State v. Jones ( 2021 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. BILLY RAY JONES
(SC 20261)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.*
Syllabus
In accordance with State v. Patterson (276 Conn. 452), a trial court in a
criminal case must issue a special credibility instruction to the jury
when a jailhouse informant testifies about inculpatory statements made
by a fellow inmate to the informant while they were incarcerated
together.
Convicted, after a jury trial, of the crimes of murder, carrying a pistol without
a permit, and criminal possession of a firearm in connection with the
shooting death of the victim, the defendant appealed to the Appellate
Court, claiming, inter alia, that the trial court improperly denied his
request for a special credibility instruction concerning the testimony of
jailhouse informants as it related to one of the state’s key witnesses, S.
At trial, the state presented no physical evidence linking the defendant
to the victim’s murder or to the firearm used, instead relying on the
testimony of S, among other witnesses. S had approached the police
more than two years after the shooting while he was in pretrial detention
on two felony charges, hoping for a favorable disposition on his pending
charges in exchange for information about the victim’s murder. S told
the police that he had seen the defendant when he was visiting the
housing complex where the victim was murdered on the night in question
and that, shortly thereafter, had heard gunshots. S also told the police
that he and the defendant were watching television together the day
after the shooting when S, who was holding a handgun, confessed to
shooting the victim. The defendant requested that the trial court give a
special credibility instruction concerning S’s testimony in accordance
with this court’s decision in Patterson. The trial court denied the defen-
dant’s request and, instead, issued a general credibility instruction. On
appeal, the Appellate Court affirmed the judgment of conviction, con-
cluding, inter alia, that the defendant was not entitled to the special
credibility instruction that he had sought because S did not testify about
a confession the defendant made to him while they were fellow inmates
but, rather, about events he had witnessed and a confession that had
been made outside of the prison environment. On the granting of certifi-
cation, the defendant appealed to this court. Held that the Appellate
Court incorrectly determined that the trial court had properly denied
the defendant’s request for a jailhouse informant instruction: a defendant
is entitled to a special credibility instruction regarding jailhouse infor-
mants when the informant was incarcerated at the time he approached
the police with information regarding a defendant’s inculpatory state-
ments and testifies at trial about those statements, regardless of where
the statements were made, and, because S was incarcerated when he
approached the police about the defendant’s confession in exchange
for leniency in his own pending criminal matters, he was a jailhouse
informant for whom a special credibility instruction was required; more-
over, the trial court’s denial of the defendant’s request to give such an
instruction was not harmless, as the state presented no physical evidence
linking the defendant to the victim’s murder or the firearm used in the
commission of that offense, the trial court’s general credibility instruc-
tion did not fully inform the jury of the factors it could consider in
evaluating S’s credibility, and the only evidence corroborating S’s testi-
mony regarding the defendant’s confession was the testimony of another
witness who suffered from credibility problems; accordingly, this court
reversed the judgment of the Appellate Court and remanded the case
for a new trial.
(One justice concurring separately; three justices
dissenting in one opinion)
Argued December 17, 2019—officially released December 1, 2020**
Procedural History
Two part substitute information charging the defen-
dant, in the first part, with the crimes of murder and
carrying a pistol without a permit, and, in the second
part, with criminal possession of a firearm, brought to
the Superior Court in the judicial district of Fairfield
and tried to the jury before Kavanewsky, J.; verdict
and judgment of guilty, from which the defendant
appealed to the Appellate Court, DiPentima, C. J., and
Alvord and Eveleigh, Js., which affirmed the trial court’s
judgment, and the defendant, on the granting of certifi-
cation, appealed to this court. Reversed; new trial.
Mark Rademacher, assistant public defender, for the
appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, former state’s
attorney, and Michael A. DeJoseph, Jr., senior assistant
state’s attorney, for the appellee (state).
Opinion
ECKER, J. In State v. Patterson, 276 Conn. 452, 886
A.2d 777 (2005), we held that a trial court must issue
a special credibility instruction when a jailhouse infor-
mant testifies because such informants have ‘‘a power-
ful incentive, fueled by self-interest, to implicate falsely
the accused,’’ and, ‘‘[c]onsequently, [their] testimony
. . . is inevitably suspect.’’ Id., 469. A ‘‘classic jailhouse
informant is a witness who has testified that the defen-
dant has confessed to him or had made inculpatory
statements to him while they were incarcerated
together.’’ State v. Diaz, 302 Conn. 93, 99 n.4, 25 A.3d 594(2011). The question presented in this certified appeal
is whether the Appellate Court correctly held ‘‘that the
special credibility instruction required in State v. Pat-
terson, [supra, 452], was not applicable to an incarcer-
ated informant who offered his testimony that the
defendant confessed to him when they socialized out-
side of prison in exchange for favorable treatment of
the informant by the state . . . .’’ (Emphasis added.)
State v. Jones, 331 Conn. 909, 202 A.3d 1023 (2019). We
answer the certified question in the negative and reverse
the judgment of the Appellate Court.
The jury reasonably could have found the following
facts. On the evening of June 21, 2010, the victim,
Michael Williams, was shot to death with a nine millime-
ter pistol outside of the Charles F. Greene Homes hous-
ing complex (Greene Homes housing complex) in
Bridgeport. When the police arrived to investigate the
shooting, they found twenty to thirty people in the area
where the victim’s body was found, but these potential
witnesses were unwilling to cooperate with the police
investigation.1
Four days after the victim’s murder, Bridgeport police
detective John Tenn interviewed the defendant, Billy
Ray Jones. During the video-recorded interview, the
defendant informed Tenn that he had not known the
victim and was not in Bridgeport on the night of the
victim’s murder. The defendant stated that he was in
Norwalk on June 21, 2010, visiting his childhood friend,
Benjamin Beau. Tenn later questioned Beau, who
denied that he was with the defendant on the night
in question. Tenn also interviewed the defendant’s ex-
girlfriend, Chanel Lawson, who informed Tenn that the
defendant knew the victim.
There were no further developments in the investiga-
tion until years later, when two cooperating witnesses
approached the state with information regarding the
victim’s murder. The first witness, Angela Teele, gave
the police information in September, 2012, after she
was ‘‘picked . . . up’’ on drug charges. Teele told the
police that she had been a resident of the Greene Homes
housing complex at the time, a friend of the victim, and
an eyewitness to his murder. On the night of June 21,
2010, Teele saw the defendant approach the victim on
the playground outside of the Greene Homes housing
complex dressed in blue shorts and a black hoodie. The
defendant ‘‘threw his hood on,’’ walked up to the victim,
and shot him once in the back of the head with a pistol.
The defendant then ‘‘[r]an out [of] the playground.’’
