State v. Christopher S. ( 2021 )

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STATE OF CONNECTICUT v. CHRISTOPHER S.*
(SC 20247)
McDonald, D’Auria, Mullins, Kahn, Ecker and Vertefeuille, Js.
Syllabus
Pursuant to statute (§ 54-1o (b)), a ‘‘written . . . statement of a person
under investigation for or accused of’’ certain crimes ‘‘made as a result
of a custodial interrogation at a place of detention shall be presumed
to be inadmissible as evidence against the person in any criminal pro-
ceeding unless . . . [a]n electronic recording is made of the custodial
interrogation . . . .’’
Pursuant further to statute (§ 54-1o (h)), the presumption of inadmissibility
under § 54-1o (b) may be overcome when the state proves, by a prepon-
derance of the evidence, that ‘‘the statement was voluntarily given and
is reliable, based on the totality of the circumstances.’’
Convicted of the crimes of strangulation in the second degree and assault
in the third degree, the defendant appealed to the Appellate Court. The
defendant and the victim had a physical altercation in the early morning,
and the police arrested the defendant. The arresting officer, C, read the
defendant his rights under Miranda v. Arizona (384 U.S. 436), both at
the time he was arrested and later that morning at the police station.
Thereafter, less than six hours after the defendant’s second Miranda
warning, the defendant was questioned by a detective, M, but the interro-
gation was not video recorded. M did not readvise the defendant of his
Miranda rights but did confirm with the defendant that he had been
previously advised of his rights and that he was willing to speak with
M. M then wrote out a narrative of the incident, and the defendant, after
making several changes, signed and initialed the statement. Before trial,
the state filed a motion seeking permission to introduce the defendant’s
signed statement into evidence. Although the state acknowledged that,
because the interrogation was not recorded, the defendant’s statement
was presumptively inadmissible pursuant to § 54-1o (b), it requested
a hearing to establish that the defendant’s statement was admissible
pursuant to § 54-1o (h). After the hearing, the trial court determined
that the state could introduce the defendant’s statement, reasoning that
the state had met its burden under § 54-1o (h) of proving that the
defendant’s statement was voluntarily given and reliable under the total-
ity of the circumstances. At trial, the state offered the defendant’s state-
ment into evidence. The Appellate Court concluded, inter alia, that the
defendant’s statement was properly admitted and affirmed the judgment
of conviction. On the granting of certification, the defendant appealed
to this court. Held:
1. The defendant could not prevail on his claim that the Appellate Court
improperly upheld the trial court’s decision to admit his unrecorded,
written statement into evidence on the ground that the state had failed
to meet its burden of proving, in accordance with § 54-1o (h), that
the statement was voluntarily given and reliable under the totality of
the circumstances:
a. This court concluded that the defendant’s claim regarding § 54-1o (h)
was constitutional with respect to the voluntariness inquiry but eviden-
tiary with respect to the reliability inquiry; it was significant that the
legislature chose to use the word ‘‘voluntar[y]’’ in a statute dealing with
the admission of statements made by criminal defendants subject to
custodial interrogation in places of detention because ‘‘voluntary’’ was
a constitutional term of art in this context, and voluntary in the constitu-
tional sense was the meaning that the statute’s intended audience of
criminal lawyers, judges, and law enforcement personnel would assume.
b. The defendant could not prevail on his claim that the state had failed to
meet its burden of proving that his unrecorded statement was voluntarily
given, as the record supported the trial court’s determination that there
was no Miranda violation and that that defendant’s statement was volun-
tary under the totality of the circumstances: the defendant received a
valid Miranda warning at the police station, and there was no merit to
the defendant’s claim that M should have readvised him of his rights
before beginning the interrogation, as less than six hours had passed
between the defendant’s Miranda warning at the station and the interro-
gation, M reminded the defendant of his rights by expressly confirming
with him that he had been advised of those rights earlier that day, the
interview concerned the same incident for which the defendant had been
arrested and advised of his rights, and the trial court found that the
defendant understood the warnings he received and that he was not
intoxicated or otherwise mentally incapacitated; moreover, the defen-
dant, having received and understood valid Miranda warnings and volun-
tarily participated in the interrogation, implicitly gave a knowing,
voluntary waiver of his Miranda rights; furthermore, the totality of the
circumstances surrounding the defendant’s interrogation supported the
trial court’s determination that the defendant voluntarily gave his state-
ment to M, as the defendant was thirty-eight years old and was not
intoxicated or impaired, the interrogation lasted only one hour, there
was no evidence that M used any potentially coercive methods during
the interrogation, and the defendant did not explain how the specific
circumstances, including M’s failure to record the interrogation, could
have served to overbear his will and to elicit an involuntary confession.
c. The defendant failed to establish that the trial court had incorrectly
determined that his unrecorded statement was reliable because, even if
this court were to require independent, corroborating evidence to prove
the reliability of his statement, the totality of the circumstances in this
case, including instances of corroboration, demonstrated that the trial
court correctly concluded that the state had met its burden.
2. This court declined to exercise its supervisory authority over the adminis-
tration of justice to require trial courts to give a special instruction in
all cases in which the police fail to record a custodial interrogation, but
it emphasized that it was well within the trial court’s discretion to
give a specific, cautionary instruction when the police fail to record a
custodial interrogation in violation of § 54-1o (b); because an unrecorded
statement obtained during a custodial interrogation already has a legisla-
tively prescribed presumption of inadmissibility, a jury instruction in
all cases was not necessary to guard against a threat to the integrity of
a particular trial or the perceived fairness of the judicial system as a
whole, and the statutes of other states that provide for a jury instruction
requirement when the police fail to record certain custodial interroga-
tions were distinguishable from § 54-1o because they did not provide
for a presumption that such statements were inadmissible.
(Two justices concurring separately in one opinion)
Argued June 12, 2020—officially released March 10, 2021**
Procedural History
Substitute information charging the defendant with
the crimes of burglary in the first degree, kidnapping
in the second degree, strangulation in the second
degree, and assault in the third degree, brought to the
Superior Court in the judicial district of Hartford and
tried to the jury before Bentivegna, J.; verdict and judg-
ment of guilty of strangulation in the second degree and
assault in the third degree, from which the defendant
appealed to the Appellate Court, Prescott, Bright and
Flynn, Js., which affirmed the trial court’s judgment,
and the defendant, on the granting of certification,
appealed to this court. Affirmed.
Timothy H. Everett, assigned counsel, with whom,
on the brief, were Corinne Burlingham, Brendan
Donahue, Alexander Hyder and Michael Nunes, certi-
fied legal interns, for the appellant (defendant).
Matthew A. Weiner, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Richard J. Rubino, senior assistant state’s
attorney, for the appellee (state).
Maura Barry Grinalds and Darcy McGraw filed a
brief for the Connecticut Innocence Project et al. as
amici curiae.
Opinion
McDONALD, J. General Statutes § 54-1o1 provides
that, if a person suspected of one of several enumerated
classes of felonies gives a statement to law enforcement
as a result of a custodial interrogation at a detention
facility, the statement will be presumed to be inadmissi-
ble unless officers make an audiovisual recording of
the interrogation. Under subsection (h) of the statute,
the state may overcome the presumption of inadmissi-
bility in any case by proving by a preponderance of the
evidence that the statement ‘‘was voluntarily given and
is reliable, based on the totality of the circumstances.’’
General Statutes § 54-1o (h). The defendant, Christo-
pher S., appeals from the Appellate Court’s judgment
affirming his conviction of strangulation in the second
degree and assault in the third degree. See State v.
Spring, 186 Conn. App. 197, 201, 220, 199 A.3d 21 (2018).
His principal claim is that the Appellate Court incor-
rectly upheld the trial court’s decision to admit into
evidence a signed, written statement that he made dur-
ing a custodial interrogation, which officers failed to
record in violation of § 54-1o. Specifically, the defen-
dant contends that the Appellate Court incorrectly con-
cluded that the state had met its burden of proving that
the statement was both voluntary and reliable under
§ 54-1o (h). The defendant also asks us to exercise our
inherent supervisory authority to require trial courts,
in all cases in which the police fail to record an interro-
gation in violation of the statute, to instruct the jury
that the police violated the law and that jurors should
evaluate with ‘‘particular caution’’ the weight to give
the statement and any police testimony regarding the
interrogation. We affirm the judgment of the Appellate
Court and decline to mandate the requested jury
instruction.
The Appellate Court’s opinion sets forth the facts
that the jury reasonably could have found; see State
v. Spring, supra, 186 Conn. App. 201–207; which we
summarize in relevant part. The Enfield police arrested
the defendant at approximately 5:30 a.m., after the
defendant and the victim had a physical altercation.
The arresting officer, Mark Critz, read the defendant
his Miranda2 rights both at the time he was arrested
and, again, at approximately 7:23 a.m., at the Enfield
police station. The defendant was placed in lockup until
approximately 1:10 p.m. the same day, when he was
brought to the desk of Detective Martin Merritt for
questioning. Merritt’s desk was situated in a large room
containing a number of cubicles with walls about five
feet high. The interrogation was not video recorded.
Merritt did not readvise the defendant of his Miranda
rights because Critz had informed Merritt that the defen-
dant had previously been provided such warnings twice.
Merritt did confirm with the defendant that he had
been advised of his rights and was willing to speak
with Merritt.
Merritt asked the defendant to explain what had hap-
pened the night before, asking clarifying questions
when necessary and taking notes. From the defendant’s
statements, Merritt wrote out a narrative of the incident
on an Enfield Police Department form titled ‘‘Supple-
ment/Statement.’’ Merritt explained to the defendant
that this was the defendant’s statement and that it
should reflect his perspective of what happened. The
defendant made several changes to the statement,
which he signed in three places and initialed in fourteen
places. The preprinted form on which the statement was
written also contains the following acknowledgment:
‘‘I HAVE READ THE ABOVE STATEMENT AND IT IS
TRUE TO THE BEST OF MY KNOWLEDGE. I FULLY
UNDERSTAND THAT IF I MAKE A FALSE STATE-
MENT THAT IS UNTRUE AND WHICH IS INTENDED
TO MISLEAD A LAW ENFORCEMENT OFFICER IN
THE PERFORMANCE OF HIS OFFICIAL FUNCTIONS
I WILL BE IN VIOLATION OF [GENERAL STATUTES
§ 53a-157]. A FALSE STATEMENT IS A CLASS A MIS-
DEMEANOR, WHICH IS PUNISHABLE UP TO [ONE]
YEAR IN JAIL AND/OR A [$1000] FINE AND NOT
MORE THAN [THREE] YEARS PROBATION.’’ In the
statement, the defendant also acknowledged that he
had been advised of his rights, understood those rights,
was making the statement of his own free will, without
any threats or promises having been made, and that he
was giving the statement voluntarily.
