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   STATE v. LENIART—SECOND CONCURRENCE AND DISSENT

   D’AURIA, J., concurring in part and dissenting in part.
I agree fully with part I of the majority’s cogent and
thorough opinion. Specifically, I agree that the defen-
dant’s corpus delicti claim is reviewable; that the corpus
delicti rule is a substantive rule of criminal law and not
a purely evidentiary rule of admissibility; and that there
was sufficient evidence to sustain the defendant’s con-
viction.
  I also agree with part II A of the majority’s opinion,
and with the Appellate Court, that the trial court errone-
ously ruled that the videotape of Patrick J. Allain’s poly-
graph pretest interview with the police was inadmissi-
ble. I disagree, however, with part II B of the majority’s
opinion, which concludes that the trial court’s error was
harmless. Rather, for substantially the same reasons
detailed by the Appellate Court in its persuasive opinion
on this issue; see State v. Leniart, 166 Conn. App. 142,
194–97, 140 A.3d 1026 (2016); I conclude that the defen-
dant has met his burden of demonstrating the harm-
fulness of the trial court’s error. I therefore respectfully
dissent from the majority’s decision reversing in part
the judgment of the Appellate Court, on the ground that
the exclusion of the pretest videotape was harmless,
and would instead affirm the Appellate Court’s judg-
ment ordering a new trial.1
   The majority finds the question of harm in this case
to be a ‘‘close call,’’ but ultimately concludes that the
defendant has not demonstrated that exclusion of the
videotape substantially affected the verdict. My own
review of the videotape of Allain’s pretest interview,
when measured against the cross-examination of Allain
that defense counsel was both able to undertake and
prevented from undertaking without the benefit of that
interview, leads me to a contrary conclusion. Given the
importance of Allain as a witness, and given the defense
the defendant sought to mount, I am not left with ‘‘a
fair assurance that the error did not substantially affect
the verdict.’’ (Internal quotation marks omitted.) State
v. Rodriguez, 311 Conn. 80, 89, 83 A.3d 595 (2014).
   The state admitted that Allain was a ‘‘crucial’’ witness
for its case. He was the only witness who was with the
defendant and the victim on the night of her disappear-
ance. Indeed, Allain understood—and was concerned—
that the police might conclude that he had murdered
the victim. Over the years, Allain had made a number
of statements incriminating himself, including asking
his father to help him move the victim’s body from its
burial spot. In fact, there was sufficient ‘‘direct evi-
dence’’ that Allain might have committed the murder
that the defendant sought—and the trial court gave—
a third-party culpability charge to the jury. See State v.
Schovanec, 326 Conn. 310, 319, 163 A.3d 581 (2017).
   The defendant’s cross-examination of Allain did not
simply attack the truthfulness of his testimony, the clar-
ity of his memory of the events of that night or his own
potential culpability. Rather, the defendant sought to
develop a specific theme of bias: that Allain had increas-
ingly tailored his statements over the years—and on
the witness stand continued to tailor his testimony—
to what authorities wanted to hear by implicating the
defendant. Allain was motivated to do this, the defen-
dant contended, either to deflect attention away from
himself as a suspect in the murder, or to secure more
favorable treatment for himself, both as a participant
in the victim’s disappearance and in other cases for
which he had received or continued to face signifi-
cant sentences.2
   In response to the defendant’s argument that the trial
court’s error harmed him, both the state and the major-
ity argue that the defendant had ample opportunity to
cross-examine Allain and impeach his direct testimony.
And, in fact, as the majority details, the record of Allain’s
cross-examination reveals that defense counsel was
able to make some inroads in developing a theme of
bias.
   Specifically, Allain admitted that beginning in 1997,
and up until the time of trial in 2010, he had met with
the state police ‘‘around twenty-five’’ times. Only one
of those meetings was videotaped: the 2004 polygraph
pretest interview at issue in this case. Allain had also
given the police three separate and somewhat varying
written statements, in 1997, 2004 and 2007.3 Part of the
defendant’s theme was not only that Allain had left out
significant details in each of those statements such that
he should not be believed, but that with each state-
ment—and ultimately in his trial testimony—he
included significant details that increasingly implicated
the defendant, especially as the defendant began to
understand that the police were looking harder at him
as a suspect.