The second witness, Larry Shannon, approached the
police with information regarding the victim’s murder
in February, 2013, when he was in pretrial detention
on two felony charges. Shannon told the police that he
was visiting the Greene Homes housing complex on the
night of the victim’s murder when he saw the defendant,
whom he had known for about two or three months,
dressed in jeans and a black hoodie. The defendant was
‘‘hooded up,’’ which Shannon found to be suspicious
because ‘‘[i]t was nice outside.’’ Soon afterward, Shan-
non heard gunshots. He tried to run away, but he fell
down due to a recent surgery on his Achilles tendon.
Shannon met up with his stepbrother, who was a resi-
dent of the Greene Homes housing complex, and they
‘‘walked around the corner, and [the victim] was . . .
slumped on the . . . playground.’’
The next day, on June 22, 2010, Shannon encountered
the defendant at the Marina Village housing complex
in Bridgeport. A ‘‘news clip came on the [television]
about [the victim’s] murder,’’ and the defendant admit-
ted to Shannon that he ‘‘did it.’’ According to Shannon,
the defendant was holding a silver, nine millimeter
Ruger handgun when he confessed to Shannon that he
‘‘walked up to [the victim] and said, what’s poppin’
now,’’ and then fired. No one else was present at the
time of this conversation.
The defendant subsequently was arrested and
charged with murder in violation of General Statutes
§ 53a-54a (a), carrying a pistol without a permit in viola-
tion of General Statutes § 29-35 (a), and criminal posses-
sion of a firearm in violation of General Statutes § 53a-
217 (a). At the defendant’s jury trial, the state relied
primarily on the testimony of Teele and Shannon, as
described in the preceding paragraphs, to establish the
defendant’s commission of the crimes charged. Addi-
tionally, the state presented the testimony of Beau and
Lawson,2 as well as portions of the defendant’s video-
recorded interview with Tenn, to contradict the defen-
dant’s statements that he was in Norwalk on the night
of the murder and that he did not know the victim. The
state did not present any physical evidence linking the
defendant to the victim’s murder or the firearm used
in the commission of the offense, which the police never
recovered.
Defense counsel argued to the jury ‘‘that this is a
case that really comes down to the reliability and believ-
ability, or the lack thereof, of two witnesses: Angela
Teele and Larry Shannon.’’ In light of the importance of
Shannon’s testimony, defense counsel cross-examined
Shannon extensively regarding his motive for coming
forward with information about the victim’s murder.
Shannon admitted that he had contacted the police in
the hope of trading information for ‘‘favorable treatment
on [his] jail situation . . . .’’ Shannon further admitted
that he received the favorable treatment for which he
bargained. Although he was in pretrial detention on two
felony offenses, he was released without having to pay
a bond shortly after contacting the police. Additionally,
Shannon was not sentenced to any jail time in connec-
tion with the two felony charges, even though he was
on probation when he committed those offenses and
someone with Shannon’s criminal background typically
would receive a more severe sentence.
At the conclusion of the trial, defense counsel
requested a special credibility instruction with respect
to Shannon’s testimony in accordance with State v.
Patterson, supra, 276 Conn. 469–70.3 The defendant con-
tended that a jailhouse informant instruction was war-
ranted because Shannon ‘‘was incarcerated and
awaiting trial for felony charges when he first provided
information to the police,’’ testified that he ‘‘provided
such information to the police because he wanted to get
out of jail and because he hoped to receive a favorable
disposition [on] his pending criminal charges,’’ and, ‘‘in
fact, received . . . these benefits as a result of the
information he provided to the police in February,
2013.’’ The state did not object to the requested instruc-
tion, but the trial court declined to issue it. Instead, the
trial court issued a general credibility instruction4 and
singled out Shannon’s testimony for special consider-
ation because he previously had been convicted of fel-
ony offenses.5
After the case was submitted to the jury for delibera-
tion, the jury asked to review the testimony of Teele
and Shannon. The jury also asked the trial court to
replay the defendant’s June 25, 2010 video-recorded
interview with Tenn, as well as Lawson’s testimony.
After reviewing the requested information and deliber-
ating further, the jury found the defendant guilty of the
charged offenses. The trial court rendered judgment in
accordance with the jury’s verdict and sentenced the
defendant to a total effective sentence of fifty years of
imprisonment.
The Appellate Court affirmed the defendant’s judg-
ment of conviction. State v. Jones, 187 Conn. App. 752,
754, 770, 203 A.3d 700 (2019). The Appellate Court deter-
mined that the defendant was not entitled to a jailhouse
informant instruction pursuant to State v. Diaz, supra,302 Conn. 101–102, and State v. Salmond, 179 Conn.
App. 605, 627–28, 180 A.3d 979, cert. denied, 328 Conn.
936, 183 A.3d 1175 (2018), on the ground that Shannon
‘‘did not testify as to a confession that the defendant
made while they were fellow inmates.’’ State v. Jones,
supra, 761. Because ‘‘Shannon testified about events
that he had witnessed and a confession that took place
while both of them were socializing outside of the
prison environment’’; id., 762; the Appellate Court deter-
mined that the trial court’s ‘‘general credibility instruc-
tion [was] sufficient.’’6 Id., 764.
On appeal, the defendant contends that he was enti-
tled to a jailhouse informant instruction because Shan-
non was an incarcerated witness who had a strong
incentive to fabricate false testimony regarding the
defendant’s confession to the commission of the crimes
charged.7 The defendant points out that Shannon was
in pretrial detention at the time he approached the
police with information and that Shannon expected to—
and, in fact, received—special favor from the state in
exchange for his testimony. The state responds that
Shannon was not a jailhouse informant for whom a
special credibility instruction was required because,
unlike ‘‘a jailhouse confession, which easily can be fab-
ricated and is difficult to meaningfully cross-examine,’’
testimony about a confession that occurred outside of
prison is ‘‘not easily fabricated,’’ may be ‘‘meaningfully
tested by cross-examination, and [is] subject to compar-
ison with other evidence in the case.’’ We agree with
the defendant and, therefore, reverse the judgment of
the Appellate Court.
The general rule is that ‘‘a [criminal] defendant is not
entitled to an instruction singling out any of the state’s
witnesses and highlighting his or her possible motive for
testifying falsely.’’ (Internal quotation marks omitted.)
State v. Diaz, supra, 302 Conn. 101. ‘‘This court has
held, however, that a special credibility instruction is
required for three types of witnesses, namely, complain-
ing witnesses,8 accomplices9 and jailhouse informants.’’
(Footnotes altered.) Id., 101–102. With respect to jail-
house informants, we have explained that a special
credibility instruction is required because ‘‘an informant
who has been promised a benefit by the state in return
for his or her testimony has a powerful incentive, fueled
by self-interest, to implicate falsely the accused. Conse-
quently, the testimony of such an informant . . . is
inevitably suspect.’’ State v. Patterson, supra, 276 Conn.
