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 STATE OF CONNECTICUT v. ANDREW DICKSON
               (SC 19385)
 Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
                             Robinson, Js.
    Argued December 11, 2015—officially released August 9, 2016

  Andrew S. Liskov, for the appellant (defendant).
   Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were John C. Smriga,
state’s attorney, and Joseph T. Corradino, senior assis-
tant state’s attorney, for the appellee (state).
  Charles D. Ray, James L. Brochin, Marques S. Tracy
and Laura E. Sedlak filed a brief for The Innocence
Project as amicus curiae.
                          Opinion

   ROGERS, C. J. The issue that we must resolve in
this certified appeal is whether we should overrule this
court’s holding in State v. Smith, 200 Conn. 465, 469,
512 A.2d 189 (1986),1 and hold that inherently suggestive
in-court identifications are inadmissible even in the
absence of a suggestive pretrial identification proce-
dure. The defendant, Andrew Dickson, was charged
with a variety of offenses after he shot the victim, Albert
Weibel, during an attempted robbery. Before trial, the
defendant filed a motion to preclude Weibel from mak-
ing an in-court identification of the defendant on the
ground that in-court identification procedures are
unnecessarily suggestive. In the alternative, the defen-
dant requested that the trial court require that Weibel
select him from a group of individuals of similar appear-
ance. The trial court denied the motion pursuant to
Smith, and Weibel identified the defendant as his assail-
ant in court. The jury found the defendant guilty of
assault in the first degree and conspiracy to commit
robbery in the first degree, and the trial court rendered
judgment accordingly.
   Thereafter, the defendant appealed to the Appellate
Court claiming, among other things, that the trial court
had abused its discretion by denying his motion to pre-
clude Weibel’s in-court identification of him or, in the
alternative, to order an alternative identification proce-
dure. The Appellate Court rejected the defendant’s
claim pursuant to Smith; State v. Dickson, 150 Conn.
App. 637, 644–47, 91 A.3d 958 (2014); and, having also
rejected the defendant’s other claims on appeal,
affirmed the judgment of conviction. Id., 654.
   We then granted the defendant’s petition for certifica-
tion to appeal, limited to the following issues: (1) ‘‘Did
the Appellate Court properly determine that the in-court
identification procedure used at trial was proper under
this court’s decision in State v. Smith, [supra, 200 Conn.
465], and, if so, should the Smith precedent be over-
turned?’’; and (2) ‘‘If we conclude that the in-court iden-
tification was improper, was the impropriety harmless
in light of the other state’s evidence?’’ State v. Dickson,
314 Conn. 913, 100 A.3d 404 (2014). We conclude that,
contrary to our holding in Smith, in cases in which
identity is an issue, in-court identifications that are not
preceded by a successful identification in a nonsugges-
tive identification procedure2 implicate due process
principles and, therefore, must be prescreened by the
trial court.3 We also conclude that the admission of the
in-court identification here was harmless and, accord-
ingly, affirm the judgment of the Appellate Court on
this alternative ground.
  The record reveals the following facts that the jury
reasonably could have found and procedural history.
Akeem Lyles arranged to meet Weibel and Matthew
Shaw at Terrace Circle in Bridgeport on the night of
January 9, 2010, for the purpose of selling them an all-
terrain vehicle. Shortly before the arranged meeting
time, Lyles met with Jovanni Reyes and the defendant
in a nearby apartment, explained that he planned to rob
Weibel and Shaw and asked Reyes and the defendant if
they would help him. Reyes and the defendant agreed.
The three men left the apartment armed with guns at
approximately 9:30 p.m. At that point, Weibel, who was
in a pickup truck with Shaw at the arranged meeting
place, called Lyles. Lyles told Weibel that he was outside
in back of the building with the all-terrain vehicle and
that Weibel should come and ‘‘check it out.’’ As Weibel
approached Lyles, Lyles put a gun to Weibel’s head and
demanded money. Weibel then turned around and saw
Reyes and the defendant with guns. They also
demanded money. As Weibel covered his head, called
for help and attempted to return to the pickup truck, the
men hit him, demanded money and took his cell phone.
   Lyles then broke from the group and approached the
pickup truck. He tapped on the window with his gun
and pointed the gun at Shaw’s head. Shaw got out of
the pickup truck and Lyles grabbed him, threw him
against a parked car and demanded ‘‘the money.’’ When
Shaw told Lyles that he did not have the money, Lyles
took Shaw’s cell phone and wallet. Lyles also took
between $40 and $50, an iPod and a global positioning
system from the pickup truck. Someone then yelled
‘‘this is taking too long’’ and Lyles and Reyes ran from
the scene. At that point, the defendant held a gun to
Weibel’s head, threw him against a dumpster near the
pickup and said, ‘‘You’re a dead man.’’ The defendant
then shot Weibel in the leg and neck. Weibel was seri-
ously injured but survived. When Lyles later asked the
defendant why he had shot Weibel, the defendant
replied, ‘‘because we didn’t get any money.’’
  Approximately one year after the shooting, Weibel
viewed a police photographic array that included a pho-
tograph of the defendant, but he was unable to identify
the defendant as his assailant. Both Weibel and Shaw,
however, were able to identify Lyles from a photo-
graphic array as the person who had first approached
Weibel and who had approached Shaw while he was
in the pickup truck.
   The defendant was arrested and charged with numer-
ous offenses arising from the incident. Before trial, the
defendant filed a motion in limine in which he con-
tended that any in-court identification of the defendant
by Weibel would be so highly and unnecessarily sugges-
tive and conducive to an irreparable misidentification of
the defendant as to violate the defendant’s due process
rights under article first, § 8, of the Connecticut consti-
tution. In the alternative, the defendant, who is African-
American, requested that the court order that Weibel
be required to select him from a group of individuals
of similar age, weight, height, complexion and hair style.
The defendant orally renewed the motion in limine after
the jury was selected and before the presentation of
evidence. The trial court denied the motion.
   At trial, the prosecutor asked Weibel if he saw the
person who had shot him in court. Weibel responded
in the affirmative and identified the defendant, who was
sitting next to counsel at the defense table. Except for
a judicial marshal who was in uniform, the defendant
was the only African-American male in the courtroom.
The jury found the defendant guilty of assault in the
first degree and conspiracy to commit robbery in the
first degree, and the trial court rendered judgment
accordingly.
   On appeal to the Appellate Court, the defendant
claimed that the trial court had violated his due process
rights under the fifth and fourteenth amendments to
the federal constitution when it denied his motion in
limine.4 State v. Dickson, supra, 150 Conn. App. 642–43.
The Appellate Court rejected this claim pursuant to
State v. Smith, supra, 200 Conn. 469–70; State v. Dick-
son, supra, 644; and affirmed the judgment of convic-
tion. State v. Dickson, supra, 654. This appeal followed.
   The defendant contends that the Appellate Court
improperly concluded that Weibel’s in-court identifica-
tion of the defendant as his assailant was admissible
under Smith.5 In the alternative, he claims that this
court should overrule Smith and hold that first time
in-court identifications trigger due process protections
because they are inherently suggestive and are the
result of state action.6 Finally, he claims that the state
cannot prove that the improper admission of the in-
court identification was harmless beyond a reason-
able doubt.
                            I
DEFENDANT’S CLAIM THAT FIRST TIME IN-COURT
     IDENTIFICATIONS IMPLICATE DUE
           PROCESS PRINCIPLES
   To provide context for the defendant’s claims, we
begin our analysis with an overview of the legal princi-
ples governing the admission of eyewitness identifica-
tion testimony. In the absence of unduly suggestive
procedures conducted by state actors, the potential
unreliability of eyewitness identification testimony
ordinarily goes to the weight of the evidence, not its
admissibility, and is a question for the jury. See Perry
v. New Hampshire, U.S. , 132 S. Ct. 716, 730, 181
L. Ed. 2d 694 (2012) (‘‘we hold that the [d]ue [p]rocess
[c]lause does not require a preliminary judicial inquiry
into the reliability of an eyewitness identification when
the identification was not procured under unnecessarily
suggestive circumstances arranged by law enforce-
ment’’). Principles of due process require exclusion of
unreliable identification evidence that is not the result
of an unnecessarily suggestive procedure ‘‘[o]nly when
[the] evidence is so extremely unfair that its admission
violates fundamental conceptions of justice . . . .’’
(Citation omitted; internal quotation marks omitted.)
Id., 723, citing Napue v. Illinois, 360 U.S. 264, 269, 79 S.
Ct. 1173, 3 L. Ed. 2d 1217 (1959) (due process prohibits
state’s knowing use of false evidence because such use
violates any concept of ordered liberty). To assist the
jury in determining what weight to give to an eyewitness
identification that is not tainted by an unduly suggestive
identification procedure, the defendant is entitled as a
matter of state evidentiary law to present expert testi-
mony regarding a variety of factors that can affect the
reliability of such testimony. State v. Guilbert, 306
Conn. 218, 248, 49 A.3d 705 (2012) (‘‘[an] expert should
be permitted to testify . . . about factors that generally
have an adverse effect on the reliability of eyewitness
identifications and are relevant to the specific eyewit-
ness identification at issue’’).
   A different standard applies when the defendant con-
tends that an in-court identification followed an unduly
suggestive pretrial identification procedure that was
conducted by a state actor. In such cases, both the
initial identification and the in-court identification may
be excluded if the improper procedure created a sub-
stantial likelihood of misidentification. Perry v. New
Hampshire, supra, 132 S. Ct. 724. ‘‘A primary aim of
excluding identification evidence obtained under
unnecessarily suggestive circumstances . . . is to
deter law enforcement use of improper lineups, show-
ups, and photo arrays in the first place.’’ Id., 726.
   ‘‘In determining whether identification procedures
violate a defendant’s due process rights, the required
inquiry is made on an ad hoc basis and is two-pronged:
first, it must be determined whether the identification
procedure was unnecessarily suggestive; and second,
if it is found to have been so, it must be determined
whether the identification was nevertheless reliable
based on examination of the totality of the circum-
stances.’’ (Internal quotation marks omitted.) State v.
Marquez, 291 Conn. 122, 141, 967 A.2d 56, cert. denied,
558 U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163 (2009).
   The first suggestiveness prong involves the circum-
stances of the identification procedure itself; id.,
142–43; and the critical question is whether the proce-
dure was conducted ‘‘in such a manner as to emphasize
or highlight the individual whom the police believe is
the suspect.’’ Id., 143. If the trial court determines that
there was no unduly suggestive identification proce-
dure, that is the end of the analysis, and the identifica-
tion evidence is admissible. State v. Outing, 298 Conn.
34, 54, 3 A.3d 1 (2010), cert. denied, 562 U.S. 1225, 131
S. Ct. 1479, 179 L. Ed. 2d 316 (2011).
  If the court finds that there was an unduly suggestive
procedure, the court goes on to address the second
reliability prong, under which ‘‘the corruptive effect of
the suggestive procedure is weighed against certain
factors, such as the opportunity of the [eyewitness] to
view the criminal at the time of the crime, the [eyewit-
ness’] degree of attention, the accuracy of [the eyewit-
ness’] prior description of the criminal, the level of
certainty demonstrated at the [identification] and the
time between the crime and the [identification].’’ (Inter-
nal quotation marks omitted.) State v. Ledbetter, 275
Conn. 534, 553, 881 A.2d 290 (2005), cert. denied, 547
U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006),
citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct.
2243, 53 L. Ed. 2d 140 (1977); see Manson v. Brathwaite,
supra, 114 (reliability factors include ‘‘the witness’
degree of attention, the accuracy of his prior description
of the criminal, the level of certainty demonstrated at
the confrontation, and the time between the crime and
the confrontation’’); Neil v. Biggers, 409 U.S. 188, 199–
200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972) (same).7
‘‘[A]n out-of-court eyewitness identification should be
excluded on the basis of the procedure used to elicit
that identification . . . if the court is convinced that
the procedure was so suggestive and otherwise unrelia-
ble as to give rise to a very substantial likelihood of
irreparable misidentification.’’ (Emphasis omitted.)
State v. Marquez, supra, 291 Conn. 142.
   With this general background in mind, we now turn
to the case law governing in-court identifications that
are not preceded by an unnecessarily suggestive identi-
fication procedure, which is the case here. The United
States Supreme Court has not yet addressed the ques-
tion of whether first time in-court identifications are in
the category of unnecessarily suggestive procedures
that trigger due process protections.8 See Galloway v.
