******************************************************
  The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
  All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
  The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
  LAPOINTE v. COMMISSIONER OF CORRECTION—FIRST DISSENT

   ZARELLA, J., with whom ESPINOSA, J., joins, dis-
senting. Although I disagree with virtually all of the
majority’s analysis and conclusions, I write, in particu-
lar, to express my strong objection to the majority’s
creation and application of a new exception to our well
established standard of review, an exception that allows
this court to engage in a de novo review of live expert
testimony presented in a habeas proceeding. This new
standard is driven by the majority’s disagreement with
the habeas court’s1 credibility findings, which, if
allowed to stand, are fatal to the claims raised by the
petitioner, Richard Lapointe. The deferential clear error
standard of review that applies to credibility assess-
ments in this context bars the majority from substituting
its own judgment for that of the habeas court; and the
record, which contains ample support for the habeas
court’s findings, prevents a finding of clear error. Hope-
lessly trapped between its unwillingness to accept the
habeas court’s findings and its inability to overturn them
under our clear error standard, the majority summons
down its deus ex machina: a singular exception to our
clear error standard of review, created just for this case
and those cases ‘‘indistinguishable’’ from this one, that
empowers the majority to reach its desired ending by
retrying in this court the credibility issues settled in
the habeas court. This court, however, is not a fact-
finding court, and we do not judge the credibility of
witnesses because we lack the constitutional authority
to do so. By making its own findings about the credibil-
ity of expert testimony, the majority exceeds the limits
of our jurisdiction and unjustifiably usurps the habeas
court’s role as fact finder, thereby turning the hearing
in that court into little more than an exercise in futility.
   The habeas court proceeding is more than just a
conduit for logging the evidence, and that court’s find-
ings represent more than a suggestion. The habeas court
is the sole trier of fact and assessor of credibility, with
the exclusive power to determine the credibility of the
testimony presented to it. See, e.g., Sanchez v. Commis-
sioner of Correction, 314 Conn. 585, 604, 103 A.3d 954
(2014); Gaines v. Commissioner of Correction, 306
Conn. 664, 690, 51 A.3d 948 (2012). We consistently have
deferred to its exclusive role in this regard, properly
relegating our role to reviewing its fact and credibility
findings only to determine whether they find support
in the record. See, e.g., Sanchez v. Commissioner of
Correction, supra, 604.
   This court’s power to draw conclusions of fact and
credibility is proscribed not only by practical considera-
tions—unlike the trier, we do not receive evidence first-
hand—but also by the limits of our constitutional func-
tion. For more than one century, this court has repeat-
edly recognized that it simply does not have the jurisdic-
tion under our constitution to resolve disputed
questions of fact or to assess the credibility of testi-
mony, irrespective of the nature of the claim or the
type of evidence presented to the trier of fact. Styles
v. Tyler, 64 Conn. 432, 442, 30 A. 165 (1894). The bifurca-
tion of the Superior Court from the appellate level
courts leaves the Superior Court as the final arbiter of
fact disputes and limits our role to resolving questions
of law. Id., 444–47. Consequently, we lack jurisdiction
to resolve disputed questions of fact and credibility,
regardless of how this court may attempt to cast the
nature of its inquiry. Dexter Yarn Co. v. American Fab-
rics Co., 102 Conn. 529, 538, 129 A. 527 (1925). Adhering
to this principle, this court has repeatedly rebuffed sug-
gestions by litigants—and even some judges of this
court—that we may substitute our judgment for that
of the trier of fact when the trier of fact has made
credibility findings after receiving and weighing the evi-
dence. See, e.g., Skakel v. State, 295 Conn. 447, 487 n.25,
991 A.2d 414 (2010) (‘‘[t]his court . . . squarely has
rejected the proposition that a less deferential standard
than abuse of discretion should apply to review of deci-
sions pertaining to evidence [even when such decisions
are] not predicated on an assessment of the witness’
demeanor’’).
   By allowing this court to substitute its own judgment
for that of the habeas court on questions about witness
credibility, the majority has exceeded our jurisdiction.
Our law is clear that assessing new witness credibility
in the Strickland2 prejudice/Brady3 materiality context
presents a question of fact for the habeas court and
that, consistent with our jurisdictional limits, we defer
to its findings. See, e.g., Sanchez v. Commissioner of
Correction, supra, 314 Conn. 604, 611; Gaines v. Com-
missioner of Correction, supra, 306 Conn. 690–91. Our
constitution and case law simply do not permit this
court to usurp the primary and exclusive function of
the Superior Court. By granting itself a license to review
de novo the live expert testimony presented to the
habeas court, the majority has placed itself outside the
limits of our authority and installed itself as both the
trier and reviewer—a duality of power that this court
previously has labeled as ‘‘evil . . . .’’ Styles v. Tyler,
supra, 64 Conn. 449.
  Compounding the impropriety of its analysis, the
majority has adopted a standard allowing it to find facts
even though neither party has asked this court to do
so. Because the majority has adopted its new standard
sua sponte, neither party had any notice or opportunity
to brief the propriety of such a standard. Furthermore,
neither party—most notably not even the petitioner—
has claimed that the habeas court’s credibility findings
were incorrect, so neither party has briefed the merits
of the credibility issues decided by the majority. Never-
theless, the majority has not asked the parties to provide
any supplemental briefing, leaving the majority to
engage in its new fact-finding role, which it has created
sua sponte, without any meaningful notice to or guid-
ance from the parties, in violation of the principles
recently set forth in Blumberg Associates Worldwide,
Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn.
123, 128, 84 A.3d 840 (2014) (Blumberg).
   Finally, although the majority arrogates to itself the
responsibility to make its own findings of fact and deter-
minations of credibility, it ultimately proves unequal to
the task. Rather than expressing its own findings based
on its review of the record, the majority launches a
seemingly endless attack on the habeas court’s find-
ings—an unnecessary exercise in light of the majority’s
self-created fact-finding power. Furthermore, in car-
rying out its purportedly de novo analysis of the record,
the majority utterly ignores testimony from the peti-
tioner’s own expert witnesses and other evidence that
amply supports the habeas court’s findings and casts
serious doubt on the credibility of their testimony.
   In short, although the majority goes out of its way
to retry the case, I am constrained merely to review it.
Deferring to the habeas court’s fact-finding role, my
own review of the record convinces me that its findings
were not clearly erroneous. In light of its findings that
the petitioner’s new evidence did not reliably establish
a burn time that supported the petitioner’s alibi defense,
I am persuaded that the petitioner has not met his
burden under Strickland and Brady.
   My analysis in this opinion will proceed in three parts:
first, I address why the majority’s new standard for
reviewing the testimony of expert witnesses contra-
venes our law; second, I address why the majority’s
decision to decide issues that the parties have not raised
or briefed violates the principles in Blumberg; and,
third, I explain why the record supports the habeas
court’s findings, which leads to the conclusion that the
petitioner has failed to meet his burden under Strick-
land and Brady.
                             I
               STANDARD OF REVIEW
   The principal issue presented in this appeal concerns
the petitioner’s burden, under the prejudice/materiality
element of a Strickland or Brady claim, to prove the
credibility of new witness testimony, and the habeas
court’s role in determining whether a petitioner has
met that burden. Assessing credibility of new witness
testimony in the Strickland and Brady context requires
the habeas court to determine whether there is a reason-
able probability that a new jury would credit the testi-
mony, and it presents a question of fact that an appellate
tribunal reviews only for clear error. See, e.g., Sanchez
v. Commissioner of Correction, supra, 314 Conn. 604,
611. Although the habeas court in the present case
declined to find the petitioner’s new expert testimony
credible and denied the petitioner’s claim on that basis,
the Appellate Court did not acknowledge the habeas
court’s role in making credibility assessments. See
Lapointe v. Commissioner of Correction, 138 Conn.
App. 454, 476–77 n.17, 53 A.3d 257 (2012). Instead, the
Appellate Court decided that assessing the credibility
of new witnesses should be left entirely to a new jury,
and not the habeas court. Id. By determining that a jury,
and not a court, should assess credibility, the Appellate
Court effectively removed any requirement that the peti-
tioner make a credibility showing as part of his Strick-
land and Brady claim. As a result, the Appellate Court
analyzed the petitioner’s claim by hypothesizing what
a jury could find, if it credited the new evidence. See
id., 476–78 and nn.17–20. The Appellate Court granted
the petitioner a new trial on the basis of the results of
this speculation. Id., 478, 480. The issue presented in
this appeal is whether the Appellate Court properly
concluded as it did.
   The success of the petitioner’s Strickland claim—
which is based on his prior habeas counsel’s failure to
raise a Brady claim concerning the state’s failure to
disclose a certain note prepared by Detective Michael
Ludlow of the Manchester Police Department (Ludlow
note)—depends on the credit that may be afforded the
testimony of the petitioner’s expert witnesses. A finding
that this expert testimony was credible was necessary
if the petitioner was to have any hope of establishing
that the state’s failure to disclose the Ludlow note preju-
diced him by preventing him from presenting a viable
alibi defense at trial. To demonstrate that he would
have been able to present such a defense, he relied on
the testimony of two expert witnesses to establish the
time period during which the fire that consumed the
apartment of the victim, Bernice Martin, likely started,
together with testimony of his former spouse, Karen
Martin, to establish that he was at home during that
same time period. To prove prejudice, the petitioner
needed to show a reasonable probability that a jury
would credit this expert testimony and that the new
credible testimony, when weighed against the original
trial evidence, gives rise to a reasonable probability of a
different result. A credible alibi defense, when weighed
against the trial evidence, certainly would support find-
ings of prejudice under Strickland and materiality
under Brady. If, however, a jury was not reasonably
likely to credit the petitioner’s new alibi evidence, the
petitioner would have no valid evidence of the fire’s
start time, and his alibi claim would fail. Thus, without
a credible alibi defense, the petitioner could not demon-
strate that his prior habeas counsel’s errors or the
state’s failure to disclose the Ludlow note caused him
any harm.4
  At the petitioner’s habeas trial, the habeas court
heard testimony from five fire investigation experts: the
two experts who originally investigated the scene for
the state shortly after the fire; the two experts called
by the petitioner, and an expert called by the respon-
dent, the Commissioner of Correction. The habeas court
did not credit the opinions of the petitioner’s experts,
finding that their testimony could not credibly establish
a burn time that was precise enough to support the
petitioner’s alibi claim. The court explained as follows:
‘‘The court . . . notes that it finds less credible the
attempts to provide more precise burn time estimations.
Given the complexity of fires and the many factors
or dynamics that impact a fire, a complexity which is
patently evident from the testimony of [the petitioner’s
and the respondent’s experts], it is impossible to estab-
lish with precision when the fire was set. Thus, the
more precise the estimate, the less credible the court
finds the opinion. What is clear from all the evidence
in the record, the original trial testimony, crime scene
photographs, reports, and the expert testimony pre-
sented to this court on the fire, is that the precise time
the fire was set cannot be determined. At best, a range
is established that includes that time period of 6:15
p.m. to [7] p.m. (fire could have been burning between
5:45 p.m. and 7:55 p.m.), when [Karen] Martin cannot
account for the petitioner’s whereabouts and does not
provide an alibi for him.’’ (Emphasis added.) The
habeas court’s finding that the petitioner’s burn time
evidence was not credible led it to conclude that the
petitioner had failed to meet his burden of proving his
claims under Strickland and Brady, and the habeas
court denied the habeas petition.
   The Appellate Court reversed the judgment of the
habeas court and, in doing so, analyzed the petitioner’s
claim without acknowledging the habeas court’s role
in assessing credibility of new witness testimony in this
context. See Lapointe v. Commissioner of Correction,
supra, 138 Conn. App. 476–77 n.17. The Appellate Court
instead concluded that such an assessment must be left
to a new jury, not a court. Id. The Appellate Court
explained as follows: ‘‘If the Ludlow note had been
disclosed to trial counsel . . . it would have been the
responsibility of the jury and not the court to weigh
the credibility of the arson experts. Whether the burn
time evidence, which was so critical in buttressing [the
petitioner’s] alibi defense, raised a reasonable doubt as
to the petitioner’s guilt would best be a determination
left to the jury and not a habeas court.’’ (Emphasis
added.) Id. After so concluding, the Appellate Court
analyzed the case by hypothesizing about what a jury
‘‘could’’ find ‘‘[i]f’’ it credited the new testimony. Id.,
476, 477. For example, the Appellate Court stated: ‘‘At
the . . . habeas trial, the [petitioner’s] two experts
. . . testified that the fire could not have been set any
earlier than 7:30 p.m. If that testimony had been pre-
sented at the criminal trial, and credited by the jury,
the petitioner’s whereabouts at and after 7:30 p.m.
would have been critical to his defense. . . . If the
jury credited Karen Martin’s testimony, it could have
concluded that the petitioner was at home watching
television with her and their son when the fire had been
set.’’ (Emphasis added; footnote omitted.) Id., 476–77.
The Appellate Court concluded by explaining: ‘‘With
the burn time estimate provided by one of the state’s
fire marshals, [the petitioner’s criminal] trial counsel
testified that they would have retained the services of
an arson expert and that Karen Martin would have testi-
fied as to the petitioner’s whereabouts during the criti-
cal times of [the] evening [of the victim’s murder]. That
evidence, if believed by the jury, could have resulted
in the jury’s finding that it was temporally impossible
for the petitioner to have committed the crimes [of]
which he was convicted.’’ (Emphasis added.) Id., 479.
On the basis of its speculation, the Appellate Court
concluded that the petitioner was entitled to a new trial
because his evidence, if credited, would support his
alibi defense. Id., 479–80. Contrary to the majority’s
assertions, the Appellate Court did not analyze the
habeas court’s credibility findings; nor did it make its
own findings with respect to whether there was a rea-
sonable probability that a jury would credit the new
testimony. See generally id., 468–80. Rather, it left any
credibility assessments to a jury, not a court, effectively
relieving the petitioner of any burden to establish the
credibility of his new witness testimony as part of his
claim based on Strickland and Brady.5 See id.,
476–77 n.17.
    The respondent appealed to this court upon our grant
of certification; Lapointe v. Commissioner of Correc-
tion, 307 Conn. 940, 940–41, 56 A.3d 948 (2012). The
respondent claims that the Appellate Court improperly
disregarded the habeas court’s role in assessing credi-
bility and did not properly consider all of the evidence
in the record in considering the ultimate questions of
prejudice under Strickland and materiality under
Brady. Contrary to the majority’s view, neither of the
parties has claimed that the Appellate Court performed
its own, de novo credibility assessment. Rather, both
the respondent and the petitioner agree that the Appel-
late Court left the credibility issue to a new jury, not
a court. Specifically, the respondent argues that, by
leaving the credibility assessment of new witness testi-
mony to a jury, the Appellate Court improperly disre-
garded the habeas court’s role as fact finder and arbiter
of credibility in habeas proceedings, and improperly
reached its decision on the ultimate issues of materiality
and prejudice by ‘‘speculating on the basis of what
‘could have’ happened ‘if’ certain evidence had been
believed.’’ (Emphasis omitted.) The respondent cites
cases holding that mere conjecture or speculation is
not sufficient to demonstrate prejudice and argues that,
‘‘[i]n saying that jurors could have reached a conclusion
if they believed certain testimony, the Appellate Court
said no more than that this was possible or conceivable’’
and thus did not base its materiality decision on ‘‘that
which was reasonably probable in light of the habeas
court’s finding regarding credibility and the entirety of
the evidence [in the] record,’’ as the Strickland/Brady
standard requires.6 In response, the petitioner acknowl-
edges the respondent’s claim that the Appellate Court
improperly decided that the credibility issue was ‘‘a
jury issue’’ and argues that it was not up to the habeas
court to decide whether to credit his experts, each of
whom was qualified to render an opinion.
   The majority affirms the judgment of the Appellate
Court but takes a much different approach than the
Appellate Court did, an approach that neither party has
requested and that the Appellate Court did not employ.
Rather than analyzing the case by assuming that the
jury would credit the evidence, as the Appellate Court
did, the majority concludes that an appellate tribunal
must make its own findings about the credit that may
be given to the petitioner’s new expert testimony, a
standard of review that has no precedent in our law.
Although the majority acknowledges the deference we
owe to the fact-finding role of the habeas court, includ-
ing in the Strickland/Brady context, it decides that no
such deference is warranted in the present case because
the ‘‘highly unusual’’ circumstances of this case require
a ‘‘limited exception’’ to that rule. According to the
majority, we defer to fact and credibility findings of the
habeas court when those findings are ‘‘made on the
basis of [the] firsthand observation of [a witness’] con-
duct, demeanor and attitude.’’ (Internal quotation marks
omitted.) Text accompanying footnote 40 of the major-
ity opinion. The majority then explains, however, that,
when a finding is not based on those factors, this court
is as well suited as the habeas court to assess the testi-
mony of the petitioner’s experts and, therefore, may
evaluate that testimony de novo, without any deference
to the findings of the habeas court. The majority, of
course, fails to cite any authority from this state for
this proposition because none exists—this court has
never performed such a review, and it has uniformly
rejected the notion that it could do so. In resolving
disputed issues of credibility by making its own findings
on the basis of its own assessment of the testimony
and evidence presented to the habeas court, the major-
ity has not just reviewed, but has retried the habeas
case in this court. I emphatically disagree with the
majority’s decision to fashion a new standard of review
just for this case.
                            A
  Until today, our case law was clear that determining
whether a jury is reasonably likely to credit new witness
testimony in the Strickland/Brady context presents a
question of fact for the habeas court, not a new jury,
and most assuredly not for an appellate tribunal. Our
review is limited to determining whether the habeas
court’s findings are reasonable in light of the record.
This issue is not a question of law, and we do not
substitute our judgment for that of the habeas court by
reviewing the habeas court’s credibility findings de
novo.
  At the outset, I note that I agree with the majority
when it states, as it must, that the Strickland prejudice
standard is identical to the Brady materiality standard,
and that the respective roles of the habeas and
reviewing courts are the same under both standards.
See, e.g., State v. Dupigney, 295 Conn. 50, 60–63, 988
A.2d 851 (2010). I will therefore analyze the principles
that apply to these claims together and, for simplicity,
will refer to the standard as the ‘‘Strickland/Brady prej-
udice’’ standard.
    The Strickland/Brady prejudice standard presents a
mixed question of law and fact. To prove prejudice, a
defendant must establish that, in the absence of the
substandard performance of defense counsel or the
state’s suppression of exculpatory evidence, there is a
‘‘ ‘reasonable probability’ ’’ that the result of the crimi-
nal trial would have been different. United States v.
Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d
481 (1985); accord Strickland v. Washington, 466 U.S.
668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Resolv-
ing the ultimate question of prejudice requires a court
to consider or weigh the new or different evidence—
which was not presented at the original trial because
of counsel’s or the state’s actions or omissions—against
the original trial evidence to determine the likelihood
of a different result. See, e.g., Adams v. Commissioner
of Correction, 309 Conn. 359, 373, 71 A.3d 512 (2013).
We exercise plenary review over the ultimate question
of whether the defendant suffered prejudice, which
requires an application of the legal standard to the facts.
See, e.g., Bryant v. Commissioner of Correction, 290
Conn. 502, 510, 964 A.2d 1186, cert. denied sub nom.
Murphy v. Bryant, 558 U.S. 938, 130 S. Ct. 259, 175 L.