469. ‘‘As the United States Supreme Court observed
[almost seventy] years ago, ‘[t]he use of informers,
accessories, accomplices, false friends, or any of the
other betrayals which are ‘‘dirty business’’ may raise
serious questions of credibility.’ ’’ Id., quoting On Lee
v. United States, 343 U.S. 747, 757, 72 S. Ct. 967, 96
L. Ed. 1270 (1952). Accordingly, courts have allowed
criminal defendants ‘‘broad latitude to probe [infor-
mants’] credibility by cross-examination’’ and to have
‘‘the credibility issue [submitted] to the jury with care-
ful instructions.’’ (Emphasis in original; internal quota-
tion marks omitted.) State v. Patterson, supra, 469.
These careful instructions include an advisement that
the testimony of a jailhouse informant should ‘‘be
reviewed with particular scrutiny and weighed . . .
with greater care than the testimony of an ordinary
witness.’’ (Internal quotation marks omitted.) Id., 465.
In State v. Arroyo, 292 Conn. 558, 567, 973 A.2d 1254(2009), cert. denied, 559 U.S. 911, 130 S. Ct. 1296, 175
L. Ed. 2d 1086 (2010), we held that ‘‘Patterson’s require-
ment for a special credibility instruction . . . should
be extended to apply to the testimony of all jailhouse
informants,’’ regardless of whether the informant has
‘‘received a promise of a benefit’’ from the state. We
reasoned that ‘‘there have been a number of high profile
cases involving wrongful convictions based on the false
testimony of jailhouse informants’’ and that ‘‘the expec-
tation of a [r]eward for testifying is a systemic reality
. . . even [when] the informant has not received an
explicit promise of a reward. In addition, several com-
mentators have pointed out that jailhouse informants
frequently have motives to testify falsely that may have
nothing to do with the expectation of receiving benefits
from the government.’’ (Citation omitted; footnote omit-
ted; internal quotation marks omitted.) Id., 567–69. ‘‘In
light of [the] growing recognition of the inherent unre-
liability of jailhouse informant testimony, we [were]
persuaded that the trial court should give a special
credibility instruction to the jury whenever such testi-
mony is given, regardless of whether the informant has
received an express promise of a benefit.’’ Id., 569. In
guiding the jury’s assessment of witness credibility in
this particular context, we indicated that ‘‘the trial court
may ask the jury to consider: the extent to which the
informant’s testimony is confirmed by other evidence;
the specificity of the testimony; the extent to which the
testimony contains details known only by the perpetra-
tor; the extent to which the details of the testimony
could be obtained from a source other than the defen-
dant; the informant’s criminal record; any benefits
received in exchange for the testimony; whether the
informant previously has provided reliable or unreliable
information; and the circumstances under which the
informant initially provided the information to the
police or the prosecutor, including whether the infor-
mant was responding to leading questions.’’ Id., 570–71.
Nonetheless, a criminal defendant does not have an
automatic or absolute right to the issuance of a jailhouse
informant instruction. Although the trial court is
required to give such an instruction when a proper
request to charge has been submitted, the trial court
does not commit plain error if it fails to give the instruc-
tion sua sponte, so long as ‘‘the court has instructed
the jury generally on the credibility of witnesses’’ and
the jury is aware of the witness’ motivation for testi-
fying. State v. Ebron, 292 Conn. 656, 675–76, 975 A.2d
17 (2009), overruled in part on other grounds by State
v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011); see also
State v. Diaz, supra, 302 Conn. 95 (holding that trial
court did not commit plain error when it failed to issue,
sua sponte, jailhouse informant instruction regarding
the testimony of three witnesses ‘‘who were involved
in the criminal justice system and, therefore, may have
had a personal interest in testifying for the state’’).
With these principles in mind, we consider the issue
presented by this case, which is whether a trial court
properly rejects a criminal defendant’s request to
charge the jury regarding the special credibility princi-
ples governing jailhouse informant testimony when an
informant, who was incarcerated at the time he or she
approached the police with information regarding the
defendant’s commission of the crimes charged, testifies
at trial as to an alleged confession that the defendant
made outside of the prison environment. Although we
have not previously addressed this question, we dis-
cussed when a jailhouse informant instruction is
required in State v. Diaz, supra, 302 Conn. 99–114, as
part of our plain error review and analysis of whether
to exercise our supervisory authority. In that case, the
defendant, Luis Diaz, was convicted of fatally shooting
a man outside of a bar in Bridgeport. Id., 95. Three
witnesses offered inculpatory information about the
defendant’s commission of the crime in exchange for
beneficial treatment in their own pending criminal mat-
ters. Id., 95–96. Two of the witnesses were eyewitnesses
to the shooting. Id., 96–97. The third witness, Eddie
Ortiz, testified that he had witnessed the shooting and
that Diaz had made inculpatory statements to him while
the two men were ‘‘placed in the same holding cell
. . . .’’ Id., 96; see id. (Ortiz testified that Diaz ‘‘said to
him, ‘[y]ou know what I did’ and ‘I know where you
live at’ ’’ and ‘‘offered him $5000 not to testify’’). With
respect to the first two witnesses, we noted that ‘‘Pat-
terson has not been applied to require a special credibil-
ity instruction when an incarcerated witness has testi-
fied concerning events surrounding the crime that he
or she witnessed outside of prison, as distinct from
confidences that the defendant made to the witness
while they were incarcerated together.’’ Id., 102.
Accordingly, we observed that it ‘‘would be an expan-
sion of Patterson’’ to require a jailhouse informant
instruction and opined that the failure to give the special
credibility instruction concerning these two eyewit-
nesses could not have been plain error because it
‘‘would not have been improper even if [Diaz] had
requested such an instruction.’’ Id., 104. As for Ortiz,
who testified both as to events that he observed outside
of prison as well as inculpatory statements that Diaz
made while the two men were fellow inmates incarcer-
ated together, we explained that, even if we ‘‘assume[d]
that the trial court’s failure to give a special credibility
instruction for Ortiz would have been improper under
Arroyo if [Diaz] had requested such an instruction, the
court’s failure to do so sua sponte did not rise to the
level of reversible plain error under Ebron because the
trial court gave a general credibility instruction and the
jury was made aware of Ortiz’ motivation for testifying.’’
Id., 104–105.