The defendant’s statement provided the following
summary of the incident. The defendant and the victim
were married but had been on a break, living in separate
residences, for about two weeks. The night before the
incident, the defendant was watching a boxing match
at a party. After leaving, the defendant drove to the
victim’s house in Enfield and knocked on a porch win-
dow. The victim let the defendant in the house, and
they talked for a few minutes, eventually deciding to
take a drive together. Once in the car, the defendant
and the victim argued about having cheated on each
other. The defendant ‘‘became very angry,’’ pulled the
car over, and began choking the victim with his hands.
He also ‘‘punched her once in the side of the head . . .
and slap[ped] her several times.’’ At some point, the
victim punched the defendant in the face and cut his
gum, causing him to bleed from the mouth. The defen-
dant then drove the pair to the home of the defendant’s
ex-wife. Both the defendant and the victim had a lot of
blood on them from the fighting. Shortly thereafter, the
police were called. The defendant ‘‘hung out on the
back patio for a while [and] then went for a walk,’’ and
the police detained him while he was walking. The
defendant talked to an officer about what had happened
before being arrested and taken to the Enfield police
station.
The record reveals the following procedural history.
The defendant was charged with one count each of (1)
burglary in the first degree, (2) kidnapping in the second
degree, (3) strangulation in the second degree, and (4)
assault in the third degree. Before trial, the state, pursu-
ant to § 54-1o, filed a motion seeking permission to
introduce the defendant’s signed statement into evi-
dence. In the motion, the state acknowledged that,
because Merritt did not record the interrogation, in
violation of § 54-1o, the defendant’s statement was pre-
sumed inadmissible. The state requested a hearing to
establish that the statement was admissible pursuant
to an exception to the custodial interrogation recording
requirement under subsections (e) and (h) of § 54-1o.
Section 54-1o (e) (2) provides an exception to the
recording rule if ‘‘electronic recording [is] not feasible
. . . .’’ Even when no exception applies, § 54-1o (h)
provides that the state may overcome the presumption
of inadmissibility by proving, by a preponderance of
the evidence, that the defendant’s statement ‘‘was vol-
untarily given and is reliable, based on the totality of
the circumstances.’’
The court held a pretrial hearing on the state’s
motion, at which Critz, Merritt, and Detective Sergeant
Daniel Casale testified. Critz testified that, at approxi-
mately 5:30 a.m., he read the defendant his Miranda
rights from a Miranda warning card that he carries
during his shifts, and the defendant acknowledged that
he understood his rights. The defendant talked to Critz,
saying that he had been at a party watching the ‘‘[Manny]
Pacquiao’’ fight. Critz noted that the defendant was
bleeding from the mouth, and he did not appear to
be intoxicated. Critz also testified that he advised the
defendant of his Miranda rights a second time at 7:23
a.m. at the Enfield police station, using a Connecticut
Judicial Branch form titled ‘‘Notice of Rights—Bail,’’
which the defendant signed. Critz had no further
involvement in the case. The state entered into evidence
both the Miranda warning card and Notice of Rights—
Bail form.
Merritt testified that, at approximately 1:10 p.m., he
spoke with the defendant at the police station in an
interview that lasted approximately one hour. Merritt
did not readvise the defendant of his Miranda rights
because Critz told him that he had already given the
defendant two advisements earlier that morning. Mer-
ritt did testify, however, that he confirmed with the
defendant that he had been advised of his rights and
that the defendant spoke voluntarily. Merritt followed
his usual technique in questioning the defendant—he
obtained the defendant’s version of the incident and
then wrote out a statement that the defendant could
freely edit and adopt. The defendant made and initialed
changes, ultimately signing the statement. Merritt also
testified that the defendant did not appear intoxicated.
He acknowledged that he knew that, under § 54-1o,
he should have recorded the interrogation. Although
Merritt testified that the police department’s recording
equipment was not working around the time of the
defendant’s interrogation, he also admitted that he nei-
ther checked to find out if the equipment was working
at the time nor documented a reason for not recording.
Merritt also admitted that he had a department issued
iPhone with him at the time and that holding cells at
the station also had video cameras.
Casale testified that he ‘‘overs[aw] the process’’ of the
defendant’s interrogation. His office was approximately
twenty feet from Merritt’s desk, and, during the course
of the interview, he was ‘‘bouncing back and forth’’
between his office and Merritt’s desk. Casale also
acknowledged that he had no explanation for why the
interrogation was not recorded.
After testimony and brief argument by the parties,
the trial court issued an oral ruling, concluding that the
state could introduce the defendant’s statement in its
case-in-chief. The court initially noted: ‘‘[T]he defendant
. . . was under formal arrest. There was a postbooking
statement. The defendant was subjected to police inter-
rogation. This was a custodial interrogation at a police
station. No electronic recording was made. The written
statement [was taken from a] person under investiga-
tion or accused of a . . . class A or B felony . . . .
[T]he court finds by the preponderance of the evidence
that there was [no] compliance with the electronic
recording requirement, and . . . based on that, the
statement is presumed to be inadmissible as evi-
dence . . . .’’
The court considered the claimed exceptions to § 54-
1o that the state argued, namely, subsections (e) (2)
and (h) of the statute. The court concluded that subsec-
tion (e) (2) did not apply because the state had failed
to prove that recording was not feasible. Nevertheless,
the court determined that the state had met its burden
under subsection (h) to prove that the statement was
voluntarily given and reliable under the totality of the
circumstances. The court explained the basis for its
decision in its oral ruling on the day of the hearing and
elucidated further in response to multiple motions for
articulation filed by the parties during the pendency of
the defendant’s appeal to the Appellate Court.
As to the voluntariness inquiry, the trial court deter-
mined that the defendant’s statement was given ‘‘pursu-
ant to a knowing, intelligent, and voluntary waiver of
the defendant’s Miranda rights.’’ Specifically, the court
reasoned that the defendant had received and under-
stood two Miranda warnings in a matter of hours before
his interrogation, Merritt was not required to provide
a third warning before the interrogation began, there
was no evidence of improper or coercive interrogation
methods by the police, there was no issue with respect
to the defendant’s mental state, the defendant made
edits to the statement and signed it as his own, the
interrogation took place in an open office area and
lasted only one hour, and the statement itself said that
the defendant understood his rights and gave the state-
ment voluntarily.
As to reliability, the court concluded that the defen-
dant’s statement was reliable based on the totality of the
circumstances. The court credited Merritt’s testimony,
noting that Merritt explained to the defendant that the
written statement was intended to be ‘‘his statement
. . . his words . . . what he believes happened . . .
and, if there’s anything that he wants . . . to add or
take out of the statement, then we can do so.’’ (Internal
quotation marks omitted.) The defendant made multiple
corrections, crossed things out, changed words, ini-
tialed his changes, and signed each page. The court
further reasoned that the statement was taken ‘‘pursu-
ant to standard police practices,’’ and there was ‘‘no
evidence of threats, promises, or coercive or deceptive
measures by the police.’’
The case went to trial, and the state, during its case-
in-chief, offered the defendant’s statement into evi-
dence. The jury ultimately found the defendant guilty
of assault in the third degree and strangulation in the
second degree. It found him not guilty of kidnapping
in the second degree and burglary in the first degree.
The defendant was sentenced to a total effective term
of three years incarceration and two years of special
parole.
The defendant appealed to the Appellate Court, rais-
ing three claims: (1) the trial court erred in granting
the state’s motion to admit his unrecorded statement
because the state failed to prove that the statement was
voluntarily given and reliable; (2) the trial court abused
its discretion by overruling the defense counsel’s objec-
tion to an inaccurate argument made by the state; and
(3) the Appellate Court should exercise its supervisory
authority over the administration of justice and order
a new trial for the defendant and require trial judges
to give a particular jury instruction in cases in which
the police violate § 54-1o. State v. Spring, supra, 186
Conn. App. 199–201. The Appellate Court rejected each
of the defendant’s arguments and affirmed the judgment
of conviction. See id., 201, 220.
We thereafter granted the defendant’s petition for
certification to appeal, limited to the following issues:
(1) ‘‘Did the Appellate Court properly uphold the trial
court’s determination that the state met its burden of
proving that the defendant’s statement obtained during
a custodial interrogation, which was not recorded in
accordance with . . . § 54-1o, was nonetheless admis-
sible pursuant to the provisions of . . . § 54-1o (h)?’’
And (2) ‘‘[s]hould this court exercise its supervisory
authority over the administration of justice to require
that, when a custodial interrogation subject to the provi-
sions of . . . § 54-1o . . . is not recorded in accor-
dance with that statute, a jury be instructed that it
may consider the noncompliance with the recording
requirement in determining the weight to accord a state-
ment that is the product of the unrecorded custodial
interrogation?’’ State v. Spring, 330 Conn. 963, 963–64,
199 A.3d 1079 (2019). Additional facts will be set forth
as necessary.
I
We begin with the defendant’s contention that the
Appellate Court erred by upholding the trial court’s
decision to admit his unrecorded statement into evi-
dence because the state failed to meet its burden of
proving that the statement was voluntarily given and
reliable under the totality of the circumstances, as
required by the exception found in § 54-1o (h).
A
As an initial matter, the parties disagree as to whether
the defendant’s claim regarding subsection (h) of § 54-
1o is constitutional or evidentiary. The defendant
argues that the legislature’s use of the word ‘‘volun-
tar[y]’’ in § 54-1o (h) refers to the preexisting constitu-
tional requirements that a confession may be admitted
against a criminal defendant only if it comports with
due process and Miranda. The defendant contends that,
because the voluntariness inquiry has constitutional
implications, our review of the trial court’s voluntari-
ness determination is de novo. The state contends that
the claim is purely evidentiary because this court has
unequivocally stated that neither the federal nor the
state constitution requires custodial interrogations to
be recorded. The state thus asserts that our review is
only for abuse of discretion, and the trial court’s finding
that the statement was voluntarily given is ‘‘entitled
to substantial deference . . . .’’ We conclude that the
defendant’s claim is constitutional with respect to the
voluntariness inquiry and evidentiary with respect to
the reliability inquiry.
