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             STATE v. JOHNSON—CONCURRENCE

   ROGERS, C. J., concurring. I agree with the majority
opinion’s conclusion that the due process clause of the
Connecticut constitution, like that of the United States
constitution, does not provide criminal defendants pro-
tection against allegedly unduly suggestive identifica-
tion procedures undertaken by private individuals
without the participation of state actors. Accordingly,
the test governing the admissibility of evidence of such
identifications, which this court essentially adopted as
a common-law rule of evidence in State v. Holliman,
214 Conn. 38, 46, 570 A.2d 680 (1990), cannot be applied
to evaluate the identification at issue in the present
case because the defendant’s claim of error pertaining
to that identification has been raised for the first time
on appeal.1 I write separately to express my disagree-
ment with the necessity for the special evidentiary rule
of Holliman and to suggest that, when the issue
squarely presents itself in a future appeal, this court
abandon that rule and instead hold, as did the United
States Supreme Court in Perry v. New Hampshire,
U.S. , 132 S. Ct. 716, 728–30, 181 L. Ed. 2d 694 (2012),
that potentially unreliable eyewitness identifications
resulting from suggestive procedures undertaken by
private actors should be evaluated like any other poten-
tially unreliable evidence—namely, by a fully informed,
properly instructed jury within the confines of a trial
employing the usual array of constitutional safeguards.
In other words, no rule of admissibility should apply
other than §§ 4-2 and 4-3 of the Connecticut Code of
Evidence, which together provide, in short, that rele-
vant evidence presumptively is admissible, unless the
potential harm resulting from its admission outweighs
its probative value.2 I believe that this approach would
adequately protect criminal defendants, particularly
because of Connecticut’s use of specialized jury instruc-
tions pertaining to eyewitness testimony and this
court’s recent recognition, in State v. Guilbert, 306
Conn. 218, 251–52, 49 A.3d 705 (2012), that criminal
defendants may introduce expert testimony regarding
the factors that may undercut the reliability of eyewit-
ness evidence.
   In the federal due process context, the United States
Supreme Court, in Neil v. Biggers, 409 U.S. 188, 198–200,
93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), and Manson v.
Brathwaite, 432 U.S. 98, 109–14, 97 S. Ct. 2243, 53 L.
Ed. 2d 140 (1977), adopted a two part test to govern the
admissibility of evidence of eyewitness identifications
that allegedly were the product of unnecessarily sugges-
tive police procedures.3 Thereafter, in State v. Holli-
man, supra, 214 Conn. 45–46, this court concluded that
federal due process concerns were not implicated in
the case of an allegedly unnecessarily suggestive identi-
fication procedure conducted by private parties alone,
yet held, nevertheless, that the same two part test
applied to govern the admissibility of the evidence in
question. When doing so, the court did not engage in
any substantive analysis of the issue or provide any
explanation of why this was necessary, but simply
joined in the parties’ agreement, apparently expressed
at oral argument, that ‘‘the criteria established for
determining the admissibility of identifications in the
due process context are appropriate guidelines by
which to determine the admissibility of identifications
that result from procedures conducted by civilians.’’
Id., 46.
   More recently, the United States Supreme Court, in
Perry v. New Hampshire, supra, 132 S. Ct. 730, con-
firmed that the federal due process clause does not
require a trial court to make a preliminary reliability
assessment of an eyewitness identification performed
under suggestive circumstances when those circum-
stances were not arranged by law enforcement officials.
After explaining that the primary aim of exclusion of
eyewitness identification evidence pursuant to Neil v.
Biggers, supra, 409 U.S. 188, and Manson v. Brathwaite,
supra, 432 U.S. 98, was to deter improper police con-
duct; Perry v. New Hampshire, supra, 726–27; the court
observed that many factors, aside from external sugges-
tion, could raise the likelihood of a misidentification.4
Id., 727. Acknowledging the importance and potential
fallibility of identification evidence, the court neverthe-
less concluded that concerns over its reliability properly
are addressed, not by a special rule providing for auto-
matic judicial prescreening and potential exclusion, but
by submission of the evidence to a jury for a credibility
determination, within the context of a fair trial with all
of its attendant safeguards. Id., 728. Those safeguards
include: ‘‘the defendant’s [s]ixth [a]mendment right to
confront the eyewitness . . . [and] the defendant’s
right to the effective assistance of an attorney, who can
expose the flaws in the eyewitness’ testimony during
cross-examination and focus the jury’s attention on the
fallibility of such testimony during opening and closing
arguments. [Additionally,] [e]yewitness-specific jury
instructions, which many federal and state courts have
adopted, likewise warn the jury to take care in apprais-
ing identification evidence. . . . [Furthermore,] [t]he
constitutional requirement that the government prove
the defendant’s guilt beyond a reasonable doubt also
impedes convictions based on dubious identification
evidence. State and federal rules of evidence, moreover,
permit trial judges to exclude relevant evidence if its
probative value is substantially outweighed by its preju-
dicial impact or potential for misleading the jury.