We also rejected Diaz’ alternative claim ‘‘that this
court [should] exercise its supervisory power to instruct
the trial courts that they must give a special credibility
instruction whenever a witness in a criminal case is
incarcerated or is serving out a sentence, or otherwise
is in a position to receive a benefit from the state in
exchange for testifying, as long as there is some addi-
tional evidence indicating that the witness is not wholly
reliable or that he expects some benefit from this testi-
mony.’’ Id., 106. We acknowledged ‘‘that some of the
same concerns that gave rise to our decision in Arroyo
are present whenever a witness is in a position to
receive a benefit from the government’’ but disagreed
that ‘‘these concerns are as weighty in cases [in which]
the witness is not testifying about a jailhouse confes-
sion, but is testifying about events concerning the crime
that the witness observed. Testimony by a jailhouse
informant about a jailhouse confession is inherently
suspect because of the ease with which such testimony
can be fabricated, the difficulty in subjecting witnesses
who give such testimony to meaningful cross-examina-
tion and the great weight that juries tend to give to
confession evidence.’’ Id., 109. ‘‘In contrast, when a
witness testifies about events surrounding the crime
that the witness observed, the testimony can be com-
pared with the testimony of other witnesses about those
events, and the ability of the witness to observe and
remember the events can be tested.’’ Id., 110. This rea-
soning led us to ‘‘decline [Diaz’] request that we exercise
our supervisory powers to instruct the trial courts that
they must give a special credibility instruction in every
such case.’’ Id., 111. We emphasized, however, that ‘‘the
trial courts . . . have the discretion to give a special
credibility instruction’’ whenever they reasonably
believe ‘‘that a witness’ testimony may be particularly
unreliable because the witness has a special interest in
testifying for the state and the witness’ motivations may
not be adequately exposed through cross-examination
or argument by counsel.’’ Id., 113. ‘‘In determining
whether to give such an instruction, the trial court may
consider the circumstances under which the witness
came forward; the seriousness of the charges with
which the witness has been charged or convicted; the
extent to which the state is in a position to provide a
benefit to the witness and the potential magnitude of
any such benefit; the extent to which the witness’ testi-
mony is corroborated by other evidence; the impor-
tance of the witness’ testimony to the state’s case; and
any other relevant factor.’’ Id.Diaz delineates a clear distinction between a ‘‘classic
jailhouse informant,’’ who testifies regarding inculpa-
tory statements that the defendant made while the infor-
mant and the defendant were ‘‘incarcerated together’’;
id., 99 n.4; and an incarcerated witness who offers testi-
mony ‘‘about events concerning the crime that the wit-
ness observed’’ outside of prison. Id., 109. For the for-
mer category of witnesses, the trial court is required
to give a jailhouse informant instruction pursuant to
Patterson and Arroyo, whereas ‘‘cross-examination and
argument by counsel are far more likely to be adequate
tools for exposing the truth’’ with respect to the latter
type of witness, and, consequently, a jailhouse infor-
mant instruction is not required. Id., 110.
The witness in the present case, Shannon, fits neither
category of witness described in Diaz because he is
neither the ‘‘classic jailhouse informant’’ nor an incar-
cerated witness whose testimony is solely about events
he observed outside of prison. Whether the holdings in
Patterson and Arroyo apply to Shannon, an incarcer-
ated witness who testified about inculpatory statements
that the defendant made outside of prison, is a question
of law, over which we exercise plenary review. See, e.g.,
MacDermid, Inc. v. Leonetti, 328 Conn. 726, 738–39,
183 A.3d 611 (2018). We conclude that the logic and
policy driving our precedent compel the conclusion that
Patterson and Arroyo apply to witnesses, like Shannon,
who were incarcerated at the time they offered or pro-
vided testimony regarding a defendant’s inculpatory
statements, regardless of the location where those
statements were made.
As the foregoing discussion of Patterson, Arroyo, and
Diaz makes clear, a special credibility instruction is
required for jailhouse informants because (1) they
‘‘have an unusually strong motive to implicate the
accused falsely’’; State v. Patterson, supra, 276 Conn.
470 n.11; (2) confession evidence ‘‘may be the most
damaging evidence of all’’; (internal quotation marks
omitted) id.; and (3) false confessions are easy to fabri-
cate, but difficult to subject to ‘‘meaningful cross-exami-
nation . . . .’’ State v. Diaz, supra, 302 Conn. 109.
These factors coalesce to create an impermissible risk
of ‘‘wrongful convictions based on the false testimony
of jailhouse informants.’’ State v. Arroyo, supra, 292
Conn. 567. Indeed, false confession evidence from infor-
mants ‘‘is the leading factor associated with wrongful
convictions in capital cases’’ and ‘‘a major factor con-
tributing to wrongful convictions in noncapital cases.’’
(Emphasis in original.) J. Roth, ‘‘Informant Witnesses
and the Risk of Wrongful Convictions,’’ 53 Am. Crim.
L. Rev. 737, 744 (2016). Incarcerated witnesses who
trade information regarding a defendant’s confession
for favorable treatment from the state not only have
‘‘deep conflicts of interest’’ that result in ‘‘the least credi-
ble type of evidence,’’ but they also offer testimony that
is ‘‘among the most persuasive to jurors because [they]
typically allege to have personally heard defendants
confess their guilt to the crimes charged. Introduction
of a defendant’s confession, from any source, radically
changes the complexion of a case, particularly one lack-
ing other evidence that directly implicates the defen-
dant in the crime.’’ R. Covey, ‘‘Abolishing Jailhouse
Snitch Testimony,’’ 49 Wake Forest L. Rev. 1375, 1375
(2014).
The grave risks posed by false confession testimony
from incarcerated informants, and the difficulty of miti-
gating those risks through meaningful cross-examina-
tion, do not depend on the location where the alleged
false confession occurs.10 Regardless of whether a crim-
inal defendant’s alleged confession takes place inside
or outside of prison, the incarcerated informant offering
such testimony has a strong personal motive to fabri-
cate a false confession, which by its nature would be
difficult, if not impossible, to undermine effectively
through cross-examination. As one scholarly commen-
tator has observed, such false confession evidence is
‘‘difficult to impeach effectively because it is invariably
of the ‘he said-she said’ variety. As long as the [incarcer-
ated informant] can plausibly testify that he had an
opportunity—no matter how fleeting—to speak with
the defendant, the [informant’s] claim that the defen-
dant confessed to him is practically unverifiable.
Defense counsel can impugn the credibility of the [infor-
mant], but many criminal defendants—especially defen-
dants with a criminal history—go into a jury trial with
their own credibility highly suspect and will often be
unlikely to come out on top in any swearing contest.’’11
Id., 1401–1402.
As the dissent notes, the United States Supreme Court
observed, in United States v. Henry, 447 U.S. 264, 274,
100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980), that there are
‘‘ ‘powerful psychological inducements to reach for aid
when a person is in confinement.’ ’’ The dissent focuses
too narrowly on how these inducements may prompt
an incarcerated defendant ‘‘to speak to another inmate
about his crimes’’ when the correct analysis examines
the manner in which the self-serving inducements may
incentivize an incarcerated witness to fabricate false
confession evidence. The dissent’s erroneous focus mis-
apprehends the fundamental purpose and function of
the special credibility instruction, reflected in our own
precedents, which is not to alert the jury to the possibil-
ity of an involuntary or coerced confession but, instead,
to caution the jury that a jailhouse informant’s testi-
mony must ‘‘be reviewed with particular scrutiny and
weighed . . . with [great] care’’ in light of the witness’
‘‘powerful motive to falsify his or her testimony . . . .’’