The Appellate Court concluded that the defendant’s
claim was not constitutional because this court has
made clear that the recording of custodial interroga-
tions is not a constitutional concern. State v. Spring,
supra, 186 Conn. App. 208; see, e.g., State v. Edwards,
299 Conn. 419, 443–44, 11 A.3d 116 (2011); State v.
Lockhart, 298 Conn. 537, 542–44, 550 and n.6, 4 A.3d
1176 (2010); State v. James, 237 Conn. 390, 428–29, 678
A.2d 1338 (1996). Although we have stated that the
constitution does not require the recording of custodial
interrogations, we also stated in Lockhart that we were
leaving to the legislature whether to require recording
and how to balance competing interests to implement
such a requirement. State v. Lockhart, supra, 574–75,
577. Our statement that a recording is not constitution-
ally mandated does not inform our consideration about
whether the legislature’s chosen framework for effectu-
ating a recording requirement might incorporate consti-
tutional norms.
The question of whether the legislature used the word
‘‘voluntar[y]’’ in § 54-1o (h) in the constitutional sense
is a matter of statutory construction over which we
exercise plenary review. See, e.g., Lyme Land Conser-
vation Trust, Inc. v. Platner, 334 Conn. 279, 288, 221
A.3d 788 (2019). ‘‘When construing a statute, [o]ur fun-
damental objective is to ascertain and give effect to the
apparent intent of the legislature. . . . In other words,
we seek to determine, in a reasoned manner, the mean-
ing of the statutory language as applied to the facts of
[the] case . . . . [General Statutes] § 1-2z directs us
first to consider the text of the statute itself and its
relationship to other statutes. If, after examining such
text and considering such relationship, the meaning of
such text is plain and unambiguous and does not yield
absurd or unworkable results, extratextual evidence of
the meaning of the statute shall not be considered. . . .
When a statute is not plain and unambiguous, we also
look for interpretive guidance to the legislative history
and circumstances surrounding its enactment, [includ-
ing] the legislative policy it was designed to implement
. . . .’’ (Internal quotation marks omitted.) Id., 288–89.
Section 54-1o (b) provides: ‘‘An oral, written or sign
language statement of a person under investigation for
or accused of a capital felony or a class A or B felony
made as a result of a custodial interrogation at a place
of detention shall be presumed to be inadmissible as
evidence against the person in any criminal proceeding
unless: (1) An electronic recording is made of the custo-
dial interrogation, and (2) such recording is substan-
tially accurate and not intentionally altered.’’ The
presumption of inadmissibility may be overcome when
the state proves, by a preponderance of the evidence,
that ‘‘the statement was voluntarily given and is reliable,
based on the totality of the circumstances.’’ General
Statutes § 54-1o (h).
It is significant that the legislature chose to use the
word ‘‘voluntar[y]’’ in a statute dealing with the admis-
sion of statements made by criminal defendants subject
to custodial interrogation in places of detention because
‘‘voluntary’’ is a constitutional term of art in this con-
text. In State v. Piorkowski, 236 Conn. 388, 672 A.2d
921 (1996), we explained that, ‘‘[i]n the jurisprudence
of statements made to the police by persons accused
of crime, traditionally there are two types of ‘voluntari-
ness’ inquiries. One, dating from before Miranda and
emanating from principles of due process, involves
essentially whether the defendant’s will was overborne
by the police in eliciting the statement. See, e.g., Ari-
zona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113
L. Ed. 2d 302 (1991); Colorado v. Spring, 479 U.S. 564,
107 S. Ct. 851, 93 L. Ed. 2d 954 (1987); Schneckloth v.
Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d
854 (1973); Lynumn v. Illinois, 372 U.S. 528, 83 S. Ct.
917, 9 L. Ed. 2d 922 (1963). The other, deriving from
Miranda, involves essentially whether, when the police
interrogate a suspect who is in their custody, they prop-
erly administer the Miranda warnings to him and he
waives the rights about which he was warned. See, e.g.,
Powell v. Nevada, 511 U.S. 79, 114 S. Ct. 1280, 128 L.
Ed. 2d 1 (1994); Colorado v. Connelly, 479 U.S. 157, 107
S. Ct. 515, 93 L. Ed. 2d 473 (1986); Moran v. Burbine,
475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986);
Fare v. Michael C., 442 U.S. 707, 99 S. Ct. 2560, 61 L.
Ed. 2d 197 . . . (1979). Although Miranda is not itself
a constitutional command; Miranda v. Arizona, 384
U.S. 436, 467, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966);
it is nonetheless a judicially created prophylactic rule
designed to safeguard the defendant’s fifth amendment
right to remain silent because of the inherently coercive
quality of custodial interrogation. Withrow v. Williams,
507 U.S. 680, 691–92, 113 S. Ct. 1745, 123 L. Ed. 2d 407(1993) . . . .’’ (Citations omitted.) State v. Piorkowski,
supra, 404–405. The fact that the legislature chose to
use this word to the exclusion of any other it could
have chosen, and the fact that the legislature chose not
to define it, despite having defined other words in the
statute; see General Statutes § 54-1o (a) (1) through (5);
suggests that it intended the word to have the constitu-
tional meaning that the word carries in this context.
See General Statutes § 1-1 (a) (‘‘[i]n the construction
of the statutes, words and phrases shall be construed
according to the commonly approved usage of the lan-
guage; and technical words and phrases, and such as
have acquired a peculiar and appropriate meaning in the
law, shall be construed and understood accordingly’’).
Relatedly, the statute’s intended audience is signifi-
cant. For example, in State v. Piorkowski, supra, 236
Conn. 388, we construed the word ‘‘involuntariness’’ as
used in a prior version of General Statutes § 54-94a,
and we explained that the statute was ‘‘intended for
the ears and eyes of criminal lawyers—both prosecu-
tion and defense—and of judges, particularly appellate
judges, who preside over criminal proceedings. That
circumstance reinforces the conclusion that, when the
legislature used the phrase ‘involuntariness of a state-
ment’ . . . the legislature intended the phrase to mean
what those lawyers and judges would most naturally
think it means, namely, what its meaning has long been
in the law of confessions.’’ Id., 409. The same is true
here. Section 54-1o involves the admission of confes-
sions made by criminal suspects during custodial inter-
rogations at places of detention. It is self-evident that
it falls squarely within the purview of criminal lawyers,
judges, and law enforcement. In choosing the word
‘‘voluntar[y],’’ the legislature logically would have
ascribed to it the meaning that its intended audience
would assume—voluntary in the constitutional sense.
In view of the foregoing, we agree with the defendant
that, in passing § 54-1o and including subsection (h),
the legislature created a new procedure that references
and involves an existing constitutional requirement. As
the defendant notes, § 54-1o (h) makes it ‘‘procedurally
necessary for the state to raise the voluntariness issue
and then to meet its traditional burden in order to over-
come the statutory presumption of inadmissibility appli-
cable to a statement obtained in violation of the statute’s
recording requirement.’’ In practical effect, in cases in
which subsection (h) applies—because the police failed
to record and there is no applicable exception under
subsection (e)—a defendant need not file a motion to
suppress to seek to exclude the defendant’s statement
from evidence. Rather, the statement is presumed to
be inadmissible, and it is incumbent on the state to
affirmatively seek to overcome the presumption by
proving that, despite their failure to record, officers did
not run afoul of the constitution. A trial court’s ultimate,
legal determination of voluntariness in this context is
not entitled to deference.3 The legislature also added
to the state’s traditional, constitutional burden a new
requirement—to prove that the defendant’s statement
is reliable based on the totality of the circumstances.
Accordingly, we conclude that the defendant’s claim
with respect to voluntariness is constitutional.
As to reliability, however, the defendant’s claim is
evidentiary.4 By requiring the state to prove that an
unrecorded statement is reliable, the legislature sought
to address the risk of false confessions. See State v.
Lockhart, supra, 298 Conn. 589–95 (Palmer, J., concur-
ring) (explaining utility of recording in ensuring both
that confessions are voluntarily given and that defen-
dants do not confess falsely). In State v. James, supra,
237 Conn. 390, this court explained that, under a Con-
necticut common-law, evidentiary rule dating back to
the mid-eighteenth century, the admissibility of a con-
fession turned not on whether the statement was
coerced but whether it was true. See id., 414–15. We
further explained that, in Rogers v. Richmond, 365 U.S.
534, 81 S. Ct. 735, 5 L. Ed. 2d 760 (1961), the United
States Supreme Court ‘‘rejected the [common-law]
focus on reliability in determining whether a confession
is admissible.’’ State v. James, supra, 415. For purposes
of the federal constitution, ‘‘in determining whether a
confession should be excluded as involuntary, the test
is whether the defendant’s will was overborne, which
is to be determined with complete disregard of whether
. . . the [accused] in fact spoke the truth.’’ (Internal
quotation marks omitted.) Id.; see also Rogers v. Rich-
mond, supra, 544. Thus, the reliability of a confession
is not a constitutional matter under the federal constitu-
tion, and principles that govern evidentiary rulings
apply to our review of this claim.5 Accordingly, we con-
clude that the defendant’s claim with respect to reliabil-
ity is evidentiary.
B
We turn now to the defendant’s claim that the state
failed to meet its burden of proving that his statement
was voluntarily given. The defendant argues that § 54-
1o (h) imposes a burden on the state to meet both
traditional, constitutional tests of voluntariness: (1) that
the defendant’s statement was taken in accordance with
the requirements of Miranda, and (2) that the police
did not overbear the defendant’s will in violation of his
right to due process. The defendant acknowledges that
the trial court did consider both Miranda and due pro-
cess voluntariness in reaching its decision but contends
that it came to the wrong conclusion. The state con-
tends that the statute required it to prove only that the
defendant’s statement comported with due process and
that, even if compliance with Miranda was required,
the trial court correctly determined that the defendant
knowingly and intelligently waived his rights. We need
not decide whether the state was required to prove
both due process voluntariness and compliance with
Miranda because, even if we assume that the state did
have to prove Miranda compliance, the record supports
the trial court’s determination that there was no
Miranda violation and that the defendant’s statement
was voluntarily given under the totality of the circum-
stances.
The standard of review of a trial court’s ruling on
voluntariness in the context of the state’s motion to
admit a defendant’s confession under § 54-1o (h) is the
same as when a defendant moves to suppress a state-
ment on the ground that it was given involuntarily.
‘‘[T]he trial court’s findings as to the circumstances
surrounding the defendant’s interrogation and confes-
sion are findings of fact . . . which will not be over-
turned unless they are clearly erroneous. . . .