State, 122 So. 3d 614, 663 (Miss. 2013) (‘‘[t]he United
States Supreme Court has not decided whether Biggers
applies to an in-court identification not preceded by an
impermissibly suggestive pretrial identification’’), cert.
denied,       U.S. , 134 S. Ct. 2661, 189 L. Ed. 2d 209
(2014). This court, however, addressed the issue in State
v. Smith, supra, 200 Conn. 467. In that case, this court
held that despite the inherent suggestiveness of an in-
court identification procedure; id., 468–69 (‘‘[a]ny one-
on-one in-court identification of an accused conveys
the message that the state has arrested and placed on
trial a person it believes has committed the crime’’); an
in-court identification ‘‘need be excluded, as violative
of due process, only when it is tainted by an out-of-
court identification procedure which is unnecessarily
suggestive and conducive to irreparable misidentifica-
tion.’’ Id., 469; see also State v. Nelson, 4 Conn. App.
514, 516, 495 A.2d 298 (1985) (where there had been
no pretrial out-of-court identification procedure, there
was no basis to suppress eyewitness’ in-court identifica-
tion because there would have been nothing to taint
it). Thus, under Smith, first time in-court identifications
are treated in the same way as identifications that are
not tainted by an unnecessarily suggestive identification
procedure conducted by a state actor.
   The defendant in the present case claims that first
time in-court identifications are inherently suggestive
and implicate a defendant’s due process rights no less
than unnecessarily suggestive out-of-court identifica-
tions. Accordingly, he contends, such identifications
should be subject to prescreening by the court, just
like other identifications that are the result of unduly
suggestive identification procedures. This is a question
of law over which our review is plenary. Commissioner
of Environmental Protection v. Farricielli, 307 Conn.
787, 819, 59 A.3d 789 (2013) (‘‘[w]hether [a party] was
deprived of his due process rights is a question of law,
to which we grant plenary review’’ [internal quotation
marks omitted]).
    We agree with the defendant. First, and most impor-
tantly, we are hard-pressed to imagine how there could
be a more suggestive identification procedure than plac-
ing a witness on the stand in open court, confronting
the witness with the person who the state has accused
of committing the crime, and then asking the witness
if he can identify the person who committed the crime.9
If this procedure is not suggestive, then no procedure
is suggestive. Indeed, the present case starkly demon-
strates the problem, in that Weibel was unable to iden-
tify the defendant in a photographic array, but had
absolutely no difficulty doing so when the defendant
was sitting next to defense counsel in court and was
one of only two African-American males in the room.
Second, because the extreme suggestiveness and
unfairness of a one-one-one in-court confrontation is
so obvious, we find it likely that a jury would naturally
assume that the prosecutor would not be allowed to
ask the witness to identify the defendant for the first
time in court unless the prosecutor and the trial court
had good reason to believe that the witness would be
able to identify the defendant in a nonsuggestive setting.
Indeed, such an assumption would be correct in the
case of an in-court identification following an unneces-
sarily suggestive out-of-court identification procedure.
Thus, a first time in-court identification procedure
amounts to a form of improper vouching. See United
States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993)
(‘‘[v]ouching consists of placing the prestige of the gov-
ernment behind a witness through . . . suggesting that
information not presented to the jury supports the [wit-
ness’] testimony’’). Third, this court previously has rec-
ognized that mistaken eyewitness identifications are
a significant cause of erroneous convictions; State v.
Guilbert, supra, 306 Conn. 249–50 (‘‘mistaken eyewit-
ness identification testimony is by far the leading cause
of wrongful convictions’’);10 and the risk of mistake
is particularly acute when the identification has been
tainted by an unduly suggestive procedure. United
States v. Wade, 388 U.S. 218, 229, 87 S. Ct. 1926, 18
L. Ed. 2d 1149 (1967) (‘‘[t]he influence of improper
suggestion upon identifying witnesses probably
accounts for more miscarriages of justice than any other
single factor—perhaps it is responsible for more such
errors than all other factors combined’’ [internal quota-
tion marks omitted]). Fourth, we cannot perceive why,
if an in-court identification following an unduly sugges-
tive pretrial police procedure implicates the defendant’s
due process rights because it is the result of state action,
the same would not be true when a prosecutor elicits
a first time in-court identification. Cf. State v. Warholic,
278 Conn. 354, 361, 897 A.2d 569 (2006) (prosecutor’s
conduct in court can constitute due process violation).
Our research has revealed no case holding that this
conduct does not constitute state action and, indeed,
the state makes no such claim. Fifth, the rationale for
the rule excluding identifications that are the result
of unnecessarily suggestive procedures—deterrence of
improper conduct by a state actor—applies equally
to prosecutors.
   Accordingly, we conclude that first time in-court
identifications, like in-court identifications that are
tainted by an unduly suggestive out-of-court identifica-
tion, implicate due process protections and must be
prescreened by the trial court.11 See United States v.
Greene, 704 F.3d 298, 308 (4th Cir.) (applying Biggers
constitutional analysis to in-court identification), cert.
denied,      U.S. , 134 S. Ct. 419, 187 L. Ed. 2d 279
(2013); United States v. Rogers, 126 F.3d 655, 658 (5th
Cir. 1997) (same); United States v. Hill, 967 F.2d 226,
232 (6th Cir.) (‘‘We hold that the Biggers [constitutional]
analysis applies to . . . in-court identifications for the
same reasons that the analysis applies to impermissibly
suggestive [pretrial] identifications. The due process
concerns are identical in both cases and any attempt
to draw a line based on the time the allegedly suggestive
identification technique takes place seems arbitrary.
All of the concerns that underlie the Biggers analysis,
including the degree of suggestiveness, the chance of
mistake, and the threat to due process are no less appli-
cable when the identification takes place for the first
time at trial.’’), cert. denied, 506 U.S. 964, 113 S. Ct. 438,
121 L. Ed. 2d 357 (1992); United States v. Rundell, 858
F.2d 425, 427 (8th Cir. 1988) (noting ‘‘suggestiveness
inherent in the witnesses’ knowing that [the defendant]
was the sole [person] charged with the [crime]’’ and
applying Biggers factors to in-court identification);12
United States v. Archibald, 734 F.2d 938, 943 (witness’
in-court identification suggestive when on cross-exami-
nation, witness stated he had ‘‘feeling he would be sit-
ting next to’’ defense counsel, and applying Biggers
factors), modified, 756 F.2d 223 (2d Cir. 1984); E. Man-
dery, ‘‘Due Process Considerations of In-Court Identifi-
cations,’’ 60 Alb. L. Rev. 389, 423 (1997) (‘‘[t]here is
no sound basis for this distinction’’ between in-court
identifications and suggestive out-of-court identifica-
tions); see also Commonwealth v. Crayton, 470 Mass.
228, 241–42 and n.16, 21 N.E.3d 157 (2014) (concluding
pursuant to ‘‘[c]ommon law principles of fairness’’ that
first time in-court identifications are inadmissible
except for ‘‘good reason,’’ as when identity is not at
issue or eyewitness knew defendant before crime [inter-
nal quotation marks omitted]). Thus, we conclude that
the holding of Smith must be limited to its facts, that
is, to cases in which the in-court identification has been
preceded by an admissible out-of-court identification.13
We recognize that a number of courts have concluded
otherwise.14 Nevertheless, we conclude that this is an
issue for which the arc of logic trumps the weight of
authority. For all of the reasons that we have explained,
we simply see no reason to distinguish inherently sug-
gestive in-court identifications from inherently sugges-
tive out-of-court identifications.
                            II
STATE’S ARGUMENTS IN SUPPORT OF CLAIM THAT
    FIRST TIME IN-COURT IDENTIFICATIONS
              ARE ADMISSIBLE
   The state raises numerous arguments in support of
its claim to the contrary. We first address the state’s
claim that our conclusion is inconsistent with the
United States Supreme Court’s decision in Perry v. New
Hampshire, supra, 132 S. Ct. 716. Specifically, the state
contends that the court in Perry held that an identifica-
tion that is the result of an unduly suggestive identifica-
tion procedure is excludable only when the procedure
has been conducted by ‘‘law enforcement actors
involved in extrajudicial investigation, not prosecutors
presenting evidence in court.’’15 We disagree. The ques-
tion of whether a first time in-court identification
orchestrated by a prosecutor could trigger due process
protections simply was not before the court in Perry.
Rather, the issue was whether an identification that
was the result of suggestive private conduct triggered
due process protections. Perry v. New Hampshire,
supra, 721. Accordingly, we do not believe that the
court’s repeated statements that due process protec-
tions are triggered only when unduly suggestive identifi-
cation procedures are arranged by the police means
that due process protections are not triggered when
state actors other than the police conduct unfair identi-
fication procedures. Indeed, the court in Perry
expressly stated that its prior decisions on this issue
‘‘turn on the presence of state action’’; (emphasis
added) id.; and, as we have indicated, the state in the
present case does not dispute that a prosecutor’s con-
duct in court constitutes state action. We further note
that, since the court’s decision in Perry, at least one
court has assumed that a first time in-court identifica-
tion triggers due process protections. See United States
v. Greene, supra, 704 F.3d 308 (applying Biggers factors
to in-court identification); see also United States v.
Correa-Osorio, 784 F.3d 11, 19–20 (1st Cir. 2015) (‘‘[o]ne
could argue either way’’ whether Biggers analysis
applies to in-court identifications after Perry); Gallo-
way v. State, supra, 122 So. 3d 663 (as of 2013, ‘‘[t]he
United States Supreme Court has not decided whether
Biggers applies to an in-court identification not pre-
ceded by an impermissibly suggestive pretrial identifi-
cation’’); but see United States v. Whatley, 719 F.3d
1206, 1216 (11th Cir.) (‘‘Perry makes clear that, for
those defendants who are identified under suggestive
circumstances not arranged by police [including in-
court identifications], the requirements of due process
are satisfied in the ordinary protections of trial’’), cert.
denied,      U.S.       , 134 S. Ct. 453, 187 L. Ed. 2d 303
(2013). Moreover, we are not persuaded by the state’s
argument that, if a prosecutor’s conduct in presenting
evidence in court triggers due process protections, the
court in Perry would have held that the admission of
the witness’ identification—or, indeed, any potentially
unreliable evidence—could be excluded. When, as in
Perry, a private party was responsible for the sugges-
tiveness of the initial identification procedure, the ratio-
nale for the exclusionary rule—deterrence of improper
conduct by a state actor—carries no force.
   The state also points out that the court in Perry
specifically referred to in-court identifications when
discussing suggestive procedures that do not trigger
due process protections. Perry v. New Hampshire,
supra, 132 S. Ct. 727 (The court rejected the defendant’s
claim that any identification resulting from a suggestive
procedure must be prescreened by the court because
‘‘[m]ost eyewitness identifications involve some ele-
ment of suggestion. Indeed, all in-court identifications
do.’’). We agree that one-on-one in-court identifications
do not always implicate the defendant’s due process
rights, as when identity is not an issue or when there
has been a nonsuggestive out-of-court identification
procedure. As we have indicated, however, the specific
question that we are addressing here—whether the trial
court is constitutionally required to prescreen first time
in-court identifications—simply was not before the
court in Perry. Accordingly, we cannot conclude that
the passing, general reference by the court in Perry to
the propriety of in-court identifications forecloses our
conclusion that they can implicate due process con-
cerns under certain circumstances.
   The state further claims that in-court identifications
do not violate due process principles because they are
necessary and, relatedly, because there is no feasible
alternative to them. In support of this claim, the state
relies on State v. Tatum, 219 Conn. 721, 725, 595 A.2d
322 (1991), in which the defendant contended that his
in-court identification by an eyewitness at trial was
tainted by the eyewitness’ earlier in-court identification
of him, for the first time, at a probable cause hearing.16
This court disagreed with the defendant’s claim, con-
cluding that, ‘‘[i]n order to try the defendant, it was
necessary for the prosecution to present evidence at
the preliminary hearing to establish probable cause to
believe that he had committed the crimes charged.
Conn. Const., art. I, § 8, as amended [by articles seven-
teen and twenty-nine of the amendments];17 General
Statutes [Rev. to 1991] § 54-46a.’’18 (Emphasis in origi-
nal; footnote altered.) State v. Tatum, supra, 728–29.