[Finally,] [i]n appropriate cases, some [s]tates also per-
mit defendants to present expert testimony on the haz-
ards of eyewitness identification evidence.’’5 (Citations
omitted; footnote omitted.) Id., 728–29.
  I believe that this court, in a future case involving an
allegedly unduly suggestive private eyewitness identifi-
cation procedure, should abandon the rule of Holliman
and adopt the more general approach approved in
Perry. As the court in Perry observed, there are many
factors that potentially can render an eyewitness identi-
fication unreliable; see id., 727; and I can conceive of
no reason to have a different approach for dealing with
one than for dealing with the others. Moreover, it is
unclear that a court is any better suited to assessing
the reliability of a particular eyewitness identification
than is a jury, the traditional arbiter of fact. Connecti-
cut’s model jury instructions concerning eyewitness
identifications provide detailed guidance to jurors
regarding the importance and potential fallibility of
such evidence, the factors that may affect its accuracy
and the state’s high burden of proof on the issue of
identity, and they specifically mention the sugges-
tiveness of procedures as a circumstance that merits
consideration.6 Additionally, and importantly, this court
recently overruled earlier case law to hold that a crimi-
nal defendant may introduce expert testimony regard-
ing the various factors that have an adverse effect on
the reliability of eyewitness identifications, as long as
the expert is qualified and the testimony is relevant to
a specific eyewitness identification at issue in the case.7
State v. Guilbert, supra, 306 Conn. 221, 251–52, 257. In
light of this decision, defendants have a powerful tool
with which to challenge eyewitness testimony resulting
from suggestive identification procedures, and jurors
should be well equipped to assess such evidence.8
   Finally, even in the absence of a special exclusionary
rule, general evidentiary rules remain available to pre-
vent the admission of eyewitness identification evi-
dence that, for whatever reason, bears such indicia of
unreliability or unfairness that any potential relevance
it may have is negligible. See People v. Marte, 12 N.Y.3d
583, 590, 912 N.E.2d 37, 884 N.Y.S.2d 205 (2009) (‘‘we
do not rule out the possibility that a court, in balancing
probative value against prejudicial effect, may find
some [eyewitness identification] testimony so unrelia-
ble that it is inadmissible’’), cert. denied, 559 U.S. 941,
130 S. Ct. 1501, 176 L. Ed. 2d 117 (2010); State v. Pailon,
590 A.2d 858, 863 (R.I. 1991) (‘‘[i]t is conceivable that
identification evidence might become so unreliable as
to fall below the threshold of competence [required by
rules of evidence]’’); State v. Hibl, 290 Wis. 2d 595, 609,
714 N.W.2d 194 (2006) (‘‘Although most such identifica-
tions will be for the jury to assess, the [trial] court still
has a limited gate-keeping function. It may exclude such
evidence under [the rules of evidence] if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the
jury.’’).
  For the foregoing reasons, I believe that the rule
adopted in Holliman providing for judicial prescreening
and the possible exclusion of certain eyewitness identi-
fications, not arranged by state actors, should be dis-
carded. In lieu of that rule, eyewitness identification
evidence resulting from allegedly unduly suggestive
procedures orchestrated by private actors should, like
any other evidence of questionable reliability, be pre-
sumptively admissible and subject to evaluation by a
jury. Because the issue of the appropriateness of the
existing rule is not directly presented by this case, how-
ever, I concur in the judgment of the majority.
    1
      In likely recognition that an unpreserved Holliman claim, which is evi-
dentiary in nature, would fail under the second prong of State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989), the defendant has requested
that this court fashion a new state constitutional rule governing the admissi-
bility of allegedly unduly suggestive identifications that did not result from
state action, and then to apply that rule to his case. The majority properly
declines to do so.
    2
      Section 4-2 of the Connecticut Code of Evidence provides: ‘‘All relevant
evidence is admissible, except as otherwise provided by the constitution of
the United States, the constitution of this state, the Code [of Evidence] or
the General Statutes. Evidence that is not relevant is inadmissible.’’
    Section 4-3 of the Connecticut Code of Evidence provides: ‘‘Relevant
evidence may be excluded if its probative value is outweighed by the danger
of unfair prejudice or surprise, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time or needless presenta-
tion of cumulative evidence.’’
    3
      ‘‘In determining whether [police administered] 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.’’ (Emphasis in original; internal quotation marks omitted.) State v.
Outing, 298 Conn. 34, 47–48, 3 A.3d 1 (2010), cert. denied,           U.S.    , 131
S. Ct. 1479, 179 L. Ed. 2d 316 (2011). As to the second prong, ‘‘the factors
to be considered in evaluating the likelihood of misidentification include
the opportunity of the witness to view the criminal at the time of the
crime, the witness’ degree of attention, the accuracy of the witness’ prior
description of the criminal, the level of certainty demonstrated by the witness
at the confrontation, and the length of time between the crime and the
confrontation.’’ Neil v. Biggers, supra, 409 U.S. 199–200.