Ed. 2d 242 (2009); State v. Ortiz, 280 Conn. 686, 720,
911 A.2d 1055 (2006).7 When, however, the historical
facts supporting the defendant’s claim are disputed,
the resolution of these underlying disputes presents a
question of fact for the habeas court, which we review
only for clear error. See, e.g., Bryant v. Commissioner
of Correction, supra, 509; State v. Ortiz, supra, 720.
We defer to the trier’s resolution of these underlying
disputes unless it is shown to be clearly erroneous.
Bryant v. Commissioner of Correction, supra, 509;
State v. Ortiz, supra, 720.
  Although the ultimate question of prejudice focuses
on the impact that the new evidence might have on the
original trial evidence, determining whether there is
a reasonable probability of a different outcome also
requires some threshold finding that the new evidence
is credible—after all, if new evidence is not worthy of
belief, it cannot lead to a different result at a new trial.
To be sure, some cases do not present such credibility
issues. For example, suppose the state withheld an
exculpatory report by a government officer that appears
to contradict testimony that the officer gave at trial. If
the parties stipulate to the authenticity and content of
that report, there are no threshold fact or credibility
disputes to be resolved, and the habeas court need only
consider the impact of that report on the original trial
evidence, an analysis that is subject to de novo review
by an appellate court.
   Frequently in Strickland cases, though less often in
Brady cases, the new evidence is testimony from a lay
or expert witness who was not called at the original
trial. When, as in the present case, the petitioner claims
that his counsel or the state deprived him of the oppor-
tunity to present certain testimony, the petitioner has
the burden of proving that the testimony is credible.
Sanchez v. Commissioner of Correction, supra, 314
Conn. 598–601, 604. If the testimony is not credible,
then it cannot support a finding of prejudice under
Strickland or Brady. See id., 611–13.8
  This threshold issue of whether new testimony may
be credited in this context—whether lay or expert testi-
mony—presents a question of fact for the habeas court
to resolve.9 The habeas court, as the trier of fact in
habeas proceedings, must assess the credibility of the
new testimony, considering it together with other evi-
dence and testimony presented to the habeas court, to
determine whether there is a reasonable probability
that a new jury would credit the new testimony.10 See,
e.g., id., 604, 611–12. The habeas court—with its unique
ability to receive the new testimony and evidence first-
hand and to consider it in the context in which it was
presented—is unquestionably in the best position to
perform this credibility analysis.11 After all, the habeas
court is the only court hearing the petitioner’s claims
and the only one that can assess the new evidence in
the same manner as a jury would.
   When assessing a habeas court’s fact and credibility
findings, including in the context of Strickland and
Brady claims, our role as an appellate tribunal is lim-
ited. We do not undertake our own de novo review of
the habeas court’s findings; rather, we review them
under our well established clear error standard. We
have often explained: ‘‘The habeas court is afforded
broad discretion in making its factual findings, and
those findings will not be disturbed unless they are
clearly erroneous. . . . Thus, [t]his court does not
retry the case or evaluate the credibility of the wit-
nesses. . . . Rather, we must defer to the [trier of
fact’s] assessment of the credibility of the witnesses
based on its firsthand observation of their conduct,
demeanor and attitude. . . . The habeas judge, as the
trier of facts, is the sole arbiter of the credibility of
witnesses and the weight to be given to their testimony.’’
(Internal quotation marks omitted.) Id., 604; see also
Adams v. Commissioner of Correction, supra, 309
Conn. 368–69 n.14 (noting, in context of Brady claim,
our ‘‘well established standard of review’’ requiring this
court to defer to habeas court’s findings unless they
are clearly erroneous). Furthermore, our cases also
demonstrate that we defer to the habeas court’s findings
regardless of whether that court credits or rejects the
testimony of a petitioner’s new witnesses. See, e.g.,
Gaines v. Commissioner of Correction, supra, 306
Conn. 688, 690 (upholding decision to grant new trial
when habeas court found new alibi testimony to be
‘‘credible and compelling’’). When reviewing for clear
error, we will reverse the trial court’s or habeas court’s
findings ‘‘only in the clearest of circumstances, [when]
its conclusion could not reasonably be reached.’’ (Inter-
nal quotation marks omitted.) Ventres v. Goodspeed
Airport, LLC, 275 Conn. 105, 125, 881 A.2d 937 (2005),
cert. denied, 547 U.S. 1111, 126 S. Ct. 1913, 164 L. Ed. 2d
664 (2006). ‘‘We do not examine the record to determine
whether the trier of fact could have reached a conclu-
sion other than the one reached.’’ Pandolphe’s Auto
Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d
24 (1980). An appellate tribunal may not reject a finding
‘‘merely because the reviewing judges personally dis-
agree with the conclusion or would have found differ-
ently had they been sitting as the [fact finder].’’ Kaplan
v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982).
  The majority, and the Chief Justice in her concurring
opinion, both suggest that we may treat our review of
this credibility assessment differently from a review
of credibility findings made at a trial because, in this
context, the habeas court is rendering a probabilistic
judgment about how a jury might assess certain evi-
dence. This is incorrect.
   Although determining how a jury might assess testi-
mony requires some measure of a predictive judgment,
we recently—and unanimously—made clear that this
assessment is no different from any other credibility
assessment and is entitled to the same deference by a
reviewing court. In a decision penned by the author of
the majority in this case and released on December
2, 2014, we explained that determining whether it is
reasonably probable that a jury would credit new wit-
ness testimony presents a question of fact for the habeas
court that we review only for clear error. Sanchez v.
Commissioner of Correction, supra, 314 Conn. 611–12
and n.16; see id., 611 (upholding denial of habeas peti-
tion based on new witness testimony because ‘‘perhaps
most important, the habeas court concluded that a jury
was unlikely to have found [the new witness] credible,
and we agree with the Appellate Court that the habeas
court’s finding in this regard [was] not clearly errone-
ous’’ [emphasis added]). Unlike the majority’s decision
in the present case, we did not, in Sanchez, draw our
own conclusions about the credibility of the new wit-
ness testimony. See id., 602 n.12, 611–12 and n.16. We
made clear that the habeas court’s role in determining
whether a jury might credit new evidence is no different
from a traditional credibility analysis and that we will
defer to the habeas court’s resolution of this issue. See
id., 604, 611–12 and n.16; see also id., 602 n.12.
   Assessing credibility requires the habeas court to
approach its analysis neutrally, as a second jury would,
without considering the new testimony in a manner
favorable to either party, and it must consider all of
the evidence presented. See id., 611 n.16 (‘‘we . . . pre-
sume, in the absence of any indication to the contrary,
that the [habeas] court considered all of the evidence
when assessing [the new witness’] credibility’’). This
includes the attitude, candor and demeanor of the wit-
nesses.12 Id., 604. Just as with any other credibility analy-
sis, the habeas court must consider the credibility of
the new testimony in light of impeachment evidence
and any other testimony or evidence presented to the
court.13
   Contrary to the majority’s position, we do not alter
our standard of review, even when the petitioner’s
claims are based on new expert testimony. See Ander-
son v. Commissioner of Correction, 313 Conn. 360,
375, 380–81, 98 A.3d 23 (2014), cert. denied sub nom.
Anderson v. Semple,           U.S.     (83 U.S.L.W. 3678,
February 23, 2015). In Anderson, this court deferred to
the habeas court’s credibility assessments of new
expert testimony even though the habeas court did not
expressly base its findings on the experts’ demeanor.
Id., 371–72, 377–80 and nn.7–8. In doing so, we disagreed
with the conclusions of a dissenting Appellate Court
judge who had reviewed de novo the credibility of the
petitioner’s new expert testimony. See id., 373–74 n.5.
The petitioner in that case, Oscar Anderson, challenged
his conviction of first degree sexual assault and risk of
injury to a child. See id., 362–63. Anderson claimed that
his trial counsel rendered ineffective assistance by not
presenting medical records and expert testimony to
show that he suffered from one or more sexually trans-
mitted diseases (STDs) during the time period that the
assaults occurred, and expert testimony on the trans-
mission rates of STDs. Id., 362. Anderson argued that
this testimony and evidence, coupled with the victim’s
lack of any STD during the relevant time period, would
establish that he was prejudiced by his trial counsel’s
failure to present this evidence. See id., 373. At the
habeas hearing, Anderson presented the testimony of
Timothy Grady, an expert witness. Id., 366–69. Grady
testified that Anderson’s medical records showed that
he was treated for STDs several times during the period
when the assaults allegedly occurred and that, under
the circumstances of the case, there was a 40 percent
chance of Anderson transmitting an STD to the victim
during each act of intercourse. Id.; see also id., 379 n.8.
Grady admitted, however, that there were no positive
lab results to demonstrate that Anderson was infected
with an STD during the relevant period but that Grady’s
assessments were based on the fact that Anderson had
been treated in a hospital’s emergency department for
STD related symptoms. See id., 366–67.
  The respondent in Anderson also presented expert
testimony on this subject. Id., 369–70. The respondent
called Stephen Scholand, a physician, who testified that
other ailments that Anderson suffered from could be
responsible for his STD related symptoms. Id., 369.
Scholand also testified that, even if Anderson had an
STD, that there was only a 30 percent chance of trans-
mitting it from adult to adult during each act of inter-
course. Id.
   The habeas court found that Anderson’s expert testi-
mony lacked a sufficient factual foundation to establish
that he suffered from any STD during the relevant time
period. See id., 371–72. That court determined that,
without any test results to support Anderson’s claims of
an STD when the assaults occurred, his expert evidence
could not credibly prove that he suffered from an STD
at that time. See id. The habeas court also concluded
that, even if Anderson had demonstrated that he had
an STD during the relevant time period, there was only
a 30 percent chance of transmission, implicitly rejecting
the opinion of Anderson’s expert that the rate would
have been higher under the circumstances. See id., 372.
On the basis of these findings, the habeas court rejected
Anderson’s claims. See id., 372–73.
   On appeal, a divided Appellate Court affirmed. Ander-
son v. Commissioner of Correction, 128 Conn. App. 585,
598, 17 A.3d 1138 (2011). The Appellate Court majority,
relying on the habeas court’s findings, upheld that
court’s decision that Anderson’s evidence fell short. See
id., 597–98 and n.7. Judge Borden, in dissent, thought,
however, that Anderson had met his burden under
Strickland. See id., 598–99 (Borden, J., dissenting). In
analyzing the prejudice element, Judge Borden relied
on Anderson’s proffered expert testimony regarding his
STD related symptoms and the transmission rate of
STDs, which the habeas court had found to be not
credible. See id., 616–17 (Borden, J., dissenting). Specif-
ically, Judge Borden asserted that Anderson ‘‘was suf-
fering from’’ STDs during the relevant time period. Id.,
610 (Borden, J., dissenting). He also explained that ‘‘the
jury would have had Grady’s testimony, contrary to
Scholand’s, that there is a transmission rate of 40 to 50
percent for each sexual contact between an infected
male and a woman, and an even higher rate for a female
of the age of the victim,’’ even though the habeas court
did not credit this evidence but, rather, concluded that
the evidence showed only a 30 percent chance of trans-
mission. Id., 616–17 (Borden, J., dissenting). Rather
than confining his analysis to the habeas court’s find-
ings, Judge Borden disregarded the habeas court’s find-
ings and relied on testimony that the habeas court had
not credited.
   In a certified appeal to this court, Anderson argued
that the Appellate Court majority improperly had
decided the case against him. See Anderson v. Commis-
sioner of Correction, supra, 313 Conn. 362. In his argu-
ments, Anderson, consistent with Judge Borden’s
reasoning, repeatedly relied on the evidence that the
habeas court had found to be not credible, namely, that
he was infected with one or more STDs and that the
transmission rate would have been 40 percent or higher.
See Anderson v. Commissioner of Correction, Conn.
Supreme Court Records & Briefs, February Term, 2013,
Petitioner’s Brief pp. 22–25.
    In response, the respondent took issue with Ander-
son’s and Judge Borden’s reliance on testimony that
the habeas court had not credited. The respondent
argued that ‘‘[Judge Borden] improperly assumed that
it is reasonably probable that the jury would have found
Grady’s testimony and interpretations of the medical
records to be credible and reliable when the fact finder
. . . did not.’’ Id., Respondent’s Brief p. 19. The respon-
dent explained in his brief that ‘‘[a]n appellate court
cannot retry the case or evaluate the credibility of the
witnesses. . . . Rather, [it] must defer to the [trier of
fact’s] assessment of the credibility of the witnesses
based on its firsthand observation of their conduct,
demeanor and attitude. . . . The habeas [court], as the
trier of facts, is the sole arbiter of the credibility of
witnesses and the weight to be given to their testimony.’’
(Internal quotation marks omitted.) Id. The respondent
argued that Judge Borden’s dissent contravened this
well established standard of review because Judge Bor-
den ‘‘wholeheartedly credited, and essentially deferred
to, the opinions and interpretations of [Anderson’s]
expert,’’ which the habeas court did not credit. Id.,
pp. 19–20. The respondent further explained that ‘‘[a]
reviewing court cannot simply choose to find credible
particular evidence that the trier of fact itself did not
credit and [that] is inconsistent with the trier’s ultimate
findings and conclusions.’’ Id., p. 20. In support, the
respondent noted that determining prejudice on the
basis of new witness testimony is ‘‘not simply . . . an
evaluation of the legal sufficiency of that evidence’’ but
also requires an evaluation of ‘‘the overall credibility
and persuasiveness of that evidence . . . .’’ Id. Consis-
tent with our case law, the respondent went on to
explain that this credibility assessment is for the habeas
court to make, not a reviewing court: ‘‘[O]nly the habeas
court heard and considered all of the evidence . . . .
Unlike a reviewing court, the habeas court is able to
view the evidence as it is presented, including the
demeanor of the witnesses, and, thus, the habeas court
is in a far better position to appreciate how a jury is
likely to hear and process that evidence . . . .’’ (Cita-
tion omitted; emphasis in original; internal quotation
marks omitted.) Id. The respondent acknowledged that
a petitioner’s evidentiary burden is lower in this context
than in an ordinary criminal trial, at which proof beyond
a reasonable doubt is required, or in a civil trial, at
which proof by a preponderance of the evidence is
required. See id., pp. 20–21. Nevertheless, the respon-
dent explained that ‘‘the fact that the degree of proof
is different does not mean that the proper roles of the
habeas court and appellate court vis-a´-vis the credibil-
ity, weight and ultimate persuasiveness of the evidence
differ’’ in this context because ‘‘[the] habeas court is
still in [a] position superior to an appellate court to
make such an evaluation . . . .’’ (Emphasis in original.)
Id., p. 21. In conclusion, the respondent argued that
‘‘the habeas court, sitting in a position similar to that
of the jury hearing the evidence, refused to accept, at
face value, the opinion of [Anderson’s] expert and his
interpretation of the records. . . . [T]he habeas court
was in a far better position than [Judge Borden] to view
the demeanor of the experts and the confidence and
certainty with which they rendered their opinions. Con-
sequently, to the extent that [Judge Borden’s] conclu-
sions rely heavily—indeed, almost entirely—on [his]
deference to Grady’s testimony, [Judge Borden] fails
to give proper consideration to the limits of appellate
review in evaluating the reasonable probability that
such evidence would have persuaded the jury to [find
Anderson not guilty].’’ Id.
    This court affirmed the judgment of the Appellate
Court. Anderson v. Commissioner of Correction, supra,
313 Conn. 384. We did not adopt the approach that
Judge Borden had taken and we disagreed with his
conclusions. See id., 378 n.7, 380 n.9. In our decision,
we set forth the habeas court’s findings; id., 371–72;
and cited our well established standard of review that
‘‘[t]he habeas [court], as the trier of facts, is the sole
arbiter of the credibility of witnesses and the weight to
be given to their testimony.’’ (Internal quotation marks
omitted.) Id., 375. In our analysis, we upheld the habeas
court’s finding that Anderson’s evidence failed to estab-
lish that he suffered from an STD during the time period
that the assaults occurred. Id., 377–78 and n.7. We
expressly disagreed with Judge Borden’s conclusion to
the contrary, and, in response to his arguments, we
cited the habeas court’s findings that contradicted his
conclusion. Id., 378 n.7. Furthermore, we also decided
that, ‘‘[e]ven if [it were] assume[d] that [Anderson] was
suffering from nonspecific [STDs] during the relevant
time frame . . . Scholand’s testimony established that
there was only a 30 percent chance that the victim
would have acquired [an STD] from the alleged abuse.’’
(Footnote omitted.) Id., 378–79. In reaching this conclu-
sion, we expressly deferred to the habeas court’s find-
ings in this regard, noting that the habeas court had
the opportunity to view the testimony of the experts
firsthand. Id., 379 n.8. Thus, contrary to the approach
taken by Judge Borden, and consistent with the respon-
dent’s arguments, this court did not substitute its judg-
ment for that of the habeas court regarding the cred-
ibility of Anderson’s proffered expert testimony.
   The majority’s decision to adopt an exception to our
well established standard of review, especially in light
of Anderson and Sanchez, marks a significant departure
from the approach that we have taken in reviewing
Strickland and Brady claims and from our role as an
appellate tribunal.
                             B
  Even though the majority acknowledges the defer-
ence that we give to a habeas court’s credibility assess-
ments, stating that it ‘‘agree[s] fully’’ that ‘‘the general
rule is one of deference, even in cases involving claims
under Brady,’’ the majority has decided not to follow
this rule in the present case. The majority proclaims,
without citing a single Connecticut case, that we can
undertake a de novo review of the credibility of expert
testimony ‘‘when the habeas court’s assessment of the
expert testimony has nothing to do with the personal
credibility of the expert witness but instead is based
entirely on the court’s evaluation of the foundational
soundness of the witness’ professional opinion . . . .’’
This novel standard, which neither party has asked us
to adopt and which even the majority concedes has no
basis in our law, is wholly incompatible with our case
law and our limited role as an appellate tribunal.
                             1
  The majority contends that we may render our own
credibility findings when the habeas court’s findings
were based on the ‘‘scientific underpinnings’’ of the
expert’s testimony and not the demeanor or ‘‘personal
credibility’’ of the expert witness. Our case law does
not draw such an unworkable distinction because it
ignores the realities of judging credibility. When we
speak of credibility, we do not refer only to a witness’
personal character but to the broader question of
whether the witness’ testimony may be believed and
given evidentiary weight. Evaluating the credibility of
a witness’ oral testimony is a complex process that
always entails consideration of subjective factors like
the attitude, candor and demeanor of the witness, and
this assessment cannot be based solely on objective
factors reflected in the printed record. E.g., Wyatt
Energy, Inc. v. Motiva Enterprises, LLC, 308 Conn.
719, 737, 66 A.3d 848 (2013) (‘‘[c]redibility must be
assessed . . . not by reading the cold printed record,
but by observing firsthand the witness’ conduct,
demeanor and attitude’’ [internal quotation marks omit-
ted]). Separating the ‘‘substance’’ of oral testimony from
the manner in which it is communicated ignores the fact
that the meaning and import of spoken words depend on
the manner in which the spoken words are relayed, and
not just their substance. This is precisely why, when it
comes to live testimony, ‘‘it is inappropriate to assess
credibility without having watched a witness testify,
because demeanor, conduct and other factors are not
fully reflected in the cold, printed record.’’ (Internal
quotation marks omitted.) Shelton v. Statewide Griev-
ance Committee, 277 Conn. 99, 111, 890 A.2d 104 (2006).