This court further stated that ‘‘[t]he fact that the prose-
cution might have taken extraordinary steps to lessen
the suggestiveness of the confrontation [at the probable
cause hearing] by using some other identification proce-
dure does not render the routine procedure that was
used unnecessary or impermissible. The defendant had
no constitutional right to a lineup; State v. Vaughn, 199
Conn. 557, 562, 508 A.2d 430, cert. denied, 479 U.S. 989,
107 S. Ct. 583, 93 L. Ed. 2d 585 (1986); nor did the state
have a constitutional duty to conduct one. State v. Vass,
191 Conn. 604, 611, 469 A.2d 767 (1983).’’ State v. Tatum,
supra, 729. Finally, the court stated that, ‘‘[a]lthough
the probable cause hearing held in this case was a one-
to-one pretrial confrontation, it was unlike a showup
or single photo[graphic] display in that it occurred in
a courtroom. The initial identification made at the prob-
able cause hearing, therefore, resembled an initial iden-
tification made at trial. While there is little doubt that
the trial setting is suggestive, for the same reasons that
a probable cause hearing is suggestive, ‘[t]he manner
in which in-court identifications are conducted is not
of constitutional magnitude but rests within the sound
discretion of the trial court.’ State v. Smith, supra, [200
Conn.] 470.’’ (Footnote omitted.) State v. Tatum,
supra, 730–31.
   We conclude that the holding in Tatum that it was
‘‘necessary’’ for the state to present a first time in-court
identification of the defendant at the probable cause
hearing must be overruled. We simply can perceive
no reason why the state cannot attempt to obtain an
identification using a lineup or photographic array
before asking an eyewitness to identify the defendant
in court. Although the state is not constitutionally
required to do so, it would be absurd to conclude that
the state can simply decline to conduct a nonsuggestive
procedure and then claim that its own conduct rendered
a first time in-court identification necessary, thereby
curing it of any constitutional infirmity. See United
States v. Archibald, supra, 734 F.2d 941 (‘‘[w]e may
agree with the [trial] court that there was no obligation
to stage a lineup, but there was . . . an obligation to
ensure that the in-court procedure . . . did not simply
amount . . . to a show-up’’ [internal quotation marks
omitted]); see also United States v. Hill, supra, 967 F.2d
231 (same); United States v. Hill, supra, 232 (although
government is not required to conduct lineup, it ‘‘is
prohibited under the [d]ue [p]rocess [c]lause from intro-
ducing the fruits of an impermissibly suggestive and
inherently unreliable identification as evidence against
the accused’’). To the extent that the state claims that
first time in-court identifications are necessary in cases
where the eyewitness had a fair opportunity to identify
the defendant before trial but was unable to do so
because, otherwise, the state will not be able to present
an eyewitness identification to the jury, to state this
claim is to refute it. The state is not entitled to conduct
an unfair procedure merely because a fair procedure
failed to produce the desired result. Moreover, if the
state declines to conduct a nonsuggestive identification
procedure before the in-court confrontation, or if it
attempts to do so but the eyewitness is unable to iden-
tify the defendant, the state is not barred from pre-
senting any evidence regarding the defendant’s identity
and guilt. The state still can question the eyewitness
about his observations of the perpetrator at the time
of the crime, including his observations of the perpetra-
tor’s height, weight, sex, race, age and any other charac-
teristics that the eyewitness was able to observe,19 and
present any other evidence that is relevant.
   We also are not persuaded by the state’s argument
that first time in-court identifications are necessary
because there is no feasible alternative. Specifically,
the state contends that it would be entirely impractical
to assemble a group of individuals who closely resemble
the defendant and arrange for them to appear in court,
that it would be dangerous to allow a defendant to sit
among the spectators in court, and that there is no
source of funds to pay individuals to participate in line-
ups. Although numerous courts have held that it is
within the trial court’s discretion to order a nonsugges-
tive in-court identification,20 we are compelled to con-
clude that such a procedure is no longer viable in this
state since the legislature’s enactment of General Stat-
utes § 54-1p, which governs the procedures for live line-
ups. Although that statute applies to identification
procedures conducted by police, and the defendant
makes no claim that it applies to in-court lineups, we
believe that it would be inconsistent with the will of
the legislature to allow a first time in-court identifica-
tion that does not comport with the statutory proce-
dures. We further conclude that it would be simply
impracticable in a courtroom setting to present the
lineup participants to the witness sequentially; see Gen-
eral Statutes § 54-1p (c) (1); and to give extensive
instructions to the witness. See General Statutes § 54-
1p (c) (3) (A) through (G). Nevertheless, we reject the
state’s claim that a traditional in-court identification is
the only feasible option. Specifically, the state has not
provided any convincing arguments as to why it would
not be feasible to arrange for a nonsuggestive out-of-
court lineup or photographic array, as is done routinely
in cases where identity is at issue.21 See United States
v. Wade, supra, 388 U.S. 230 (‘‘[l]ineups are prevalent
in rape and robbery prosecutions’’). Indeed, the state
could conduct either of these procedures at any point
up to the time of the witness’ testimony.
   The state also claims that in-court identifications do
not implicate the same concerns as unduly suggestive
pretrial identification procedures because, when the
identification is in court, jurors are present to observe
the witness making the initial identification.22 See
United States v. Domina, 784 F.2d 1361, 1368 (9th Cir.
1986) (when initial identification is in court ‘‘[t]he jury
can observe the witness during the identification pro-
cess and is able to evaluate the reliability of the . . .
identification’’), cert. denied, 479 U.S. 1038, 107 S. Ct.
893, 93 L. Ed. 2d 845 (1987); State v. Hickman, 355 Or.
715, 735, 330 P.3d 551 (2014) (when identification is
made for first time in court, jury can observe ‘‘variables
such as indications of witness certainty or hesitation
during the identification process, including facial
expression, voice inflection and body language’’). These
courts fail to recognize, however, that the very reason
that first time in-court identifications are so problematic
is that, when the state places the witness under the glare
of scrutiny in the courtroom and informs the witness of
the identity of the person who has been charged with
committing the crime, it is far less likely that the witness
will be hesitant or uncertain when asked if that person
is the perpetrator. Moreover, cross-examination is
unlikely to expose any witness uncertainty or weakness
in the testimony ‘‘because cross-examination is far bet-
ter at exposing lies than at countering sincere but mis-
taken beliefs.’’ State v. Guilbert, supra, 306 Conn. 243;
see also Commonwealth v. Collins, 470 Mass. 255, 264,
21 N.E.3d 528 (2014) (‘‘cross-examination cannot
always be expected to reveal an inaccurate in-court
identification where most jurors are unaware of the
weak correlation between confidence and accuracy and
of witness susceptibility to manipulation by suggestive
procedures or confirming feedback’’ [internal quotation
marks omitted]). In any event, even if a first time in-
court identification is less likely to lead to error than an
identification resulting from an out-of-court suggestive
procedure, first time in-court identifications still create
a greater risk of error than nonsuggestive procedures.
See Commonwealth v. Crayton, supra, 470 Mass.
239–40 (‘‘even if we were persuaded that there were
evaluative benefits arising from the jury’s ability to see
the identification procedure, it would not justify admis-
sion of an inherently suggestive identification’’).
   We next address the state’s claim that there is no need
for the trial court to prescreen in-court identifications
because they ‘‘were a routine and expected part of trials
at common law’’ and, up to the end of the nineteenth
century, ‘‘were the principal means of identifying the
perpetrator . . . because pretrial police investigations
and identification procedures are late developments
. . . .’’23 Again, we are not persuaded. First, it is beyond
dispute that the fact that a criminal procedure has roots
in tradition does not necessarily mean that it is constitu-
tional. See, e.g., United States v. Wade, supra, 388 U.S.
236–37 (holding for first time that pretrial lineup is
critical stage of prosecution at which defendant has
right to aid of counsel under sixth amendment);24 see
also Stovall v. Denno, 388 U.S. 293, 299–300, 87 S. Ct.
1967, 18 L. Ed. 2d 1199 (1967) (prior to court’s decision
in Wade, ‘‘[t]he overwhelming majority of American
courts [had] always treated the evidence question [aris-
ing from the absence of defense counsel during a pre-
trial lineup] not as one of admissibility but as one of
credibility for the jury’’); cf. United States v. Archibald,
supra, 734 F.2d 942–43 (‘‘[t]he in-court identification
procedure utilized here was so clearly suggestive as
to be impermissible, however traditional it may be’’
[emphasis added]). Second, it would appear that the
reason that eyewitness identifications played a predom-
inant role in early English and American history is that
a large proportion of criminals who were brought into
court had been caught in the act by private parties, not
because first time in-court eyewitness testimony was
deemed to be particularly reliable. See J. Langbein, ‘‘The
Criminal Trial before the Lawyers,’’ 45 U. Chi. L. Rev.
263, 281 n.56 (1978) (‘‘By today’s standards a striking
proportion of the Old Bailey [court of regular jurisdic-
tion for serious crime in London in the sixteenth and
seventeenth centuries] cases involved defendants
caught in the act or taken with stolen goods. We can
understand why identification evidence would predomi-
nate in an age before professional policing and well
before the development of scientific techniques for gen-
erating and evaluating many of the types of circumstan-
tial evidence now familiar to us [such as fingerprints].’’).
Third, first time in-court identifications became the
norm at a time when travel was by foot or by horse,
communications were by post, and official investigative
resources were very limited. Consequently, it presum-
ably would have been very burdensome both for the
government and for eyewitnesses to arrange for a pre-
trial identification of the defendant. Because the diffi-
culty of conducting a nonsuggestive identification
procedure before trial is greatly reduced by the avail-
ability of instantaneous electronic communications,
ready transportation and photography, the state’s inter-
est in continuing the tradition of first time in-court
identifications is similarly reduced. See In re Tremaine
C., 117 Conn. App. 521, 530, 980 A.2d 317 (due process
analysis generally ‘‘requires balancing the government’s
interest in existing procedures against the risk of erro-
neous deprivation of a private interest inherent in those
procedures’’ [internal quotation marks omitted]), cert.
denied, 294 Conn. 920, 984 A.2d 69 (2009).
  The state also disputes that mistaken eyewitness
identifications are a significant source of erroneous
convictions. As we have indicated, this court recently
concluded otherwise. State v. Guilbert, supra, 306
Conn. 249–50 (‘‘mistaken eyewitness identification tes-
timony is by far the leading cause of wrongful convic-
tions’’). In addition, the legislature’s enactment of § 54-
1p, governing procedures for photographic arrays and
live lineups, demonstrates that the legislature has con-
cerns that suggestive procedures are a significant
source of error. Even if the state were correct, however,
that the emerging social science casts doubt on the
earlier cases and studies that supported our statement
in Guilbert, it is black letter law that an unnecessarily
suggestive out-of-court identification triggers due pro-
cess protections, and that will presumably continue to
be the case until the courts are convinced that eyewit-
ness identifications are so inherently reliable that sug-
gestive procedures can have no significant effect on
them.25 We certainly are not prepared to make that
determination in the present case and, as we have
explained, if unnecessarily suggestive pretrial identifi-
cation procedures trigger due process protections, we
can perceive no reason why the same should not be
true of unnecessarily suggestive in-court identifi-
cations.
   Finally, the state raises two claims that require little
analysis. With respect to the state’s claim that in-court
identifications do not require prescreening because the
sixth amendment’s confrontation clause ‘‘guarantees
the defendant a face-to-face meeting with witnesses
appearing before the trier of fact’’; (internal quotation
marks omitted) State v. Arroyo, 284 Conn. 597, 622, 935
A.2d 975 (2007); it does not follow from this principle
that the state has a right to conduct an unnecessarily
suggestive identification during the guaranteed con-
frontation. The state further claims that a defendant
has no right to absent himself from court to avoid being
identified.26 Again, however, it simply does not follow
from the fact that the defendant cannot invoke his fifth
amendment right against self-incrimination as a shield
against a nonsuggestive in-court or out-of-court identifi-
cation that the state has the right to conduct an unneces-
sarily suggestive in-court identification procedure. See
E. Mandery, supra, 60 Alb. L. Rev. 414 (noting that courts
have confused ‘‘the privilege against self-incrimination
issue presented by in-court identifications and the due
process question’’ and concluding that, ‘‘[w]hile a defen-
dant’s presence can be compelled for purposes of identi-
fication, it is a separate issue whether a defendant can
be compelled to submit to a suggestive identification’’
[footnote omitted]).