(Internal quotation marks omitted.) State v. Patterson,
supra, 276 Conn. 465, 469; see also State v. Diaz, supra,302 Conn. 102–103 (‘‘[t]he rationale for requiring a spe-
cial credibility instruction . . . is that . . . the testi-
mony of [a jailhouse] informant, like that of an accom-
plice, is inevitably suspect’’ (internal quotation marks
omitted)); State v. Arroyo, supra, 292 Conn. 569 (recog-
nizing ‘‘the inherent unreliability of jailhouse informant
testimony’’).
The inherent unreliability of jailhouse informant testi-
mony, combined with the endemic problems of proof,
has prompted ‘‘at least eighteen states’’ to require ‘‘some
corroboration of jailhouse informant testimony to sup-
port a conviction . . . .’’ State v. Marshall, 882 N.W.2d
68, 83 (Iowa 2016), cert. denied, U.S. , 137 S.
Ct. 829, 197 L. Ed. 2d 68 (2017). Connecticut has now
joined many of its sister states by enacting legislation,
specifically, No. 19-131 of the 2019 Public Acts (P.A.
19-131), governing the admission of ‘‘jailhouse witness’’
testimony in criminal trials. Justice Palmer’s recent con-
curring and dissenting opinion in State v. Leniart, 333
Conn. 88, 215 A.3d 1104 (2019), thoroughly describes
that legislation and the critical safeguards that it imple-
ments: ‘‘That legislation, among other things, requires
that prosecutors who intend to introduce the testimony
of a jailhouse witness disclose certain information to
defense counsel, including the complete criminal his-
tory of the jailhouse witness, any pending charges, any
cooperation agreement between the state and the wit-
ness, any benefits offered or provided by the state to the
witness, the substance, time and place of any statement
allegedly given by the defendant to the witness, the
substance, time and place of any statement given by
the witness implicating the defendant in the charged
offense, whether, at any time, the witness recanted any
testimony subject to disclosure, and information con-
cerning any other criminal prosecution in which the
jailhouse witness previously testified or offered to tes-
tify. See P.A. 19-131, § 1. In addition, the legislation
establishes a statewide system for recording and
tracking information on the use of jailhouse witnesses.
See P.A. 19-131, § 3.’’ State v. Leniart, supra, 164–65
(Palmer, J., concurring in part and dissenting in part).
The legislature’s concern regarding reliability in this
particular context was great enough to prompt the
enactment of heightened procedural safeguards to
ensure judicial scrutiny of such testimony as a condition
of evidentiary admissibility, as Justice Palmer’s concur-
ring and dissenting opinion describes: ‘‘[P]erhaps most
significantly, under P.A. 19-131, in cases involving mur-
der, murder with special circumstances, felony murder,
arson murder, sexual assault in the first degree, aggra-
vated sexual assault in the first degree, and aggravated
sexual assault of a minor, and, upon motion of the
defendant, the trial court must conduct a hearing to
decide whether a jailhouse witness’ testimony is suffi-
ciently reliable to be admissible. See P.A. 19-131, § 2.
The legislation further provides that, unless the prose-
cutor can establish by a preponderance of the evidence
that the witness’ testimony is reliable, the court shall
not allow the testimony to be admitted. See P.A. 19-
131, § 2. Finally, in making its determination concerning
the reliability of the witness’ testimony, the court is
required to consider the factors enumerated in P.A. 19-
131, § 1, as well as the following factors: ‘(1) [t]he extent
to which the jailhouse [witness’] testimony is confirmed
by other evidence; (2) [t]he specificity of the testimony;
(3) [t]he extent to which the testimony contains details
known only by the perpetrator of the alleged offense;
(4) [t]he extent to which the details of the testimony
could be obtained from a source other than the defen-
dant; and (5) [t]he circumstances under which the jail-
house witness initially provided information supporting
such testimony to [the police] or a prosecutorial official,
including whether the jailhouse witness was responding
to a leading question.’ P.A. 19-131, § 2.’’ State v. Leniart,
supra, 333 Conn. 165–66 (Palmer, J., concurring in part
and dissenting in part).
Of particular importance here is that P.A. 19-131, as
amended by No. 19-132 of the 2019 Public Acts (P.A.
19-132), defines a ‘‘jailhouse witness’’ as ‘‘a person who
offers or provides testimony concerning statements
made to such person by another person with whom he
or she was incarcerated, or an incarcerated person who
offers or provides testimony concerning statements
made to such person by another person who is sus-
pected of or charged with committing a criminal
offense.’’ (Emphasis added.) P.A. 19-132, § 6, codified at
General Statutes (Supp. 2020) § 54-86o (d). Consistent
with our holding today, the procedural protections
embodied in P.A. 19-131 are not dependent on the loca-
tion where the defendant’s alleged statements occurred;
instead, they are applicable regardless of whether an
incarcerated witness testifies as to statements the
defendant made inside or outside of prison. See id. By
concluding that a ‘‘jailhouse informant’’ under Pat-
terson and its progeny is the same as a ‘‘jailhouse wit-
ness’’ under P.A. 19-131 and P.A. 19-132, we create a
harmonious body of law relating to the same subject
matter, consistent with the intent of the legislature.12
In the present case, Shannon was incarcerated at
the time he offered the state information regarding the
defendant’s confession to the victim’s murder in
exchange for leniency in his own criminal case.13
Because Shannon was an incarcerated informant who
offered and provided testimony about a criminal defen-
dant’s inculpatory statements, we conclude that he was
a jailhouse informant for whom a special credibility
instruction was required.14 The trial court therefore
improperly denied the defendant’s unopposed request
for a jailhouse informant instruction.
This does not end our inquiry, however, because we
must determine whether the trial court’s failure to
charge the jury in accordance with the defendant’s
request was harmful. ‘‘As we previously have recog-
nized, an instructional error relating to general princi-
ples of witness credibility is not constitutional in nature.
. . . Consequently, the defendant bears the burden of
establishing that the error deprived him of his due pro-
cess right to a fair trial.’’ (Citation omitted.) State v.