In assessing new witness credibility in the Strickland/
Brady prejudice context, our law thus requires that the
trial court observe the testimony of the new witness
firsthand to consider the witness’ demeanor while he
or she testifies. See, e.g., Thomas v. Commissioner of
Correction, 141 Conn. App. 465, 472–73, 62 A.3d 534
(habeas court must have opportunity to observe testi-
mony of petitioner’s new witnesses to evaluate their
credibility in determining Strickland/Brady prejudice),
cert. denied, 308 Conn. 939, 66 A.3d 881 (2013); Towns-
end v. Commissioner of Correction, 116 Conn. App.
663, 668, 975 A.2d 1282 (upholding denial of habeas
petition when petitioner did not present testimony of
new exculpatory witness, ‘‘which the habeas court
properly found was insufficient to show prejudice
because there was no opportunity to evaluate the testi-
mony or credibility of the claimed witness’’), cert.
denied, 293 Conn. 930, 980 A.2d 916 (2009).
   Judging credibility is a complex process that requires
the trier to consider the testimony in light of all of the
evidence presented in a case, including other testimony.
It requires consideration of not only the witness’ can-
dor, demeanor and attitude, but also any factors that
the trier deems relevant to its decision, which can
include, but is certainly not limited to: the witness’
ability to observe and comprehend information; the
beliefs, prejudices, bias and assumptions that might
impact the witness’ perspectives; the witness’ ability to
accurately recall events; the plausibility of what the
witness relays; the internal consistency of the witness’
testimony and consistency with other testimony and
evidence; and the witness’ background, training, educa-
tion and experience. See, e.g., State v. Reddick, 153
Conn. App. 69, 79 n.6, 100 A.3d 439, appeal dismissed,
314 Conn. 934, 102 A.3d 85 (2014), and cert. denied, 315
Conn. 904, 104 A.3d 757 (2014); State v. Guess, 44 Conn.
App. 790, 805, 692 A.2d 849 (1997), aff’d, 244 Conn. 761,
715 A.2d 643 (1998); State v. Nieves, 36 Conn. App. 546,
549, 653 A.2d 197, cert. denied, 232 Conn. 916, 655 A.2d
260 (1995); State v. Jaynes, 35 Conn. App. 541, 553–54
n.7, 645 A.2d 1060, cert. denied, 231 Conn. 928, 648 A.2d
880 (1994).
  Judging credibility is no different with expert wit-
nesses, and attempting to distinguish between decisions
based on the ‘‘substance’’ of expert testimony and those
based on the expert’s demeanor is just as unworkable.
Because of the nature and purpose of expert testimony,
subjective factors, including attitude, candor and
demeanor, play just as great of a role in the evaluation
of an expert witness’ credibility. Our law allows expert
opinion testimony to be admitted only when its subject
matter is beyond the ordinary knowledge, comprehen-
sion and experience of the average fact finder. See, e.g.,
State v. George, 194 Conn. 361, 373, 481 A.2d 1068 (1984),
cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d
968 (1985). Thus, when considering expert testimony,
the jury is evaluating testimony about subject matter
that is outside of its knowledge, which puts the jury at
a disadvantage when it comes to sizing up the sound-
ness of the expert’s scientific foundation and conclu-
sions. When faced with conflicting expert testimony,
the jury necessarily lacks firsthand knowledge with
which to assess the soundness of the expert’s methodol-
ogy and opinions. Consequently, in deciding whether
to credit an expert’s testimony, a fact finder often must
rely more heavily on subjective factors. As a result, our
law recognizes the importance of demeanor evidence
as a tool for evaluating an expert witness’ credibility.
‘‘Expert testimony is considered, weighed and tested
like any other evidence.’’ Aspiazu v. Orgera, 205 Conn.
623, 634, 535 A.2d 338 (1987); see also State v. Joly, 219
Conn. 234, 243, 593 A.2d 96 (1991) (‘‘the fact that a
witness testifies as an expert does not compel the
acceptance of his or her testimony as true’’). ‘‘It is in
the sole province of the trier of fact to evaluate expert
testimony, to assess its credibility, and to assign it a
proper weight.’’ State v. Jarzbek, 204 Conn. 683, 706,
529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108
S. Ct. 1017, 98 L. Ed. 2d 982 (1988). In assessing expert
testimony, the trier considers subjective factors, such
as the demeanor of the expert, as well as other factors,
including the expert’s level of expertise, the reasonable-
ness of how the expert reached the opinion, and the
factual and scientific basis for the opinion: ‘‘The trier
of fact [is] . . . entitled to consider the basis of the
testimony of the expert witness. In so doing it might
weigh, as it [sees] fit, his expertise, his opportunity to
observe [data] and to form an opinion, and his thorough-
ness. It might consider also the reasonableness of his
judgments about the underlying facts and of the conclu-
sions [that] he drew from them.’’ State v. Perez, 182
Conn. 603, 610, 438 A.2d 1149 (1981); see also id., 609
(‘‘[t]he trier of fact was entitled to find that the cross-
examination of [the expert witness] showed his testi-
mony to be inadequately grounded in knowledge of the
defendant’s condition, medical data, and expertise of
interpretation’’). ‘‘The acceptance or rejection of the
opinions of expert witnesses is a matter peculiarly
within the province of the trier of fact and its determina-
tions will be accorded great deference by this court.’’
(Internal quotation marks omitted.) Johnson v. Healy,
183 Conn. 514, 515–16, 440 A.2d 765 (1981). ‘‘The credi-
bility and the weight of expert testimony is judged by
the same standard [as that used to evaluate lay witness
testimony], and the trial court is privileged to adopt
whatever testimony [it] reasonably believes to be credi-
ble. . . . On appeal, [this court does] not retry the facts
or pass on the credibility of witnesses.’’ (Internal quota-
tion marks omitted.) United Technologies Corp. v. East
Windsor, 262 Conn. 11, 26, 807 A.2d 955 (2002); see
also Connecticut Bank & Trust Co. v. Incendy, 207
Conn. 15, 34, 540 A.2d 32 (1988).
   The scope of our review on appeal does not change
according to our perception of the basis for the trier’s
credibility findings. Because the trier must consider all
of the evidence before it when making its credibility
findings, including the witness’ demeanor, it is impracti-
cal, if not impossible, for the trier—or this court—to
neatly categorize or separate credibility findings on the
basis of a witness’ demeanor from those derived from
the basis for the witness’ opinions. Given the complex-
ity of a credibility analysis, the innumerable factors that
a trier considers, and the complete discretion afforded
the trier to weigh these factors, it would be unreason-
able to require the trier to enumerate each and every
basis for its finding by describing every factor that it
considered and the weight it accorded to it. For these
reasons, we do not require the trial court to state every
conceivable rationale for its credibility findings; we
require only that the trial court state its ultimate finding
of fact on the record. See Practice Book § 64-1. Even
if a trial court chooses to enumerate certain reasons
for its credibility findings, we still do not vary our scope
of our review on the basis of those reasons because it
is inevitable that the court considered other evidence
not expressly identified in its decision. Rather, we pre-
sume that the trier considered all of the evidence in
making its findings, and we review them only for clear
error. See Sanchez v. Commissioner of Correction,
supra, 314 Conn. 611 n.16; Gaines v. Commissioner of
Correction, supra, 306 Conn. 690–91. As a result, our
standard of review does not change even when the trial
or habeas court does not cite witness demeanor as a
reason for its credibility findings. See Sanchez v. Com-
missioner of Correction, supra, 611–12; Anderson v.
Commissioner of Correction, supra, 313 Conn. 372,
377–80 and nn.7–8.
   Our case law belies the majority’s claim to the con-
trary. For example, in Sanchez, we upheld the denial
of a habeas petition when the habeas court found that
the new witness testimony was not likely to be credited
by a jury. See Sanchez v. Commissioner of Correction,
supra, 314 Conn. 611–12. The habeas court, in making
its credibility finding, explained only that the witness
had a criminal record and ‘‘a motive to be deceptive
. . . .’’ (Internal quotation marks omitted.) Id., 601. Nei-
ther of these factors related to the witness’ demeanor.
The witness’ criminal history was an objective factor
that was reflected in the record. With respect to the
witness’ ‘‘motive to be deceptive’’; (internal quotation
marks omitted) id.; we explained that this stemmed
from the fact that others had implicated the witness in
the crime in question, giving the witness a reason to
minimize his own involvement when testifying before
the habeas court. See id., 611–12. This, too, was
reflected in the printed record. See id. The habeas court
said nothing about the witness’ demeanor, nor did it
state that it relied on any other subjective factors in
deciding not to credit the testimony. See id. Thus, we
presumably were in just as good a position as the habeas
court in that case to assess the witness’ credibility.
Nevertheless, unlike the majority’s opinion in the pres-
ent case, we deferred to the trial court’s assessment,
as our law requires, and noted that we presume that
the court considered all of the evidence in making its
finding, not just its enumerated reasons. Id., 611 n.16.
We did not conduct a de novo review of the witness’
credibility, and we did not suggest that our standard
of review could change depending on the trial court’s
stated basis for a credibility finding.
   Even in cases involving new expert testimony in the
Strickland/Brady prejudice context, this court and the
Appellate Court apply a deferential standard of review
without pausing to consider whether the habeas
court’s findings were based on the credibility of the
expert’s opinion or the expert personally. See, e.g.,
Anderson v. Commissioner of Correction, supra, 313
Conn. 372, 377–80 and nn.7–8 (deferring, in Strickland
prejudice analysis, to habeas court’s decision not to
credit petitioner’s new expert testimony about disease
transmission rates); Francis v. Commissioner of Cor-
rection, 142 Conn. App. 530, 540 n.5, 66 A.3d 501
(upholding denial of habeas petition and deferring, in
context of Strickland prejudice determination based
on new expert testimony, to habeas court’s finding that
that testimony was unreliable), cert. denied, 310 Conn.
921, 77 A.3d 141 (2013). The majority has not cited a
single case in which we changed our standard of review
because of the stated basis for the trier’s credibility
findings, and it cannot do so because we have never
made such an unworkable distinction.
   Moreover, because we cannot review live testimony
firsthand, as the trier can, we are unable to consider
factors such as attitude, candor and demeanor. Kaplan
v. Kaplan, supra, 186 Conn. 391; see Sanchez v. Com-
missioner of Correction, supra, 314 Conn. 611–12.
Thus, when it comes to credibility issues, we are in a
worse position than the habeas court, and, by making
our own findings, we would be substituting our judg-
ment for that of the habeas court, even though our
judgment is based on only part of the evidence. The
truth is, we can never be in the same position as the trier
with respect to oral testimony and can never perform a
truly de novo review on the basis of all of the evidence,
as we require the trier to do.14 Our review is therefore
limited to testing the legal sufficiency of those findings
by assessing whether they are reasonable in light of the
record. See, e.g., Sanchez v. Commissioner of Correc-
tion, supra, 611–12 and n.16; Anderson v. Commis-
sioner of Correction, supra, 313 Conn. 375, 377–80 and
nn.7–8; see also Ventres v. Goodspeed Airport, LLC,
supra, 275 Conn. 125.
   The facts of this case also contradict the majority’s
attempted distinction. The majority claims that the
habeas court’s credibility assessments were based
solely on the ‘‘soundness’’ of the experts’ opinions and
not on the demeanor or personal credibility of any wit-
ness. This simply is not true. Because we do not require
our trial or habeas courts to articulate each and every
factor considered and the basis for their credibility find-
ings, we do not know the extent to which the habeas
court in the present case considered demeanor in mak-
ing its findings; the habeas court was silent on this.
Because we must presume that the habeas court consid-
ered all of the evidence before it, including the
demeanor of the witnesses; see Sanchez v. Commis-
sioner of Correction, supra, 314 Conn. 611–12 n.16; we
must presume that the habeas court based its findings,
at least in part, on the demeanor and candor of the
petitioner’s witnesses and the demeanor and testimony
of any other witnesses who testified before the court.
To be sure, it is possible that the habeas court found
that an expert’s demeanor weighed in favor of crediting
the expert’s testimony. But, given the habeas court’s
silence, it is not possible for us to say either that the
habeas court did not consider witness candor, attitude
and demeanor, or that it did not base its findings on
these factors. Indeed, if it were true that the habeas
court did not consider the witnesses’ demeanor and
personal character in considering the credibility of their
testimony, then the habeas court would have been act-
ing improperly. We, of course, do not presume error;
we presume that the habeas court considered these
factors in the absence of a clear indication to the con-
trary, which the habeas court did not give in this case.
   Assessing the credibility of the petitioner’s expert
witnesses also required the habeas court to consider
the credibility of other witnesses who testified at the
habeas hearing. The majority claims that the habeas
court’s assessment was ‘‘not dependent on any underly-
ing factual findings requiring the . . . court’s firsthand
observation and determination of the credibility or relia-
bility of other witnesses.’’ Yet, the habeas court heard
evidence that the conclusions of one of the petitioner’s
experts, John DeHaan, directly conflicted with the eye-
witness observations of Stephen Igoe, another fire
expert who, unlike the petitioner’s experts, investigated
the actual fire scene in person and within hours of
the fire. The habeas court noted that, as part of Igoe’s
investigation, he conducted a test burn of the materials
in the couch where the fire was supposedly ignited
and principally burned.15 He determined that the couch
materials burned ‘‘very, very slowly . . . .’’ Despite
Igoe’s testimony before the habeas court about his first-
hand observations of the materials involved in the fire,
the petitioner’s expert, DeHaan, who was not present
at the fire scene, disagreed with Igoe’s observations.
Although DeHaan did not inspect the actual fire scene
or the materials in the couch, and did not conduct a
test burn, he based his burn time estimate on a contrary
conclusion that the couch burned ‘‘very rapidly.’’
Assessing the soundness of DeHaan’s opinion that the
fire burned very rapidly therefore required the habeas
court to evaluate the credibility of Igoe’s contrary obser-
vation that the fire burned very slowly. Thus, the habeas
court’s findings necessarily depended on ‘‘underlying
factual findings requiring the . . . court’s firsthand
observation and determination of the credibility or relia-
bility of other witnesses.’’
   Because the trier must consider all evidence when
making credibility findings, it is not possible to separate
those findings based on the soundness of an expert’s
opinion from those based on an assessment of the
expert personally. The majority thus attempts to draw
a dichotomy that is not grounded in reality and is not
supported by our law or the facts of this case. If the
majority nevertheless wants to draw this contrived dis-
tinction, then the appropriate remedy in this circum-
stance is to order an articulation from the habeas court
rather than to make assumptions based on the habeas
court’s silence, which tells us nothing when we have
never previously required the habeas court to speak on
this matter or given any significance to this silence.
                             2
   Even if it were possible to distinguish between credi-
bility findings based on an expert’s demeanor and those
based on the substance of the testimony, our law still
forbids a de novo review of such credibility findings by
this court. In support of its new standard, the majority
proclaims that we ‘‘need not, and will not,’’ defer to the
trial court on any issue ‘‘when we are in as good a
position as the trial court to decide the issue . . . .’’
Text accompanying footnote 63 of the majority opinion.
But this court has never before embraced such a sweep-
ing principle, and we certainly have not accepted it as
a valid excuse to retry a case by making our own find-
ings from the record. To the contrary, this court has
repeatedly rejected this tired suggestion because it is
inconsistent with the constitutional limits on our role
as an appellate tribunal. See, e.g., Styles v. Tyler, supra,
64 Conn. 442. For example, we have determined that
we cannot make our own credibility assessments, even
when the trial court’s assessment was based on a video
recording of a witness’ statement that we could view
in the same manner as the trial court. See Skakel v.
State, supra, 295 Conn. 470, 486–87 and n.25. In Skakel,
the author of the majority opinion in the present case,
in dissent, posited that there was ‘‘no occasion for . . .
deference’’ to the trial court’s credibility determination
when it was based on the viewing of a video recording
and thus not otherwise based on subjective factors,
including the witness’ demeanor. Id., 631 (Palmer, J.,
dissenting). The majority rejected this assertion, noting
that ‘‘this court . . . squarely has rejected’’ the notion
that we may apply a less deferential standard of review
even to a credibility decision ‘‘that is not predicated on
an assessment of the witness’ demeanor.’’ Id., 487 n.25.
   We have also uniformly rejected this notion in other
contexts. For instance, in State v. Lawrence, 282 Conn.
141, 156–57, 920 A.2d 236 (2007), we declined to under-
take a de novo review of a trial court’s credibility deter-
mination that was based on that court’s review of a
printed transcript, rather than an in-court assessment
of the witness’ testimony. Although the defendant in
Lawrence claimed that deference to the trial court’s
findings was unwarranted ‘‘because the trial court did
not have the opportunity to observe [the witness’] con-
duct, demeanor and attitude on the witness stand’’; id.,
156; we declined to adopt this approach as it ‘‘misappre-
hends the fundamental distinction between the function
of the fact finder, which is to make credibility determi-
nations and to find facts, and the function of the appel-
late tribunal, which is to review, and not to retry, the
proceedings of the trial court.’’ (Internal quotation
marks omitted.) Id. We explained that, ‘‘[i]n light of
our limited function, it would be improper for this
court to supplant its credibility determinations for
those of the fact finder, regardless of whether the fact
finder relied on the cold printed record to make those
determinations.’’ (Emphasis added.) Id., 157. In Besade
v. Interstate Security Services, 212 Conn. 441, 562 A.2d
1086 (1989), we rejected a claim that this court need not
defer to a trial court’s findings, even when the evidence
before the court was ‘‘largely documentary’’ and the
findings were not based on ‘‘a personal appraisal’’ of
any live testimony. Id., 448; see id., 449 (‘‘[w]e have
not heretofore distinguished between documentary and
testimonial evidence in defining the role of appellate
tribunals in reviewing findings of fact’’).
  Even in the context of expert testimony, this court
has consistently declined to adopt a less deferential
standard of review when the trial court’s findings were
based solely on the substance of the expert testimony
and documentary evidence, not on witness demeanor.
See, e.g., Pandolphe’s Auto Parts, Inc. v. Manchester,
supra, 181 Conn. 221–22 (noting that our review of fact
and credibility findings is limited to clear error review,
and, ‘‘[b]eyond that, we will not go’’). And over one-
half century ago, we explained in Morgan v. Hill, 139
Conn. 159, 90 A.2d 641 (1952), that ‘‘[t]he case [on
appeal] presents another of countless instances [in
which] an unsuccessful litigant, still unconvinced,
renews in this court his previous, fruitless effort to
discredit the evidence submitted by his opponent. Noth-
ing in our law is more elementary than that the trier is
the final judge of the credibility of witnesses and of the
weight to be accorded their testimony. . . . It was the
prerogative of the [trial] referee to accept the testimony
of the plaintiff’s experts rather than that offered by
the defendant’s.’’ (Citations omitted; emphasis added.)
Id., 161.
                            3
   We defer to the trial court’s findings even when
demeanor is not at issue because the reasons for our
deference are not limited to practical considerations
alone. Even though we often cite, as the reason for
our deference, a trial court’s unique ability to assess
evidence firsthand and in the context in which it is
presented, our scope of review is mandated by the con-
stitutional limits on our appellate jurisdiction, which
prohibit this court from resolving disputed questions
of fact or determining the credit that may be given to
a witness’ testimony.16 Since this court’s inception, its
jurisdiction has been limited to reviewing issues of law,
whereas jurisdiction to resolve issues of fact and credi-
bility has been vested exclusively in the trial court.