                            III
PROCEDURES FOR PRESCREENING FIRST TIME IN-
         COURT IDENTIFICATIONS
   Having concluded that first time in-court identifica-
tions must be prescreened for admissibility by the trial
court, we now set forth the specific procedures that
the parties and the trial court must follow.27 Preliminar-
ily, we take this opportunity to emphasize that, in cases
in which the identity of the perpetrator is at issue and
there are eyewitnesses to the crime, the best practice
is to conduct a nonsuggestive identification procedure
as soon after the crime as is possible. See United States
ex rel. Stovall v. Denno, 355 F.2d 731, 738 (2d Cir. 1966)
(‘‘interests of the accused and society alike demand that
the opportunity to identify be afforded at the earliest
possible moment when the likelihood of an accurate
identification is greatest’’), aff’d, 388 U.S. 293, 87 S.
Ct. 1967, 18 L. Ed. 2d 1199 (1967). It is our hope and
expectation that this decision will provide an incentive
for the state to conduct an out-of-court identification
procedure before seeking an in-court identification,
thereby obviating the need to resort to the procedures
that we delineate herein.
   In cases in which there has been no pretrial identifica-
tion, however, and the state intends to present a first
time in-court identification, the state must first request
permission to do so from the trial court. See Common-
wealth v. Crayton, supra, 470 Mass. 243 (‘‘[a]lthough
we generally place the burden on the defendant to move
to suppress an identification, that makes little sense
where there is no out-of-court identification of the
defendant by a witness and only the prosecutor knows
whether he or she intends to elicit an in-court identifica-
tion from the witness’’). The trial court may grant such
permission only if it determines that there is no factual
dispute as to the identity of the perpetrator, or the
ability of the particular eyewitness to identify the defen-
dant is not at issue.28 Id., 241 (holding under supervisory
powers that, ‘‘[w]here an eyewitness has not partici-
pated before trial in an identification procedure, we
shall treat the in-court identification as an [impermissi-
ble] in-court showup, and shall admit it in evidence
only where there is ‘good reason’ for its admission’’);
id., 242 (first time in-court identification may be allowed
when eyewitness knew defendant before crime). For
example, in cases in which the trial court determines
that the only issue in dispute is whether the acts that
the defendant admittedly performed constituted a
crime, the court should permit a first time in-court iden-
tification. In cases in which the defendant concedes
that identity or the ability of a particular witness to
identify the defendant as the perpetrator is not in dis-
pute, the state may satisfy the prescreening requirement
by giving written or oral notice to that effect on the
record.
  If the trial court determines that the state will not
be allowed to conduct a first time identification in court,
the state may request permission to conduct a nonsug-
gestive identification procedure, namely, at the state’s
option, an out-of-court lineup or photographic array,
and the trial court ordinarily should grant the state’s
request.29 If the witness previously has been unable to
identify the defendant in a nonsuggestive identification
procedure, however, the court should not allow a sec-
ond nonsuggestive identification procedure unless the
state can provide a good reason why a second bite at
the apple is warranted.30 If the eyewitness is able to
identify the defendant in a nonsuggestive out-of-court
procedure, the state may then ask the eyewitness to
identify the defendant in court.31
   If the trial court denies a request for a nonsuggestive
procedure, the state declines to conduct one, or the
eyewitness is unable to identify the defendant in such
a procedure, a one-on-one in-court identification should
not be allowed. The prosecutor may still examine the
witness, however, about his or her observations of the
perpetrator at the time of the crime, but the prosecutor
should avoid asking the witness if the defendant resem-
bles the perpetrator. See United States v. Greene, supra,
704 F.3d 304 (‘‘if there is a line between resemblance
and identification testimony it is admittedly thin’’ [inter-
nal quotation marks omitted]).
  The state raises a number of objections to these pro-
cedures. First, the state contends that it is unclear what
level of certainty at a prior nonsuggestive identification
procedure would eliminate the need for prescreening
of an in-court identification. We recognize that this
question may require the exercise of judgment. We con-
clude however, that, as a general rule, if the state has
conducted a nonsuggestive out-of-court identification
procedure and the witness has identified the defendant,
even with some uncertainty, the in-court identification
need not be prescreened for admissibility and the wit-
ness’ level of uncertainty at the initial procedure should
go to the weight of the evidence.32 If the level of certainty
was so low that it amounted to a failure to identify the
defendant, the in-court identification should be pre-
screened and ordinarily disallowed.
   Second, the state contends that it is unclear what the
consequence would be if a witness who is going to
identify the defendant in court during trial had learned
that the defendant had been charged with the crime
by attending pretrial proceedings and observing the
defendant. If the state was not responsible for the pre-
trial confrontation, this situation is analogous to any
other situation in which a witness has learned the iden-
tity of the person who has been charged with the crime
under suggestive circumstances that are not the result
of state action. Such circumstances go to the weight
of the identification testimony, not its admissibility. See
Perry v. New Hampshire, supra, 132 S. Ct. 728. If the
state was responsible for the suggestive pretrial con-
frontation, however, it must be treated in the same
manner as a suggestive identification procedure, and
the trial court must determine under the totality of the
circumstances whether the witness would have been
able to identify the defendant in court even without the
prior suggestive confrontation. Cf. State v. Ledbetter,
supra, 275 Conn. 553. If the answer to that question is
yes, the court should allow the in-court identification,
subject to cross-examination and argument. If the
answer is no, an in-court identification should be pre-
cluded, just as an in-court identification that was irrepa-
rably tainted by an unnecessarily suggestive
identification procedure would be.
   Third, the state contends that, if the trial court pre-
cludes the state from obtaining a first time in-court
identification, fairness requires that the trial court give
a jury instruction explaining that the identification was
not permitted. We conclude that, if the state requests
such an instruction, the trial court may provide the jury
with an accurate statement of the law, specifically, that
an in-court identification was not permitted because
inherently suggestive first time in-court identifications
create a significant risk of misidentification and
because either the state declined to pursue other, less
suggestive means of obtaining the identification or the
eyewitness was unable to provide one. The state is not
entitled to an instruction that would suggest to the
jury that the eyewitness could have made a reliable
identification of the defendant in court if the state had
been permitted to request the witness to do so.
   Finally, the state contends that, if we preclude first
time in-court identifications pursuant to our supervi-
sory powers, the new rule must be prospective only.
We have concluded, however, that first time in-court
identifications implicate constitutional due process
rights. It is well established that ‘‘new [constitutional]
rules of criminal procedure must be applied in future
trials and in cases pending on direct review . . . .’’
Danforth v. Minnesota, 552 U.S. 264, 266, 128 S. Ct.
1029, 169 L. Ed. 2d 859 (2008); see also Griffith v.
Kentucky, 479 U.S. 314, 322–23, 107 S. Ct. 708, 93 L.
Ed. 2d 649 (1987) (‘‘Unlike a legislature, we do not
promulgate new rules of constitutional criminal proce-
dure on a broad basis. Rather, the nature of judicial
review requires that we adjudicate specific cases, and
each case usually becomes the vehicle for announce-
ment of a new rule. But after we have decided a new
rule in the case selected, the integrity of judicial review
requires that we apply that rule to all similar cases
pending on direct review.’’); Griffith v. Kentucky,
supra, 328 (‘‘a new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases,
state or federal, pending on direct review or not yet
final, with no exception for cases in which the new
rule constitutes a clear break with the past’’ [internal
quotation marks omitted]).33 Accordingly, the new rule
that we adopt today applies to the parties to the present
case and to all pending cases.34 It is important to point
out, however, that, in pending appeals involving this
issue, the suggestive in-court identification has already
occurred. Accordingly, if the reviewing court concludes
that the admission of the identification was harmful,
the only remedy that can be provided is a remand to
the trial court for the purpose of evaluating the reliabil-
ity and the admissibility of the in-court identification
under the totality of the circumstances.35 Cf. United
States v. Wade, supra, 388 U.S. 242 (when in-court iden-
tification is preceded by out-of-court identification
without aid of counsel, proper procedure on review is
to vacate conviction and to remand to trial court for
hearing to determine whether in-court identification
was independently reliable); see also State v. Ledbetter,
supra, 275 Conn. 553 (‘‘corruptive effect of suggestive
procedure [regarding eyewitness identification] is
weighed against certain factors’’). If the trial court con-
cludes that the identification was sufficiently reliable,
the trial court may reinstate the conviction, and no new
trial would be required.
                            IV
     APPLICATION OF NEW PROCEDURES TO
               PRESENT CASE
   We now apply the foregoing principles to the present
case. Because Weibel’s in-court identification of the
defendant was preceded by an unsuccessful attempt to
identify the defendant in a photographic array, it was
a first time in-court identification. In addition, the iden-
tity of the person who assaulted Weibel was in dispute
and the defendant was not known to Weibel before the
assault. Accordingly, we conclude that the identifica-
tion testimony should have been prescreened and the
state should have been required either to conduct a
nonsuggestive identification procedure—in the event
that the trial court concluded that the state was entitled
to such a procedure even though Weibel had failed to
identify the defendant in the photographic array—or
to refrain from seeking an in-court identification. We
further conclude that the failure to follow these proce-
dures potentially violated the defendant’s due pro-
cess rights.36
                             V
            HARMLESS ERROR ANALYSIS
   Even if we were to assume that Weibel’s in-court
identification of the defendant was improperly admit-
ted, however, we conclude that any due process viola-
tion was harmless beyond a reasonable doubt. See State
v. Artis, 314 Conn. 131, 154, 101 A.3d 915 (2014)
(‘‘because of the constitutional magnitude of the error,
the burden falls on the state to prove that the admission
of the tainted identification was harmless beyond a
reasonable doubt’’). A constitutional error is harmless
when it is ‘‘clear beyond a reasonable doubt that the
jury would have returned a guilty verdict without the
impermissible [evidence] . . . .’’ (Internal quotation
marks omitted.) State v. Montgomery, 254 Conn. 694,
718, 759 A.2d 995 (2000). ‘‘That determination must be
made in light of the entire record [including the strength
of the state’s case without the evidence admitted in
error].’’ (Internal quotation marks omitted.) Id.
   The following facts and procedural history, some of
which we have already discussed, are relevant to our
analysis. Lyles testified at trial that, before the robbery
at issue in the present case, he had engaged in similar
robberies with the help of a friend whom he knew only
as ‘‘Black.’’ On the evening of January 9, 2010, at about
8 p.m., he was at the apartment of a friend, Stephanie
Perez, at 455 Trumbull Avenue in Bridgeport. Reyes
was also at the apartment. At approximately 9 p.m., the
defendant and the defendant’s sister arrived. Lyles had
known the defendant his entire life because their moth-
ers were close friends. At some point, Lyles left the
apartment and the defendant and Reyes followed him.
Lyles told the men that he was planning a robbery and
they indicated that they wanted to participate. Lyles was
armed with a .40 caliber Smith and Wesson handgun,
the defendant carried a .38 caliber revolver, and Reyes
carried a paintball gun that looked like an assault rifle.
Lyles had supplied the weapons. After leaving the apart-
ment, the three men proceeded to Terrace Circle in
Bridgeport, where the events previously described in
this opinion occurred. As Lyles and Reyes were leaving
the scene after the robbery, the defendant was holding
his gun to Weibel’s head. Lyles then heard two gunshots.
He and Reyes returned to the parking lot behind the
apartment building at 455 Trumbull Avenue and got
into a Cadillac owned by Perez. Approximately two
minutes later, the defendant joined them. They then
drove to the residence of Lyles’ friend ‘‘L’’ on Louis
Street in the south end of Bridgeport. At that point,
Lyles asked the defendant about the shooting and the
defendant stated that he had shot Weibel in the head
and leg ‘‘because we didn’t get any money.’’ Both Weibel
and Shaw were able to identify Lyles and their testimony
at trial corroborated Lyles’ testimony concerning the
events at Terrace Circle, specifically, that Lyles was not
the shooter.
   Lyles further testified at trial that he was currently
incarcerated and that, as a result of the incident on the
night of January 9, 2010, he had been charged with
accessory to assault in the first degree, robbery in the
first degree, larceny in the fifth degree, violation of
probation, attempted murder and conspiracy to commit
robbery. He had negotiated a tentative plea agreement
with the state, which had not yet been signed, pursuant
to which he would be sentenced to fifteen years impris-
onment, suspended sometime between three and seven
years, with five years probation. He had also signed an
agreement to cooperate with the state in its investiga-
tion of the present case. Pursuant to that agreement,
if Lyles testified untruthfully at trial, he would serve
the maximum sentence.