Patterson, supra, 276 Conn. 471–72. ‘‘[A] nonconstitu-
tional error is harmless when an appellate court has a
fair assurance that the error did not substantially affect
the verdict. . . . Several factors guide our determina-
tion of whether the trial court’s failure to give the
requested instruction was harmful. These considera-
tions include: (1) the extent to which [the jailhouse
informant’s] apparent motive for falsifying his testi-
mony was brought to the attention of the jury, by cross-
examination or otherwise; (2) the nature of the court’s
instructions on witness credibility; (3) whether [the
informant’s] testimony was corroborated by substantial
independent evidence; and (4) the relative importance
of [the informant’s] testimony to the state’s case.’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Arroyo, supra, 292 Conn. 571–72.
The first factor favors the state here because, as the
state points out, ‘‘the jury was well aware of Shannon’s
admitted motivational self-interest, the two and one-
half year delay in Shannon coming forward, the fact of
his incarceration, the pending charges that admittedly
drove him to provide the police with information, and
the benefits that he admittedly received from the police
and the state before he testified, all of which were
elicited during his examination and highlighted in the
closing arguments of counsel.’’ See State v. Arroyo,
supra, 292 Conn. 572 (concluding that first factor
favored state when ‘‘defense counsel cross-examined
both [jailhouse informants] extensively as to their
motive for testifying and addressed their incentive to
lie in closing argument’’); State v. Slater, 285 Conn.
162, 190, 939 A.2d 1105 (‘‘the informant’s potentially
improper motive for testifying . . . amply was brought
to the attention of the jury’’ because two witnesses
testified about informant’s deal with state and infor-
mant’s motive to lie was emphasized by defense counsel
during oral argument), cert. denied, 553 U.S. 1085, 128
S. Ct. 2885, 171 L. Ed. 2d 822 (2008); State v. Patterson,
supra, 276 Conn. 472 (‘‘the jury was well aware of the
fact that [the jailhouse informant] had been promised
certain benefits by the state in return for his cooperation
against the defendant’’ because testimony was elicited
on direct examination and cross-examination).
Turning to the second factor, we note that the trial court
issued a general credibility instruction, which advised
the jury that, when evaluating the credibility of a witness,
it should consider, among other things, ‘‘any interest,
bias, prejudice or sympathy [that] a witness may appar-
ently have for or against the state, or the accused or
in the outcome of the trial.’’ Footnote 4 of this opinion.
Although the trial court singled out Shannon’s testimony
for special consideration because he previously had been
convicted of certain felonies; see footnote 5 of this opin-
ion; the trial court failed to inform the jury of the other
factors that it properly may consider when evaluating
Shannon’s credibility, namely, ‘‘[1] [t]he extent to which
his testimony is confirmed by other evidence; [2] [t]he
specificity of the testimony; [3] [t]he extent to which
the testimony contains details known only by the perpe-
trator; [4] [t]he extent to which the details of the testi-
mony could be obtained from a source other than the
defendant; [5] [t]he informant’s criminal record; [6] [a]ny
benefits received in exchange for the testimony or pro-
viding information to the police or [the] prosecutor; [7]
[w]hether the witness expects to receive a benefit in
exchange for the testimony or providing information
to the police or prosecutor, regardless of whether such
an agreement actually exists; [8] [w]hether the witness
previously provided reliable or unreliable information;
[and] [9] [t]he circumstances under which the witness
initially provided the information to the police or the
prosecutor, including whether the witness was respond-
ing to leading questions.’’ See also Connecticut Criminal
Jury Instructions § 2.5-3, available at https://jud.ct.gov/
JI/Criminal/Criminal.pdf (last visited November 27, 2020).
The second factor therefore stands in equipoise.
The third and fourth factors, which we consider con-
junctively, militate in favor of the conclusion that the
trial court’s instructional error substantially affected
the jury’s verdict and deprived the defendant of his
right to a fair trial. There was no physical evidence
linking the defendant to the victim’s murder, and the
defendant’s confession to Shannon was brief, nonspe-
cific, and did not contain any details known only to
the perpetrator. The sole evidence corroborating the
defendant’s confession was Teele’s eyewitness testi-
mony, but Teele suffered from credibility problems of
her own in light of her self-interested motives arising
from her involvement in the criminal justice system.
Teele waited more than two years to inform the police
that she had witnessed the victim’s murder, and she
came forward only after she had been ‘‘picked . . . up’’
on drug charges. Although there is no evidence in the
record that the state dropped the charges against Teele
in exchange for her testimony against the defendant,
we previously have recognized that ‘‘there is frequently
an implicit understanding that [an informant involved
in the criminal justice system] will receive some consid-
eration in exchange for testifying.’’ State v. Diaz, supra,302 Conn. 109; see also Marquez v. Commissioner of
Correction, 330 Conn. 575, 603, 198 A.3d 562 (2019)
(recognizing state’s ‘‘practice of [entering into] infor-
mal, off-the-record leniency understandings with coop-
erating witnesses’’). Teele was not a jailhouse infor-
mant, but her involvement in the criminal justice system
raises ‘‘some of the same concerns that gave rise to our
decision in Arroyo . . . .’’ State v. Diaz, supra, 109.
The only person who corroborated Teele’s testimony
was Shannon, and the only person who corroborated
Shannon’s testimony was Teele. Given the interdepen-
dence of Teele’s and Shannon’s testimony, the critical
importance of their testimony to the state’s case, the
long delay precipitating their decision to come forward
with information, and the powerful, personal self-inter-
est that both witnesses had to testify against the defen-
dant in light of their own involvement in the criminal
justice system, the jury might have viewed both wit-
nesses’ testimony differently if it had received proper
instructions on evaluating Shannon’s credibility. We
therefore cannot conclude that the trial court’s
improper refusal to issue the jailhouse informant
instruction requested by the defendant was harmless.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
remand the case to the trial court for a new trial.
In this opinion PALMER, McDONALD and D’AURIA,
Js., concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** December 1, 2020, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
Martin Vincze, a police officer employed by the city of Bridgeport, testi-
fied that only one of the witnesses was willing to talk to the police about
the shooting. Vincze explained that he was not surprised by the lack of
cooperation because ‘‘[i]t’s a common thing in housing complexes.’’ Angela
Teele, a resident of the housing complex at the time of the shooting, con-
firmed that, ‘‘for the residents in and around the Greene Homes housing
project,’’ there is a ‘‘general culture of not helping the police’’ or being
a ‘‘snitch.’’
2
At trial, Lawson testified that the defendant and the victim knew ‘‘of
each other, but [did] not know each other like they were friends . . . .’’
Lawson’s prior video-recorded statement to the police, in which she stated
that the defendant and the victim knew each other, was admitted into
evidence at trial as a prior inconsistent statement under State v. Whelan,
200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597,
93 L. Ed. 2d 598 (1986). See, e.g., State v. Simpson, 286 Conn. 634, 641–42,
945 A.2d 449 (2008).
3
Defense counsel requested the following special credibility instruction:
‘‘A witness who testified in this case, [Shannon], was incarcerated and was
awaiting trial for some crimes other than the crime involved in this case at
the time he first provided information to [the] police. You should look with
particular care at the testimony of this witness and scrutinize it very carefully
before you accept it. You should consider the credibility of this witness in
the light of any motive for testifying falsely and inculpating the accused.
