 L. Ed. 2d 494 (2004) (‘‘the fact that a new rule removes some remote

possibility of arbitrary infliction of the death sentence does not suffice to

bring it within Teague’s second exception’’); id., 419 (although new rule was

intended to enhance accuracy of capital sentencing, ‘‘because it effected an

incremental change, [the United States Supreme Court] could not conclude

that . . . [it was] an absolute prerequisite to fundamental fairness’’ [internal

quotation marks omitted]).

35

Of course, if the record is adequate for review of the reliability and

admissibility of the in-court identification, the reviewing court may make

this determination. For example, if the eyewitness had a full and fair opportu-

nity to identify the defendant before trial and was unable to do so, the

reviewing court reasonably could conclude that the subsequent in-court

identification was unreliable.

36

We cannot be certain that Weibel’s in-court identification was so unrelia-

ble as to be inadmissible because the record is inadequate for us to subject

the identification to a Biggers analysis. Moreover, although Weibel was

unable to identify the defendant in a photographic array, there is no way

of knowing whether Weibel would have been able to identify the defendant

in a lineup.

37

Defense counsel also brought out some minor inaccuracies in Lyles’

testimony under direct examination. For example, Lyles testified on direct

examination that he had learned that Weibel would be accompanied by a

friend when Weibel called him at Perez’ apartment, while he testified on

cross-examination that he learned that fact when Weibel called him at the

scene of the crime. In addition, Lyles testified on direct examination that

he left the residence on Louis Street alone, while he testified on cross-

examination that he left with Reyes and the defendant.

38

Specifically, the following exchange occurred between defense counsel

and the defendant’s mother:

‘‘Q. And do you recall who arrived with what groups, if you can remember?

‘‘A. I remember the first two to get there was [the defendant’s aunt] and

Jason [Temple]. I remember when—I don’t remember when Laurie [Council]

got there. I was in the bathroom and I came out, she was already there.

[The defendant], Jaquisha [Griffin] and her mom came in together. Mom

didn’t stay long, she left. The other two kids, I remember them coming, I

don’t know how they got there, but I remember them coming.

‘‘Q. And was it the intention to get there to watch the game?

‘‘A. Yes, we got there before kickoff.

‘‘Q. And do you roughly know what that time was . . . the beginning of

the game?

‘‘A. I would say probably—the game probably started about 8:30, 9 o’clock.

I—I didn’t, you know—

‘‘Q. But you don’t know the exact time?

‘‘A. No, [exact] timing I couldn’t tell you.’’

Thus, the defendant’s mother testified equivocally that ‘‘we’’ arrived at

the bar before kickoff. By referring to ‘‘we,’’ she might have been referring

only to herself and her husband. She never expressly testified that the

defendant arrived before kickoff.

39

The following exchange took place between the prosecutor and the

defendant’s aunt:

‘‘Q. What time did [the defendant] get to the party?

‘‘A. He got to the party—it was, I want to say it was—I know it was before

kickoff but I can’t give you an exact time.

‘‘Q. Okay. Do you know what time the kickoff was?

‘‘A. Kickoff started about—little after 9 [p.m.]. Not exactly 9 o’clock. It

was a little after 9.’’

40

The court gave the following jury instruction: ‘‘Weibel testified that [the

defendant] was the person who committed the crimes. The identification

of the defendant by a single witness as the one involved in the commission

of a crime is, in and of itself, sufficient to justify conviction provided of

course that you are satisfied beyond a reasonable doubt of the identity of

the defendant as the person who committed the crime or crimes.

‘‘In arriving at a determination on the issue of identification, you should

consider all the facts and circumstances that existed at the time of the

witness’ observation of the perpetrator.

‘‘Since identification testimony is an expression of belief or impression

by the witness, the value of the testimony depends upon the opportunity

and ability of the witness to observe the perpetrator at the time . . . of the

event and the ability to make an accurate identification later.

‘‘You must decide how much weight to place on . . . Weibel’s identifica-

tion testimony. In appraising his testimony you should take into account

whether . . . Weibel had adequate opportunity and ability to observe the

perpetrator on the date in question. This will be affected by such considera-

tions as length of time available to make the observation, the distance

between the witness and perpetrator, the lighting conditions at the time of

the offense, whether the witness had known or seen the person [on] an earlier

occasion, any history between them . . . whether anything distracted the

attention of the witness during the incident. You should also consider the

witness’ physical and emotional condition at the time of the . . . confronta-

tion and the witness’ powers of observation in general.

‘‘You should consider the length of time that elapsed between the occur-

rence of the crime and the identification of the defendant by the witness.

You may also consider the strength of the identification including the wit-

ness’ degree of certainty. Certainty, however, does not mean accuracy. You

should take into account the circumstances under which the witness first

observed and identified the defendant, the suggestibility, if any, of the proce-

dure used in that viewing, physical descriptions that the witness may have

given to the police, and any other factors which you find that relate to the

reliability of the identification of the defendant.

‘‘You may also consider whether the identification witness some time

before the trial was shown a photo[graphic] array that included a photo-

[graph] of the defendant. And whether or not he failed to identify the defen-

dant at that time.

‘‘Picking a defendant out of a group of similar individuals is generally

more reliable than a procedure involving the presentation of the defendant

alone to a witness.

‘‘You will subject the testimony of the identification witness to the same

standards of credibility that apply to all witnesses. It is not sufficient that

the witness be free from doubt as to the correctness of the identification

of the defendant. Rather, you must be satisfied beyond a reasonable doubt

of the accuracy of the identification of the defendant before you may find

him guilty on a charge.

‘‘In short, you must consider the totality of the circumstances [a]ffecting

the identification. Remember the state has the burden to not only prove

every single element of the crime but also the identity of the defendant as

the perpetrator of the crime.

‘‘You must be satisfied beyond a reasonable doubt of the identity of the

defendant as the one who committed the crime or crimes or you must find

the defendant not guilty.

‘‘If you have a reasonable doubt as to the accuracy of the identification

you must find the defendant not guilty.’’

41

As we have indicated herein, when asked by defense counsel, Lyles

denied that the person who he previously had committed robberies with—

who he claimed to know only as ‘‘Black’’—was the cousin who had access

to the e-mail account that Lyles had used to lure his victims. The state

presented no evidence other than this denial, however, that ‘‘Black’’ was

his cousin or that Lyles was motivated by a desire to protect him.