   On cross-examination, defense counsel asked Lyles
how he could be sentenced to the maximum sentence of
approximately forty years imprisonment if he testified
untruthfully when he had not yet pleaded guilty to the
charges. Lyles acknowledged that the maximum sen-
tence was not reflected in his agreement to testify. He
also acknowledged that the police were investigating
the three robberies that he had committed with ‘‘Black’’
and that he would not be charged in any of those cases.
Lyles denied that ‘‘Black’’ was his cousin, Rasheem
Davis, who was the only other person who had access
to the e-mail account that Lyles had used to lure his
robbery victims. Lyles admitted that he had been
arrested in December, 2009, after he helped Perez steal
items from a department store where he was employed,
and that he had not been charged with another theft
from that store. He further admitted that he had lied
repeatedly to the police during their investigation of the
present case.37 On redirect examination, Lyles testified
that he had lied to the police before he entered into
the agreement to cooperate with the state requiring him
to speak truthfully.
   The defendant presented alibi evidence in the form
of testimony by his mother and his aunt that he had been
with his family at a sports bar in Bridgeport watching a
playoff game between the Philadelphia Eagles and the
Dallas Cowboys on the evening of January 9, 2010.
The defendant’s mother testified that kickoff was at
approximately 8:30 or 9 p.m., but she did not testify as
to whether the defendant was in the bar at that time.38
The defendant’s aunt testified that the defendant arrived
at the bar before kickoff, but she could not remember
the precise time.39 The defendant left the bar with his
mother when the game ended at approximately 11:30
p.m. The defendant’s mother remembered the evening
very clearly because she was an ardent Eagles fan and
her husband was an ardent Cowboys fan. When the
Cowboys defeated the Eagles in that football game, the
defendant’s mother and father had an intense argument.
The defendant’s aunt specifically recalled that the
defendant left the bar with his mother because he stated
that he was going to have to act as a referee when they
got home.
    As we have indicated previously, Weibel acknowl-
edged at trial that he had been unable to identify the
defendant from a photographic array approximately
one year after the shooting. During closing argument,
the prosecutor argued that Weibel’s in-court identifica-
tion of the defendant was nevertheless credible because
‘‘[l]ooking at photographs is very different from looking
at people. We look different from photographs.’’ The
prosecutor also stated, ‘‘What kind of an impression
did those moments of being hit with the gun and being
shot make on [Weibel]? What burned into his mind—
what image burned into his mind at that point, but the
face of the person who shot him.’’ Defense counsel
argued that, to the contrary, the in-court identification
was unreliable because Weibel had been unable to iden-
tify the defendant in the photographic array, the crime
scene was dark, and the identification was not corrobo-
rated by other evidence. Defense counsel further con-
tended that, because the defendant was the only black
male sitting in the courtroom other than the uniformed
marshal, and because the defendant was sitting at the
table with defense counsel, the in-court identification
‘‘[was] practically a neon light pointed to the [defen-
dant] . . . .’’ The trial court gave a lengthy instruction
on eyewitness identification testimony in which it
stated that certainty did not correlate to accuracy and
that, in determining what weight to give to Weibel’s
identification, the jury could consider the sugges-
tiveness of the identification procedure, the fact that
the eyewitness had failed to identify the defendant in
a photographic array, and the fact that a lineup proce-
dure is generally more reliable than a one-on-one
showup.40
   We conclude on the basis of this record that it is
clear beyond a reasonable doubt that the jury would
have returned a guilty verdict even without Weibel’s in-
court identification of the defendant. First, although
the defendant presented evidence that Lyles had lied
to the police in the past, there is no evidence that Lyles
made any material misrepresentations or misstate-
ments during his testimony at trial. Second, although
Lyles clearly had a motive to cooperate with the state,
the record does not reveal any motive for Lyles to have
falsely identified the defendant as Weibel’s assailant.41
Both Weibel and Shaw testified unequivocally that Lyles
was not the person who had shot Weibel, and Lyles
did not deny his involvement in the crime. Thus, Lyles
clearly was not attempting to shift blame from himself
to the defendant. In addition, the undisputed evidence
shows that Lyles had known the defendant his entire
life and had been on friendly terms with him. Thus,
there is no evidence that Lyles had a motive to harm
the defendant. Third, Lyles’ testimony regarding the
events on the night in question was corroborated in all
material respects by Weibel and Shaw. Fourth, neither
of the alibi witnesses testified unequivocally that the
defendant had been in the sports bar with his family
at 9:30 p.m. on January 9, 2010, when the crime
occurred. See footnotes 38 and 39 of this opinion. More-
over, to the extent that the testimony of the defendant’s
mother and aunt would support that conclusion, both
witnesses had a clear motive to attempt to convince
the jury that the defendant was in the bar at that time.
Finally, the weaknesses in Weibel’s identification testi-
mony were highlighted both by the defendant during
closing argument and by the trial court in its jury
instructions. Accordingly, we conclude that the
improper admission of Weibel’s first time in-court iden-
tification was harmless. We therefore affirm the judg-
ment of the Appellate Court upholding the defendant’s
conviction on this alternative ground.
      The judgment of the Appellate Court is affirmed.
  In this opinion PALMER, EVELEIGH and McDON-
ALD, Js., concurred.
  1
     This court held in State v. Smith, supra, 200 Conn. 469, that ‘‘an in-court
testimonial identification need be excluded, as violative of due process,
only when it is tainted by an out-of-court identification procedure which is
unnecessarily suggestive and conducive to irreparable misidentification.’’
   2
     For purposes of this opinion, we refer to an identification procedure
that is not unnecessarily suggestive as a nonsuggestive procedure.
   3
     Hereinafter, we refer to in-court identifications in cases in which the
witness has not successfully identified the defendant in a prior out-of-court
identification procedure as first time in-court identifications.
   4
     The Appellate Court concluded that the defendant had abandoned his
claim under the state constitution. State v. Dickson, supra, 150 Conn. App.
642 n.5.
   5
     Because we agree with the defendant’s alternative claim that Smith must
be overruled to the extent that it applies to cases in which the state has
conducted a first time in-court identification, we need not address this claim.
   6
     In his concurring opinion, Justice Robinson, quoting Moore v. McNamara,
201 Conn. 16, 20, 513 A.2d 660 (1986), contends that ‘‘[t]his court has a basic
judicial duty to avoid deciding a constitutional issue if a nonconstitutional
ground exists that will dispose of the case.’’ (Internal quotation marks omit-
ted.) In most of the cases that he cites in support of this principle, however,
the court had been asked to invalidate a legislative enactment as unconstitu-
tional when there were nonconstitutional grounds on which the case could
be decided. In such circumstances, respect for a coordinate branch of govern-
ment and constitutional separation of powers principles mandate that we
avoid reaching the constitutional question. See Moore v. McNamara, supra,
21 (‘‘[a]ppropriate deference to a coordinate branch of government exercis-
ing its essential functions demands that we refrain from deciding constitu-
tional challenges to its enactments until the need to do so is plainly evident’’
[internal quotation marks omitted]).
   These principles have no application in cases in which the state action
is claimed to be unconstitutional, but may be found harmless beyond a
reasonable doubt. Rather, the principle underlying the avoidance of constitu-
tional questions in such cases is judicial economy and convenience. See
United States v. Hasting, 461 U.S. 499, 509, 103 S. Ct. 1974, 76 L. Ed. 2d 96
(1983) (purpose of avoiding constitutional questions when unconstitutional
act was harmless ‘‘is to conserve judicial resources by enabling appellate
courts to cleanse the judicial process of prejudicial error without becoming
mired in harmless error’’ [internal quotation marks omitted]); State v. Gold-
ing, 213 Conn. 233, 242, 567 A.2d 823 (1989) (same); see also State v. Jordan,
314 Conn. 89, 101, 101 A.3d 179 (2014) (‘‘we conclude that the present case
does not require us to weigh in on this debate’’ because, even assuming that
action was unconstitutional, it was harmless [emphasis added]). Because this
principle is for the benefit of the reviewing court, the court is free to disregard
it when appropriate. Indeed, this court and the Appellate Court have not
hesitated to find a constitutional violation when the violation was harmless.
See, e.g., State v. Hampton, 293 Conn. 435, 463, 988 A.2d 167 (2009); State
v. Montgomery, 254 Conn. 694, 716, 759 A.2d 995 (2000); State v. Daugaard,
231 Conn. 195, 213, 647 A.2d 342 (1994), cert. denied, 513 U.S. 1099, 115 S.
Ct. 770, 130 L. Ed. 2d 666 (1995); State v. Peloso, 109 Conn. App. 477, 495,
952 A.2d 825 (2008); State v. Coleman, 14 Conn. App. 657, 675–76, 544 A.2d
194, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988).
   In the present case, because the constitutional issue raised by the defen-
dant is of such great importance, and because first time in-court identifica-
tions are occurring on a regular basis, we do not have the luxury of waiting
for a case in which this practice actually deprived the defendant of his
constitutional right to a fair trial. Rather, the pressing need for guidance in
the trial court through a constitutional rule outweighs considerations of
judicial economy or convenience. Accordingly, we conclude that we must
address the issue.
   Finally, contrary to Justice Robinson’s contention, we have not defended
our decision to address the constitutional issue raised by the defendant by
relying on the United States Supreme Court’s certiorari process. By pointing
out that that court has the authority to overrule our decision, either in an
appeal from our decision in the present case or in an appeal from the
decision of another court on the same issue, we are simply responding to
Justice Zarella’s contention that we have somehow exceeded our authority
to interpret the federal constitution by adopting a prophylactic constitutional
rule. See footnote 11 of this opinion. To the contrary, our conclusion is
entirely consistent with the notion that state courts provide valuable incuba-
tors for federal constitutional issues. S. Woodward, ‘‘The Remedy for A
‘Nollan/Dolan Unconstitutional Conditions Violation,’ ’’ 38 Vt. L. Rev. 701,
713 n.75 (2014) (‘‘[s]tate courts have been the incubators for what later
becomes incorporated into the [f]ederal [c]onstitution’’).
   7
     Hereinafter, we refer to these factors as the Biggers factors.
   8
     We address the state’s claim that the United States Supreme Court’s
decision in Perry v. New Hampshire, supra, 132 S. Ct. 716, addressed this
question later in this opinion.
   9
     See Gilbert v. California, 388 U.S. 263, 272 n.3, 87 S. Ct. 1951, 18 L. Ed.
2d 1178 (1967) (out-of-court ‘‘identification has greater probative value than
an identification made in the courtroom after the suggestions of others and
the circumstances of the trial may have intervened to create a fancied
recognition in the witness’ mind’’ [internal quotation marks omitted]); United
States v. Greene, 704 F.3d 298, 306 (4th Cir.) (‘‘ ‘[P]ressured to help solve
a heinous crime, often conscious of a duty to do so, and eager to be of
assistance, a potential witness may be readily receptive to subtle, even
circumstantial, insinuation that the person viewed is the culprit. Unless such
a witness is far more introspective than most, and something of a natural-
born psychologist, he is usually totally unaware of all of the influences that
result in his [saying], ‘‘That is the man.’’ ’ ’’), cert. denied, U.S. , 134 S.
Ct. 419, 187 L. Ed. 2d 279 (2013); United States v. Rogers, 126 F.3d 655, 658
(5th Cir. 1997) (‘‘it is obviously suggestive to ask a witness to identify a
perpetrator in the courtroom when it is clear who is the defendant’’); United
States v. Archibald, 734 F.2d 938, 941 (‘‘[a]ny witness, especially one who
has watched trials on television, can determine which of the individuals in
the courtroom is the defendant’’), modified, 756 F.2d 223 (2d Cir. 1984);
State v. Smith, supra, 200 Conn. 468–69 (‘‘[a]ny one-on-one in-court identifi-
cation of an accused conveys the message that the state has arrested and
placed on trial a person it believes has committed the crime’’); State v.