[A]lthough we give deference to the trial court concern-
ing these subsidiary factual determinations, such defer-
ence is not proper concerning the ultimate legal
determination of voluntariness. . . . Consistent with
the well established approach taken by the United
States Supreme Court, we review the voluntariness of
a confession independently, based on our own scrupu-
lous examination of the record. . . . Accordingly, we
conduct a plenary review of the record in order to
make an independent determination of voluntariness.’’
(Citation omitted; internal quotation marks omitted.)
State v. Lawrence, 282 Conn. 141, 153–54, 920 A.2d
236 (2007).
We begin with the defendant’s claimed Miranda vio-
lations. The defendant contends that the police failed
to comply with Miranda in three ways. First, the defen-
dant argues that he did not receive a valid Miranda
warning at the police station because the rights listed
on the Notice of Rights—Bail form that Critz read to
him at the station are materially different from those
constituting a proper Miranda warning. This argument
lacks merit.
After first being advised of his Miranda rights at the
time of his arrest,6 the defendant was again advised of
his rights at the police station. At the station, Critz read
the defendant his Miranda rights from a form titled
Notice of Rights—Bail, which provides in relevant part
that ‘‘[a]nything you say or any statements you make
may be used against you.’’ (Emphasis added.) The lan-
guage the United States Supreme Court used in
Miranda was that ‘‘anything said can and will be used
against the individual in court.’’ (Emphasis added.)
Miranda v. Arizona, supra, 384 U.S. 469. The Notice
of Rights—Bail form also provides in relevant part: ‘‘You
have the right to not say anything about this offense
you are charged with; you may remain silent. . . .’’ The
defendant argues that, by contrast, ‘‘[s]tandard
Miranda warnings are direct: ‘You have the right to
remain silent.’ ’’ The United States Supreme Court has
made clear that Miranda warnings need not ‘‘be given
in the exact form described in that decision. . . . [T]he
rigidity of Miranda [does not] exten[d] to the precise
formulation of the warnings given a criminal defendant
. . . and . . . no talismanic incantation [is] required
to satisfy its strictures. . . . The inquiry is simply
whether the warnings reasonably conve[y] to [a sus-
pect] his rights as required by Miranda.’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) Duckworth v. Eagan, 492 U.S. 195, 202–203,
109 S. Ct. 2875, 106 L. Ed. 2d 166 (1989). We conclude
that the slight differences noted by the defendant are
immaterial for the purpose of communicating the rele-
vant rights to criminal suspects. The language used in
the Notice of Rights—Bail form reasonably conveys a
suspect’s rights under Miranda.
The second Miranda issue that the defendant raises
is that Merritt should have readvised the defendant of
his rights before beginning his interrogation at 1:10 p.m.
We disagree.
In determining whether a defendant, who received a
Miranda warning at an earlier time, is entitled to a
new Miranda warning before a subsequent custodial
interrogation, courts consider a nonexclusive list of
eight factors: ‘‘(1) the length of time that has passed
between the initial warnings and the subsequent interro-
gation, (2) whether the warnings and interrogation
occurred in the same location, (3) whether the officers
who gave the warnings were the same as those who
conducted the subsequent interview, (4) whether the
subsequent interview concerned the same or new
offenses and facts, (5) the physical settings of the
advisement and interviews, (6) whether the officer
reminded the suspect of his rights before resuming
questioning, (7) whether the suspect confirmed that he
understood his rights or manifested an awareness of
his rights, and (8) the apparent mental and emotional
state of the suspect.’’ In re Kevin K., 299 Conn. 107,
123, 7 A.3d 898 (2010). No factor is dispositive; it is a
totality of the circumstances inquiry. See id., 125–26.
We conclude that the relevant facts and circum-
stances support the trial court’s conclusion that Merritt
was not required to readvise the defendant before begin-
ning his interrogation. Less than six hours had passed
between the defendant’s second Miranda warning and
the interrogation. Although some courts have deter-
mined that readvisement was necessary after a shorter
gap; see, e.g., People v. Sanchez, 88 Misc. 2d 929, 936,
391 N.Y.S.2d 513 (N.Y. Sup. 1977); others have deter-
mined that readvisement was unnecessary after a longer
gap. See, e.g., In re Interest of Miah S., 290 Neb. 607,
614, 861 N.W.2d 406 (2015) (citing cases); see also, e.g.,
In re Kevin K., supra, 299 Conn. 125–26 (two day gap
between warning and interrogation favored readvise-
ment, but, in light of totality of circumstances, readvise-
ment was unnecessary). We acknowledge that the
officer who gave the warning was not the one who
performed the interrogation, but we are unpersuaded
by the defendant’s argument that Merritt needed to
readvise the defendant to show the defendant ‘‘that he
was prepared to honor [the defendant’s rights].’’ It is
sufficient that Merritt reminded the defendant of his
rights by expressly confirming with him that he had been
advised of his rights earlier that day, and the interview
concerned the same incident for which the defendant
had been arrested and advised of his rights. Moreover,
the trial court found that the defendant understood the
warnings he received, and there is nothing in the record
to suggest that his understanding would have disap-
peared or dissipated between the warnings and the
interrogation. The trial court also found that there were
‘‘no issues in terms of the defendant being intoxicated
or otherwise [mentally] incapacitated . . . .’’ In light
of the foregoing factors, we conclude that Merritt’s deci-
sion not to readvise the defendant of his rights did not
violate Miranda.
The defendant’s final Miranda claim is that he never
gave a ‘‘knowing’’ and ‘‘voluntary’’ waiver of his Miranda
rights, without which his statement is inadmissible. We
disagree.
‘‘Even [in the absence of] the accused’s invocation
of the right to remain silent, the accused’s statement
during a custodial interrogation is inadmissible at trial
unless the prosecution can establish that the accused
in fact knowingly and voluntarily waived [Miranda]
rights when making the statement. . . . The waiver
. . . must be voluntary in the sense that it was the
product of a free and deliberate choice rather than
intimidation, coercion, or deception, and made with a
full awareness of both the nature of the right being
abandoned and the consequences of the decision to
abandon it.’’ (Citation omitted; internal quotation marks
omitted.) Berghuis v. Thompkins, 560 U.S. 370, 382–83,
130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010). Despite this
seemingly difficult task, ‘‘[t]he prosecution . . . does
not need to show that a waiver of Miranda rights was
express. An implicit waiver of the right to remain silent
is sufficient to admit a suspect’s statement into evi-
dence.’’ (Internal quotation marks omitted.) Id., 384.
‘‘[When] the prosecution shows that a Miranda warning
was given and that it was understood by the accused, an
accused’s uncoerced statement establishes an implied
waiver of the right to remain silent.’’ Id.; see also State
v. Shifflett, 199 Conn. 718, 731–32, 508 A.2d 748 (1986)
(‘‘the state must demonstrate . . . (1) that the defen-
dant understood his rights, and (2) that the defendant’s
course of conduct indicated that he did, in fact, waive
those rights’’ (emphasis in original; internal quotation
marks omitted)).
As we have explained, the defendant received two
valid Miranda warnings from Critz, one at 5:30 a.m.
and one at 7:23 a.m. Critz testified that, after he adminis-
tered the first warning, the defendant ‘‘said . . . that
he understood his rights.’’ The defendant also adopted
the statement that Merritt wrote during the interroga-
tion, which included the following: ‘‘When I was
arrested earlier this date, I was advised of my rights. I
understand those rights and give this statement volunta-
rily.’’7 The defendant understood his rights when Merritt
sought to interrogate him around 1:10 p.m.
The evidence presented at the hearing also estab-
lished that the defendant’s statements to Merritt during
his interrogation were not coerced. Merritt testified
that, before he began the questioning, he confirmed
with the defendant that the defendant had ‘‘previously
been advised of his rights’’ and was ‘‘willing to speak
with’’ Merritt. The defendant then gave an account of
the incident and read, made changes to, and signed
Merritt’s written summation of what the defendant had
said. The statement itself expressly indicates that the
defendant was giving the statement ‘‘voluntarily.’’ There
is nothing in the record to suggest that Merritt obtained
the defendant’s cooperation through physical or psy-
chological coercion, trickery, threats, promises of
leniency, or other questionable tactics. Accordingly,
because the defendant received and understood valid
Miranda warnings and voluntarily participated in Mer-
ritt’s interrogation, he implicitly gave a knowing, volun-
tary waiver of his Miranda rights.
In sum, even if, as the defendant contends, the state
had to prove that the police complied with the require-
ments of Miranda, the record supports the trial court’s
determination that there was no Miranda violation in
this case.
Finally, with respect to the second traditional volun-
tariness inquiry, the parties agree that the court must
also look to the totality of the circumstances to deter-
mine whether a statement was voluntarily given. The
defendant contends that the trial court failed to con-
sider Merritt’s conduct in its determination that the
defendant’s statement was voluntarily given under the
totality of the circumstances. Specifically, the defen-
dant argues that the court disregarded that Merritt (1)
chose not to record the interrogation, (2) chose not to
readvise the defendant of his Miranda rights, (3) chose
not to have the defendant sign the waiver portion of
the form on which his statement was written, and (4)
ignored the defendant’s ‘‘condition,’’ which involved
having blood on his mouth and clothing. The state
argues that, to render a confession involuntary, the
police misconduct must cause the suspect to confess,
and there is no causal connection between Merritt’s
conduct and the defendant’s will being overborne. The
state also argues that the totality of the circumstances
supports the trial court’s determination that the defen-
dant voluntarily gave his statement to Merritt. We agree
with the state.
‘‘Irrespective of Miranda, and the fifth amendment
itself . . . any use in a criminal trial of an involuntary
confession is a denial of due process of law.’’ (Internal
quotation marks omitted.) State v. Hafford, 252 Conn.
274, 298, 746 A.2d 150, cert. denied, 531 U.S. 855, 121
S. Ct. 136, 148 L. Ed. 2d 89 (2000). ‘‘The state has the
burden of proving the voluntariness of the confession
by a fair preponderance of the evidence. . . . [T]he
test of voluntariness is whether an examination of all
the circumstances discloses that the conduct of law
enforcement officials was such as to overbear [the
defendant’s] will to resist and bring about confessions
not freely self-determined . . . . The ultimate test
remains . . . [i]s the confession the product of an
essentially free and unconstrained choice by its maker?
If it is, if he has willed to confess, it may be used against
him. If it is not, if his will has been overborne and his
capacity for self-determination critically impaired, the
use of his confession offends due process. . . . The
determination, by the trial court, whether a confession
is voluntary must be grounded upon a consideration of
the circumstances surrounding it. . . . Factors that
may be taken into account, upon a proper factual show-
ing, include: the youth of the accused; his lack of educa-
tion; his intelligence; the lack of any advice as to his
constitutional rights; the length of detention; the
repeated and prolonged nature of the questioning; and
the use of physical punishment, such as the deprivation
of food and sleep.’’ (Internal quotation marks omitted.)