See, e.g., Styles v. Tyler, supra, 64 Conn. 444–50. This
division of responsibility is not merely for convenience;
it is intended to prevent the ‘‘evil’’ that would result
from having a single court act as final arbiter of issues
of fact in addition to issues of law. Id., 446, 449. Prior
to the creation of this court, the Superior Court acted
as the court of last resort for issues of fact, whereas the
legislature held the power to finally resolve questions of
law. Id., 446. The legislature created the Supreme Court
of Errors in 1784; id.; and its ‘‘jurisdiction was confined
to questions of law arising upon facts found by the
Superior Court [which is] the court of last resort for all
matters of fact.’’ Id., 447. This separation intentionally
paralleled the ‘‘distinction as drawn under our system
of jurisprudence . . . between facts that the trial court
must find from the testimony, and the application of
the principles of law in reaching a judgment based [on]
such facts.’’ Id., 454.
  The founders of our state’s judicial system divided
the jurisdiction of our courts to ensure that no single
court could act as the final arbiter for both issues of
fact and issues of law, which they feared could destroy
the rule of law: ‘‘[T]he administration of justice is not
safe when the court of last resort for the settlement of
the law, in the exercise of an absolute and final power,
can render judgment on the facts and law so intermin-
gled that its decision is not simply the declaration of
the law but may become the arbitration of the case.’’
Id., 449. Vesting one court with jurisdiction to finally
decide matters of fact and law will leave the results in
our cases to the discretion of judges who can choose
both the facts and the law that will govern a case, and
‘‘nothing but . . . human wisdom and firmness on the
part of its judges can prevent a court exercising such
. . . jurisdiction from eventually becoming one great
arbitration that would [e]ngulf all the courts of law,
and sovereign discretion [not the principles of law]
would be the rule of decision.’’ (Internal quotation
marks omitted.) Id. Such an expansive ‘‘discretion of a
judge is the law of tyrants; it is always unknown; it is
different in different men; it is casual, and depends [on]
constitution, temper and passion. In the best, it is [often
times] caprice; and in the worst, it is every vice, folly,
and passion to which human nature is liable!’’ (Internal
quotation marks omitted.) State v. Danforth, 3 Conn.
112, 122 (1819). Thus, ‘‘confining the jurisdiction of
[this] court . . . to the settlement of rules of law’’ alone
was ‘‘[t]he most significant feature in the establishment
of the court’’; Styles v. Tyler, supra, 64 Conn. 447; and
reflected ‘‘a principle deemed vital to our judicial sys-
tem.’’ Id., 448.
   Mindful of these concerns, the drafters of the 1818
constitution adopted the existing divide between the
jurisdiction of the Superior Court and the Supreme
Court of Errors. See id., 449–50; see also Conn. Const.,
art. V, § 1. In doing so, they ‘‘expressed the conviction
of the people that a jurisdiction of mixed law and fact
vested in any court of last resort, exercising a supreme
and uncontrolled power, was inconsistent with a sound
system of jurisprudence and was dangerous to the
administration of justice . . . .’’ Styles v. Tyler, supra,
64 Conn. 451. The Superior Court thus holds ‘‘supreme
jurisdiction’’ to try cases and settle disputes of fact,
whereas the Supreme Court of Errors, which subse-
quently became this court, holds ‘‘supreme and final
jurisdiction’’ to settle issues of law. Id., 450. This court
thus ‘‘is not a supreme court for all purposes, but a
supreme court only for the correction of errors in law
. . . .’’ Id. Accordingly, ‘‘it is the exclusive province of
the trial court to judge . . . the credi[bility] of wit-
nesses.’’ Dexter Yarn Co. v. American Fabrics Co.,
supra, 102 Conn. 539.
   The constitutional limits on fact-finding and assessing
credibility cannot be circumvented merely by rebrand-
ing the nature of our inquiry, as the majority attempts
to do in the present case. ‘‘[S]ettling the credi[bility] of
witnesses, weighing the evidence, ascertaining the truth
from conflicting or incongruous evidential facts, is a
function within the exclusive jurisdiction of the trial
court under our system of law, and is not reviewable
by [this court]. . . .
  ‘‘Our jurisdiction cannot be enlarged, to permit the
retrial of facts by us, by legislative enactment or rules
of court . . . and obviously not by the consent or
acquiescence of the parties. [When] an appeal involves
a request for the correction of a finding . . . by a
weighing of the evidence, it is patent that the real sub-
stance of such a proceeding is nothing but a retrial of
pure questions of fact settled by the final judgment of
the Superior Court. Its actual nature cannot be changed
by calling it a correction of the finding.’’ (Citations omit-
ted; internal quotation marks omitted.) Id., 537–38; see
also Thresher v. Dyer, 69 Conn. 404, 410, 37 A. 979
(1897); Atwater v. Morning News Co., 67 Conn. 504,
525–27, 34 A. 865 (1896). ‘‘A [retrial on] the testimony
. . . by whatever name it may be called, is a trial of
the facts in that cause, whether its effect be limited to
ordering a new trial, or extends to the rendition of
a final judgment on the facts so adjudicated; and is
inconsistent with the primary distinction drawn by the
[c]onstitution, between the jurisdiction original and
appellate of courts for the full trial and adjudication of
causes, and the jurisdiction of a court of last resort for
correcting errors in law which may have intervened in
the course of a trial. . . . The Superior Court is the
court of last resort for such purpose. . . . Such a prin-
ciple embedded in the [c]onstitution . . . cannot be
evaded through any plan for accomplishing by a mere
form of words the very evils it was adopted to prevent.’’
(Emphasis added.) Atwater v. Morning News Co.,
supra, 526–27. Consequently, ‘‘there can . . . be no
doubt but that the determination by this court, upon
the evidence, of questions of pure fact, for the mere
purpose of rendering its own judgment upon issues of
fact, is inconsistent with [this court’s] jurisdiction, and
clearly obnoxious to that underlying principle which
holds the security of the citizen and the certainty of
the law as best served by confining the supreme and
uncontrolled power vested in a court of last resort for
the correction of errors to the determination of princi-
ples of law.’’ Styles v. Tyler, supra, 64 Conn. 456.17
   The jurisdictional limits that prevent us from
assessing credibility do not relax, even when a defen-
dant’s claim implicates rights guaranteed by the federal
constitution. Although we have explained that we have
a duty to scrupulously review the record in reviewing
a constitutional claim, we have made clear that this
review does not allow this court to engage in its own
credibility assessments: ‘‘Notwithstanding our respon-
sibility to examine the record scrupulously, it is well
established that we may not substitute our judgment
for that of the trial court when it comes to evaluating
the credibility of a witness. . . . It is the exclusive
province of the trier of fact to weigh conflicting testi-
mony and make determinations of credibility, crediting
some, all or none of any given witness’ testimony. . . .
Questions of whether to believe or disbelieve a compe-
tent witness are beyond our review. As a reviewing
court, we may not retry the case or pass on the credibil-
ity of witnesses.’’ (Internal quotation marks omitted.)
State v. DeMarco, 311 Conn. 510, 519–20, 88 A.3d 491
(2014) (deference in context of reviewing fourth amend-
ment claim); see also Sanchez v. Commissioner of Cor-
rection, supra, 314 Conn. 604, 606 (deference in context
of reviewing Strickland claim); State v. Krijger, 313
Conn. 434, 447–48, 97 A.3d 946 (2014) (deference in
context of reviewing first amendment claim); State v.
Mullins, 288 Conn. 345, 365, 952 A.2d 784 (2008) (defer-
ence in context of reviewing fifth amendment self-
incrimination claim); State v. Santiago, 245 Conn. 301,
312–13, 715 A.2d 1 (1998) (deference in context of
reviewing Brady claim).
    Contrary to the Chief Justice’s assertions in her con-
curring opinion, our deference to the trier’s role as the
arbiter of credibility does not depend on whether the
trier is making ‘‘ultimate’’ credibility findings, and we
have never changed our standard of review on this
basis. The Chief Justice suggests, and the majority
agrees, that we need not defer to the trial court when
it is not acting as the ‘‘ultimate’’ fact finder but is merely
assessing the probability that a jury will credit testi-
mony. This contrived distinction appears nowhere in
our law, which presumably explains why neither the
Chief Justice nor the majority has offered any citations
to support it. Indeed, we rejected this attempted distinc-
tion in the Strickland/Brady context just months ago
in Sanchez v. Commissioner of Correction, supra, 314
Conn. 585, a unanimous decision in which every mem-
ber of the panel in the present case joined. In Sanchez,
we indicated that there was no difference between our
treatment of an assessment of whether a jury would
likely credit new witness testimony and our treatment
of a traditional credibility finding. See id., 602 n.12,
611–12 and n.16. In doing so, we expressly agreed with
the Appellate Court majority’s rejection of Judge Shel-
don’s suggestion in his dissenting opinion in the Appel-
late Court that we could review this assessment de
novo.18 Id.
   Furthermore, we do not engage in de novo credibility
assessments even in other, similar contexts requiring
a predictive judgment about how a jury might weigh
testimony. For example, we defer to the trial court’s
assessment of new witness credibility in the context
of claims for a new trial based on newly discovered
evidence, which also require a trial court to assess the
likelihood that a jury will credit the new testimony and
reach a different result than that reached at the original
criminal trial. See, e.g., Shabazz v. State, 259 Conn. 811,
827–28, 792 A.2d 797 (2002); see also Adams v. State,
259 Conn. 831, 842, 792 A.2d 809 (2002) (‘‘[i]n deciding
a petition for a new trial . . . the trial court sits as fact
finder in place of the jury and examines the newly
discovered evidence independently, in order to deter-
mine whether it is likely to result in a different verdict
in the event of a retrial’’). Even though newly discovered
evidence claims do not require what the Chief Justice
deems to be an ‘‘ultimate’’ finding but, rather, an assess-
ment of how a jury might evaluate new evidence, we
do not substitute our judgment for the trial court’s judg-
ment. This is true even when the new evidence is of a
type that does not call for any firsthand assessment of
demeanor such that we could evaluate the evidence in
the same manner as a trial court. See Skakel v. State,
supra, 295 Conn. 487 n.25 (video-recorded statement
from witness).
   Claims for prejudgment remedies also require a trial
court to consider the probability that a party will suc-
ceed, which includes a predictive assessment of how
a jury might gauge witness credibility. See, e.g., TES
Franchising, LLC v. Feldman, 286 Conn. 132, 137–38,
143, 943 A.2d 406 (2008). A prejudgment remedy pro-
ceeding requires a trial court ‘‘ ‘to determine probable
success’ ’’ by the moving party; id., 142; and is ‘‘not
contemplated to be a full scale trial on the merits
. . . .’’ Id., 143. Even though the trial court’s credibility
assessments in these proceedings are merely probabilis-
tic, we review them only for clear error. Id. (‘‘judging
the credibility of the witnesses is the function of the
trier of fact and this court will not usurp that role’’
[internal quotation marks omitted]); see also Augeri v.
C. F. Wooding Co., 173 Conn. 426, 428, 378 A.2d 538
(1977) (noting that we defer to trial court’s credibility
findings even though prejudgment remedy proceedings
do not ‘‘ultimately’’ decide parties’ claims).19
   Accordingly, the long-standing limits on our jurisdic-
tion require that ‘‘[w]e must accept . . . the trial
court’s decision [on] the question of credibility. It is
beyond our province to weigh evidence and decide
questions of this character.’’ Swist v. Swist, 107 Conn.
484, 487, 140 A. 820 (1928). We repeatedly have
explained, in a variety of contexts, that ‘‘[a]n appellate
court must defer to the trier of fact’s assessment of
credibility . . . .’’ (Internal quotation marks omitted.)
State v. Lawrence, supra, 282 Conn. 155. ‘‘The evalua-
tion of the credibility of witnesses is left to the sound
discretion of the trial court.’’ State v. Jones, 193 Conn.
70, 80, 475 A.2d 1087 (1984). ‘‘We cannot retry the facts
or pass [on] the credibility of the witnesses.’’ (Internal
quotation marks omitted.) Pandolphe’s Auto Parts, Inc.
v. Manchester, supra, 181 Conn. 220. ‘‘[N]othing in our
law is more elementary than that the trier is the final
judge of the credibility of witnesses and of the weight
to be accorded their testimony.’’ (Internal quotation
marks omitted.) Kervick v. Silver Hill Hospital, 309
Conn. 688, 717, 72 A.3d 1044 (2013). ‘‘In light of our
limited function, it would be improper for this court to
supplant its credibility determinations for those of the
fact finder,’’ even if the basis for those findings is
reflected in ‘‘the cold printed record . . . .’’ State v.
Lawrence, supra, 157.20
                             4
  The majority, attempting to justify its new standard,
quotes at length from a case from another jurisdiction,
but that case is entirely inapposite because we have
already squarely rejected the principle underlying its
holding. Given the overwhelming authority from this
state expressly rejecting the principles underlying the
majority’s new standard, it is no surprise that the major-
ity seeks support, not from a Connecticut case, but
from a single case from an intermediate appellate court
in Indiana, namely, Bunch v. State, 964 N.E.2d 274
(Ind. App.), trans. denied, 971 N.E.2d 1215 (Ind. 2012).
But whether appellate courts in Indiana can review the
credibility of expert testimony de novo says nothing
about whether a Connecticut appellate court can do
so, especially in light of the restraints imposed by our
state constitution. Also, contrary to the majority’s asser-
tion that the Indiana case is ‘‘factually and procedurally
indistinguishable,’’ the portion of the case that the
majority cites at length does not even involve a Brady
or Strickland claim but an Indiana state law claim for
a new trial based on newly discovered evidence. Id.,
288–89, 293–97. The court in Bunch applied a de novo
standard of review because it felt it was in as a good
a position as the trial court to decide credibility on the
basis of a review of transcripts of new witness testi-
mony presented live to the trial court when the trial
court’s assessment was not based on witness
demeanor.21 See id., 293. We rejected this principle in
Skakel when we held that this court could not perform
a de novo credibility review of newly discovered evi-
dence, even when the trial court’s analysis did not
involve a firsthand assessment of witness demeanor.
Skakel v. State, supra, 295 Conn. 487 n.25 (declining to
conduct de novo review of findings concerning witness’
video-recorded statement because we do not vary our
scope of review even for findings ‘‘not predicated on
an assessment of the witness’ demeanor’’). We have
also made clear that credibility assessments of new
witness testimony in the context of newly discovered
evidence claims cannot be made by reviewing a printed
transcript of a witness’ testimony. Adams v. State,
supra, 259 Conn. 844 (credibility of newly discovered
evidence ‘‘must be decided on the basis of the trial
court’s own assessment of credibility, not on the type
of cold transcript utilized by the trial court’’); cf. State
v. Lawrence, supra, 282 Conn. 156–57. If we cannot
make credibility judgments even when the trial court
bases its assessment on a video recording or a printed
record, it is preposterous to conclude that we may do
so when, as in the present case, the court based its
findings on live testimony. The majority, justifying its
reliance on Bunch, explains that newly discovered evi-
dence claims require ‘‘exactly the same analysis as
claims under Brady and Strickland, as they entail the
same considerations.’’ Text accompanying footnote 62
of the majority opinion. Given this acknowledgment by
the majority, it seems to me that we should look to our
own law on newly discovered evidence claims, which
rejects the majority’s approach, rather than to rely on
a lone case from another state to justify a new standard
of review for this case.22
                             5
   The majority’s creation of its new standard carries
with it the danger of unwarranted expansion of appel-
late powers. In support of its new standard, the majority
sweepingly proclaims that an appellate tribunal ‘‘need
not, and will not,’’ defer to a trial court on any issue
whenever ‘‘we are in as good a position as [that] court
to decide the issue . . . .’’ Text accompanying footnote
64 of the majority opinion. It does so without any cita-
tion or attempt to reconcile this statement with our
prior decisions and constitutional principles, all of
which expressly reject this assertion. See, e.g., Ander-
son v. Commissioner of Correction, supra, 313 Conn.
375, 377–80 and nn.7–8; Skakel v. State, supra, 295 Conn.
487 n.25; State v. Lawrence, supra, 282 Conn. 156–57.
Relying on this principle, the majority suggests that we
can review credibility assessments de novo whenever
this court deems itself as fit as the trial court to do so.
Based on the majority’s assertions that its new standard
applies to the type of predictive fact-finding characteris-
tically reserved for Brady claims, it applies at least to
new witness testimony in the context of Strickland,
Brady and newly discovered evidence claims, and per-
haps also to prejudgment remedy proceedings. In light
of the number of Strickland, Brady and newly discov-
ered evidence claims based on new witness testimony,
the majority’s new standard would increase the burden
on our appellate tribunals and litigants by requiring
them to retry issues settled by the habeas court. Under
the majority’s new standard, appellate courts would
have not only the ability, but also the duty to undertake
a de novo review of witness credibility when the criteria
for applying the majority’s new standard are met. This
new standard would require our appellate courts to
make their own credibility findings whenever the
habeas court does not base its decision on subjective
factors, like candor or demeanor. It would also require
litigants to retry these issues in our appellate courts by
briefing factual disputes in addition to the legal issues.
If the appellate tribunal can make its own credibility
findings in this context, the habeas court’s purpose in
these cases will be relegated to little more than receiv-
ing and recording the evidence, and then issuing a rec-
ommended ruling for the appellate tribunal to mull over,
accept or cast aside, as it sees fit.
   Recognizing the dangers associated with the new
standard it applies in this case, the majority immediately
sets out to contain the damage done by trying to prevent
its application in future cases. The majority acknowl-
edges that we must defer to the trier’s credibility assess-
ments but nevertheless asserts that its holding is but a
narrow exception to our ordinary standard of review.
The majority acknowledges that its approach is unprec-
edented in our law but claims that this is because ‘‘we
previously have not had a case on all fours with this
one.’’ Text accompanying footnote 61 of the majority
opinion. It characterizes its new standard as a ‘‘limited
exception’’ necessitated by the ‘‘uncommon’’ and
‘‘highly unusual’’ circumstances of the present case, and
explains that it will apply only in the ‘‘rare’’ cases that
are ‘‘indistinguishable in any material respect from this
one.’’ But the majority does not explain exactly what
makes this case so exceptional. Nor does it explain
why this case requires us to depart from decades of
cases explaining that credibility is a matter for the trier
without regard to the purported basis for the trier’s
findings. Moreover, the majority does not square its
claim that the holding in this case is limited with its
broad pronouncement that we will perform a de novo
review of any issue whenever we deem ourselves to
be in as good a position as the trial court to do so—a
principle that we heretofore have rejected unequivo-
cally. If it is true that we may review any question de
novo whenever we deem ourselves to be as well situated
as the trial court, how can the majority simultaneously
claim that its holding in this case is limited to the facts
of this case? Why is this case so exceptional?
                            II
                    REVIEWABILITY
  The majority’s decision to undertake a de novo review
of witness credibility injects issues into the case that
have not been raised or briefed by the litigants, which
ordinarily requires us to allow the parties to submit
supplemental briefing on before we go sifting through
the record in order to make our own credibility findings.
The majority, on its own initiative, has changed our law
by adopting a de novo review of credibility findings and
has proceeded to undertake that review even though
neither party raised any arguments in this court or in
the Appellate Court with respect to the habeas court’s
credibility findings, and neither party has asked us to
change our standard of review to allow this court to
conduct its own credibility assessments. As a result,
neither party has weighed in on the propriety of the
majority’s new standard of review or the underlying
fact and credibility disputes that the majority resolves.