Frost, 105 Conn. 326, 341, 135 A. 446 (1926) (‘‘[a]n identification of an
accused made publicly for the first time by a witness in court . . . may be
open to question, but if it be shown that the witness identified the accused
previously and the first time after his arrest or incarceration and under
circumstances which removed the suspicion of unfairness or unreliability,
the prior identification, together with the circumstances surrounding its
making, will be of utmost aid in determining the trustworthiness of the
identification made in the court room’’); State v. Frost, supra, 341 (‘‘Ordi-
narily, when a witness is asked to identify the assailant, or thief, or other
person who is the subject of his testimony, the witness’ act of pointing out
then and there the accused [or other person] is of little testimonial force.
After all that has intervened, it would seldom happen that the witness would
not have come to believe in the person’s identity.’’ [Emphasis omitted;
internal quotation marks omitted.]); Middleton v. United States, 401 A.2d
109, 132 (D.C. App. 1979) (in-court identification is ‘‘by its very nature . . .
extremely suggestive’’); Commonwealth v. Wheeler, 3 Mass. App. 387, 390,
331 N.E.2d 815 (1975) (‘‘any in-court identification confrontation . . . car-
ries with it the stigma of the inevitable suggestion that the state thinks the
defendant has committed the crime’’ [internal quotation marks omitted]);
E. Mandery, ‘‘Due Process Considerations of In-Court Identifications,’’ 60
Alb. L. Rev. 389, 416 (1996) (‘‘[t]he pressure of being asked to make an
identification in the formal courtroom setting and the lack of anonymity,
create conditions under which a witness is most likely to conform his or
her recollection to expectations, either by identifying the particular person
whom he or she knows the authorities desire identified, or by acting in
conformity with the behavior of others they may have seen on television
or in movies or read of in books’’).
   We recognize that a number of courts have concluded otherwise. See E.
Mandery, supra, 60 Alb. L. Rev. 405 n.122 (collecting cases). In our view,
however, to conclude that telling an eyewitness who is on the stand and
who previously had not had an opportunity to identify the defendant, or
who had such an opportunity, but was unable to do so, that the state believes
that this is the person who committed the crime is not suggestive simply
defies common sense.
   10
      We also note that, in 2011, the legislature enacted General Statutes § 54-
1p; see Public Acts 2011, No. 11-252, § 1; which governs the procedures that
the police must use when conducting photographic arrays and live lineups.
This statute demonstrates a clear legislative concern that suggestive identifi-
cation procedures are a significant cause of erroneous convictions and
should be eliminated to the extent possible.
    11
       Thus, we conclude for the first time today that any first time in-court
identification by a witness who would have been unable to reliably identify
the defendant in a nonsuggestive out-of-court procedure constitutes a proce-
dural due process violation. This is contrary to the holding of Smith that
only in-court identifications that are tainted by an unduly suggestive out-
of-court identification violate due process principles. Although we recognize
that, when the witness could have identified the defendant in a nonsuggestive
procedure, a first time in-court identification does not constitute an actual
violation of due process principles, this court has an obligation to adopt
procedures that will eliminate the risk that the defendant will be deprived
of a constitutionally protected right by being identified in court by a witness
who could not have identified the defendant in a fair proceeding. Indeed,
it is well established that courts have the duty not only to craft remedies for
actual constitutional violations, but also to craft prophylactic constitutional
rules to prevent the significant risk of a constitutional violation. See Montejo
v. Louisiana, 556 U.S. 778, 793, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009)
(recognizing authority of court to create prophylactic constitutional rule
when benefits of rule outweigh costs); Oregon v. Elstad, 470 U.S. 298, 305,
105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985) (rule set forth in Miranda v. Arizona,
384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966], is prophylactic and was
intended to provide ‘‘practical reinforcement for the [f]ifth [a]mendment
right’’ [internal quotation marks omitted]); State v. Jenkins, 298 Conn. 209,
280, 3 A.3d 806 (2010) (considering defendant’s request for prophylactic
constitutional rule); see also B. Landsberg, ‘‘Safeguarding Constitutional
Rights: The Uses and Limits of Prophylactic Rules,’’ 66 Tenn. L. Rev. 925,
950 (1999) (prophylactic constitutional rules ‘‘are predicated on a judicial
judgment that the risk of a constitutional violation is sufficiently great that
simple case-by-case enforcement of the core right is insufficient to secure
that right’’); S. Klein, ‘‘Identifying and (Re)formulating Prophylactic Rules,
Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure,’’
99 Mich. L. Rev. 1030, 1032–33 (2001) (‘‘A ‘constitutional prophylactic rule’
is a judicially-created doctrinal rule or legal requirement determined by the
[c]ourt as appropriate for deciding whether an explicit or ‘true’ federal
constitutional rule is applicable. It may be triggered by less than a showing
that the explicit rule was violated, but provides approximately the same
result as a showing that the explicit rule was violated. It is appropriate only
upon two determinations: first, that simply providing relief upon a showing
that the explicit right was violated is ineffective; second, that use of this
rule will be more effective and involve only acceptable costs.’’). In the
present case, we conclude that the practice of allowing first time in-court
identifications creates a significant risk of a due process violation and that
the procedures that we adopt herein are more effective at preventing such
violations, less costly and more in keeping with the legislative will than any
other alternative.
   We further note that, as the United States Supreme Court recognized in
Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed. 2d 405
(2000), the fact that a rule is designed to prophylactically prevent constitu-
tional violations and is not itself constitutionally mandated ‘‘in the sense
that nothing else will suffice to satisfy constitutional requirements’’; id., 442;
does not mean that the rule does not have the force of a constitutional rule.
See id., 444 (‘‘Miranda announced a constitutional rule that Congress may
not supersede legislatively’’). Thus, the adoption of prophylactic constitu-
tional rules does not constitute an exercise of supervisory authority. See
id., 437 (‘‘[t]his case . . . turns on whether the Miranda [c]ourt announced
a constitutional rule or merely exercised its supervisory authority’’); id., 438
(Miranda is binding on state courts, which would not be true if rule were
merely supervisory). In the present case, for example, although it is arguable
that the legislature constitutionally could enact procedures that are different
from the procedures that we adopt herein if the procedures were equally
effective at preventing inherently unreliable first time in-court identifica-
tions, the legislature could not constitutionally enact legislation providing
that first time in-court identifications are categorically admissible, because
we have concluded that first time in-court identifications violate constitu-
tional due process principles when the witness would have been unable to
identify the defendant in a fair procedure. See id., 442 (federal statute
overruling Miranda was unconstitutional because it created test for admissi-
bility of confession that court had found constitutionally unacceptable in
Miranda); B. Landsberg, supra, 66 Tenn. L. Rev. 950 (Prophylactic rules
‘‘are best characterized as hybrid rules. They are based on the [c]onstitution
because they are predicated on a judicial judgment that the risk of a constitu-
tional violation is sufficiently great that simple case-by-case enforcement
of the core right is insufficient to secure that right. . . . However, there
may be myriad ways to reach the objective of safeguarding constitutional
rights. The [c]ourt acts in a legislative fashion when it chooses a particular
method. The [c]onstitution may demand imposition of a prophylactic rule,
but it does not demand a particular one.’’ [Emphasis in original.]).
   We are not persuaded by the Justice Zarella’s reliance on Justice Gins-
burg’s concurring opinion in Ohio v. Robinette, 519 U.S. 33, 40, 117 S. Ct.
417, 136 L. Ed. 2d 347 (1996), which, according to Justice Zarella, supports
the proposition that a state court lacks the authority to craft prophylactic
rules to protect rights guaranteed by the United States constitution. Justice
Ginsburg wrote that the rule under review in Robinette ‘‘seem[ed] to be a
prophylactic measure not so much extracted from the text of any constitu-
tional provision as crafted by the Ohio Supreme Court to reduce the number
of violations of textually guaranteed rights. In Miranda v. Arizona, [supra,
384 U.S. 436], this [c]ourt announced a similarly motivated rule as a minimal
national requirement without suggesting that the text of the [f]ederal [c]onsti-
tution required the precise measures the [c]ourt’s opinion set forth. See id.,
[467] (‘[T]he [c]onstitution [does not] necessarily requir[e] adherence to any
particular solution’ to the problems associated with custodial interroga-
tions.); see also Oregon v. Elstad, 470 U.S. 298, 306 [105 S. Ct. 1285, 84 L.
Ed. 2d 222] (1985) (‘The Miranda exclusionary rule . . . sweeps more
broadly than the [f]ifth [a]mendment itself.’). Although all parts of the United
States fall within this [c]ourt’s domain, the Ohio Supreme Court is not
similarly situated. That court can declare prophylactic rules governing the
conduct of officials in Ohio, but it cannot command the police forces of
sister [s]tates.’’ Ohio v. Robinette, supra, 43. We do not agree with Justice
Zarella that this language clearly indicates that Justice Ginsburg believed
that state courts lack the authority to adopt prophylactic rules to protect
rights guaranteed by the federal constitution. Rather, it appears to us that
Justice Ginsburg may have incorrectly assumed both that prophylactic rules,
like the one adopted in Miranda, are adopted pursuant to a court’s supervi-
sory powers and that supervisory rules adopted by the United States
Supreme Court are binding on the states. Although our decisions announcing
federal constitutional rules are, for reasons of federalism, not binding on
other state courts, it is beyond dispute that this court has the authority to
announce federal constitutional rules that, in our opinion, have force in all
jurisdictions; see, e.g., Giaimo v. New Haven, 257 Conn. 481, 509, 778 A.2d
33 (2001) (for purposes of invoking due process provisions of federal consti-
tution, ‘‘an applicant for a statutory benefit . . . has a protected property
interest in the benefit when, under the governing statute, the decision-
making body would have no discretion to deny the application if the applicant
could establish at a hearing that it met the statutory criteria’’); and we have
concluded in the present case that the procedures that we adopt herein are
required to protect due process rights under the federal constitution. Of
course, if other states disagree with our decision, they can decline to follow
it and, if the United States Supreme Court disagrees, that court has the
authority to overrule our decision. That would not mean, however, that we
lacked the authority to adopt prophylactic rules that we believe are necessary
to protect rights guaranteed by the federal constitution in the first instance.
   In her concurring opinion, Justice Espinosa states that, by adopting this
prophylactic rule, we have ‘‘[laid] claim to a power that is without any
foundation,’’ and she suggests that our decision is ‘‘part of an emerging
pattern of judicial activism in this court.’’ There simply is no doubt, however,
that this court has the power to interpret the federal constitution and to
apply its interpretation to actions of the state and its constituent parts,
including prosecutors and trial courts. Indeed, Justice Espinosa and Justice
Zarella make no claim to the contrary, but simply disagree with our conclu-
sion that first time in-court identifications violate the due process provisions
of the federal constitution when the witness would not have been able to
identify the defendant in a nonsuggestive out-of-court procedure. In our
view, having found that first time in-court identifications implicate the due
process provisions of the federal constitution, it is indisputable that our
power to take steps to prevent such constitutional violations is an inherent
aspect of our basic constitutional function of interpreting the law, and
certainly does not constitute judicial activism. See Marbury v. Madison, 5
U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803) (‘‘[i]t is emphatically the province
and duty of the judicial department to say what the law is’’). To the contrary,
to stand back and permit prosecutors and trial courts to engage in a practice
that creates a significant risk that defendants will be deprived of their
constitutional right to a fair trial would be an abdication of our constitu-
tional duty.
   12
      But see United States v. Davis, 103 F.3d 660, 670 (8th Cir. 1996) (conclud-
ing that in-court identification procedure, although suggestive, is ‘‘not so
impermissibly suggestive as to lead to a likelihood of irreparable misidentifi-
cation’’), cert. denied, 520 U.S. 1258, 117 S. Ct. 2424, 138 L. Ed. 2d 187 (1997).
In Davis, the United States Court of Appeals for the Eighth Circuit did not
refer to its prior holding to the contrary in United States v. Rundell, supra,
858 F.2d 427.
   13
      Although the witness in Smith was not entirely certain of her identifica-
tion of the defendant in the pretrial identification procedure; see State v.
Smith, supra, 200 Conn. 467; we conclude later in this opinion that uncertain
identifications are admissible unless the witness was so uncertain that the
identification amounted to a failure to identify the defendant.