State v. Lawrence, supra, 282 Conn. 153. Under the due
process clause of the fourteenth amendment, however,
in order for a confession to be deemed involuntary and
thus inadmissible at trial, there must be ‘‘police conduct,
or official coercion, causally related to the confession
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Id., 175. In other words, there must be an
‘‘essential link between [the] coercive activity of the
[s]tate, on the one hand, and a resulting confession by
a defendant, on the other . . . .’’ (Citation omitted;
internal quotation marks omitted.) State v. Reynolds,
264 Conn. 1, 54, 836 A.2d 224 (2003), cert. denied, 541
U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004).
Here, the record supports the trial court’s determina-
tion that the defendant voluntarily gave his statement
to Merritt. The defendant was thirty-eight years old at
the time of the interrogation. There was no indication
that he was intoxicated or impaired. He was formally
advised of his Miranda rights twice and reminded of
them a third time just before the interrogation began,
at which point he had been in police custody for less
than six hours. The interrogation itself took place in
a large room with multiple cubicles. Questioning was
conducted by only one official, with his supervisor
checking in periodically. The interrogation took place
in a single session, which lasted only one hour. The
defendant took the opportunity to read and make multi-
ple changes to the statement as written by Merritt,
including that the defendant was giving his statement
‘‘voluntarily’’ and of his ‘‘own free will with no threats
or promises made to’’ him. There is no evidence of
physical or psychological punishment. There is no evi-
dence that Merritt used any potentially coercive meth-
ods, such as threats, promises of leniency, or deception.
Indeed, the defendant has not even argued that Merritt
used any such tactics or that the defendant’s will was
actually overborne.
Even if we assume that the trial court failed to con-
sider Merritt’s conduct as part of the totality of the
circumstances, the defendant has not attempted to
explain how the specific circumstances that he lists,
either in isolation or in the aggregate, could overbear
a suspect’s will and elicit an involuntary confession.8
Although it is troubling that Merritt offered no satisfac-
tory explanation as to why the interrogation was not
recorded,9 a failure to record does not itself bear on a
suspect’s will. Similarly, it is not clear how Merritt’s
failure to readvise the defendant of his Miranda rights,
which we have concluded was not required, or his
choice not to have the defendant sign the waiver portion
of the form on which the statement was written, which
is irrelevant because we have concluded that the defen-
dant implicitly waived his Miranda rights, affected the
defendant’s will. Nothing in the record suggests that
the defendant was seriously injured or needed medical
attention, and there is no connection between Merritt’s
‘‘ignor[ing]’’ the defendant’s bloodied gum and the
defendant’s will being overborne. Accordingly, we con-
clude that the defendant’s statement was freely given
and not the result of overbearing police conduct, and its
admission into evidence did not violate the defendant’s
right to due process. Cf. State v. Azukas, 278 Conn. 267,
290–91, 897 A.2d 554 (2006) (confession was deemed
voluntary when trial court found that police conduct
was not coercive, defendant was twice advised of
Miranda rights, detention was for few hours, and inter-
rogation was not prolonged).
In sum, the Appellate Court properly upheld the trial
court’s determination that the state met its burden
under § 54-1o (h) of proving that the defendant’s state-
ment was voluntarily given. As we have explained,
assuming that the state had to prove that the police
complied with Miranda, the record demonstrates that
it did so. Additionally, looking to the totality of the
circumstances surrounding the defendant’s interroga-
tion, aside from the failure to record, there is no indica-
tion that the police engaged in any misconduct that
overbore the defendant’s will and elicited an involun-
tary confession.
C
The defendant next claims that the Appellate Court
improperly upheld the trial court’s determination that
the state met its burden of proving that the statement
was reliable under the totality of the circumstances.
Specifically, the defendant argues that, to prove reliabil-
ity, the state must introduce independent, corroborating
evidence that the statement itself is true, and, here, the
state relied only on evidence regarding the circum-
stances under which the statement was given. The state
contends that all of the circumstances surrounding the
giving of a statement are relevant to a reliability determi-
nation, but there is no requirement under our law that
there be independent, corroborating evidence of the
contents of the statement. Furthermore, the state
argues that it did introduce substantial, independent
evidence corroborating the truth of the defendant’s
statement.
As we explained in part I A of this opinion, the reliabil-
ity inquiry is evidentiary in nature. ‘‘The standard that
we apply in reviewing a trial court’s evidentiary ruling
depends on the context in which the ruling was made.
. . . When a trial court’s determination of admissibility
is founded on an accurate understanding of the law, it
must stand unless there is a showing of an abuse of
discretion. . . . When the admissibility of the chal-
lenged testimony turns on the interpretation of an evi-
dentiary rule, however, we are presented with a legal
question and our review is plenary.’’ (Citations omitted;
footnote omitted.) State v. Burney, 288 Conn. 548, 555,
954 A.2d 793 (2008).
We begin by emphasizing the distinction between the
voluntariness and reliability inquiries under § 54-1o (h).
The voluntariness inquiry addresses a defendant’s con-
stitutional right to due process and, potentially, those
rights protected by Miranda, without regard to whether
a confession is true. Reliability, on the other hand, is
concerned with whether a statement is true. See State
v. Lockhart, supra, 298 Conn. 589–90 (Palmer, J., con-
curring) (‘‘[s]ometimes . . . the issue is not so much
whether the confession was the product of police coer-
cion but, rather, whether the interrogation methods
used by the police . . . caused the suspect to admit
to a crime that he did not commit’’). Justice Palmer
explained in his concurrence in Lockhart that we have
become increasingly aware that false confessions,
despite being counterintuitive, occur with some regular-
ity; id., 590–91 (Palmer, J., concurring); and that ‘‘a
recording requirement would dramatically reduce the
number of wrongful convictions due to false confes-
sions . . . .’’ Id., 595 (Palmer, J., concurring). The leg-
islative history of § 54-1o reveals that the legislature
was also concerned with false confessions when it con-
sidered creating the recording requirement. See 54 H.R.
Proc., Pt. 28, 2011 Sess., p. 9481, remarks of Representa-
tive Gary Holder-Winfield (‘‘[M]ost false confessions
stemming from an interrogation . . . come from the
fact that there may be some intimidation, threats or
coercion. This [b]ill seeks to put in place [an audiovi-
sual] recording of the interrogation such that we can
capture and see whether . . . those threats, coercions
or intimidations happen[ed].’’).
Although voluntariness and reliability are distinct
inquiries, evidence that is probative of voluntariness
may also be probative of reliability. Specifically, evi-
dence regarding the circumstances under which a state-
ment was given can inform both determinations. See,
e.g., State v. Pierre, 277 Conn. 42, 61–62, 890 A.2d 474(fact that witness indicated he was giving statement
freely, reviewed it with attorney, and signed it in eight
places demonstrated lack of coercion, providing suffi-
cient indicia of reliability for admission of statement
under State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86,
cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d
598 (1986)), cert. denied, 547 U.S. 1197, 126 S. Ct. 2873,
165 L. Ed. 2d 904 (2006); State v. Collins, 147 Conn.
App. 584, 594–95, 82 A.3d 1208 (involuntariness of
defendant’s statements to police may undermine relia-
bility of those statements), cert. denied, 311 Conn. 929,
86 A.3d 1057 (2014). Because the same evidence can
be used as evidence of both requirements, courts must
be careful not to conflate the two analyses. It is entirely
possible for a confession to be voluntary, yet false,
or involuntary, yet true, and courts must not collapse
voluntariness and reliability into a single inquiry. See,
e.g., United States v. Brown, 617 F.3d 857, 860 (6th Cir.
2010) (‘‘even voluntary ‘inculpatory confessions . . .
are frequently unreliable’ ’’).
With these principles in mind, we turn to the dispute
between the parties regarding the type of evidence that
the state was either required or permitted to use to
prove that the defendant’s statement was reliable. Both
parties acknowledge that independent evidence corrob-
orating the truth of the defendant’s statement and evi-
dence regarding the circumstances under which the
statement was given are relevant to reliability. We agree
with this initial point of common ground.
This court has regularly relied on the circumstances
under which a statement was given to determine
whether it is reliable. See, e.g., State v. Carrion, 313
Conn. 823, 839–40, 100 A.3d 361 (2014) (listing among
factors ‘‘particularly salient’’ to determination of relia-
bility of child witness’ prior out-of-court statement
whether questions eliciting statement were leading or
open and presence of authority figure during ques-
tioning); State v. Pierre, supra, 277 Conn. 61 (‘‘[w]e
emphasize . . . that the linchpin of admissibility is
reliability: the statement may be excluded as substan-
tive evidence only if the trial court is persuaded, in light
of the circumstances under which the statement was
made, that the statement is so untrustworthy that its
admission into evidence would subvert the fairness of
the fact-finding process’’ (internal quotation marks
omitted)); State v. Mukhtaar, 253 Conn. 280, 306, 750
A.2d 1059 (2000) (witness’ prior inconsistent statement
to police that otherwise meets requirements for admis-
sibility for substantive purposes ‘‘may have been made
under circumstances so unduly coercive or extreme as
to grievously undermine the reliability generally inher-
ent in such a statement, so as to render it, in effect,
not that of the witness’’); State v. James, supra, 237
Conn. 414–15 (general approach under Connecticut
common-law, evidentiary rule intended to protect
defendants from convictions based on false confessions
was to ‘‘identify certain inducements [that] made a con-
fession unreliable,’’ such as whether it was ‘‘obtained
as a result of a promise of a benefit or leniency or a
threat of harm’’ (internal quotation marks omitted)).
Evidence that independently corroborates the sub-
stantive truth of a statement is also highly probative
of a statement’s reliability. As the amici point out, in
questioning suspects, the police often hold back known
details of the crime to see if the suspects independently
mention details that could not be fabricated. In a related
context, this court has also approved of the use of
independent, corroborating evidence to establish the
trustworthiness of a defendant’s statement. See, e.g.,
State v. Leniart, 333 Conn. 88, 114, 215 A.3d 1104 (2019)
(under ‘‘trustworthiness’’ doctrine, which grew out of
and modified corpus delicti rule, state may generally
rely on defendant’s statements to establish all elements
of crime ‘‘as long as there is sufficient, independent
evidence to establish the trustworthiness of those state-
ments’’); State v. Hafford, supra, 252 Conn. 315 (under
old version of corpus delicti rule, confessions were
admissible only if state ‘‘demonstrate[d] through extrin-
sic evidence that the crime charged had been com-
mitted’’).