    4
      Those factors include, ‘‘for example, the passage of time between expo-
sure to and identification of the defendant, whether the witness was under
stress when he first encountered the suspect, how much time the witness
had to observe the suspect, how far the witness was from the suspect,
whether the suspect carried a weapon, and the race of the suspect and the
witness.’’ Perry v. New Hampshire, supra, 132 S. Ct. 727.
    5
      The holding in Perry reflects the approach of a majority of courts. See
Annot., 86 A.L.R.5th 475, § 2 [a] (2001) (‘‘The majority of courts require that
an allegedly suggestive pretrial encounter be the result of either police
or prosecution action to have an effect on the admissibility of in-court
identification. . . . In cases in which [various privately conducted identifi-
cation procedures of questionable reliability have been employed], courts
typically deem the in-court identification admissible without any further
inquiry into the suggestiveness of the pretrial encounter or any possible
taint it may have on the in-court identification.’’).
    6
      Connecticut’s model jury instruction regarding eyewitness identifica-
tions provides in relevant part: ‘‘The state has the burden of proving beyond
a reasonable doubt that the defendant was the perpetrator of the crime.
. . . Identification is a question of fact for you to decide, taking into consider-
ation all the evidence that you have seen and heard in the course of the
trial. . . . In arriving at a determination as to the matter of identification,
you should consider all the facts and circumstances that existed at the time
of the observation of the perpetrator by each witness. In this regard, the
reliability of each witness is of paramount importance, since identification
testimony is an expression of belief or impression by the witness. Its value
depends upon the opportunity and ability of the witness to observe the
perpetrator at the time of the event and to make an accurate identification
later. It is for you to decide how much weight to place upon such testi-
mony. . . .
   ‘‘In appraising the identification of the defendant as the perpetrator by
any witness, you should take into account whether the witness had adequate
opportunity and ability to observe the perpetrator on the date in question.
This will be affected by such considerations as the length of time available
to make the observation; the distance between the witness and the perpetra-
tor; the lighting conditions at the time of the offense; whether the witness
had known or seen the person in the past; the history, if any, between them,
including any degree of animosity; and whether anything distracted the
attention of the witness during the incident. You should also consider the
witness’s physical and emotional condition at the time of the incident, and
the witness’s powers of observation in general. . . .
   ‘‘Furthermore, you should consider the length of time that elapsed between
the occurrence of the crime and the identification of the defendant by the
witness. You may also consider the strength of the identification, including
the witness’s degree of certainty. Certainty, however, does not mean accu-
racy. You should also take into account the circumstances under which
the witness first viewed and identified the defendant, the suggestibility,
if any, of the procedure used in that viewing, any physical descriptions
that the witness may have given to the police, and all the other factors
which you find relating to reliability or lack of reliability of the identification
of the defendant. . . .
   ‘‘You may consider whether the witness at any time either failed to identify
the defendant or made an identification that was inconsistent with the
identification testified to at trial. . . .
   ‘‘You will subject the testimony of any identification witness to the same
standards of credibility that apply to all the witness[es]. When assessing
the credibility of the testimony as it relates to the issue of identification,
keep in mind that 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/her) guilty on any charge. . . .
   ‘‘In short, you must consider the totality of the circumstances affecting
the identification. Remember, the state has the burden to not only prove
every 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
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.’’
(Emphasis added.) Connecticut Criminal Jury Instructions § 2.6-4 (4th Ed.
2013), available at http://jud.ct.gov/JI/Criminal/part2/2.6-4.htm (last visited
July 18, 2014).
   7
     We generally approved of expert testimony on the following nonexhaus-
tive list of propositions: ‘‘(1) there is at best a weak correlation between a
witness’ confidence in his or her identification and the identification’s accu-
racy; (2) the reliability of an identification can be diminished by a witness’
focus on a weapon; (3) high stress at the time of observation may render
a witness less able to retain an accurate perception and memory of the
observed events; (4) cross-racial identifications are considerably less accu-
rate than identifications involving the same race; (5) memory diminishes
most rapidly in the hours immediately following an event and less dramati-
cally in the days and weeks thereafter; (6) an identification may be less
reliable in the absence of a double-blind, sequential identification procedure;
(7) witnesses may develop unwarranted confidence in their identifications
if they are privy to postevent or postidentification information about the
event or the identification; and (8) the accuracy of an eyewitness identifica-
tion may be undermined by unconscious transference, which occurs when
a person seen in one context is confused with a person seen in another.’’
State v. Guilbert, supra, 306 Conn. 253–54.
   8
     The holding in Guilbert was responsive to growing concerns that cross-
examination, argument of counsel and generalized jury instructions were
not always adequate to inform juries of the factors affecting reliability of
eyewitness identifications. State v. Guilbert, supra, 306 Conn. 243–46.