   14
      See, e.g., United States v. Bush, 749 F.2d 1227, 1232 (7th Cir. 1984) (first
time in-court identification is not so inherently suggestive that, standing
alone, it triggers due process protections), cert. denied, 470 U.S. 1058, 105
S. Ct. 1771, 84 L. Ed. 2d 831 (1985); Baker v. Hocker, 496 F.2d 615, 617 (9th
Cir. 1974) (‘‘[t]he danger posed by a courtroom identification is insufficient
to require’’ due process protections); Byrd v. State, 25 A.3d 761, 767 (Del.
2011) (‘‘we join the majority of courts in concluding that the two-step Biggers
analysis does not apply to in-court identifications that do not come following
an impermissibly suggestive pretrial identification’’); State v. King, 156 N.H.
371, 376, 934 A.2d 556 (2007) (‘‘we join the apparent majority of courts in
concluding that . . . Biggers does not apply to in-court identifications’’
[internal quotation marks omitted]); State v. Lewis, 363 S.C. 37, 42, 609
S.E.2d 515 (2005) (‘‘[w]e conclude, as the majority of courts have, that . . .
Biggers does not apply to in-court identifications’’); E. Mandery, supra, 60
Alb. L. Rev. 400 (as of 1997, majority of courts had concluded that in-
court identifications ordinarily do not trigger due process protections); E.
Mandery, supra, 402–404 and nn.108 through 113, and 115 (citing cases).
   15
      See, e.g., Perry v. New Hampshire, supra, 132 S. Ct. 723 (referring to
‘‘suggestive circumstances not arranged by the police’’); id., 723–24 (referring
to ‘‘police-arranged identification procedures’’); id., 724 (‘‘[e]ven when the
police use [an unfair identification] procedure . . . suppression of the
resulting identification is not the inevitable consequence’’).
   16
      Before the probable cause hearing, the eyewitness had been shown ‘‘a
photographic array that included the defendant’s picture, but he declined
to identify anyone, explaining that he preferred to see the individuals in
person.’’ State v. Tatum, supra, 219 Conn. 724. The court in Tatum stated
that, ‘‘[a]t the probable cause hearing, both parties referred to [a previous
in person lineup] . . . from which [the eyewitness] failed to select anyone
as his assailant. Since there is no other mention of such a procedure any-
where in the trial record or in any of the appellate briefs, we exclude it
from our recitation of the background facts.’’ Id., 724–25 n.7.
   17
      The constitution of Connecticut, article first, § 8, as amended by articles
seventeen and twenty-nine of the amendments, provides: ‘‘In all criminal
prosecutions, the accused shall have a right to be heard by himself and by
counsel; to be informed of the nature and cause of the accusation; to be
confronted by the witnesses against him; to have compulsory process to
obtain witnesses in his behalf; to be released on bail upon sufficient security,
except in capital offenses, where the proof is evident or the presumption
great; and in all prosecutions by information, to a speedy, public trial by
an impartial jury. No person shall be compelled to give evidence against
himself, nor be deprived of life, liberty or property without due process of
law, nor shall excessive bail be required nor excessive fines imposed. No
person shall be held to answer for any crime, punishable by death or life
imprisonment, unless upon probable cause shown at a hearing in accordance
with procedures prescribed by law, except in the armed forces, or in the
militia when in actual service in time of war or public danger.’’
   18
      General Statutes (Rev. to 1991) § 54-46a (a) provides: ‘‘No person
charged by the state, who has not been indicted by a grand jury prior to
May 26, 1983, shall be put to plea or held to trial for any crime punishable
by death or life imprisonment unless the court at a preliminary hearing
determines there is probable cause to believe that the offense charged has
been committed and that the accused person has committed it. The accused
person may knowingly and voluntarily waive such preliminary hearing to
determine probable cause.’’
   19
      Of course, if an eyewitness was unable to provide any of these details
before the court proceeding, asking him to provide them at the proceeding
would present the same problem as a first time in-court identification.
Specifically, the witness could simply describe the defendant who was facing
the witness in court. Because this problem is not presented in the present
case, we need not address it.
   20
      See, e.g., United States v. Domina, 784 F.2d 1361, 1368–69 (9th Cir.
1986) (trial court has discretion to allow in-court lineup or other procedure
to reduce suggestiveness of in-court identification), cert. denied, 479 U.S.
1038, 107 S. Ct. 893, 93 L. Ed. 2d 845 (1987); United States v. Sebetich, 776 F.2d
412, 420–21 (3d Cir. 1985) (requiring government to conduct nonsuggestive
identification procedures in lieu of one-on-one in-court identification ‘‘will
not be unduly burdensome, and their potential benefits would . . . out-
weigh any additional time or complexity at trial’’), cert. denied, 484 U.S.
1017, 108 S. Ct. 725, 98 L. Ed. 2d 673 (1988); United States v. Archibald,
supra, 734 F.2d 942 (‘‘[a] fairly short delay of proceedings was all that would
have been required to rearrange the seating in the courtroom and to secure
the presence of some people of the defendant’s approximate age and
skin color’’).
   21
      The state contends that it is unclear what type of procedure would
qualify as nonsuggestive and whether the persons in the lineup or photo-
graphic array should resemble the defendant at the time of trial or at the
time of the crime. The case law is replete, however, with guidance on what
constitutes a suggestive identification procedure. See United States v. Wade,
supra, 388 U.S. 232–33, 232 nn.18 through 23 (citing cases in which suggestive
procedures are described). Moreover, § 54-1p expressly describes proce-
dures for avoiding undue suggestiveness. If the defendant’s appearance has
changed since the time of the crime, the state has the option of producing
a photographic array with photographs of the defendant as he appeared at
the time of the crime and similar looking individuals or of conducting a
lineup with individuals who look similar to the defendant at the time of the
trial. If the defendant’s appearance has changed so much from the time of
the crime that the eyewitness would not be able to recognize the defendant
in a nonsuggestive lineup, it is no solution to allow the state to conduct a
suggestive in-court identification. The possibility of the defendant’s appear-
ance changing over time is one of many reasons that the state should conduct
an identification procedure at the earliest possible time when identity is at
issue in a case. United States ex rel. Stovall v. Denno, 355 F.2d 731, 738
(2d Cir. 1966) (‘‘interests of the accused and society alike demand that the
opportunity to identify be afforded at the earliest possible moment when
the likelihood of an accurate identification is greatest’’), aff’d, 388 U.S. 293,
87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967).
   The state also contends in its supplemental brief that ‘‘[p]olice have largely
stopped using live lineups because of the practical obstacles, and, even
more importantly, because the criteria for nonsuggestiveness have tightened
so much that live lineups can rarely satisfy them.’’ (Emphasis in original.)
Even if it is true that police have stopped using lineups because it is difficult
to conduct them in a nonsuggestive manner, that, again, is no reason to
allow a highly suggestive in-court identification. Indeed, if police have
stopped using live lineups, it may be because they know that, under Smith,
a suggestive lineup may result in the exclusion of both the out-of-court and
the in-court identification, while, if there is no pretrial lineup, the witness can
be asked to identify the defendant for the first time in the highly suggestive
courtroom setting.
   22
      The state also contends that in-court identifications pose no undue risk
of error because they are subject to cross-examination, expert testimony,
arguments and jury instructions. This does not distinguish in-court identifica-
tions from out-of-court identifications that are the result of unnecessarily
suggestive procedures, however, and such identifications trigger due pro-
cess protections.
   23
      The state further contends in its brief that, ‘‘[t]raditionally, in-court
identifications were the admissible identification evidence. Many courts held
that evidence of out-of-court identifications [were] inadmissible because
[they were] hearsay . . . [impermissible bolstering of in-court identifica-
tion] or prejudicial . . . .’’ (Citations omitted; emphasis in original.) In order
for that evidentiary rule to apply, however, there had to have been a prior
out-of-court identification. In such cases, the in-court identification would
not be unnecessarily suggestive.
   24
      See also Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158
L. Ed. 2d 177 (2004) (holding for first time that, under sixth amendment
confrontation clause, testimonial evidence is admissible only when witness
is unavailable to testify at trial and defendant had prior opportunity for
cross-examination); Ring v. Arizona, 536 U.S. 584, 609, 122 S. Ct. 2428, 153
L. Ed. 2d 556 (2002) (holding for first time that sixth amendment prohibits
sentencing judge from finding aggravating circumstance necessary for impo-
sition of death penalty); Taylor v. Louisiana, 419 U.S. 522, 534, 95 S. Ct.
692, 42 L. Ed. 2d 690 (1975) (holding for first time that defendant’s sixth
amendment right to jury drawn from fair cross section of community pre-
cludes state from systematically excluding women from jury service).
   25
      Thus, contrary to Justice Zarella’s suggestion, we do not rely on ‘‘evolving
social science.’’ See footnote 4 of Justice Zarella’s concurring opinion.
Rather, we rely on black letter law holding that suggestive identification
procedures raise due process concerns.
   26
      See United States v. Wade, supra, 388 U.S. 222 (‘‘[t]he prohibition of
compelling a man in a criminal court to be witness against himself is a
prohibition of the use of physical or moral compulsion to extort communica-
tions from him, not an exclusion of his body as evidence when it may be
material’’ [internal quotation marks omitted]); United States ex rel. Stovall
v. Denno, 355 F.2d 731, 737 (2d Cir. 1966) (‘‘[t]he principle that an arrested
person may be exhibited for identification to the person injured by the
commission of the crime . . . is so consistent with fundamental fairness
both to the accused and society that there is little point in further elaboration
except to take notice that the law sanctions many methods of identification
which do not invade the field of testimonial compulsion such as the use of
fingerprints and photographs, including photographs of body scars’’ [cita-
tions omitted; internal quotation marks omitted]), aff’d, 388 U.S. 293, 87 S.
Ct. 1967, 18 L. Ed. 2d 1199 (1967).
   27
      After oral argument before this court, the state filed a motion for permis-
sion to file a supplemental brief in which it argued that, because the only
remedies that the defendant sought in the present case were preclusion of
Weibel’s in-court identification or a nonsuggestive in-court identification
procedure, the state was not on notice that this court would adopt alternative
procedures to protect the due process rights of defendants if we overruled
State v. Smith, supra, 200 Conn. 465, and concluded that first time in-court
identifications implicate due process rights. Specifically, the state contended
that it had ‘‘no notice of the possibility that this [c]ourt would craft a rule
requiring the prescreening [of] lineups for some category of freestanding
in-court identifications outside the jury’s presence.’’ Accordingly, the state
sought permission to file a supplemental brief addressing the feasibility of
those alternative procedures. This court granted the state’s motion. As we
previously have indicated in this opinion, contrary to the state’s contention
in its supplemental brief, we see no reason why an out-of-court lineup or
photographic array would not be a feasible procedure to avoid the inherent
suggestiveness and potential unreliability of an in-court identification. In
any event, the state conceded in its motion for permission to file a supplemen-
tal brief that the defendant had asked this court to preclude in-court identifi-
cations entirely. Thus, by identifying procedures by which the state may
avoid preclusion of an in-court identification, we are broadening the range
of options that are available to the state. If the state believes in any particular
case that the costs of seeking an out-of-court identification will outweigh
the benefits of presenting an in-court identification, it may choose not to
take advantage of those procedures.
   Justice Zarella states conclusorily that ‘‘the parties have not had the
opportunity to brief the issue of whether to adopt [the prescreening proce-
dures that we adopt herein] . . . .’’ See footnote 3 of Justice Zarella’s concur-
ring opinion. As the foregoing procedural history shows, however, the parties
were afforded ample opportunity to brief both the questions of whether
first time in-court identifications implicate due process principles and, if
so, what the proper remedy should be.
   28
      For example, in the present case, although the defendant disputes Lyles’
testimony that the defendant was Weibel’s assailant, he does not dispute
Lyles’ ability to identify him. Accordingly, Lyles was properly permitted to
make a first time in-court identification of the defendant.
   29
      We reject the defendant’s suggestion that a first time in-court identifica-
tion may be allowed if the trial court determines that the identification
would be reliable under the Biggers factors. Biggers traditionally has been
applied when the witness’ ability to make a reliable in-court identification has
already been tainted by an unnecessarily suggestive identification procedure
that the trial court was powerless to prevent. In our view, it would make
little sense for the trial court to perform a Biggers analysis to determine
whether it should permit the state to conduct an unnecessarily suggestive
procedure in the future when other, nonsuggestive alternatives are available.
   30
      Although it is impossible to catalogue all of the reasons that might
justify allowing an eyewitness to make another attempt to identify the
defendant, a second procedure might be justified, for example, when the
witness failed to identify the defendant in a photographic array and the
state wants to conduct a lineup, or when the witness was threatened or
intimidated before the first attempt.