   Although the jury certainly had the opportunity to
assess Allain’s demeanor in the context of the trial as
he faced aggressive cross-examination on these issues,
the videotape was the only actual display of Allain’s
exchanges with the police, evidence of what the Appel-
late Court aptly described as ‘‘subtle but significant
pressure’’ by the police4 ‘‘to shape Allain’s story’’ in a
way that allowed them to get the ‘‘ ‘big fish’ ’’ (i.e., the
defendant). State v. Leniart, supra, 166 Conn. App. 195–
96. It would, of course, have been for the jury to deter-
mine whether it agreed with these characterizations of
Allain’s interactions with the police. It would also have
been for the jury to infer, if it chose to do so, that the
police had perhaps exerted similar pressure on Allain
to shape the statements he had given them over the
years (1997, 2004 and 2007), resulting in his trial testi-
mony, during which he continued to add details he had
neither included in any previous written statement nor
disclosed to state police Trooper Tim Madden at the
pretest interview.
   The exclusion of the pretest interview not only pre-
vented the defendant from showing to the jury Allain’s
interaction with the police for the jury’s own assess-
ment, but deprived the defendant of a significant check
on Allain’s trial testimony. On several occasions, the
defendant was unable effectively to examine Allain
(who was accompanied at the defendant’s trial by state
appointed counsel) about what the police had said to
him or he had said to them at the pretest interview
because he answered that he could not recall. At one
point, defense counsel asked the defendant if it would
refresh his recollection if he viewed the videotape. The
state objected, and the trial court sustained the objec-
tion. Thus, to the extent the state suggests in its reply
brief that any error was harmless because the defendant
could have kept Allain honest by impeaching him with
the videotape or refreshing his recollection, this argu-
ment rings hollow. Compare id., 188 n.33. Rather, I
agree with the Appellate Court that the defendant has
carried his burden of demonstrating harm.5
      Therefore, I concur in part and dissent in part.
  1
     Because I agree with the Appellate Court that the trial court’s error
should result in a new trial, it is not necessary for me to reach the expert
witness issue addressed in part III of the majority’s opinion. However,
because the majority has reached the issue and because the issue would
likely arise at a new trial if one were to be ordered; see Practice Book § 63-
4 (a) (1) (B); I express my agreement with the majority’s conclusion that
the defendant has not demonstrated that the trial court abused its discretion
in excluding the proffered expert testimony. I therefore join part III of the
majority’s opinion.
   2
     As the Appellate Court noted, at the outset of the pretest interview in
2004, Allain ‘‘repeatedly made clear that he was motivated to take the test
because he recently had been charged with violating his probation and
had a suspended period of incarceration hanging over his head,’’ and ‘‘his
probation officer was ‘pushing toward violating me if I don’t take’ ’’ the
polygraph test. State v. Leniart, supra, 166 Conn. App. 183. By the time he
testified at the defendant’s trial in 2010, Allain had served nearly two and
one-half years of a ten year sentence for sexual assault in the second degree.
Allain was never charged at all in relation to the victim’s disappearance in
the present case.
   3
     There is some confusion about the date of one of the statements. It
appears to be dated 2001, but it could have been 2007.
   4
     The videotape shows not just the interview with state police Trooper
Tim Madden, but a brief exchange with two other police officers. This
exchange at least arguably could have been construed to suggest not so
‘‘subtle pressure.’’ When asked by Madden if he was taking the polygraph
voluntarily, Allain referred to the fact that he was facing a violation of
probation charge and understood from the other officers that he likely would
be returned to jail for as much as five years for violating his probation if
he did not take the polygraph test. Madden sought to disabuse Allain of this
notion himself and also brought the other officers into the room in the
middle of the pretest interview to assure him that that would not happen.
Madden further admonished Allain that he would not administer the poly-
graph test unless he was submitting to it voluntarily. Shortly after talking
to the other officers, Allain indeed backed off and said he was taking the
polygraph to ‘‘tell the truth’’ and ‘‘do the right thing,’’ not because of any
threat to be returned to jail, as he had indicated at the beginning of the
interview. Apparently satisfied, Madden pressed forward with the interview.
This would have been an important set of exchanges for the jury to evaluate.
   5
     In light of the critical nature of Allain’s testimony, I do not find persuasive
the state’s passing mention in its brief that the evidence of the defendant’s
guilt was overwhelming, making any error harmless.