‘‘In considering the testimony of . . . Shannon, you may consider such
things as: [1] [t]he extent to which his testimony is confirmed by other
evidence; [2] [t]he specificity of the testimony; [3] [t]he extent to which the
testimony contains details known only by the perpetrator; [4] [t]he extent
to which the details of the testimony could be obtained from a source other
than the defendant; [5] [t]he informant’s criminal record; [6] [a]ny benefits
received in exchange for the testimony or providing information to the
police or [the] prosecutor; [7] [w]hether the witness expects to receive a
benefit in exchange for the testimony or providing information to the police
or prosecutor, regardless of whether such an agreement actually exists; [8]
[w]hether the witness previously provided reliable or unreliable information;
[and] [9] [t]he circumstances under which the witness initially provided the
information to the police or the prosecutor, including whether the witness
was responding to leading questions.’’
4
The trial court instructed the jury in relevant part: ‘‘I now want to discuss
the matter of credibility, by which I mean the believability of [the] witnesses.
You have observed the witnesses. The credibility, the believability, of the
witnesses and the weight to be given to their testimony are matters entirely
within your hands. It is for you alone to determine their credibility. Whether
or not you find the fact proven is not to be determined by the number of
witnesses testifying for or against it. Again, it is the quality, not the quantity,
of testimony [that] should be controlling. Nor is it necessarily so that you
have to accept a fact as true because a witness has testified to it and no
one contradicts it. The credibility of the witness and the truth of the fact
are for you to determine.
‘‘In weighing the credibility of the witnesses, you should consider the
probability or improbability of their testimony. You should consider their
appearance, conduct and demeanor while testifying and in court, and any
interest, bias, prejudice or sympathy [that] a witness may apparently have
for or against the state, or the accused or in the outcome of the trial. With
each witness, you should consider his ability to observe facts correctly,
recall them and relate them to you truly and accurately. You should consider
whether and to what extent witnesses needed their memories refreshed
while testifying. You should, in short, size up the witnesses and make your
own judgment as to their credibility and decide what portion—all, some or
none—of any particular witness’ testimony you will believe based on these
principles. You should harmonize the evidence as far as it can reasonably
be done. You should use all of your experience, your knowledge of human
nature and of the motives that influence and control human conduct, and
you should test the evidence against that knowledge. You should bring to
bear upon the testimony of the witnesses the same considerations and use
the same sound judgment you apply to questions of truth and veracity, as
they present themselves to you in everyday life.
‘‘You are entitled to accept any testimony which you believe to be true
and to reject either wholly or in part the testimony of any witness you
believe has testified untruthfully or erroneously. The credit that you will
give to any testimony offered is something [that] you alone must determine.
If you find that a witness has intentionally testified falsely, you should keep
that in mind and scrutinize the whole testimony of the witness. But it still
remains up to you to accept or reject all or any part of the testimony. If
you find that a witness has been inaccurate in some way, and you do not
think that the inaccuracy was consciously dishonest, you can consider that
inaccuracy in evaluating the rest of [the witness’] testimony. You know
that persons sometimes forget things or they get something wrong. The
significance you attach to a mistake may vary more or less with the particular
fact as to which the inaccuracy existed or with the surrounding circum-
stances. Give to it that weight which your own mind leads you to think it
ought to have, in which you would attach to it in the ordinary affairs of life
[when] someone came to you in a matter and you found in some particular,
he was inaccurate.’’
5
The trial court instructed the jury in relevant part: ‘‘There was evidence
that one witness, [Shannon], was previously convicted of certain felonies.
This evidence is . . . admissible [only] on the question of the witness’
credibility, that is, the weight that you will give his testimony. So a felony
conviction bears only on [the witness’] credibility. It is your duty to determine
whether any witness is to be believed wholly or partly or not at all. You
may consider a witness’ prior convictions in weighing his credibility, but it
is still your duty to decide what weight to give to the convictions as you
decide is fair and reasonable in determining the matter of credibility.’’
6
The Appellate Court also rejected the defendant’s claim that ‘‘[a] specific
instruction on the dangers of eyewitness identification was required in this
case’’; (internal quotation marks omitted) State v. Jones, supra, 187 Conn.
App. 765; reasoning that, because ‘‘both Teele and Shannon had known
the defendant prior to seeing him on the night of June 21, 2010,’’ their
‘‘identifications of the defendant did not give rise to the risk of misidentifica-
tion that the defendant’s requested instructions were specifically designed
to address.’’ (Footnote omitted.) Id., 770. The Appellate Court’s holding on
this point is not at issue in the present appeal.
7
Alternatively, the defendant urges this court to ‘‘extend the rule of State
v. Patterson, [supra, 276 Conn. 452], to all jailed informants who received
a benefit for their testimony.’’ (Emphasis added.) Because we agree with
the defendant that a jailhouse informant instruction was required in the
present case, even though Shannon testified about a confession that occurred
outside of the prison context, we need not address the defendant’s alternative
request for an expansion of the Patterson rule.
8
‘‘‘Under the complaining witness exception, when the complaining wit-
ness [himself] could . . . have been subject to prosecution depending only
upon the veracity of his account of [the] particular criminal transaction, the
court should . . . [instruct] the jury in substantial compliance with the
defendant’s request to charge to determine the credibility of that witness
in the light of any motive for testifying falsely and inculpating the accused.
. . . In order for [such a] request to be applicable to the issues in the case,
there must be evidence . . . to support the defendant’s assertion that the
complaining witness was the culpable party.’ ’’ State v. Diaz, supra, 302
Conn. 102 n.6, quoting State v. Patterson, supra, 276 Conn. 467–68.
9
‘‘‘[T]he inherent unreliability of accomplice testimony ordinarily requires
a particular caution to the jury [because] . . . [t]he conditions of character
and interest most inconsistent with a credible witness, very frequently, but
not always, attend an accomplice when he testifies. When those conditions
exist, it is the duty of the [court] to specially caution the jury.’ ’’ State
v. Diaz, supra, 302 Conn. 102 n.7, quoting State v. Patterson, supra, 276
Conn. 468.