Although independent, corroborating evidence is
highly probative of reliability, we are not persuaded
that independent, corroborating evidence is required
to prove reliability under § 54-1o (h). We first consider
the plain language of the statute. The legislature chose
to require the state to prove that an unrecorded state-
ment is ‘‘reliable, based on the totality of the circum-
stances.’’ General Statutes § 54-1o (h). The fact that the
statute calls for a ‘‘totality of the circumstances’’ inquiry
and does not include the term ‘‘corroborating evidence’’
undermines the defendant’s argument that any particu-
lar type of evidence—independent, corroborating or
otherwise—is necessary to the inquiry. See, e.g., Scho-
lastic Book Clubs, Inc. v. Commissioner of Revenue
Services, 304 Conn. 204, 219, 38 A.3d 1183 (‘‘it is a
well settled principle of statutory construction that the
legislature knows how to convey its intent expressly
. . . or to use broader or limiting terms when it chooses
to do so’’ (citation omitted)), cert. denied, 568 U.S. 940,
133 S. Ct. 425, 184 L. Ed. 2d 255 (2012).
In a related statute; see Connecticut Podiatric Medi-
cal Assn. v. Health Net of Connecticut, Inc., 302 Conn.
464, 475–76, 28 A.3d 958 (2011) (looking to related stat-
utes to construe meaning of statutory term); requiring
the trial court to make a prima facie determination of
the ‘‘reliability’’ of a jailhouse informant’s testimony,
the legislature set forth a number of ‘‘factors’’ that the
court ‘‘may consider’’ in undertaking that inquiry. Gen-
eral Statutes § 54-86p (a). These factors include ‘‘(1)
[t]he extent to which the . . . testimony is confirmed
by other evidence’’; ‘‘(2) [t]he specificity of the testi-
mony’’; ‘‘(3) [t]he extent to which the testimony con-
tains details known only by the perpetrator of the
alleged offense’’; ‘‘(4) [t]he extent to which the details
of the testimony could be obtained from a source other
than the defendant’’; and ‘‘(5) [t]he circumstances under
which the jailhouse witness initially provided informa-
tion supporting such testimony to . . . police . . .
including whether the jailhouse witness was responding
to a leading question.’’ General Statutes § 54-86p (a).
Although corroborating evidence is included in the list,
it is only one factor that the court may consider. The
fact that the legislature did not require corroborating
evidence to prove reliability in that context supports
our conclusion that it is also just one factor to consider
under § 54-1o (h).
We are also unpersuaded by the line of cases that the
defendant cites for the proposition that independent,
corroborating evidence is required to prove reliability.
See State v. Hafford, supra, 252 Conn. 317; State v.
Harris, 215 Conn. 189, 194–95, 575 A.2d 223 (1990);
State v. Doucette, 147 Conn. 95, 98–106, 157 A.2d 487(1959), overruled in part by State v. Tillman, 152 Conn.
15, 202 A.2d 494 (1964); State v. LaLouche, 116 Conn.
691, 694–95, 166 A. 252 (1933), overruled in part by
State v. Tillman, 152 Conn. 15, 202 A.2d 494 (1964).
These cases deal with a different doctrine—the corpus
delicti rule and, relatedly, trustworthiness—which,
despite dealing with the admissibility of confessions,
address a different concern than we address in the
cases implicated by and culminating in the legislature’s
passage of § 54-1o.10 The defendant has not provided
any reason for us to conclude that the legislature had
those doctrines in mind when it required the state to
prove reliability under the totality of the circumstances.
Accordingly, we are not persuaded that the requirement
in the corpus delicti and trustworthiness context, that
the state must introduce independent, corroborating
evidence, mandates such a requirement in the context
of § 54-1o (h).
Although we do not agree with the defendant that
the statute requires the state to introduce independent,
corroborating evidence to prove reliability, we do agree
with the defendant and the amici that such evidence is
preferable in view of the purpose of the statute. The
presumption of inadmissibility under § 54-1o is
designed to encourage the police to record custodial
interrogations by creating a consequence for their fail-
ure to do so. As we noted in State v. Lockhart, supra,
298 Conn. 537, one of the benefits of recording is to
avoid the ‘‘swearing contests’’ between law enforce-
ment and defendants regarding what happened in the
interrogation room. (Internal quotation marks omitted.)
Id., 566. When officers fail to record, we return to that
paradigm. By requiring the police to offer independent,
corroborating evidence, we avoid the swearing contests
because there is other evidence from which to evaluate
the truth of a statement, beyond the competing testimo-
nial versions of the interrogation.
Moreover, courts evaluating unrecorded statements
under § 54-1o must be mindful that, even if evidence
of the circumstances in which a statement is given is
sufficient to conclude that the statement was volunta-
rily given, that conclusion does not necessarily compel
the conclusion that the same evidence is sufficient to
conclude that the statement is reliable. See State v.
James, supra, 237 Conn. 424 (This court does not ‘‘per-
ceive . . . that involuntariness necessarily equates
with falsity. Although coercion is reasonably thought to
create a reason to confess falsely, whether a particular
coerced confession is also likely to be false depends
on many variables.’’). In the absence of independent,
corroborating evidence of the statement’s truth, the
state’s evidence regarding the circumstances in which
the statement was given should be that much stronger
for the purpose of proving reliability.
Having rejected the defendant’s claim that indepen-
dent, corroborating evidence is required to prove that
a statement is reliable, we must now determine whether
the trial court correctly concluded that the state met
its burden of proving that the defendant’s statement
was reliable. We conclude that the trial court correctly
determined that the statement was admissible as evi-
dence at the defendant’s criminal trial.
First, contrary to the defendant’s assertion, the state
did introduce independent evidence that corroborated
certain important parts of the defendant’s statement.
In particular, the defendant’s statement is consistent
with Critz’ testimony with respect to the circumstances
of the arrest. The defendant’s statement explains that,
when the police arrived at the home of the defendant’s
ex-wife, the defendant ‘‘went for a walk. When [he]
went for a walk, the police detained [him].’’ This is
consistent with Critz’ testimony that, while he was pro-
cessing the scene, officers ‘‘noticed a man walking back
toward [the police]. . . . [T]here was an exchange of
words, [Critz was] not quite sure what it was, and [he]
was notified by another officer . . . that it was [the
defendant] . . . .’’ The defendant’s statement also
explains that, before the incident with the victim, the
defendant was ‘‘watching the fight on TV’’ and that,
after he was detained, he ‘‘talked to an officer about
what had happened.’’ This is consistent with Critz’ testi-
mony confirming, on cross-examination, that the defen-
dant had told him that ‘‘he was at some kind of party,
watching the Pacquiao fight.’’ The defendant’s state-
ment also explains that the victim ‘‘punched [him] once
in the face, causing [his] gum to be cut . . . .’’ This is
consistent with Critz’ testimony confirming, on cross-
examination, that Critz ‘‘noticed [that the defendant]
apparently was bleeding from his mouth.’’ Similarly, the
defendant’s statement notes that, after his altercation
with the victim, ‘‘[w]e both had a lot of blood on us
from the fighting.’’ This is consistent with Critz’ testi-
mony that the defendant had ‘‘blood on his shirt and
. . . blood on his phone.’’ The blood on his shirt is
also physical evidence, consistent with the defendant’s
statement, that an altercation had taken place. Critz’
testimony also notes that the victim was questioned at
the scene by other officers, which further suggests the
occurrence of a violent, domestic dispute between the
defendant and the victim, which is what the defendant’s
statement describes.11
In addition to this corroborating evidence, we also
acknowledge all of the evidence set forth in part I B of
this opinion that was credited by the trial court regard-
ing the circumstances under which the statement was
given, none of which suggests that Merritt coerced the
defendant into giving a false confession. The defendant
was advised of his Miranda rights, the interrogation
lasted only one hour, the defendant made several cor-
rections to his written statement, and Merritt did not
use any potentially coercive interrogation methods. See,
e.g., State v. Carrion, supra, 313 Conn. 841 (fact that
child corrected interviewer on several points indicated
reliability because child was not just giving interviewer
what she thought interviewer wanted); State v. Mukh-
taar, supra, 253 Conn. 305 (written, signed statement
‘‘provide[s] significant assurance of an accurate rendi-
tion of the statement and that the declarant realized it
would be relied [on]’’ (internal quotation marks omit-
ted)). Indeed, the defendant has not argued that any
part of his statement was untrue.
In sum, we conclude that the defendant has failed to
establish that the trial court incorrectly determined that
the defendant’s statement was reliable. Even if we were
to require independent, corroborating evidence to
prove the reliability of a statement, the totality of the
circumstances in this case, including instances of cor-
roboration, demonstrates that the trial court correctly
concluded that the state met its burden. Accordingly,
because the state successfully proved that the defen-
dant’s statement was both voluntarily given and reliable
under the totality of the circumstances, we conclude
that the trial court properly ruled that the statement was
admissible as evidence at the defendant’s criminal trial.
II
The defendant also claims that this court should exer-
cise its supervisory authority over the administration
of justice to require our trial courts to instruct juries to
evaluate with ‘‘particular caution’’ statements obtained
by custodial interrogation that are out of compliance
with the recording mandate in § 54-1o (b), and should
order that the defendant be given a new trial because
the trial court did not give such an instruction in this
case.12 Specifically, the defendant contends that when,
‘‘as here, the court and the jury have only police assur-
ances that they conducted a fair and proper custodial
interrogation, the trial court should instruct the jury (1)
that the law required that the police make a recording
of the interrogation, (2) that the jury is authorized to
draw an adverse inference against the state for failure
to provide the jury with the required recording, and
(3) that the jury must weigh testimony regarding the
interrogation and statement obtained from it with spe-
cial caution.’’ We decline the defendant’s invitation to
invoke our supervisory authority to require trial courts
to give a special instruction in all cases in which the
police fail to record a custodial interrogation. In declin-
ing to do so, however, we emphasize that it is well within
the trial court’s discretion to give such an instruction
in appropriate cases.
At the outset, we note that the defendant did not
request a jury instruction related to Merritt’s failure
to record the interrogation; nor did he object to the
instructions that were given by the court, a copy of
which he had been given in advance of the final charge
to the jury. As the Appellate Court noted, if this claim
were of constitutional magnitude, it likely would have
been deemed waived under State v. Kitchens, 299 Conn.
