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              STATE v. LENIART—CONCURRENCE

   KAHN, J., concurring. I agree with and join the major-
ity opinion, in which the judgment of the Appellate
Court is reversed with respect to the state’s appeal
and affirmed with respect to the cross appeal of the
defendant, George Michael Leniart. That is, I agree with
part I of the majority opinion that the Appellate Court
properly concluded that the evidence was sufficient to
sustain the defendant’s conviction. See State v. Leniart,
166 Conn. App. 142, 150, 140 A.3d 1026 (2016). I also
agree with part III of the majority opinion that the
Appellate Court improperly concluded that the trial
court abused its discretion when it precluded expert
testimony proffered by the defendant regarding the
reliability of jailhouse informant testimony. See id., 212.
Finally, I agree with part II of the majority opinion that
the trial court read this court’s decision in State v.
Porter, 241 Conn. 57, 93–94, 698 A.2d 739 (1997), cert.
denied sub nom. Porter v. Connecticut, 523 U.S. 1058,
118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), too broadly,
to require the per se exclusion of the videotaped inter-
view of Patrick J. Allain (interview), conducted prior
to his polygraph test, but that any error as to this eviden-
tiary ruling was harmless. Our holding in Porter was
confined solely to the results of the polygraph test and
the willingness of the witness to submit to that test—
evidence of either is per se inadmissible. See id., 93.
As a result of its overly broad reading of Porter, the
trial court improperly failed to exercise its discretion
to determine whether the interview evidence, given the
facts and circumstances presented, would have been
more probative than prejudicial.
   I write separately solely to emphasize that, because
the interview was conducted in conjunction with a
pending polygraph test, the inclusion of any portions
of the interview that disclose that fact would be inad-
missible under Porter to the extent that such evidence
would make clear that Allain had agreed to submit to
a polygraph test. Further, I agree with the state that
any reference to the fact that the interview took place
in the context of a polygraph test may lead the jury to
improperly speculate as to the results of that test. In
the present case, the jury’s speculation would have run,
if anything, against the defendant. As the state conceded
at oral argument before this court, from the fact that
Allain submitted to a polygraph test and the state then
chose to call him as a witness, the jury reasonably could
have inferred that Allain passed that test. That inference
would have bolstered Allain’s credibility, rather than
undermining it.
  The substance of some of the comments of the poly-
graph examiner, Trooper Tim Madden of the Connecti-
cut State Police, during the interview would have
increased the likelihood that the jury would infer from
the videotape that Allain had passed the polygraph test.
For example, Madden explained to Allain that, although
he did not care whether Allain was truthful during the
polygraph test, the prosecution team, ‘‘want[s] you to
pass this polygraph. They want to get you to be identi-
fied as a reliable witness.’’ Put another way, he
explained to Allain that, ‘‘if you fail this, what happens
is, it gets to a point where you now become a less
reliable witness . . . .’’ Madden framed the issue in
terms of how useful Allain would be to the state as a
witness. If Allain told the truth and passed the polygraph
test, then ‘‘we can use [you] as a witness as opposed
to an accused, alright? It works to our benefit because
we have a good, solid, confirmed, reliable witness,
alright?’’
   Throughout the interview, Madden emphasized the
importance of passing the test. For example, he stated
to Allain that, if he failed, ‘‘then you’re no longer useful.
Gotta come out with all of it, and you gotta pass. Then
you’re very useful. Then we can say, hey look, this is
a cooperating witness. He has a lot of value to us. That’s
why it’s imperative that it all comes out and you pass the
polygraph. Alright. You understand what I’m saying?’’
  The excerpted portions of the interview demonstrate
that the jury could infer from Madden’s statements that
the state would use Allain as a witness only if he passed
the polygraph test. It would not require a Holmesian
leap for the jury to further infer from the fact that the
state called Allain as a witness that he had indeed
passed the polygraph test.
   This would be particularly detrimental to the defen-
dant’s case because it is at least arguable that Allain
failed the polygraph test. See State v. Leniart, supra,
166 Conn. App. 185 (‘‘The defendant contends, on the
basis of a report disclosed to the defense by the state,
that Allain failed the polygraph examination. Although
the state conceded that the report contained a prelimi-
nary conclusion that some of Allain’s answers were
consistent with deception, the state argued that it would
have had to conduct additional testing to determine
whether Allain actually failed the polygraph test. There
is no evidence that the state performed such testing
despite the officers’ representations to Allain that the
test would definitively determine if he was telling the
truth, and thus he must take and pass it before he would
be permitted to testify and become eligible for favorable
treatment in connection with [the victim’s] rape, disap-
pearance, and death.’’) The trial court’s proper exercise
of its discretion would prevent this eventuality.
Although there are multiple references to the polygraph
during the interview, there are sections of it that do
not refer to the impending test. Had the court exercised
its discretion, it would have examined the entire video-
tape to determine whether all or part of the interview
would disclose that the questions and answers were in
the context of a polygraph test. Having done so, the
court could consider whether the videotape could be
redacted to remove any such references to the poly-
graph. Another option the court properly could have
considered in the exercise of its discretion would have
been to admit only the portions of the interview that
the defendant claimed were useful and did not disclose
that the interview was in the context of a polygraph test.
  Finally, I note my agreement with the majority opin-
ion, for all the reasons stated therein, that the error
was harmless.