   The principal issue actually raised in the present case
is one of law. It concerns the petitioner’s burden to
establish the credibility of new evidence in order to
prove Strickland/Brady prejudice and the habeas
court’s role in determining whether the petitioner has
met that burden. Although the habeas court did not
credit the petitioner’s expert testimony, the Appellate
Court decided that credibility of the new witnesses
should be left to a new jury, not to the habeas court,
a conclusion that the respondent has challenged on
appeal to this court. None of the parties discussed,
either in their briefs or at oral argument, whether an
appellate tribunal can make its own credibility assess-
ments. The arguments in this court regarding the proper
legal standard assumed the propriety of leaving credibil-
ity assessments entirely to a new jury, and focused on
the extent of the habeas court’s role in judging new
witness credibility and the standard by which the
habeas court should determine whether a new jury
should hear the new testimony at a new trial.
    In addition, despite the habeas court’s decision not
to credit the burn time evidence from the petitioner’s
experts, the petitioner did not raise any claim attacking
those findings before the Appellate Court or before this
court. The respondent noted the absence of any such
claim in his brief to this court and at oral argument,
and the petitioner did not object to these repeated asser-
tions. Indeed, in his brief to the Appellate Court, the
petitioner agreed with the habeas court’s conclusion
that his evidence could not credibly establish the fire’s
burn time to a degree that would bolster his alibi
defense. The habeas court concluded as follows: ‘‘What
is clear from all the evidence in the record, the original
trial testimony, crime scene photographs, reports, and
the expert testimony presented to [the habeas] court
[concerning] the fire, is that the precise time the fire
was set cannot be determined. At best, a range is estab-
lished that includes that time period of 6:15 p.m. to [7]
p.m. (fire could have been burning between 5:45 p.m.
and 7:55 p.m.), when [Karen] Martin cannot account
for the petitioner’s whereabouts and does not provide
an alibi for him.’’ (Emphasis added.) The petitioner,
tracking the habeas court’s language, agreed, stating
‘‘it is true that the experts could not determine the
exact amount of time the fire burned’’ and that ‘‘the
fire’s burn time could not be precisely determined . .
. .’’ (Emphasis added.) Rather than attacking the habeas
court’s findings, the petitioner has instead argued that
the Appellate Court properly concluded that it is up to
a jury, not the habeas court, to determine whether to
credit his experts, each of whom was qualified to render
an opinion. Accordingly, neither party has raised any
claim of error based on the habeas court’s credibility
findings. Nor has either party suggested that an appel-
late court should make its own credibility assessments.
  Failure of a party to raise a claim on appeal results
in abandonment. See, e.g., State v. Cyrus, 111 Conn.
App. 482, 487, 959 A.2d 1054 (2008), aff’d, 297 Conn.
829, 1 A.3d 59 (2010). In the absence of any challenge
to the habeas court’s credibility findings, or any argu-
ment by the parties that we should make our own find-
ings, the issues that the majority decides are not
properly before this court. See, e.g., State v. Crumpton,
202 Conn. 224, 231–32, 520 A.2d 226 (1987).
  To dampen the criticism that it receives from the
dissenting justices for deciding unraised issues, the
majority declares that the issues it decides were already
decided by the Appellate Court and thus are not new
to this appeal. To that end, the majority repeatedly
asserts that the Appellate Court performed its own de
novo assessment of the credibility of the petitioner’s
new expert testimony and that the Appellate Court ren-
dered its own finding that there was a reasonable proba-
bility that a jury would credit it. The majority quotes at
length from the Appellate Court’s decision but missing
from its quotation is any de novo assessment of the
‘‘soundness’’ of the expert testimony or credibility find-
ings by the Appellate Court. The majority has not pro-
vided its readers the courtesy of a citation to what page
or pages this review and these findings appear in the
Connecticut Appellate Reports. The fact is, the Appel-
late Court did not perform its own de novo credibility
assessment, nor did it make its own findings.
   Any question on this point is dispelled by a fair read-
ing of the Appellate Court’s decision. Absent from the
Appellate Court’s decision is any mention that it is
undertaking a de novo review of the credibility of expert
testimony. Nor does the Appellate Court give any justifi-
cation for such a review. Given that such a review by
an appellate tribunal in this state would be unprece-
dented, at least until today, it would be surprising for the
Appellate Court to sail into uncharted waters without at
least warning its readers that it is doing so. Also missing
from the Appellate Court’s decision are any findings
resulting from its purported de novo credibility review.
Instead, the Appellate Court repeatedly conditioned its
prejudice analysis by stating that the petitioner’s evi-
dence, ‘‘if believed by the jury,’’ could lead to a different
result. (Emphasis added.) Lapointe v. Commissioner
of Correction, supra, 138 Conn. App. 479; see also id.,
476–77. I, for one, would expect that, if the Appellate
Court were performing its own unprecedented de novo
review of witness credibility, it would at least state its
findings on the record, as our trial courts are required to
do. Rather than making its own findings, the Appellate
Court stated that assessing the credibility of the expert
witnesses was a task best left to a jury: ‘‘If the Ludlow
note had been disclosed to trial counsel, however, it
would have been the responsibility of the jury and not
the court to weigh the credibility of the arson experts.
Whether the burn time evidence, which was so critical
in buttressing [the petitioner’s] alibi defense, raised a
reasonable doubt as to the petitioner’s guilt would best
be a determination left to the jury and not a habeas
court.’’ (Emphasis added.) Id., 476–77 n.17. Further-
more, neither party argued in the Appellate Court that
it should be performing its own de novo credibility
review. Nor did the parties brief the issue of whether
such a review by an appellate tribunal would be appro-
priate. As I previously mentioned, the petitioner did not
challenge the habeas court’s findings, but, instead, the
parties argued over the proper standard to be applied
by the habeas court.
   In light of these statements by the Appellate Court,
I simply do not agree with the majority’s conclusion
that the Appellate Court performed its own credibility
assessment. By leaving the credibility question to a jury,
the Appellate Court freed any court considering the
petitioner’s Strickland/Brady claim of any need to
inquire into the credibility of the expert testimony or
the need to make any findings of its own. Deciding that
a jury and not a habeas court should assess credibility
in this context is markedly different from deciding that
an appellate tribunal may do so. Both the habeas court
and a jury properly may serve as the trier of fact and
arbiter of credibility, whereas an appellate tribunal,
except for the majority in the present case, may not.
Consequently, the considerations that are needed to
resolve these two issues are wholly distinct. I thus dis-
agree that the Appellate Court would undertake such
an unprecedented review without even stating that it
was doing so or attempting to justify such an analysis.
   Because neither party has claimed, either in this court
or the Appellate Court, that an appellate tribunal can
properly make its own credibility assessments, or that
the Appellate Court in this case did so, we have no
briefing from the parties concerning whether such an
analysis by an appellate tribunal is proper. The lack
of a de novo review by the Appellate Court, and any
suggestion by the parties that such a review is proper,
is fatal to the majority’s claim that the parties raised and
briefed arguments about the propriety and the merits of
such a review by an appellate tribunal. Neither party
has briefed the issue of whether an appellate tribunal
may properly render its own credibility findings in this
context. The lack of any argument on this issue stands
in stark contrast to the briefing in Anderson, in which
the respondent expressly argued that an appellate tribu-
nal could not render its own credibility findings, a posi-
tion that we ultimately followed in that case. Instead,
the respondent argues in this case precisely what I have
explained in this opinion, namely, that the Appellate
Court improperly disregarded the habeas court’s role,
left the credibility assessment to a jury, and then
reached its materiality determination by ‘‘speculating
on the basis of what ‘could have’ happened ‘if’ certain
evidence had been believed. . . . In saying that jurors
could have reached a conclusion if they believed certain
testimony, the Appellate Court said no more than that
this was possible or conceivable,’’ which is insufficient
to establish Strickland/Brady prejudice. (Citations
omitted.) Whether credibility assessments properly
may be left to a new jury, rather than a habeas court,
is a much different issue than whether an appellate
tribunal may make its own credibility assessment. In
light of the respondent’s briefing on this issue in Ander-
son, I find it hard to believe that the respondent would
remain silent on this same issue in the present case if
it were truly presented to us in this appeal.
  Moreover, because neither party made any claim of
error regarding the merits of the credibility questions
put into issue by the majority, neither party has pro-
vided briefing on that topic. The only discussion of the
credibility of the experts comes from a single, half page
footnote in the respondent’s brief. Most tellingly, that
footnote was appended to a sentence in the text that
explained that the petitioner had not raised any claim
of error concerning the habeas court’s credibility find-
ings at any point during the appeal. Furthermore, in
that footnote, the respondent explained that the record
did not permit a finding of clear error; he mentioned
nothing about what an appellate tribunal could find if
it performed a de novo review. It would be naive to
think that, if the respondent truly had notice that this
court would conduct its own de novo review of the
credibility of new witness testimony, the respondent
would have dedicated only a single footnote to this fact
intensive inquiry, especially considering that such an
analysis by this court is unprecedented in our law and
requires consideration of numerous days of testimony
and exhibits from the petitioner’s habeas hearing and
the criminal trial. The respondent’s decision to relegate
any discussion of expert witness credibility to a foot-
note and to couch it in terms of a clear error analysis
is proof of only one thing: the parties did not raise
this issue and were not on notice that this court might
perform its own credibility assessment. Even the peti-
tioner recognized that the respondent was arguing not
that the Appellate Court performed a de novo review,
but that the Appellate Court acted improperly by decid-
ing that the credibility assessment was a ‘‘jury issue’’
and not an issue for the habeas court. The majority’s
uninvited change to our law has therefore left us with
a task that we have never before undertaken and with-
out any guidance from the parties as to how we should
resolve their dispute.
    Before we alter our well established and heretofore
unquestioned standards of review and take the unprece-
dented step of rendering our own credibility findings,
we must at least provide the parties with an opportunity
to submit supplemental briefs on these issues. In
Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., supra, 311 Conn. 123, we
determined that we may, sua sponte, consider issues
not preserved or raised by the parties, subject to certain
restrictions. See id., 128, 161–64. We explained that a
reviewing court may, but is not required to, review
‘‘issues involving plain error or constitutional error sua
sponte, as long as the court provides an opportunity
for the parties to be heard by way of supplemental
briefing and the other threshold conditions for review
are satisfied.’’ Id., 161–62. ‘‘Of course, as we have
explained in connection with a reviewing court’s con-
sideration of a claim raised for the first time on appeal,
if a party objecting to the reviewing court’s sua sponte
consideration of the claim can demonstrate that it
would be unfairly prejudiced by such consideration, it
would be inappropriate for the appellate tribunal to
consider such a claim. Furthermore, once the objecting
party makes a colorable showing of unfair prejudice,
the burden shifts to the other party to establish that
the objecting party will suffer no such prejudice. . . .
[W]e also reiterate that our system is an adversarial
one in which the burden ordinarily is on the parties to
frame the issues, and the presumption is that issues
not raised by the parties are deemed waived.’’ Id., 163–
64. The majority has not explained what considerations
led it to address issues not raised by the parties. Even
if a de novo review of the habeas court’s findings might
be warranted, the principles delineated in Blumberg
require this court to first assess whether addressing the
issue would be unfairly prejudicial to the respondent.
This prejudice analysis is a necessary predicate to
addressing an unraised issue. Even if we find no preju-
dice to the respondent in addressing this claim, we must
still give the parties an opportunity to address the issues
that the majority decides.
   Reaching this issue on our own and without any input
from the parties harms the parties and undermines the
fairness of our judicial process. Due process compels
us to give the parties notice and an opportunity to be
heard. The record in this case is voluminous. It consists
of more than eighty volumes of transcripts with thou-
sands of pages of testimony from a probable cause
hearing, suppression hearing, three habeas hearings,
and a lengthy criminal trial. There are hundreds of
exhibits from these proceedings. The significance of
certain evidence may not be obvious to us from our
own, unguided review of such a voluminous record.
The parties have greater knowledge of the evidence in
the record and how it got there. They also have a more
complete perspective of the context in which evidence
was presented and its import. Facts viewed in isolation
are not as powerful as facts woven into a coherent and
compelling argument. That is the purpose of briefing.
By denying the parties notice and a chance to brief the
issue that the court decides, we may be silencing valid
arguments not obvious from our own review. Even if
that briefing does not change the majority’s conclu-
sions, the losing party deserves the solace of knowing
that it has been fairly heard.
   The harm to the respondent that results from a denial
of notice and the right to be heard is not just theoreti-
cal—it is demonstrated in the majority opinion. In sev-
eral places in its opinion, the majority correctly
observes that the respondent was silent about the credi-
bility of the petitioner’s experts, noting, for example,
that ‘‘the respondent makes no attempt to defend the
. . . habeas court’s assertion that there was a material
difference’’ in the substance of the burn time experts’
testimony. But this silence is significant only to demon-
strate that the respondent was not afforded the notice
that he needed to address this unraised issue. Does
one seriously doubt that, if the respondent had been
afforded notice that the habeas court’s findings were
under attack, he might have addressed these claims
before this court rather than remaining silent on these
points? The respondent briefed his case on the under-
standing that the petitioner had not challenged the
habeas court’s findings in the Appellate Court or in this
court, and specifically explained in his brief that the
petitioner had not raised such a claim. The majority is
thus deciding an issue that was not raised and is holding
the respondent’s silence on that issue against him.
   The harm caused by silencing the respondent, as a
representative of the state, is especially acute in this
case. The majority’s decision to order a new criminal
trial could well be the functional equivalent of a directed
judgment of acquittal. The events underlying this case
occurred more than one quarter century ago. Memories
may have faded, remaining evidence may be of a ques-
tionable quality, and key witnesses, some of whom were
advanced in years at the time of the petitioner’s criminal
trial, might have passed away. The majority’s opinion
leaves the state in the difficult position of having to
retry this case long after the events at issue occurred.
Certainly, if the petitioner’s conviction was obtained
unfairly, then he deserves to have his conviction
vacated. But the state, through the respondent, is, at a
bare minimum, entitled to be heard before we charge
its appointed representatives with withholding exculpa-
tory evidence and vacate the petitioner’s conviction on
that basis.
   For these reasons, the majority should either decide
only the issues raised by the parties or seek additional
briefing in light of its decision to address unraised
issues.
                            III
     THE MAJORITY’S CREDIBILITY FINDINGS
   Even if I assume, for the sake of argument, that we
can review the habeas court’s findings de novo, I still
am not persuaded that the petitioner is entitled to a
new criminal trial. The majority finds the petitioner’s
new expert testimony to be credible after a purportedly
de novo review of the record. But it spends much of
its analysis on a lengthy diatribe against the habeas
court’s findings—an unnecessary endeavor in light of
the majority’s assertion that no deference to those find-
ings is warranted. Indeed, rather than looking for evi-
dence to prove credibility, the majority seems to
presume that the new testimony is credible and
searches for reasons to discredit it. The majority begins
by simply attacking the habeas court’s findings. Then,
after determining that the habeas court’s ‘‘stated rea-
sons for discrediting the burn time estimates of [the
petitioner’s experts] are baseless,’’ the majority deter-
mines whether there is some ‘‘other apparent reason
why a jury would be apt to discredit their testimony.’’
The majority finds no such reason but does so after
briefly considering only the experts’ qualifications and
the fact that the respondent has not challenged their
credibility. This is insufficient to establish credibility.
First, determining that the habeas court’s reasons
underlying its credibility determinations were incorrect
does not necessarily establish that the testimony of the
new experts is credible. Second, an expert’s qualifica-
tions to render an opinion, while necessary to secure
admission of expert testimony, do not automatically
prove that there is a reasonable probability that it will
be credited; that determination requires a review of all
of the evidence and testimony presented at the habeas
trial, which the majority does not perform. Third, as I
mentioned previously, the respondent’s silence on this
issue is hardly a basis for making a credibility finding,
given that this issue was not raised. The respondent
could not seriously be expected to know that this court
would raise this issue sua sponte after relying on an
inapposite case from another jurisdiction. Furthermore,
by looking to the respondent for criticisms of the peti-
tioner’s experts, and finding the new testimony credible
in their absence, the majority improperly shifts the bur-
den of proof to the respondent.
   Even if I assume that the petitioner had challenged
the habeas court’s credibility findings, my review of the
record persuades me that the findings were correct. My
review reveals that the new expert testimony simply is
not reliable because it lacks adequate foundations in
fact and science, and because the opinion testimony of
the petitioner’s two experts substantially conflicted in
material respects. First, as the petitioner conceded in
the Appellate Court, his own experts’ testimony demon-
strated that the fire’s burn time cannot be reliably deter-
mined to any helpful degree. The petitioner’s experts,
who were hired more than one decade after the fire,
relied on speculation and unproven methods to reach
their burn time estimates. They also relied on factual
assumptions that were refuted by eyewitness testi-
mony. Additionally, the petitioner’s experts disagreed
with each other about key data relevant to determining
the fire’s burn time and conceded that their inability
to analyze the fire scene firsthand could impact their
conclusions. Second, other fire investigators, including
the only two investigators that examined the actual
fire scene, testified that the fire could have burned for
several minutes to several hours—a time period that
does not support the petitioner’s alibi—and further tes-
tified that there was not enough data available to reli-
ably develop a more specific determination with respect
to the fire’s burn time.
  Without a valid and reliable factual and scientific
foundation, the petitioner’s expert testimony would not
even be admissible, let alone credible. See, e.g., State
v. Porter, 241 Conn. 57, 74, 698 A.2d 739 (1997), cert.
denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645
(1998); State v. John, 210 Conn. 652, 677, 557 A.2d 93,
cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d
50 (1989). To be admissible, an expert’s opinion must
have a basis in facts that are supported by the evidence;
the factual basis for an expert’s opinion may not be
based on speculation. See Viera v. Cohen, 283 Conn.
412, 449, 927 A.2d 843 (2007). ‘‘In order to render an
expert opinion the witness must be qualified to do so
and there must be a factual basis for the opinion. . . .
[When] the factual basis of an expert opinion is chal-
lenged . . . the question before the court is whether
the uncertainties in the essential facts on which the
opinion is predicated are such as to make an opinion
based on them without substantial value.’’ (Citations
omitted; internal quotation marks omitted.) State v.
John, supra, 677. Thus, without an adequate basis in
fact, an expert’s opinion cannot be admitted into evi-
dence, let alone credited.23 See, e.g., id. Additionally,
the methodology that an expert uses to reach an opinion
on scientific issues must be scientifically valid. See State
v. Porter, supra, 83–87. An expert’s personal experience
alone, even if extensive, is not sufficient to establish
the scientific validity of the expert’s methodology. Klein
v. Norwalk Hospital, 299 Conn. 241, 263, 9 A.3d 364
(2010). With these principles in mind, I turn to my
review of the expert testimony presented at the petition-
er’s habeas hearing and the testimony and exhibits from
the criminal trial relating to the testimony of the
expert witnesses.
                             A
       Testimony from the Petitioner’s Experts
                             1
  Turning first to the testimony of DeHaan, I note that
the record demonstrates that his estimate was unrelia-
ble because the principal factual underpinnings that
DeHaan relied on in support of his burn time estimate
are contradicted by eyewitness testimony, as well as
his own testimony, and thus are not supported by the
evidence. DeHaan estimated that the fire burned for at
least twenty-five minutes but no more than sixty
minutes. DeHaan based his estimate on two key factual
assertions. First, DeHaan assumed that the fire on the
couch ‘‘burned very readily,’’ quickly consuming the
available oxygen in the apartment, and then was
reduced to a smolder. Second, DeHaan estimated that
temperatures inside the apartment were about 400
degrees24 when the first firefighter on the scene, Michael
Tomkunas, kicked in the front door because the high
heat in the apartment prevented him from entering it.