447, 482–83, 10 A.3d 942 (2011), but we have previously
declined to apply the waiver rule to requests that we
exercise our supervisory authority to adopt a new rule
regarding a special jury instruction. See State v. Diaz,
302 Conn. 93, 100 n.5, 25 A.3d 594 (2011) (although
state argued that defendant waived claim by failing to
request special credibility instruction, claim was not
waived because defendant was requesting adoption of
new rule requiring trial courts to give special instruc-
tion, and, therefore, any such claim before trial court
would have been futile).
Turning to the merits of the defendant’s contention,
we are mindful that, ‘‘[a]lthough [a]ppellate courts pos-
sess an inherent supervisory authority over the adminis-
tration of justice . . . [that] authority . . . is not a
form of free-floating justice, untethered to legal princi-
ple. . . . Our supervisory powers are not a last bastion
of hope for every untenable appeal. They are an extraor-
dinary remedy to be invoked only when circumstances
are such that the issue at hand, [although] not rising
to the level of a constitutional violation, is nonetheless
of utmost seriousness, not only for the integrity of a
particular trial but also for the perceived fairness of
the judicial system as a whole. . . . Constitutional,
statutory and procedural limitations are generally ade-
quate to protect the rights of the defendant and the
integrity of the judicial system. Our supervisory powers
are invoked only in the rare circumstance [when] these
traditional protections are inadequate to ensure the fair
and just administration of the courts.’’ (Emphasis in
original; internal quotation marks omitted.) State v.
Wade, 297 Conn. 262, 296, 998 A.2d 1114 (2010).
In support of his argument, the defendant contends
that we have previously adopted jury instructions that
require the fact finder to scrutinize certain testimony,
such as that of complaining witnesses, accomplices,
and informants. See, e.g., State v. Arroyo, 292 Conn.
558, 561, 973 A.2d 1254 (2009), cert. denied, 559 U.S.
911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086 (2010); State v.
Patterson, 276 Conn. 452, 469–70, 886 A.2d 777 (2005);
State v. Ortiz, 252 Conn. 533, 561–63, 747 A.2d 487(2000). The defendant contends that, as in those cases,
when the police fail to record an interrogation in viola-
tion of § 54-1o, jurors would not be aware of the meth-
ods the state used to procure the evidence. As such,
the defendant argues, the jury needs to be informed of
the provenance of the evidence and to weigh its reliabil-
ity in light of its source.
We are not persuaded that, in all cases in which the
police fail to record a custodial interrogation, we should
mandate such an instruction. As we have explained,
‘‘[g]enerally, a [criminal] defendant is not entitled to an
instruction singling out any of the state’s witnesses and
highlighting his or her possible motive for testifying
falsely.’’ (Internal quotation marks omitted.) State v.
Baltas, 311 Conn. 786, 820, 91 A.3d 384 (2014). Unlike
the ‘‘inevitably suspect’’ testimony of an accomplice,
complainant, or informant; State v. Patterson, supra,
276 Conn. 469; evidence of an unrecorded statement
is put before the jury only after the trial court has
determined that the statement is more likely than not
reliable. An unrecorded statement already has a legisla-
tively prescribed presumption of inadmissibility and is,
therefore, substantially different from testimony of an
accomplice, complainant, or informant. We do not
believe that it is necessary to mandate a jury instruction
in all cases, when the state must already overcome the
presumption of inadmissibility. Cf. T. Sullivan & A. Vail,
‘‘The Consequences of Law Enforcement Officials’ Fail-
ure To Record Custodial Interviews as Required by
Law,’’ 99 J. Crim. L. & Criminology 215, 215, 224–26
(2009) (authors removed presumption of inadmissibility
of unrecorded interviews from model recording statute
and provided instead for jury instruction). Indeed, prior
to the enactment of § 54-1o, we declined to invoke our
supervisory authority to address the admission of unre-
corded confessions. See State v. Lockhart, supra, 298
Conn. 576–77. We explained that ‘‘the procedures
already in place to prevent the admission into evidence
of involuntary or untrustworthy confessions’’ are suffi-
cient to protect the integrity of a trial. Id., 577. The
enactment of § 54-1o has made those protections even
stronger. Given the procedures already in place to pre-
vent the admission into evidence of involuntary or
untrustworthy confessions, we are not convinced that
a jury instruction in all cases is necessary to guard
against a threat to ‘‘the integrity of a particular trial
. . . [or] the perceived fairness of the judicial system
as a whole.’’ (Internal quotation marks omitted.) Id.
The defendant also points to other jurisdictions that
require special instructions when the police fail to fol-
low laws requiring that custodial interrogations be
recorded. For example, state recording statutes in Mich-
igan, New York, North Carolina, and Wisconsin provide
for a jury instruction requirement when the police fail
to record certain custodial interrogations. See Mich.
Comp. Laws Serv. § 763.9 (LexisNexis 2016) (‘‘the jury
shall be instructed that it is the law of this state to record
statements of an individual in custodial detention who
is under interrogation for a major felony and that the
jury may consider the absence of a recording in evaluat-
ing the evidence relating to the individual’s statement’’);
N.Y. Crim. Proc. Law § 60.45 3. (d) (McKinney 2019)
(‘‘upon request of the defendant, the court must instruct
the jury that the people’s failure to record the defen-
dant’s confession, admission or other statement as
required . . . may be weighed as a factor, but not as
the sole factor, in determining whether such confession,
admission or other statement was voluntarily made, or
was made at all’’); N.C. Gen. Stat. § 15A-211 (f) (3)
(2019) (‘‘[w]hen evidence of compliance or noncompli-
ance with the requirements of this section has been
presented at trial, the jury shall be instructed that it
may consider credible evidence of compliance or non-
compliance to determine whether the defendant’s state-
ment was voluntary and reliable’’); Wis. Stat. Ann.
§ 972.115 (2) (a) (West 2007) (‘‘upon a request made by
the defendant . . . and unless the state asserts and the
court finds that [certain conditions apply] or that good
cause exists for not providing an instruction, the court
shall instruct the jury that it is the policy of this state
to make an audio or audio and visual recording of a
custodial interrogation of a person suspected of com-
mitting a felony and that the jury may consider the
absence of an audio or audio and visual recording of
the interrogation in evaluating the evidence relating to
the interrogation and the statement in the case’’).13
Unlike the statutory provisions the defendant relies
on that specifically provide for certain jury instructions,
under § 54-1o, when the police fail to record a custodial
interrogation, our legislature has provided that such
statements are presumed inadmissible unless the state
can establish, by a preponderance of the evidence, spe-
cific criteria to overcome the presumption. In State v.
Lockhart, supra, 298 Conn. 537, we left for the legisla-
ture the ‘‘weighing and balancing [of] the benefits and
drawbacks of an electronic recording requirement,’’ and
to create ‘‘the parameters of such a rule.’’ Id., 570. The
legislature did not include a requirement in § 54-1o that
the trial court give a specific instruction when the state
successfully overcomes the presumption of inadmissi-
bility. See, e.g., McCoy v. Commissioner of Public
Safety, 300 Conn. 144, 155, 12 A.3d 948 (2011) (‘‘[o]ur
case law is clear . . . that when the legislature chooses
to act, it is presumed to know how to draft legislation
consistent with its intent and to know of all other
existing statutes’’ (internal quotation marks omitted)).
We therefore decline the defendant’s request that we
exercise our supervisory authority to go beyond the
legislature’s prescribed sanction and require trial courts
to give a special instruction in every case in which
the police fail to record custodial interrogations. If the
legislature’s membership wants to revisit this issue and
to incorporate a specific instruction along the lines that
other state legislatures have incorporated, they are, of
course, free to do so.
We take this opportunity to emphasize, however, that
it is well within the trial court’s discretion to give a
specific, cautionary instruction when the police fail to
record a custodial interrogation in violation of § 54-1o
(b). As we have explained, ‘‘[i]t is within the province,
and may be within the duty, of the trial judge to not
only call attention to the evidence adduced, but [also]
to state to the jury in the charge his [or her] own opinion
of the nature, bearing and force of such evidence.’’
(Internal quotation marks omitted.) State v. Lemoine,
233 Conn. 502, 510–11, 659 A.2d 1194 (1995); see, e.g.,
id., 511 (‘‘generally the extent to which the [trial] court
should discuss the evidence in submitting a case to the
jury is, so long as in criminal cases the jury [is] not
directed how to find [its] verdict, within the discretion
of the trial judge’’ (emphasis omitted; internal quotation
marks omitted)); State v. Anderson, 212 Conn. 31, 49,
561 A.2d 897 (1989) (‘‘[t]he trial court, like the jury,
may assess a witness’ credibility and, if relevant, may
comment on it’’); State v. Cari, 163 Conn. 174, 182, 303
A.2d 7 (1972) (‘‘[o]n numerous occasions this court has
stated that the trial court in a criminal case may, in its
discretion, make fair comment on the evidence and
particularly on the credibility of witnesses’’).
When the police fail to record a custodial interroga-
tion in violation of § 54-1o (b), and the defendant
requests it, the trial court would be acting within its
discretion to instruct the jury that it is the law of this
state to record statements made during a custodial
interrogation of a person under investigation for or
accused of a class A or B felony and that the jury may
consider the absence of a recording in evaluating the
evidence relating to the individual’s statement obtained
in violation of that law.
Because trial courts already have the discretion to
give a cautionary instruction under existing case law,
we decline to create a new supervisory rule requiring
a special instruction in all cases in which the police fail
to comply with the recording mandate in § 54-1o (b).
The judgment of the Appellate Court is affirmed.
In this opinion D’AURIA, ECKER and VERTEFEUILLE,
Js., concurred.
* In accordance with our policy of protecting the privacy interests of the
victim of family violence, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
** March 10, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
General Statutes § 54-1o provides in relevant part: ‘‘(b) An oral, written
or sign language statement of a person under investigation for or accused
of a capital felony or a class A or B felony made as a result of a custodial
interrogation at a place of detention shall be presumed to be inadmissible
as evidence against the person in any criminal proceeding unless: (1) An
electronic recording is made of the custodial interrogation, and (2) such
recording is substantially accurate and not intentionally altered.
***
‘‘(d) If the court finds by a preponderance of the evidence that the person
was subjected to a custodial interrogation in violation of this section, then
any statements made by the person during or following that nonrecorded
custodial interrogation, even if otherwise in compliance with this section,
are presumed to be inadmissible in any criminal proceeding against the
person except for the purposes of impeachment.