10
The dissent points out that some states limit the definition of a jailhouse
informant to ‘‘those individuals testifying to statements made by the defen-
dant while the witness and the defendant were incarcerated together.’’ See
also footnote 2 of the dissenting opinion. This fact is unpersuasive, however,
for three reasons. First, the practice of other states in this context varies
widely, and there is no consensus; some states have adopted a limited
definition of a ‘‘jailhouse informant,’’ but many other states and scholarly
commentators take a broader view. See, e.g., Turner v. State, 515 P.2d 384,
386 (Alaska 1973) (special credibility instruction is appropriate for ‘‘an
interested witness,’’ who ‘‘is usually either paid, or hoping for lenient treat-
ment of his own crimes, or both’’ (internal quotation marks omitted)); State
v. Barksdale, 266 Kan. 498, 513, 973 P.2d 165 (1999) (special credibility
instruction is appropriate for ‘‘informant,’’ which is statutorily defined as
someone ‘‘who, in exchange for benefits from the [s]tate, acts as an agent
for the [s]tate in obtaining evidence against a defendant’’ (internal quotation
marks omitted)); A. Burnett, ‘‘The Potential for Injustice in the Use of
Informants in the Criminal Justice System,’’ 37 Sw. U. L. Rev. 1079, 1079
(2008) (jailhouse informants are ‘‘persons in custody or facing criminal
prosecution who have an expectation of some reward in the form of reduc-
tion of charges, eligibility for bail, leniency in sentencing or better conditions
of confinement’’ (internal quotation marks omitted)). Second, the dissent
overlooks the fact that federal courts have determined that a special credibil-
ity instruction is appropriate for any cooperating witness who ‘‘provide[s]
evidence against a defendant for some personal advantage or vindication,
as well as for pay or immunity.’’ People v. Dela Rosa, 644 F.2d 1257, 1259
(9th Cir. 1980); see also United States v. Garcia, 528 F.2d 580, 587–88 (5th
Cir.) (‘‘a defendant is entitled to a special cautionary instruction on the
credibility of an accomplice or a government informer if he requests it’’ in
order ‘‘to [e]nsure that no verdict based solely on the uncorroborated testi-
mony of a witness who may have good reason to lie is too lightly reached’’),
cert. denied, 429 U.S. 898, 97 S. Ct. 262, 50 L. Ed. 2d 182 (1976), and cert.
denied sub nom. Sandoval v. United States, 426 U.S. 952, 96 S. Ct. 3177, 49
L. Ed. 2d 1190 (1976). See generally 2A C. Wright & P. Henning, Federal
Practice and Procedure (4th Ed. 2009) § 490, pp. 478–79 (special credibility
instruction should be issued for ‘‘[a]n accomplice or informer, including
one testifying under a grant of immunity’’). Third, we are particularly disin-
clined to take guidance from the more restrictive practices adopted by a
handful of other states when our own legislature has chosen a broader
definition, which includes a witness who testifies as to a confession made
outside of the prison environment. See Public Acts 2019, No. 19-132, § 6,
codified at General Statutes (Supp. 2020) § 54-86o (d).
11
We disagree with the dissent that a defendant’s ability to cross-examine
an incarcerated witness regarding ‘‘the circumstances surrounding the
alleged confession’’ depends in any significant respect on where the alleged
confession is heard. Regardless of where the alleged confession occurred,
such testimony is ‘‘inherently suspect because of the ease with which such
testimony can be fabricated, the difficulty in subjecting witnesses who give
such testimony to meaningful cross-examination and the great weight that
juries tend to give to confession evidence.’’ State v. Diaz, supra, 302
Conn. 109.
12
The dissent believes that it is ‘‘unnecessary to harmonize’’ the legislative
definition of a ‘‘jailhouse witness’’ with our understanding of a ‘‘jailhouse
informant’’ because the legislature was not ‘‘invalidating our case law’s
definition as to jury instructions.’’ This observation misses the mark. Though
it is not necessary to harmonize the definitions, it certainly seems preferable
to do so unless there is a good reason for us to reject the legislature’s
underlying policy determination. To be sure, P.A. 19-131 and P.A. 19-132 were
not intended to prescribe rules regarding the issuance of special credibility
instructions, but it is entirely appropriate that our views of proper instruc-
tional language should be informed by the choice made by the legislature
to adopt a definition of ‘‘jailhouse witness’’ that is not dependent on the
location of the defendant’s alleged confession. We can think of no reason
to employ a more restrictive definition than the one adopted by the legisla-
ture to address precisely the same policy concern, namely, the potential
unreliability of a jailhouse witness’ testimony concerning statements pur-
portedly made by a criminal defendant. Pursuant to our decision today, the
pretrial protections embodied in P.A. 19-131 for the testimony of a ‘‘jailhouse
witness’’ will be coextensive with the trial protections afforded by the special
credibility instruction for the testimony of a ‘‘jailhouse informant.’’
13
Consistent with the legislative definition of a ‘‘jailhouse witness,’’ we
conclude that a special credibility instruction is required when a witness is
incarcerated at the time he or she either ‘‘offers or provides’’ testimony
regarding a defendant’s inculpatory statements. P.A. 19-132, § 6. In either
circumstance, there is a ‘‘need for caution’’ because the witness is in ‘‘the
power of the state, is looking to better his or her situation in a jailhouse
environment where bargaining power is otherwise hard to come by, and
will often have a history of criminality.’’ (Internal quotation marks omitted.)
State v. Arroyo, supra, 292 Conn. 568–69 n.9. We disagree with the dissent
that the expectation of ‘‘a future benefit’’ is the defining characteristic of
a jailhouse informant. (Emphasis in original.) The timing of the sought after
benefit is not critical because what matters is the witness’ incentive to
provide false testimony regarding a defendant’s inculpatory statements.
Indeed, we stated in Arroyo that a special credibility instruction is required
regardless of whether the defendant has received, or expects to receive, a
benefit. State v. Arroyo, supra, 569. We also disagree with the dissent that
‘‘the number of witnesses that would qualify as a jailhouse informant are
endless . . . .’’ To the contrary, we hold today that a special credibility
instruction is required only for those limited number of witnesses who
are incarcerated at the time they offer or provide testimony regarding a
defendant’s confession to criminal wrongdoing.
14
The state points out that Shannon was not only a jailhouse informant,
but also an eyewitness who testified about events he personally observed.
We agree with the state that Shannon’s eyewitness testimony concerning
the defendant’s presence at the Greene Homes housing complex on the
night of the victim’s murder ‘‘can be compared with the testimony of other
witnesses’’ and tested through cross-examination. State v. Diaz, supra, 302
Conn. 110. But Shannon did not provide only eyewitness testimony; he also
provided jailhouse informant testimony regarding the defendant’s confession
to the murder of the victim. For the reasons explained in the text of this
opinion, Shannon’s jailhouse informant testimony does not share the same
guarantees of trustworthiness as his eyewitness testimony, and, therefore,
a special credibility instruction was required. See id., 96, 104–05 (assuming,
without deciding, that ‘‘the trial court’s failure to give a special credibility
instruction for Ortiz,’’ who testified as both eyewitness and jailhouse infor-
mant, ‘‘would have been improper under Arroyo if [Diaz] had requested
such an instruction’’).