But each of these two critical foundations for DeHaan’s
burn time estimate is contradicted by testimony from
eyewitnesses, and not supported by any other evidence.
   First, DeHaan’s belief that the fire on the couch
‘‘burned very readily’’ is contrary to the observations
of a fire investigator who actually witnessed the speed
at which the couch burned. Igoe, the state fire marshal
who originally investigated the fire, testified at the crim-
inal trial and again before the habeas court. Igoe arrived
at the scene within a few hours of the fire and remained
on the scene for about five hours to conduct his investi-
gation. During his investigation, Igoe examined the
couch where the fire originated and the inside of the
victim’s apartment to assess the damage and the fire’s
burn pattern. He also conducted a test burn of the
couch to determine how it burned by burning the actual
material from the couch in an oxygen rich environment.
Igoe testified at the habeas hearing that, even with
plenty of oxygen, the couch material ‘‘burned very, very
slowly and it emitted heavy black smoke.’’ (Emphasis
added.) In his report issued shortly after the fire, Igoe
explained: ‘‘Examination of the living room couch leads
this investigator to conclude that the burning to the
couch was the slow smoldering type burning and not
the rapid burning which occurs with some materials.’’
(Emphasis added.)
   In reaching his own conclusions, however, DeHaan
simply rejected these eyewitness observations about
the speed at which the couch burned, even though
DeHaan had neither examined the couch materials nor
witnessed the speed at which they burn. The petitioner,
in his posttrial brief, acknowledged this rejection,
explaining that ‘‘DeHaan disagreed with Igoe substan-
tively on the fire’s characteristics, most particularly that
it was a slow burning fire.’’ DeHaan believed, from
looking at photographs of the couch, that it was made
of a material that burned rapidly and that it would
not have been treated with flame retardant. But the
materials involved in the fire were discarded or
destroyed long before DeHaan became involved in the
case. DeHaan thus did not examine the couch firsthand,
could not undertake an analysis of its materials to deter-
mine their composition, and did not personally witness
or conduct any test burns of the couch’s materials. Nor
did he explain how his theory was consistent with the
results of Igoe’s burn test. DeHaan’s dismissal of Igoe’s
testimony, despite DeHaan’s lack of any personal
knowledge of how it burned, places the factual basis
for his conclusions in direct conflict with eyewitness
evidence presented to the habeas court.
  Second, the factual basis for DeHaan’s estimate of
the temperature in the apartment when Tomkunas first
arrived is contradicted by Tomkunas’ testimony from
the criminal trial. DeHaan based his estimate of the
entry level temperature on his understanding that Tom-
kunas could not enter the apartment even though he
suspected someone was inside. Tomkunas’ inability to
enter the apartment suggested to DeHaan that tempera-
tures were between 300 and 400 degrees when Tomku-
nas first arrived, with the temperatures most likely
closer to 400 degrees. This led DeHaan to conclude that
the fire could not have been started more than one
hour before Tomkunas tried to enter, or else the high
temperatures would have dissipated and Tomkunas
would not have been deterred from entering the vic-
tim’s apartment.
   The majority relies heavily on DeHaan’s understand-
ing that Tomkunas could not enter the apartment
because of the heat to call into question the habeas
court’s reliance on the testimony of the respondent’s
expert, Robert Corry. According to the majority,
DeHaan testified ‘‘that the temperature inside the hot
gas layer was likely between 300 and 400 degrees when
Tomkunas entered the apartment. DeHaan explained
that this estimate was based, in part, on Tomkunas’
testimony at the petitioner’s criminal trial that, when
he arrived at the victim’s apartment, the outside of the
front door was hot to the touch, and ‘the temperatures
and . . . hot gases he encountered at near floor level
were untenable, and he couldn’t go in, even though he
suspected there was a victim inside.’ ’’ (Emphasis in
original.) DeHaan also testified that, if the temperature
had been lower than 400 degrees, ‘‘Tomkunas would
not have necessarily been dissuaded from entering.’’
DeHaan’s burn time conclusion, therefore, was based
on his understanding that Tomkunas could not enter
the apartment at all because of the high temperatures
and that Tomkunas entered the apartment only after
the firefighters vented it, allowing the heat to escape.
The habeas court discredited DeHaan’s estimate of
entry level temperatures based on Corry’s testimony
that Tomkunas entered the victim’s apartment before
it was vented and was not burned, indicating that tem-
peratures could not have been as high as DeHaan had
suggested. Contrary to DeHaan’s understanding that
Tomkunas ‘‘couldn’t go in[to]’’ the apartment because
of the heat until after it was vented, Tomkunas testified
that he was able to enter the apartment when he first
arrived and before it was vented. Tomkunas, a volunteer
firefighter, was driving in his personal vehicle less than
one mile from the victim’s apartment when he received
a dispatch reporting the fire. Tomkunas, who was on
a date at the time, did not have any protective gear or
breathing apparatus with him. Nevertheless, he drove
directly to the victim’s apartment and arrived there
about one minute after the dispatch. The petitioner
directed Tomkunas to the apartment, and he went
straight to the front door and kicked it in. Tomkunas
was met with what he called a ‘‘wall of smoke.’’ It
was nighttime, and the apartment was filled with dense
smoke, making it difficult for Tomkunas to see inside
the apartment. Despite these conditions, Tomkunas was
able to enter the apartment on his first attempt. He
dropped to his knees in an attempt to stay below as
much of the smoke as possible and crawled in. He was
able to crawl about eight feet into the apartment and
within only three feet of the burning couch. Tomkunas
saw a small flame on the still smoldering couch. Tomku-
nas estimated that he was in the apartment for about
fifteen to twenty seconds before the heat and smoke
conditions convinced him that rescue efforts would be
‘‘a lot easier’’ if the apartment was vented. Tomkunas
crawled back out the front door and asked another
firefighter who had arrived to open the back door of
the apartment to allow the heat and smoke to escape.
Tomkunas immediately crawled back into the apart-
ment to continue his search. He estimated that he was
outside of the apartment for less than five seconds
before reentering. During his second entry into the
apartment, Tomkunas again crawled to within only
three feet of the burning couch. This time, he found
the victim and removed her from the apartment with
the help of another firefighter. At no time during his
testimony did he say that he was prevented from enter-
ing the apartment as a result of the heat. DeHaan’s
assertion that the high heat prevented Tomkunas from
being able to enter the apartment altogether is, there-
fore, at odds with Tomkunas’ actual testimony.
   In addition, Tomkunas’ ability to remain in the apart-
ment for fifteen to twenty seconds before it was vented
and without suffering any burns completely contradicts
DeHaan’s claim that the apartment was close to 400
degrees when Tomkunas first kicked in the door. Corry
testified that, according to data from the National Fire
Protection Association, a person with uncovered skin
will sustain first or second degree burns when exposed
to 212 degree temperatures for fifteen seconds; burns
will occur in even less time at higher temperatures.
Although DeHaan estimated that Tomkunas would have
experienced temperatures near 400 degrees ‘‘to the bare
skin,’’ Tomkunas did not sustain any burns or injuries
from the heat or smoke on either of the two occasions
that he entered the apartment.25
    Tomkunas’s testimony directly contradicts DeHaan’s
and the majority’s understanding that the 400 degree
heat prevented Tomkunas from even entering the apart-
ment. The habeas court discredited DeHaan’s testimony
in part because it credited Corry’s testimony that entry
level temperatures could not have been close to 400
degrees as DeHaan estimated because Tomkunas was
able to enter the apartment without suffering any burns.
The majority concludes, however, that this finding
‘‘lacks support in the record.’’ According to the majority,
the approximately 400 degree temperatures prevented
Tomkunas from even entering the apartment before it
was vented, and that was why Tomkunas did not get
burned. The majority explains that ‘‘Tomkunas had tes-
tified . . . that the heat and smoke prevented him from
entering the apartment when . . . he first attempted
to do so,’’ and it criticizes Corry for ‘‘simply . . . refus-
[ing] to accept’’ this fact. (Emphasis in original.) But
Tomkunas’ testimony makes clear that he did enter the
apartment on his first attempt and remained in there
for about fifteen to twenty seconds without suffering
any burns.
  I also note that Corry’s opinion received additional
support from Corry’s own interviews of Tomkunas. As
part of his investigation of the fire, Corry personally
interviewed Tomkunas twice about his actions on the
night of the fire and the heat conditions that Tomkunas
encountered. Corry testified during the habeas hearing
that, ‘‘when [he] asked [Tomkunas] to compare [the
heat he experienced upon entering] to something that
he was familiar with, he said at most it was similar to
entering a sauna, which would be about 150 degrees
to 190 [degrees].’’ DeHaan, on the other hand, did not
speak to Tomkunas or even attempt to contact him;
he instead claims to have relied on Tomkunas’ trial
testimony, which, as I explained previously, is inconsis-
tent with DeHaan’s understanding of the conditions that
Tomkunas experienced.
   DeHaan’s assumptions in support of his estimates of
entry level temperatures are thus completely refuted
by Tomkunas’ testimony. We do not know what impact,
if any, Tomkunas’ ability to enter the apartment had on
DeHaan’s conclusions because DeHaan’s stated under-
standing of Tomkunas’ actions simply does not line up
with Tomkunas’ testimony. When, as in the present
case, an expert’s opinion lacks a valid basis in fact, it is
nothing more than speculation and may not be admitted
into evidence, and, as a result, cannot be credited. See,
e.g., State v. John, supra, 210 Conn. 677.
   In addition, DeHaan’s belief that entry level tempera-
tures were too high for Tomkunas even to enter the
apartment conflicts with DeHaan’s own testimony
about the fire’s energy level. DeHaan testified that the
fire would have produced a relatively small amount of
heat and would have been approachable, even at its
maximum intensity. DeHaan explained that the fire’s
intensity ‘‘would probably be about the same as an
average fireplace fire. It would be pumping a lot of heat
into this room, but not so much that you couldn’t—
you couldn’t approach it, for instance, to try to extin-
guish it, and if you were there at the time . . . it
reached its maximum . . . .’’26 (Emphasis added.)
DeHaan did not explain how the fire could have been
approachable at its maximum intensity but unapproach-
able when Tomkunas tried to enter the apartment,
which, according to DeHaan, likely occurred after the
fire passed its peak and the apartment had begun to
cool.27
  DeHaan’s unsupported and conflicting testimony
fully supports the habeas court’s conclusion that
DeHaan’s burn time estimate was too speculative to be
reliable, rendering it inadmissible.
                             2
  Turning next to the testimony of the petitioner’s other
burn time expert, Gerard Kelder, Jr., I am persuaded
that the record supports a finding that his estimate
was also unreliable. The petitioner did not provide any
evidence to show that Kelder used scientifically valid
methods to investigate the fire, rendering his testimony
not credible and inadmissible.
   Kelder testified that he developed his burn time esti-
mate principally by reviewing the fire damage depicted
in photographs and a video recording. During the
habeas hearing, the respondent’s attorney asked Kelder
what scientific method he followed to investigate the
fire. Kelder initially testified that he relied on his per-
sonal experience and that his procedures tracked those
described in chapter four of the National Fire Protection
Association’s Publication 921, a widely used fire investi-
gation guide.28 After being shown a recent edition of
Publication 921, Kelder said that he had an older edition
and would have to review the publication to recall its
basic procedures. After reviewing it, Kelder changed
his testimony about his method and admitted that he
did not follow those procedures to investigate the fire
but used his own procedure based on his personal expe-
rience instead.29
   Kelder did not explain whether the method he con-
trived from his own personal experience was a scientifi-
cally valid and reliable method for determining a fire’s
burn time. Kelder acknowledged that his ‘‘estimate of
the ignition time of the fire was based largely on the
amount of damage that [he had] observed,’’ but there
was no other testimony to establish that a review of
fire damage through photographs and a video recording
of the scene is a valid and reliable method for determin-
ing how long a fire burned. Additionally, when describ-
ing his method, Kelder stated that the method he used
to determine the burn time was based on his experience
in ‘‘determining [the] cause and origin’’ of a fire; he said
nothing about his experience or method for determining
how long a fire burned. (Emphasis added.) The only
evidence in the record about whether this method was
valid came from Corry, who testified that examining
photographs of fire damage was not a viable method
for determining a fire’s burn time.
  The respondent attacked Kelder’s testimony before
the habeas court on this very basis. In his posttrial brief,
the respondent argued that Kelder ‘‘could identify no
scientific principle that would support his assertion that
he [could] determine the duration of the fire simply
by viewing photographs of the damage that it caused.
Indeed, when Kelder’s testimony is considered in its
entirety, it becomes clear that it was nothing more than
pseudo-scientific babbling. His conclusion, therefore,
should not be credited . . . .’’ Not surprisingly, the
petitioner, in his posttrial brief, cited to Kelder’s testi-
mony only once.
    A court must preclude an expert’s opinion when there
is no evidence in the record to support the validity of
the expert’s methods other than the expert’s own ‘‘ipse
dixit’’ that those methods are valid and reliable; a wit-
ness’ personal experience is not enough. Klein v. Nor-
walk Hospital, supra, 299 Conn. 263; see also id., 262–63
(‘‘[T]he defendant made no showing that [the expert
witness’] methodology had been subjected to peer
review, nor was [the witness] able to identify a likely
rate of error for his chosen methodology. [Although]
neither of these determinations is a talismanic require-
ment for satisfaction of the Porter requirements, their
absence is . . . determinative of the inadequacy of the
defendant’s proof of the methodology’s reliability. . . .
Without these or any other meaningful indicia of relia-
bility, [the witness’] conclusion was without basis in
an assuredly reliable methodology; without any stated
support for its reliability other than his own personal
expertise, it was nothing more than his ipse dixit.’’
[Citation omitted; emphasis added.]).
    The habeas court in the present case was fully justi-
fied in concluding that Kelder’s opinion would be
excluded from a criminal trial altogether. See id., 263
(‘‘[n]othing . . . requires a . . . court to admit opin-
ion evidence that is connected to existing data only by
the ipse dixit of the expert’’ [internal quotation marks
omitted]). The petitioner’s failure to present facts to
establish the validity and reliability of Kelder’s method
would render his testimony not credible and inad-
missible.
                              3
   Other than the inherent unreliability of their esti-
mates, Kelder and DeHaan disagreed with each other
about key data points relevant to a determination of the
fire’s burn time, including the maximum temperature in
the apartment, the temperature inside the apartment
when Tomkunas first arrived, and the materials in the
couch where the fire principally burned.
   At the habeas hearing, Kelder testified that the maxi-
mum temperature in the apartment as a result of the
fire would have been between 1800 to 2000 degrees at
ceiling level. When asked how he reached this estimate,
Kelder replied, ‘‘[i]t’s scientific proof.’’ DeHaan testified,
however, that the temperature in the apartment could
not possibly have exceeded 400 to 450 degrees.
According to DeHaan, there were a number of objects
throughout the apartment, including within the hot
smoke layer, that ‘‘had been affected, but not ignited,’’
and, if the temperature had been any higher than 450
degrees, ‘‘a lot of other things would have been ignited
and burned.’’30
  Kelder and DeHaan also disagreed about the tempera-
ture of the apartment when Tomkunas first kicked in
the front door. Each of the petitioner’s experts agreed
that this was an important factor in determining the
fire’s burn time. As I discussed previously, DeHaan esti-
mated that the entry level temperature was about 400
degrees. Kelder, on the other hand, initially testified
that ‘‘there was not a lot of heat in that room at the
time [the firefighters] entered’’ because, if there had
been, there would have been a ‘‘flashover . . . of fire
from the new oxygen coming into the room’’ when the
firefighters first opened the door.31 Later in his testi-
mony, however, Kelder gave an estimate of 600 to 800
degrees, which far exceeded DeHaan’s estimate of both
the entry level temperature and the maximum tempera-
ture that the apartment could have reached as a result
of the fire. Yet, under further questioning, Kelder testi-
fied that he was ‘‘not really sure’’ what the entry level
temperature was because he ‘‘wasn’t at the fire scene,’’
so any estimate of the entry conditions would be ‘‘an
assumption on [his] part.’’ In addition to demonstrating
the inconsistent and contradictory nature of the peti-
tioner’s evidence, Kelder’s testimony on this point is
yet further evidence—from the petitioner’s own
expert—that DeHaan could not make a reliable estimate
of the entry level temperature.
   Furthermore, the petitioner’s experts disagreed over
whether the couch cushions were made of rubber foam
or polyurethane foam, which burn at different rates, a
difference that could have affected the fire’s burn time.
DeHaan testified that he was sure that the couch cush-
ions were made with rapidly burning polyurethane
foam, which led him to reject Igoe’s eyewitness observa-
tions that the fire burned slowly. According to DeHaan,
if the couch cushions were made of slower burning
rubber foam, the remnants of the cushions would have
appeared much differently than that depicted in the
photographs, and rubber was not widely used as cush-
ion material when the victim’s couch was likely con-
structed.32 Nevertheless, the petitioner’s other expert,
Kelder, contradicted DeHaan’s opinion and concluded,
instead, that the couch cushions were made of rubber
foam, which burns relatively slowly and does not easily
ignite. Like DeHaan, Kelder also based his conclusion
on his review of the photographs of the couch. And,
unlike DeHaan, Kelder did not dispute Igoe’s report that
the couch material burned ‘‘very, very, slowly . . . .’’
In fact, when asked whether the couch cushions could
have been made from polyurethane foam, which burns
more rapidly than rubber foam, Kelder testified that he
was ‘‘sure’’ that they were not made of polyurethane.
He stated: ‘‘I can tell you it wasn’t polyurethane foam
because, if that were the case, any type [of] poly foam
like that would ignite and burn rapidly. This did not
[based on] the test done by . . . Igoe.’’
  The petitioner’s experts also admitted that their late
arrival to the case, as well as their resulting inability
to study the actual fire scene in person, could affect
the validity of their conclusions. Neither Kelder nor
DeHaan investigated the actual fire scene at the time
of the fire. They were hired more than one decade after
the fire to formulate burn time estimates based only
on a review of photographs, a video recording and the
testimony of certain witnesses. But the photographs
and video recording were taken after emergency per-
sonnel had disturbed the original fire scene. For exam-
ple, photographs of the couch where the primary fire
burned show the couch outside of the victim’s apart-
ment on the lawn, even though all experts agree that
the couch was in the living room at the time of the fire.
Emergency personnel moved the couch outside before
the first fire investigators arrived on the scene and
before any photographs of the scene were taken. More-
over, neither Kelder nor DeHaan interviewed any of the
witnesses to the fire, and neither of them personally
examined or analyzed any of the materials involved in
the fire.
   Kelder acknowledged that important information
about the conditions contributing to the fire’s duration
was unavailable to him because he joined the case long
after the fire occurred. Kelder explained that he devel-
oped his burn time estimate by looking at photographs,
a video recording and a diagram of the scene, and by
reviewing certain testimony. He did not do anything
further to gather additional information to help his
investigation—for example, by interviewing wit-
nesses—and explained that he was not asked to do this.