‘‘(e) Nothing in this section precludes the admission of:
***
‘‘(2) A statement made during a custodial interrogation that was not
recorded as required by this section because electronic recording was
not feasible;
‘‘(3) A voluntary statement, whether or not the result of a custodial interro-
gation, that has a bearing on the credibility of the person as a witness;
***
‘‘(6) A statement made during a custodial interrogation by a person who
requests, prior to making the statement, to respond to the interrogator’s
questions only if an electronic recording is not made of the statement,
provided an electronic recording is made of the statement by the person
agreeing to respond to the interrogator’s question only if a recording is not
made of the statement;
***
‘‘(8) Any other statement that may be admissible under law.
‘‘(f) The state shall have the burden of proving, by a preponderance of
the evidence, that one of the exceptions specified in subsection (e) of this
section is applicable.
***
‘‘(h) The presumption of inadmissibility of a statement made by a person
at a custodial interrogation at a place of detention may be overcome by a
preponderance of the evidence that the statement was voluntarily given and
is reliable, based on the totality of the circumstances. . . .’’
2
Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
3
The concurrence concludes that the voluntariness inquiry under § 54-1o
is purely evidentiary because ‘‘the legislature does not establish constitu-
tional requirements.’’ Our conclusion that the voluntariness inquiry under
§ 54-1o (h) is constitutional does not suggest that the legislature has created
a constitutional requirement. Specifically, we do not conclude that the legis-
lature has created a constitutional right to the recording of a custodial
interrogation. Nor do we conclude that recording a custodial interrogation
is sufficient, in itself, to establish voluntariness. Rather, in passing § 54-1o,
the legislature referenced and incorporated the previously existing voluntari-
ness requirement that the state already had the burden of proving. The
recording of the custodial interrogation is simply a means to prove or
disprove voluntariness. As the concurrence notes, the voluntariness require-
ment contained in § 54-1o (h) ‘‘overlap[s] or track[s]’’ the due process require-
ment of voluntariness. The voluntariness requirement in the statute does
track the traditional constitutional voluntariness requirement. It does not
create a new constitutional right; it simply incorporates what the state was
already required to prove. In short, the statute provides that no statement
given during a custodial interrogation, obtained in violation of the recording
mandate, could be admitted into evidence in the absence of a showing that
the police followed the long recognized, constitutional requirement that
such a statement be given voluntarily. The only requirement that the statute
does create is that the state must also prove the reliability of such a state-
ment. As we discuss, that requirement is an evidentiary inquiry.
Under the concurrence’s interpretation of the statute, the state would
have a lower, evidentiary burden with respect to proving voluntariness when
the police fail to record a custodial interrogation in violation of the statute.
We decline to construe the statute to create such an anomalous result. See,
e.g., Kelly v. New Haven, 275 Conn. 580, 616, 881 A.2d 978 (2005). Just as
the legislature cannot create a constitutional right, neither can it lower the
state’s burden of proof. Moreover, the consequence of concluding that the
voluntariness inquiry is merely evidentiary is that a trial court’s determina-
tion of voluntariness is entitled to substantial deference on appeal. We
decline to create two different standards for reviewing the voluntariness of
a statement given during a custodial interrogation.
4
The defendant does not appear to dispute that the reliability inquiry
under § 54-1o (h) is an evidentiary question.
5
The defendant does not claim that reliability is a constitutional matter
under the state constitution. Accordingly, we have no occasion to consider
whether our state constitution provides greater protection than the federal
constitution. See, e.g., State v. Pinder, 250 Conn. 385, 418 n.31, 736 A.2d
857 (1999).
6
The defendant does not challenge the validity of the Miranda warning
he was given at the time of his arrest.
7
We acknowledge that this second acknowledgment of understanding did
not occur until after the interrogation was under way, and thus it cannot,
in and of itself, serve as the basis from which to conclude that the defendant
understood and waived his rights. But the evidence establishes that the
defendant acknowledged that he understood his rights at 5:30 a.m., and that
he still understood his rights at approximately 1 p.m., and there is no evidence
in the record to suggest that he suffered a lapse in that understanding at
any point in between.
8
The record does reflect, contrary to the defendant’s assertions, that the
trial court considered Merritt’s conduct. For example, the court stated that,
although Merritt was aware that the law required recording, he had not
acted in bad faith.
9
We emphasize the importance of recording custodial interrogations, as
required by § 54-1o. Such recordings enable the fact finder to view the
circumstances of the interrogation for himself or herself and provide strong
evidence to determine both the voluntariness and reliability of a defen-
dant’s statement.
10
The corpus delicti is ‘‘the occurrence of the specific kind of loss or
injury embraced in the crime charged.’’ (Internal quotation marks omitted.)
State v. Leniart, supra, 333 Conn. 97. For instance, ‘‘[i]n a homicide case,
the corpus delicti is the fact of the death, [regardless of whether] feloniously
caused, of the person whom the accused is charged with having killed or
murdered.’’ (Internal quotation marks omitted.) Id. The corpus delicti rule,
also known as the corroboration rule; id., 97 n.5; is a common-law rule that
‘‘generally prohibits a prosecutor from proving the [fact of a transgression]
based solely on a defendant’s extrajudicial statements.’’ (Internal quotation
marks omitted.) Id., 97. Thus, in a murder trial, for example, the rule would
prevent the state from relying solely on the defendant’s statement that he
or she had killed a victim to prove that the victim was dead.
Although the corpus delicti rule, like § 54-1o, exists, in part, to prevent
the admission of false confessions into evidence, the primary purpose of
the corpus delicti rule is to ‘‘avoid the patent injustice of convicting an
innocent person . . . of an imaginary crime.’’ (Emphasis added.) Id., 105.
That is, the rule requires independent evidence not to confirm that the
defendant is the one who committed the crime, but to confirm that the
crime charged actually occurred. It exists to provide reassurance that the
crime took place, not that the defendant was the one responsible.
11
To the extent that the defendant argues in his reply brief that the state
was required to introduce independent evidence of the corpus delicti of
strangulation and assault for the defendant’s statement to be admissible,
the defendant misinterprets the evolution of our corpus delicti rule into its
modern form, the trustworthiness doctrine. Indeed, under the former rule,
the state would have had to introduce independent evidence of the corpus
delicti itself for the statement to be admissible. But under the modern rule,
that is no longer the case. As we have previously explained, the state no
longer must establish the corpus delicti of a crime through extrinsic evi-
dence; it need only ‘‘introduce substantial independent evidence [that] would
tend to establish the trustworthiness of the [defendant’s] statement.’’ (Inter-
nal quotation marks omitted.) State v. Leniart, supra, 333 Conn. 113. That
independent evidence need not corroborate the corpus delicti itself.
12
The defendant also mentions in his brief that, ‘‘[u]nder the circumstances
here, it was plain error not to inform the . . . jury that the Enfield police
violated the recording mandate . . . .’’ To the extent the defendant is
asserting a claim under the plain error doctrine, we note that ‘‘[t]he plain
error doctrine, which is codified at Practice Book § 60-5, is an extraordinary
remedy used by appellate courts to rectify errors committed at trial that,
although unpreserved, are of such monumental proportion that they threaten
to erode our system of justice and work a serious and manifest injustice
on the aggrieved party. . . . In addition, the plain error doctrine is reserved
for truly extraordinary situations [in which] the existence of the error is so
obvious that it affects the fairness and integrity of and public confidence
in the judicial proceedings. . . . Plain error is a doctrine that should be
invoked sparingly. . . . Implicit in this very demanding standard is the
notion . . . that invocation of the plain error doctrine is reserved for occa-
sions requiring the reversal of the judgment under review. . . . [Thus, an
appellant] cannot prevail under [the plain error doctrine] . . . unless he
demonstrates that the claimed error is both so clear and so harmful that a
failure to reverse the judgment would result in manifest injustice.’’ (Emphasis
added; internal quotation marks omitted.) State v. Diaz, 302 Conn. 93, 101,
25 A.3d 594 (2011). Given that the defendant is asking us to invoke our
supervisory authority to require a jury instruction that was not previously
required, we fail to see how the trial court’s failure to sua sponte give that
instruction constituted plain error. See, e.g., id., 104 n.8 (‘‘[i]t is axiomatic
that the trial court’s proper application of the law existing at the time of
trial cannot constitute reversible error under the plain error doctrine’’).
13
The defendant also notes that New Jersey and Massachusetts require
special instructions when the police fail to follow law requiring that custodial
interrogations be recorded. New Jersey’s electronic recordation law provides
that ‘‘[t]he failure to electronically record a defendant’s custodial interroga-
tion in a place of detention shall be a factor for consideration by the trial
court in determining the admissibility of a statement, and by the jury in
determining whether the statement was made, and if so, what weight, if
any, to give to the statement.’’ N.J. Court Rules 3:17 (d); see State v. Hubbard,
222 N.J. 249, 263, 118 A.3d 314 (2015) (‘‘[f]ollowing a comprehensive study
of ‘whether and how to implement the benefits of recording electronically
part, or all, of custodial interrogations,’ State v. Cook, 179 N.J. 533, 561, 847
A.2d 530 (2004), the [c]ourt adopted [r]ule 3:17 in 2005’’). Subsection (e) of
rule 3:17 provides in relevant part that, ‘‘[i]n the absence of an electronic
recordation . . . the court shall, upon request of the defendant, provide
the jury with a cautionary instruction.’’ (Emphasis added.) N.J. Court Rules
3:17 (e). ‘‘[A] report issued by the New Jersey Supreme Court Special Com-
mittee on Recordation of Custodial Interrogations in 2005 recommended
an instruction that the jury has ‘not been provided with a complete picture
of all of the facts surrounding the defendant’s alleged statement and the
precise details of that statement.’ ’’ State v. Lockhart, supra, 298 Conn. 564n.11. Similarly, the Massachusetts Supreme Judicial Court has explained
that defendants are ‘‘entitled (on request) to a jury instruction advising that
the [s]tate’s highest court has expressed a preference that such interroga-
tions be recorded whenever practicable, and cautioning the jury that,
because of the absence of any recording of the interrogation in the case
before [it], [it] should weigh evidence of the defendant’s alleged statement
with great caution and care.’’ (Emphasis added.) Commonwealth v. DiGiam-
battista, 442 Mass. 423, 447–48, 813 N.E.2d 516 (2004).
We note that, in both New Jersey and Massachusetts, the defendant must
request the jury instruction. In the present case, the defendant made no
such request. Additionally, the instruction adopted in DiGiambattista was
an effort by the Massachusetts high court to find a middle ground between
excluding unrecorded confessions and doing nothing to ameliorate the harm
to defendants. See id., 445–46.