   31
      Of course, if the state has conducted an out-of-court identification proce-
dure in compliance with the procedures that we adopt herein and the defen-
dant contends that the procedure was unnecessarily suggestive, the court
must then determine whether the identification procedure was, in fact,
unnecessarily suggestive and, if so, whether the identification was neverthe-
less sufficiently reliable to be admissible under the Biggers factors.
   32
      But see Commonwealth v. Collins, supra, 470 Mass. 262–63 (if eyewit-
ness lacked confidence in out-of-court identification, in-court identification
is barred because witness may ‘‘regard the defendant’s prosecution as confir-
mation that the defendant is the ‘right’ person and, as a result, may develop
an artificially inflated level of confidence in [his or her] in-court identifica-
tion’’). We disagree with the court’s conclusion in Collins. Rather, because
any inconsistencies between the eyewitness’ level of confidence at the initial
identification and at the in-court identification can be brought out on cross-
examination, that is a sufficiently effective tool under these circumstances
to counter the inherent suggestiveness of the in-court identification. More-
over, the defendant can present expert testimony that there is a weak
correlation between confidence and accuracy, that memory degrades over
time, and that ‘‘witnesses may develop unwarranted confidence in their
identifications if they are privy to postevent or postidentification information
. . . .’’ State v. Guilbert, supra, 306 Conn. 253.
   33
      Some older United States Supreme Court cases hold that prophylactic
constitutional rules are prospective only. See Michigan v. Payne, 412 U.S.
47, 93 S. Ct. 1966, 36 L. Ed. 2d 736 (1973) (declining to apply prophylactic
rule set forth in North Carolina v. Pearce, 395 U.S. 711, 723–26, 89 S. Ct.
2072, 23 L. Ed. 2d 656 [1969], retroactively to cases pending on direct review);
Johnson v. New Jersey, 384 U.S. 719, 732, 86 S. Ct. 1772, 16 L. Ed. 2d 882
(1966) (declining to apply prophylactic rule set forth in Miranda v. Arizona,
384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966], retroactively
to cases pending on direct review). We do not believe that these cases are
compatible with the United States Supreme Court’s later decision in Griffith.
See People v. Harris, 123 Ill. 2d 113, 130, 526 N.E.2d 335 (1988) (implying
that Johnson was overruled by Griffith); but see Cowans v. Bagley, 624 F.
Supp. 2d 709, 734–36 (S.D. Ohio 2008) (assuming that prophylactic rules,
such as that set forth in Miranda, are not grounded in federal constitution
and concluding that Griffith applies only to rules required by federal consti-
tution). No less than when a new rule is designed to remedy a constitutional
violation, when a new rule is designed to prevent the significant risk of a
constitutional violation, ‘‘the integrity of judicial review requires that we
apply that rule to all similar cases pending on direct review.’’ Griffith v.
Kentucky, supra, 479 U.S. 323; see also Dickerson v. United States, 530 U.S.
428, 444, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000) (‘‘Miranda announced a
constitutional rule’’). Indeed, the new rule that was at issue in Griffith was
the rule set forth in Batson v. Kentucky, 476 U.S. 79, 97, 106 S. Ct. 1712,
90 L. Ed. 2d 69 (1986), requiring a prosecutor to provide a neutral explanation
for the use of a peremptory challenge to strike a member of the defendant’s
race from the jury venire, reasonably could be characterized as a prophylac-
tic rule. See B. Landsberg, ‘‘Safeguarding Constitutional Rights: The Uses and
Limits of Prophylactic Rules,’’ 66 Tenn. L. Rev. 925, 939 (1999) (characterizing
Batson rule as at least partially prophylactic).
   34
      The new rule would not apply, however, on collateral review. This
question is governed by the framework set forth in Teague v. Lane, 489 U.S.
288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). See Casiano v. Commissioner
of Correction, 317 Conn. 52, 62, 115 A.3d 1031 (2015). Under Teague, a
‘‘new’’ constitutional rule, i.e., a rule that ‘‘was not dictated by precedent
existing at the time the defendant’s conviction became final,’’ generally does
not apply retroactively. (Internal quotation marks omitted.) Id. There are
two exceptions, however, to this general rule. Specifically, a new rule will
apply retroactively if it is substantive or, if the new rule is procedural, when
it is ‘‘a watershed [rule] of criminal procedure . . . implicit in the concept
of ordered liberty . . . .’’ (Citation omitted; internal quotation marks omit-
ted.) Id., 63. Because the rule that we adopt in the present case is a new
procedural rule, we must determine whether it is a watershed rule. To be
considered a watershed rule, the rule must ‘‘implicat[e] the fundamental
fairness and accuracy of [a] criminal proceeding’’; (internal quotation marks
omitted) id.; or ‘‘[alter] our understanding of the bedrock procedural ele-
ments essential to the fairness of a proceeding . . . .’’ (Citation omitted;
internal quotation marks omitted.) Id. Watershed rules ‘‘include those that
raise the possibility that someone convicted with use of the invalidated
procedure might have been acquitted otherwise.’’ (Internal quotation marks
omitted.) Id. The exception is ‘‘narrowly construed . . . and, in the twenty-
five years since Teague was decided, [the United States Supreme Court]
has yet to conclude that a new rule qualifies as watershed.’’ Id.; but see id., 64
(this court may construe Teague more liberally than United States Supreme
Court); id., 69 (concluding that new procedural rule requiring individualized
sentencing of juvenile before life sentence may be imposed is watershed
rule under Teague). In the present case we conclude that the rule requiring
prescreening of first time in-court identification does not fall within the
narrow exception because: (1) as we have explained, the rule is prophylactic
and a violation of the rule does not necessarily rise to the level of a due
process violation; and (2) the rule is merely an incremental change in identifi-
cation procedures. Cf. Beard v. Banks, 542 U.S. 406, 419–20, 124 S. Ct. 2504,
159 L. Ed. 2d 494 (2004) (‘‘the fact that a new rule removes some remote
possibility of arbitrary infliction of the death sentence does not suffice to
bring it within Teague’s second exception’’); id., 419 (although new rule was
intended to enhance accuracy of capital sentencing, ‘‘because it effected an
incremental change, [the United States Supreme Court] could not conclude
that . . . [it was] an absolute prerequisite to fundamental fairness’’ [internal
quotation marks omitted]).
   35
      Of course, if the record is adequate for review of the reliability and
admissibility of the in-court identification, the reviewing court may make
this determination. For example, if the eyewitness had a full and fair opportu-
nity to identify the defendant before trial and was unable to do so, the
reviewing court reasonably could conclude that the subsequent in-court
identification was unreliable.
   36
      We cannot be certain that Weibel’s in-court identification was so unrelia-
ble as to be inadmissible because the record is inadequate for us to subject
the identification to a Biggers analysis. Moreover, although Weibel was
unable to identify the defendant in a photographic array, there is no way
of knowing whether Weibel would have been able to identify the defendant
in a lineup.
   37
      Defense counsel also brought out some minor inaccuracies in Lyles’
testimony under direct examination. For example, Lyles testified on direct
examination that he had learned that Weibel would be accompanied by a
friend when Weibel called him at Perez’ apartment, while he testified on
cross-examination that he learned that fact when Weibel called him at the
scene of the crime. In addition, Lyles testified on direct examination that
he left the residence on Louis Street alone, while he testified on cross-
examination that he left with Reyes and the defendant.
   38
      Specifically, the following exchange occurred between defense counsel
and the defendant’s mother:
   ‘‘Q. And do you recall who arrived with what groups, if you can remember?
   ‘‘A. I remember the first two to get there was [the defendant’s aunt] and
Jason [Temple]. I remember when—I don’t remember when Laurie [Council]
got there. I was in the bathroom and I came out, she was already there.
[The defendant], Jaquisha [Griffin] and her mom came in together. Mom
didn’t stay long, she left. The other two kids, I remember them coming, I
don’t know how they got there, but I remember them coming.
   ‘‘Q. And was it the intention to get there to watch the game?
   ‘‘A. Yes, we got there before kickoff.
   ‘‘Q. And do you roughly know what that time was . . . the beginning of
the game?
   ‘‘A. I would say probably—the game probably started about 8:30, 9 o’clock.
I—I didn’t, you know—
   ‘‘Q. But you don’t know the exact time?
   ‘‘A. No, [exact] timing I couldn’t tell you.’’
   Thus, the defendant’s mother testified equivocally that ‘‘we’’ arrived at
the bar before kickoff. By referring to ‘‘we,’’ she might have been referring
only to herself and her husband. She never expressly testified that the
defendant arrived before kickoff.
   39
      The following exchange took place between the prosecutor and the
defendant’s aunt:
   ‘‘Q. What time did [the defendant] get to the party?
   ‘‘A. He got to the party—it was, I want to say it was—I know it was before
kickoff but I can’t give you an exact time.
   ‘‘Q. Okay. Do you know what time the kickoff was?
   ‘‘A. Kickoff started about—little after 9 [p.m.]. Not exactly 9 o’clock. It
was a little after 9.’’
   40
      The court gave the following jury instruction: ‘‘Weibel testified that [the
defendant] was the person who committed the crimes. The identification
of the defendant by a single witness as the one involved in the commission
of a crime is, in and of itself, sufficient to justify conviction provided of
course that you are satisfied beyond a reasonable doubt of the identity of
the defendant as the person who committed the crime or crimes.
   ‘‘In arriving at a determination on the issue of identification, you should
consider all the facts and circumstances that existed at the time of the
witness’ observation of the perpetrator.
   ‘‘Since identification testimony is an expression of belief or impression
by the witness, the value of the testimony depends upon the opportunity
and ability of the witness to observe the perpetrator at the time . . . of the
event and the ability to make an accurate identification later.
   ‘‘You must decide how much weight to place on . . . Weibel’s identifica-
tion testimony. In appraising his testimony you should take into account
whether . . . Weibel had adequate opportunity and ability to observe the
perpetrator on the date in question. This will be affected by such considera-
tions as length of time available to make the observation, the distance
between the witness and perpetrator, the lighting conditions at the time of
the offense, whether the witness had known or seen the person [on] an earlier
occasion, any history between them . . . whether anything distracted the
attention of the witness during the incident. You should also consider the
witness’ physical and emotional condition at the time of the . . . confronta-
tion and the witness’ powers of observation in general.
   ‘‘You should consider the length of time that elapsed between the occur-
rence of the crime and the identification of the defendant by the witness.
You may also consider the strength of the identification including the wit-
ness’ degree of certainty. Certainty, however, does not mean accuracy. You
should take into account the circumstances under which the witness first
observed and identified the defendant, the suggestibility, if any, of the proce-
dure used in that viewing, physical descriptions that the witness may have
given to the police, and any other factors which you find that relate to the
reliability of the identification of the defendant.
   ‘‘You may also consider whether the identification witness some time
before the trial was shown a photo[graphic] array that included a photo-
[graph] of the defendant. And whether or not he failed to identify the defen-
dant at that time.
   ‘‘Picking a defendant out of a group of similar individuals is generally
more reliable than a procedure involving the presentation of the defendant
alone to a witness.
   ‘‘You will subject the testimony of the identification witness to the same
standards of credibility that apply to all witnesses. It is not sufficient that
the witness be free from doubt as to the correctness of the identification
of the defendant. Rather, you must be satisfied beyond a reasonable doubt
of the accuracy of the identification of the defendant before you may find
him guilty on a charge.
   ‘‘In short, you must consider the totality of the circumstances [a]ffecting
the identification. Remember the state has the burden to not only prove
every single element of the crime but also the identity of the defendant as
the perpetrator of the crime.
   ‘‘You must be satisfied beyond a reasonable doubt of the identity of the
defendant as the one who committed the crime or crimes or you must find
the defendant not guilty.
   ‘‘If you have a reasonable doubt as to the accuracy of the identification
you must find the defendant not guilty.’’
   41
      As we have indicated herein, when asked by defense counsel, Lyles
denied that the person who he previously had committed robberies with—
who he claimed to know only as ‘‘Black’’—was the cousin who had access
to the e-mail account that Lyles had used to lure his victims. The state
presented no evidence other than this denial, however, that ‘‘Black’’ was
his cousin or that Lyles was motivated by a desire to protect him.