Nevertheless, he agreed that it would have been a good
investigative practice to do so, if he had been able to
investigate the actual fire scene in ‘‘1987 versus 2000
. . . .’’ He also acknowledged that his inability to
review, firsthand, the actual fire scene and materials
involved in the fire prevented him from using standard
fire investigation methods. When asked whether he
knew the ignition temperatures of the materials
involved in the fire, Kelder conceded that he ‘‘would
have to test the materials’’ but that he ‘‘didn’t have that
availability’’ and therefore could not conduct his own
tests. And when Kelder was asked whether it would be
important for his investigation to determine exactly
what type of material was involved in the fire, he
answered: ‘‘Yes, if I had the availability of being at the
scene, I think I would have sent it to the lab and deter-
mine what components were in it.’’ Kelder also
explained: ‘‘I could not make that determination. I
wasn’t at the scene.’’ Finally, Kelder also acknowledged
that it would have been ‘‘a good investigative practice
to try to determine what the temperatures were when
the firefighters entered the apartment’’ but that he could
not do so because he ‘‘wasn’t at the fire scene.’’
  In addition, DeHaan acknowledged the limited data
available to him could impact his conclusions. When
DeHaan was asked at the habeas hearing whether there
was ‘‘anything [he] could have learned by examining any
items that were retained from the fire,’’ he explained: ‘‘If
the [couch] had been retained, yes, that would have
been useful to physically examine it and specifically
identify the fabrics and filler rather than by photo-
graphs.’’ Although DeHaan based his burn time opinion
primarily on his estimate of the temperature that Tom-
kunas was exposed to when he first arrived at the apart-
ment, DeHaan acknowledged that he was able to
estimate that temperature ‘‘[o]nly very approximately
. . . .’’ And, in his written report, DeHaan concluded
that, ‘‘[d]ue to the limited data available as to the
insulation and ventilation conditions existing in [the
victim’s apartment], it is not possible to predict the
postfire duration of high temperatures.’’ (Emphasis
added.) Nevertheless, DeHaan ultimately based his
opinion on an estimate of the postfire duration of high
temperatures. When confronted during the habeas hear-
ing with this apparent inconsistency, DeHaan admitted
that it is not possible to determine the fire’s duration
‘‘[w]ith any accuracy, that’s right, with precise accuracy,
I should say,’’ and explained that his estimate ‘‘was a
very general conclusion that that was the—that was the
time frame’’ based on a ‘‘prediction of the ventilation
conditions in the room.’’ (Emphasis added.)
   The petitioner had the burden of proving the elements
necessary to prevail on his Brady claim, which required
him to demonstrate prejudice by providing reliable burn
time evidence in support of his alibi defense. The
unfounded, speculative and contradictory nature of the
testimony of the petitioner’s burn time experts leads
me to conclude that the petitioner’s evidence is not
reliable. Consequently, there is no reasonable probabil-
ity that it would have been credited.
                             B
            Testimony from Other Experts
   Apart from the faulty testimony of the petitioner’s
own experts, the habeas court also heard testimony
from three other fire experts. Their testimony rein-
forced what the petitioner’s experts acknowledged: that
investigators lacked the data needed to make a reliable
burn time estimate, including proper measures of tem-
perature in the apartment during the fire, ventilation
conditions, and the materials in the couch where the
fire primarily burned.
   As I noted previously, the habeas court heard testi-
mony from Igoe, who investigated the actual fire scene
firsthand. On the basis of his analysis of the fire scene
and his observations of the couch and its burn rate, he
concluded that the primary fire started on the couch
and burned ‘‘very, very slowly . . . .’’ Igoe testified
that, given the slow burn rate, the time the fire took to
spread after ignition could have varied depending on
ventilation and insulation conditions in the apartment.
He explained, however, that he had difficulty assessing
actual conditions at the time of the fire because the
scene had been disturbed by emergency personnel. Igoe
noted that the ‘‘[c]onditions of the [apartment] were
horrible’’ and that the apartment was ‘‘a mess’’ after
the fire. On the basis of his firsthand observations, Igoe
determined that the slow burning fire could have burned
for several minutes to several hours, depending on the
exact conditions and materials in the objects that
burned. Igoe testified that the only information he
would feel comfortable using to determine the fire’s
duration would be eyewitness testimony about the fire’s
start time, which did not help narrow the window of
time within which the fire could have started.
   The habeas court also heard from Joseph Roy,
another fire investigator from the state fire marshal’s
office, who assisted Igoe in his investigation at the
scene. Roy’s testimony supported Igoe’s conclusion.
Roy testified that any reliable estimate of the fire’s burn
time would require additional facts and scientific analy-
sis of the materials involved. That analysis requires a
lab analysis of the combustible materials in the home
to determine how long those materials could burn, an
analysis that was not performed in this case.
   The respondent’s expert, Corry, also testified that
the burn time could not be reliably determined. Corry
agreed with Igoe that the fire could have burned for
several minutes to several hours, depending on the
exact conditions at the time of the fire, which are not
known to any of the investigators. Corry reached his
conclusions on the basis of his own observations about
the insulation conditions of the actual apartment. Of
the three hired experts, Corry is the only one who vis-
ited the actual fire scene. He noted that the victim’s
apartment had remained vacant since the incident and
still smelled strongly of smoke. He observed the insula-
tion properties of the apartment and interviewed a
maintenance employee at the apartment complex who
had worked there since before the fire. The mainte-
nance employee explained that the original door had
been cleaned and left in place but that the windows
had been replaced after the fire with the same type that
had previously been installed. From his observations,
he concluded that the apartment was well insulated. He
also noted that photographs of the scene show limited
smoke damage on the outside of the apartment, which
led him to conclude that the apartment was not well
ventilated at the time of the fire.
   Corry concluded that the fire’s burn time could not
be determined to a reasonable degree of probability.
Corry believed that the couch burned slowly after igni-
tion. According to Corry, burn patterns indicated that
objects on the couch, along with a lack of ventilation,
inhibited the spread of the fire. Like the other experts,
Corry opined that the fire eventually consumed avail-
able oxygen and reduced to a smolder. Given the lack
of knowledge of the type of materials involved in the
fire and the exact ventilation conditions at the time of
the fire, Corry concluded that ‘‘[i]t’s very difficult to
say [with any] degree of certainty’’ how long the fire
lasted. Corry opined that the fire could have smoldered
for some time, even with a relatively small amount of
ventilation bringing in fresh oxygen to sustain the fire.33
Because Corry believed that the apartment was well
insulated, he believed it could have retained heat and
smoke from the fire for a ‘‘significant period of time
. . . .’’ For these reasons, Corry testified that the fire
could have lasted anywhere from several minutes to
several hours. Because of a lack of data needed to
render a more specific and scientifically reliable burn
time estimate, Corry determined, similar to Igoe, that
one would have to rely on eyewitness testimony to
determine the time frame within which the fire likely
started.34 In this case, the eyewitness testimony,
together with Corry’s conclusion that the fire could
have burned for several hours, led Corry to conclude
the fire could have started anytime during a window
of about two hours or more, which the habeas court
determined would not support the petitioner’s alibi.
   This is not a case in which a fact finder, presented
with equally compelling but divergent expert testimony,
simply chose to credit one expert over others. The peti-
tioner’s unreliable burn time evidence and the testi-
mony from other experts convinces me that there is
not a reasonable probability that a jury would credit
the testimony. How the majority can conclude that the
habeas court’s findings are ‘‘baseless’’ in light of this
evidence is beyond me.
  Without any credible burn time evidence to weigh
against the original trial evidence, the petitioner cannot
establish prejudice under Strickland and Brady. On the
record, I disagree that we can conclude, as a matter of
law on appeal, that the petitioner has met his burden.35
                                     IV
                            CONCLUSION
   For the foregoing reasons, I cannot join in the majori-
ty’s decision to uphold the Appellate Court’s decision
to order a new trial for the petitioner. I therefore would
reverse the Appellate Court’s judgment and remand
the case with direction to affirm the habeas court’s
judgment denying the habeas petition.
      Accordingly, I respectfully dissent.
  1
    All references in this opinion to the habeas court are to the habeas court,
Nazzaro, J., or what was the third of three habeas courts in a series of
habeas proceedings involving the petitioner, Richard Lapointe.
  2
    Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984).
  3
    Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
  4
    Beside the testimony of his experts, the petitioner’s other new evidence
included only the Ludlow note and testimony from Karen Martin, his former
spouse, who did not testify at the petitioner’s criminal trial. This other new
evidence was not enough to undermine the verdict at the petitioner’s criminal
trial in the absence of valid evidence of the fire’s burn time to support the
petitioner’s alibi. Although the petitioner argued that the ‘‘30–40 mins. Poss.’’
notation in the Ludlow note was an expert opinion of the fire’s burn time,
it was never connected to any expert. Ludlow, the author of the note, was
not sure whether it was an opinion from fire investigators, who denied they
gave any such opinions, or a question that Ludlow wanted to ask. Thus, the
Ludlow note may not even constitute Brady material. That issue, however,
is not before the court. As for Karen Martin’s testimony, the habeas court
found that it did not provide the petitioner with a complete alibi because
she could not account for the petitioner’s whereabouts for the entire night
in question.
   5
     The majority asserts that my view of the Appellate Court’s decision
‘‘verges on insulting . . . .’’ I do not insult the opinions of others; rather, I
leave it to the reader to determine whether my view of the Appellate Court’s
decision is correct. I note, however, that my interpretation of the Appellate
Court’s approach in this case is not ‘‘ludicrous,’’ as the majority suggests.
Rather, the Appellate Court’s approach bears significant resemblance to a
harmless error analysis applied to evidentiary claims. In a harmless error
analysis, an appellate tribunal determines whether the absence of certain
evidence prejudiced the offering party at trial. It requires an appellate tribu-
nal to decide ‘‘whether the evidence, if believed by the jury, likely would
have produced a different result.’’ (Emphasis in original.) Adams v. State,
259 Conn. 831, 842, 792 A.2d 809 (2002). In applying this test, ‘‘[t]he reviewing
court thus abstains from drawing any independent conclusions regarding
the credibility of the evidence, leaving that responsibility to the jury [at] a
new trial, who may observe, firsthand, the witness’ conduct, demeanor and
attitude.’’ Id. Although the harmless error analysis does not apply in the
Strickland/Brady prejudice context; see Small v. Commissioner of Correc-
tion, 286 Conn. 707, 731, 946 A.2d 1203, cert. denied sub nom. Small v.
Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008); interpreting
the Appellate Court’s analysis in this case as something akin to a harmless
error analysis is not insulting given that the harmless error test is routinely
used by appellate tribunals to assess prejudice stemming from the absence
of evidence at the original trial, an issue similar to that presented by the
Strickland prejudice element. What would be insulting to the Appellate
Court is to presume that it acted as a fact finder by retrying credibility
issues settled in the habeas court, an analysis never before undertaken
by an appellate tribunal in this state that is unsupported by our existing
jurisprudence and forbidden by our constitution.
   6
     In light of the respondent’s argument that the Appellate Court reached
its decision by hypothesizing about what a jury could find, assuming that
a jury chose to credit the new testimony, I am perplexed by the majority’s
assertion that the respondent made no such argument.
   7
     We have recognized a limited exception to this rule when the trial court
that considers the defendant’s Strickland or Brady claim presided over the
original trial. In that situation, we give some deference to the trial court’s
assessment of the impact of the alleged violation on the original trial evi-
dence. State v. Ortiz, supra, 280 Conn. 721–22.
   8
     For this reason, the Appellate Court’s assertion that credibility assess-
ments must be left to a new jury and not to the habeas court is incorrect.
See Lapointe v. Commissioner of Correction, supra, 138 Conn. App. 476–77
n.17. It is the habeas court, not a jury, that must decide the petitioner’s
Strickland/Brady claim. The Appellate Court’s decision to relieve the habeas
court of its obligation to assess credibility and to leave the issue entirely
to a jury does not recognize that both the habeas court and a new jury have
a role in judging credibility, though their respective roles are different. The
habeas court must make a threshold credibility assessment of new witness
testimony to decide whether a petitioner has established a right to a new
trial under Strickland or Brady. If a new trial is warranted, and the state
retries the case, then a jury must assess the new testimony in deciding guilt
or innocence.
   9
     See, e.g., Sanchez v. Commissioner of Correction, supra, 314 Conn. 603,
611 (deferring to habeas court’s finding that ‘‘a jury was unlikely to have
found [the petitioner’s new witnesses] credible’’ when ‘‘the habeas court’s
finding in this regard [was] not clearly erroneous’’); Anderson v. Commis-
sioner of Correction, 313 Conn. 360, 375, 380, 98 A.3d 23 (2014) (deferring
to habeas court’s refusal to credit new expert testimony), cert. denied sub
nom. Anderson v. Semple,             U.S.     (83 U.S.L.W. 3678, February 23,
2015); Gaines v. Commissioner of Correction, supra, 306 Conn. 688, 690
(deferring to habeas court’s findings that petitioner’s new alibi witnesses
were ‘‘credible and compelling’’ after concluding that habeas court’s finding
was not clearly erroneous); Bryant v. Commissioner of Correction, supra,
290 Conn. 510–11, 523–26 (deferring to habeas court’s finding that petition-
er’s new witnesses were credible); Francis v. Commissioner of Correction,
142 Conn. App. 530, 540 n.5, 66 A.3d 501 (noting that deference is given to
credibility determinations by habeas court and deferring to habeas court’s
finding that petitioner’s new expert’s opinion was not ‘‘ ‘particularly reli-
able’ ’’), cert. denied, 310 Conn. 921, 77 A.3d 141 (2013); Smith v. Commis-
sioner of Correction, 141 Conn. App. 626, 631–33, 62 A.3d 554 (upholding as
not clearly erroneous habeas court’s finding that petitioner’s new witnesses
lacked credibility, rendering their testimony ‘‘ ‘unimpressive’ ’’ and ‘‘ ‘use-
less’ ’’), cert. denied, 308 Conn. 947, 67 A.3d 290 (2013); Williams v. Commis-
sioner of Correction, 41 Conn. App. 515, 521–23, 677 A.2d 1 (1996) (deferring
to habeas court’s finding that petitioner’s new witness testimony was
‘‘ ‘unworthy of belief’ ’’), appeal dismissed, 240 Conn. 547, 692 A.2d 1231
(1997); Siano v. Warden, 31 Conn. App. 94, 103, 623 A.2d 1035 (upholding
habeas court’s decision to grant habeas petition on basis of counsel’s failure
to call expert witness when habeas court ‘‘had the opportunity to observe
[the expert’s] demeanor, appearance, and ability to relate and communicate
facts, and found that he made an excellent witness’’), cert. denied, 226 Conn.
910, 628 A.2d 984 (1993); see also Doehrer v. Commissioner of Correction,
68 Conn. App. 774, 784–85, 795 A.2d 548 (deferring to habeas court’s decision
not to credit uncontradicted testimony of petitioner’s expert witness), cert.
denied, 260 Conn. 924, 797 A.2d 520 (2002).
    10
       I agree with the majority’s statement in footnote 38 of its opinion that
the proper standard for assessing credibility of new witness testimony in
this context is whether ‘‘there is a reasonable probability of the jury having
credited the . . . testimony . . . .’’ I therefore interpret any statement in
the majority opinion about whether a jury reasonably could credit the new
testimony as requiring a showing that there is a reasonable probability of
the jury having credited the new testimony.
    11
       See, e.g., Sanchez v. Commissioner of Correction, supra, 314 Conn. 612
(‘‘the habeas court was in the best position to observe [the new witness’]
conduct, demeanor and attitude while [he was] testifying’’); Thomas v. Com-
missioner of Correction, 141 Conn. App. 465, 472–73, 62 A.3d 534 (habeas
court must have opportunity to hear testimony of petitioner’s new witnesses
to evaluate their credibility in determining Strickland/Brady prejudice),
cert. denied, 308 Conn. 939, 66 A.3d 881 (2013); Townsend v. Commissioner
of Correction, 116 Conn. App. 663, 668, 975 A.2d 1282 (upholding denial of
habeas petition when petitioner did not present testimony of new exculpa-
tory witness, ‘‘which the habeas court properly found was insufficient to
show prejudice because there was no opportunity to evaluate the testimony
or credibility of the claimed witness’’), cert. denied, 293 Conn. 930, 980 A.2d
916 (2009).
    12
       See, e.g., Thomas v. Commissioner of Correction, 141 Conn. App. 465,
472–73, 62 A.3d 534 (habeas court must have opportunity to hear testimony
of petitioner’s new witnesses to evaluate their credibility in determining
Strickland/Brady prejudice), cert. denied, 308 Conn. 939, 66 A.3d 881 (2013);
Townsend v. Commissioner of Correction, 116 Conn. App. 663, 668, 975
A.2d 1282 (upholding denial of habeas petition when petitioner did not
present testimony of new exculpatory witness, ‘‘which the habeas court
properly found was insufficient to show prejudice because there was no
opportunity to evaluate the testimony or credibility of the claimed witness’’),
cert. denied, 293 Conn. 930, 980 A.2d 916 (2009); see also State v. Lawrence,
282 Conn. 141, 155, 920 A.2d 236 (2007) (‘‘[c]redibility must be assessed
. . . not by reading the cold printed record, but by observing firsthand the
witness’ conduct, demeanor and attitude’’ [internal quotation marks
omitted]).
    13
       See, e.g., Sanchez v. Commissioner of Correction, supra, 314 Conn.
611–12 (habeas court’s credibility finding was reasonable in light of witness’
relationship to petitioner, terse answers to questions, inconsistencies with
testimony of other witnesses, and witness’ criminal record and gang member-
ship); Gaines v. Commissioner of Correction, supra, 306 Conn. 690–92
(deferring to habeas court’s finding that new alibi testimony was credible
despite impeachment evidence presented by respondent); Bryant v. Com-
missioner of Correction, supra, 290 Conn. 510–11, 523–26 (deferring to
habeas court’s finding that new witnesses were credible because they were
disinterested witnesses and their testimony was fully consistent with prior
statements); see also Bowman v. 1477 Central Avenue Apartments, Inc.,
203 Conn. 246, 257, 524 A.2d 610 (1987) (‘‘[when] the evidence is in conflict,
its probative force is for the trier of fact to determine’’); Steinman v. Maier,
179 Conn. 574, 576, 427 A.2d 828 (1980) (‘‘[t]he sifting and weighing of
evidence is peculiarly the function of the trier’’).
   14
      Although not at issue in the present case because all witnesses in the
petitioner’s habeas case testified live in court, I note that, even if a party’s
expert witnesses submitted evidence by affidavit, rather than through live
testimony, we still would not be in the same position as the trial court to
assess credibility if other witnesses testified live before the habeas court
on the same subject. Because we require a trier to consider all of the
evidence presented to it in assessing credibility, it cannot make its findings
by reviewing that witness’ affidavit alone because the testimony of other
witnesses can impact the credibility of evidence submitted by affidavit. For
example, suppose a party offers the affidavit of expert A who expresses an
opinion. The opposing party offers expert B and an eyewitness, who testify
live and offer evidence inconsistent with the substance of A’s affidavit. The
trial court might discredit A’s opinion on the basis of what B and the
eyewitness say. Or, the trial court might nevertheless credit expert A after
hearing the testimony of B and the eyewitness. Either way, the trial court’s
credibility assessment depends, in part, on the live testimony of other wit-
nesses.
   15
      The habeas court summarized Igoe’s analysis and conclusions as follows:
‘‘Igoe concluded that the fire was slow burning because, although there was
significant damage to the couch, the fire had not completely burned the
wood on the back of the couch. Additionally, Igoe conducted a burn test
on one of the couch cushions. The fabric ignited and burned slowly, emitting
heavy, black smoke. . . .
   ‘‘Depending on the specific conditions in the apartment, the oxygen supply,
etc., the couch could have burned slowly and/or smoldered between several
minutes or several hours, according to Igoe.’’
   16
      In response to this argument, the majority asserts that, because ‘‘[t]he
respondent has not raised a constitutional objection’’ to de novo review by
this court, I have improperly considered our own constitutional authority
in considering whether such review is proper. I am quite perplexed by
this assertion.
   First, the majority’s position is ironic given that neither party has asked
us to modify the scope of our review; put another way, the majority is
improperly addressing an unraised issue. See part II of this opinion. Because
the parties did not have notice that this court would change its standard
of review, it is of no surprise that the respondent has not raised any objection
to such a change.
   Second, given that the majority has decided to reconsider and change
our standard of review, I fail to understand why I am forbidden from looking
at our own case law and constitution to address that very issue. In doing
so, I am not raising a new issue. Rather, I am merely looking to our own
authority, not cited by the parties, that bears on the issue already under
consideration by the majority. Although we generally are limited to
addressing only the issues raised by the parties, we have never suggested
that we are limited to considering only the legal authorities cited by them.
Indeed, in considering the scope of our review, the majority itself relies on
authorities from other jurisdictions that neither party has cited. It thus
appears to me that the majority has mistakenly confused what I am doing
with a situation in which a party raises an entirely new claim for relief
under our state constitution, something I have not done.
   17
      In an effort to distract from its constitutional transgression, the majority
calls attention to two aspects of the court’s decision in Styles that are not
in dispute. As the majority notes, the court in Styles recognized that we
may review a trial court’s factual findings; Styles v. Tyler, supra, 64 Conn.
459; but that, in doing so, we may consider only the legal sufficiency of
those findings. This analysis, the clear error test, presents a question of law,
not one of fact. The court in Styles also recognized that our jurisdiction
extends to questions in which the issues of fact and law are so intertwined
that they cannot be considered pure questions of fact; id.; and I agree that
we may review de novo these so-called mixed questions of law and fact. The
majority’s analysis, which discusses only these two undisputed propositions,
does not address our cases demonstrating that assessing the credibility of
new testimony in the Strickland/Brady prejudice context is a question of
fact, which we are constitutionally prohibited from deciding in this court.
See part I A of this opinion.
   18
      Additionally, I am perplexed by the Chief Justice’s assertion that, by
assessing the likelihood that a jury would credit new witness testimony in
the context of deciding a Strickland/Brady claim, a habeas court is not
making an ‘‘ultimate’’ credibility finding. Although it is true that the habeas
court is assessing how a jury might evaluate new evidence, this assessment is
still an ‘‘ultimate’’ credibility assessment for the purposes of the Strickland/
Brady claim. See Sanchez v. Commissioner of Correction, supra, 314 Conn.
602 n.12. The petitioner is required to make this credibility showing as a
prerequisite to prevailing on a Strickland/Brady claim based on new witness
testimony, and the failure to make this showing is dispositive of the petition-
er’s claim. If, as in the present case, the petitioner does not establish to the
habeas court a reasonable probability that a new jury will credit the new
testimony, the petitioner’s Strickland or Brady claim will fail. This means
that the habeas court’s credibility assessment is dispositive of the petitioner’s
claims and that there are no further assessments to be made.
    19
       To be sure, these types of probabilistic judgments may involve different
burdens of proof than the preponderance standard used in civil cases or the
reasonable doubt standard used in criminal cases. For example, credibility in
the context of Strickland and Brady claims is evaluated under the reasonable
probability standard, whereas the probable cause standard applies to pre-
judgment remedies. Although the burden of proof may be different from
that in a full trial on the merits, the factual nature of the inquiry remains
the same. See, e.g., Sanchez v. Commissioner of Correction, supra, 314
Conn. 602 n.12, 611–12 and n.16 (declining to treat credibility assessments
in context of reviewing Strickland prejudice claim any differently from
traditional credibility assessment); TES Franchising, LLC v. Feldman,
supra, 286 Conn. 143 (trial court assesses witness credibility in prejudgment
remedy proceeding, and this court will not usurp that role).
    20
       The majority claims that, in other contexts, ‘‘our appellate authority
extends to actions that implicate the fact-finding function to a far greater
degree than the de novo review that we exercise in the present case.’’ In
support of this assertion, the majority cites two examples, but neither of
them involves fact-finding.
    The first example, the clear error test, is a test of legal sufficiency. It is
essentially a reasonableness test under which we review the record to make
sure that the trier’s findings are reasonably supported by the record. See,
e.g., TES Franchising, LLC v. Feldman, supra, 286 Conn. 138; Ventres v.
Goodspeed Airport, LLC, supra, 275 Conn. 125. Contrary to the majority’s
claims, the clear error test does not allow us to substitute our judgment for
the trier; nor may we replace the trier’s findings with our own. See Kaplan
v. Kaplan, supra, 186 Conn. 391 (appellate tribunal may not reject finding
‘‘merely because the reviewing judges personally disagree with the conclu-
sion or would have found differently had they been sitting as the [fact
finder]’’); Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 181 Conn. 222
(‘‘[w]e do not examine the record to determine whether the trier of fact
could have reached a conclusion other than the one reached’’).
    The majority’s reference to the preservation test set forth in State v.
Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), is equally misguided. Whether
a claim has been preserved is a legal question, not a factual one. E.g., State
v. Davis, 311 Conn. 468, 477, 88 A.3d 445 (2014). The waiver doctrine that
we applied in Kitchens is used to determine whether a party has sufficiently
preserved a claim for appellate review. It involves the application of a legal
presumption to a given set of facts. Although the application of this doctrine
requires us to review the transcripts and pleadings in the record, it does
not authorize us to resolve any disputed questions of fact, nor is the appellate
tribunal called on to evaluate credibility. Recounting the procedural facts
revealed by the record, and determining the legal consequences of those
facts, is not fact-finding. See, e.g., Dockter v. Slowik, 91 Conn. App. 448, 459
and n.7, 881 A.2d 479 (procedural facts from court file are subject to judicial
notice), cert. denied, 276 Conn. 919, 888 A.2d 87 (2005); Grant v. Commis-
sioner of Correction, 87 Conn. App. 814, 817, 867 A.2d 145 (‘‘It is well known
that appellate courts do not make findings of fact. . . . Appellate courts,
however, review the whole record and do not overlook material contained
in the trial court’s file . . . . We may take judicial notice of the contents
of the court’s file.’’ [Internal quotation marks omitted.]), cert. denied, 274
Conn. 918, 879 A.2d 895 (2005); see also State v. Ledbetter, 275 Conn. 534,
568, 881 A.2d 290 (2005) (taking judicial notice is not fact-finding), cert.
denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006). Consequently,
unless the record indisputably reveals the conditions necessary to establish
waiver, we cannot resolve the ambiguity, and we do not apply the presump-
tion. See State v. Davis, supra, 479–83 (declining to apply Kitchens waiver
doctrine when record did not clearly establish that counsel was afforded
notice of court’s intended jury instructions).
    21
       Subsequent cases from the Indiana Court of Appeals appear to have
limited, if not overruled, the holding in Bunch. Even though Bunch applied
a de novo credibility review of live testimony, the Indiana Court of Appeals
has since explained that it will not apply a de novo standard in cases involving
live testimony, even when the credibility assessments of that testimony
were based on objective factors, and that it will instead apply a clear error
standard. See, e.g., White v. State, 978 N.E.2d 475, 481 (Ind. App. 2012)
(referring to Bunch as standard for ‘‘paper’’ evidence and explaining that
‘‘[the] clearly erroneous standard of review would apply [when] a trial court
considers evidence by live testimony’’), trans. denied, 982 N.E.2d 1016 (Ind.
2013); see also Hawkins v. State, Indiana Court of Appeals, Docket No.
27A02-1301-PC-47 (Ind. App. August 20, 2013) (citing Bunch but declining to
second-guess trial court’s credibility assessment because of conflict between
witness’ live testimony and events that were depicted on video recording
of incident at issue), trans. denied, 998 N.E.2d 213 (Ind. 2013).
    22
       The majority has not cited any Strickland/Brady prejudice cases from
any other jurisdictions that follow the principle in Bunch. The majority, in
a footnote; see footnote 41 of the majority opinion; discusses State v. Behn,
375 N.J. Super. 409, 868 A.2d 329 (App. Div.), cert. denied, 183 N.J. 591, 874
A.2d 1108 (2005), in support of its new standard, but that case is even less
helpful to the majority because it did not involve the credibility of live
testimony but, rather, evidence submitted by affidavit. See id., 424–28. Like
Bunch, Behn was not a Brady or Strickland case but involved a newly
discovered evidence claim. Id., 414. The defendant in Behn based his claim
on affidavits rather than on live testimony. See id., 424–28. And, although
the court in Behn concluded that affidavits were sufficient for the defendant
to prevail on his newly discovered evidence claim in New Jersey, we have
rejected the notion that our trial courts can rely on printed, out-of-court
statements from new witnesses to order a new trial on the basis of newly
discovered evidence. Adams v. State, supra, 259 Conn. 842–46 (rejecting
notion that trial court can assess credibility from transcript and remanding
case to trial court for evidentiary hearing so that that court could observe
new witness testimony).
    My own review demonstrates that, in the Strickland/Brady prejudice
context, other jurisdictions apply a deferential standard of review, just
as we do, even with respect to new expert testimony. For example, in
Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523 (2009), the Pennsylva-
nia Supreme Court expressly concluded that the question of new witness
credibility in the Strickland/Brady prejudice context presented an issue of
fact for the trial court. See id., 357 (‘‘[i]ndeed, one of the primary reasons
[postconviction] hearings are held in the first place is so that credibility
determinations can be made; otherwise, issues of material fact could be
decided on pleadings and affidavits alone’’). That court further explained
that assessing credibility in this context is ‘‘not necessarily the same thing
as assessing credibility at a trial . . . but must be made with an eye to the
governing standard of a ‘reasonable probability’ that the outcome of the
trial could have been different.’’ Id., 359. Consequently, ‘‘the question is
whether the nature and quality of the evidence is such that there is a
reasonable probability that the jury would have credited it . . . .’’ Id., 361.
Pennsylvania applies the same deference to claims based on new expert
testimony. See, e.g., Commonwealth v. Basemore, 560 Pa. 258, 295–96, 744
A.2d 717 (2000) (remanding Strickland case to postconviction court for
findings as to credibility of new expert opinions). Cases from other jurisdic-
tions are in accord. See, e.g., Taylor v. State, 62 So. 3d 1101, 1115 (Fla.
2011) (noting, with respect to Brady claim involving new expert testimony
‘‘the postconviction court explicitly determined to be unreliable,’’ that ‘‘[the
reviewing] court will defer to the factual findings of the postconviction
court on this issue as [it] does not substitute its judgment for that of the
postconviction court on questions of the credibility of witnesses and the
appropriate weight to be given to the evidence’’); Green v. State, 975 So.
2d 1090, 1107 (Fla. 2008) (deferring to trial court’s finding with respect to
Strickland claim that defendant’s new expert testimony was not credible
and denying claim on that basis); Sochor v. State, 883 So. 2d 766, 781 (Fla.
2004) (deferring, in context of Strickland claim, to postconviction court’s
decision to credit state’s expert and not defendant’s new expert); Porter v.
State, 788 So. 2d 917, 923 (Fla.) (postconviction court has duty to assess
credibility of new expert witness testimony, and appellate court will defer
to this finding), cert. denied, 534 U.S. 1004, 122 S. Ct. 484, 151 L. Ed. 2d 397
(2001); People v. Thomas, 364 Ill. App. 3d 91, 103, 845 N.E.2d 842 (2006)
(deferring to finding in context of Brady claim that defendant’s new witness
testimony was not credible), appeal denied, 224 Ill. 2d 590, 871 N.E.2d 60
(2007); Howell v. State, Mississippi Supreme Court, Docket No. 2013-CA-
01027-SCT (Miss. October 9, 2014) (same); Ferguson v. State, 325 S.W.3d
400, 413 (Mo. App. 2010) (‘‘[w]e must deny [the petitioner’s] second Brady
claim for a similar reason as we denied his first Brady claim, namely that
the motion court made . . . detailed findings that the [new witness testi-
mony] in question was not credible and thus was not a basis for a meritorious
Brady claim’’); State v. Mau, Wisconsin Court of Appeals, Docket No. 99-
0406-CR (Wis. App. March 15, 2000) (deferring to trial court’s decision, in
context of Strickland claim, to credit state’s expert and not defendant’s
expert); see also United States v. Gary, 341 F.3d 829, 833–34 (8th Cir. 2003)
(deferring to District Court’s finding in context of Brady claim that new
witness testimony was not credible and therefore not material), cert. denied,
540 U.S. 1139, 124 S. Ct. 1128, 157 L. Ed. 2d 949 (2004).
   23
      Notably, the habeas court acknowledged in its memorandum of decision
that the new expert testimony likely would not be admissible because, with
no reliable way to establish the fire’s burn time, the new expert evidence
would not be helpful to a jury and thus would not qualify for admission.
The court first set forth the basic test for the admission of expert testimony:
‘‘Expert testimony generally is admissible if (1) the witness has a special
skill or knowledge directly applicable to a matter in issue, (2) that skill or
knowledge is not common to the average person, and (3) the testimony
would be helpful to the court or jury in considering the issues.’’ (Internal
quotation marks omitted.) The court then concluded that, although the new
testimony met the first two requirements for admission, it did not meet the
third requirement because it would not be helpful: ‘‘The expert testimony
on the fire and its estimated total burn time would not be in the ordinary
knowledge and experience of the typical juror. While it may be relatively
easy to conclude that expert testimony such as what was presented to [the]
court could have been presented to the jury, the use of such experts would
not have assisted the jury in knowing precisely when the fire was set.’’
   24
      All references to temperature in this opinion are to the Fahrenheit scale.
   25
      The majority criticizes my conclusion on this point by asserting that
DeHaan’s 400 degree estimate applied to temperatures in the ‘‘hot gas layer’’
and not near floor level, where Tomkunas was crawling. The majority’s
assertion is completely contradicted by DeHaan’s testimony. DeHaan noted
that Tomkunas’ trial testimony described ‘‘the hot gases he encountered at
near floor level’’ and explained that Tomkunas would have experienced 400
degree temperatures ‘‘to the bare skin.’’ Furthermore, if it were true, as the
majority suggests, that Tomkunas was not exposed to 300 to 400 degree
temperatures because these temperatures were higher up in the apartment
than the level at which Tomkunas entered, DeHaan’s claim that Tomkunas
could not even enter the apartment because he would have been exposed
to 300 to 400 degree temperatures would make no sense.
   26
      The following is the relevant portion of the discussion between the
petitioner’s counsel and DeHaan at the habeas hearing:
   ‘‘Q. Could you determine what the level of the heat [from the fire] was?
   ‘‘A. Yes. Based on the established relationship between the height of the
flames and the—even against the wall and the size of the fire, I estimated
that the fire never got much more than—well, it was in the order of 250 to
350 kilowatts at its maximum.
   ‘‘Q. Meaning what?
                                       ***
   ‘‘A. It would probably be about the same as an average fireplace fire. It
would be pumping a lot of heat into this room, but not so much that you
couldn’t—you couldn’t approach it, for instance, to try to extinguish it, and
if you were there at the time—
   ‘‘Q. At the time it was set?
   ‘‘A. No. At the time it was—it reached its maximum . . . .’’
   27
      The majority attempts to reconcile DeHaan’s testimony on this point
by claiming that DeHaan, in stating that one could have approached the fire
and extinguished it, meant that one could have approached the fire if one
were wearing proper protective equipment. Curiously, however, no such
qualification appears in DeHaan’s testimony on this point—the majority has
simply made this up out of whole cloth. The majority thus seems to believe
that a de novo review allows it not only to make its own findings, but also
to create its own facts to reconcile inconsistencies in the witness’ testimony.
   28
      The following is an excerpt of the respondent’s counsel’s cross-examina-
tion of Kelder:
   ‘‘Q. What methodology did you follow in conducting this investigation?
   ‘‘A. The methodology that I followed was that of my experiences for over
3000 fires, determining cause and origin for a number of years, and also my
familiarity with some fire textbooks that I have in my library, and, also, I
am familiar with [Publication] 921 to a lesser degree. I’m not certified, but
[chapter] 4 [of Publication 921] would indicate the same thing in [chapter]
4 as I would have used in that fire.
   ‘‘Q. What is [Publication] 921?
   ‘‘A. [Publication] 921 . . . is sort of like a bible for fire investigators
through the National [Fire Protection] Association . . . .’’ (Emphasis
added.)
   29
      The following is the relevant portion of the cross-examination of Kelder:
   ‘‘Q. Did you follow the basic methodology set forth in chapter 4 in conduct-
ing this investigation?
   ‘‘A. No, I did not.
   ‘‘Q. Why not?
   ‘‘A. Because I based my investigation—this is a guideline that you’re
showing me. I base my information on more factual information, such as
the photographs, the reports, the [video recording], etc. All of those things
gave me a source of avenue to follow to complete my investigation based
on those facts.’’
   30
      The habeas court characterized Kelder’s 1800 to 2000 degree estimate
of the ceiling temperature as ‘‘wildly exaggerated’’ and discredited Kelder’s
testimony in part on this basis. The majority, however, found that there was
‘‘no factual basis’’ for this finding. In light of DeHaan’s testimony that it is
impossible for temperatures in the apartment to have exceeded 450 degrees,
the habeas court did have a valid basis for rejecting this testimony, undermin-
ing the majority’s own conclusions on this point. Furthermore, in view of
the experts’ wildly varying estimates—Corry indicated that temperatures
could have reached 600 degrees—the habeas court had good reason to
conclude that a reliable determination simply could not be made with the
limited data available.
   31
      ‘‘[A] flashover . . . occurs when the heat is so intense that material
ignites spontaneously.’’ (Internal quotation marks omitted.) American
National Fire Ins. Co. v. Schuss, 221 Conn. 768, 772, 607 A.2d 418 (1992).
   32
      The respondent’s fire investigator, Corry, testified that he initially
thought the couch was made of rubber foam but changed his opinion to
polyurethane foam. He made clear, however, that, without the ability to test
the actual materials, it was impossible to be certain what kind of materials
were in the couch and that a positive identification cannot be made through
only a review of photographs.
   33
      One of the petitioner’s experts, Kelder, determined from his review of
the crime scene photographs that one of the windows in the apartment
was likely opened slightly during the fire. He explained that one of the
photographs showed soot stains on the exterior of the building above the
window, indicating that some smoke had escaped through a small opening
in the window. In addition, Tomkunas testified that when he first approached
the apartment, he could see smoke coming from a window in front of
the apartment.
   34
      The majority characterizes Corry’s reliance on eyewitness testimony as
unscientific. But this criticism overlooks Corry’s conclusion, based on his
analysis using established scientific methods, that one cannot determine
the fire’s burn time with any reasonable degree of certainty.
   35
      In addition to his Strickland claim based on an alleged Brady violation,
the petitioner has offered an alternative ground for affirming the Appellate
Court’s judgment. The majority has not reached this claim, so I address it
only briefly. The crux of that claim is that the petitioner’s criminal trial
counsel rendered ineffective assistance because they failed to emphasize
certain discrepancies between the petitioner’s third confession and the phys-
ical evidence found at the crime scene. I have reviewed the relevant tran-
scripts and evidence, and, for the reasons set forth in the habeas court’s
memorandum of decision, I am not persuaded that the petitioner is entitled
to a new trial on this alternative basis.
