adverse inference instruction in Connecticut

2002Pursuant to Secondino v. New Haven Gas Co., 147 Conn. 672, 674-75 , 165 A.2d 598 (1960), “[t]he failure to produce a witness for trial who is available and whom a party would naturally be expected to call warrants an adverse inference instruction against the party who would be expected to call that witness.” (Internal quotation marks omitted.) Goodrum v. Commissioner of Correction, 63 Conn. App. 297 , 306 n.4, 776 A.2d 461 , cert. denied, 258 Conn. 902 , 782 A.2d 136 (2001).

2002Pursuant to Secondino v. New Haven Gas Co., 147 Conn. 672, 674-75 , 165 A.2d 598 (1960), “[t]he failure to produce a witness for trial who is available and whom a party would naturally be expected to call warrants an adverse inference instruction against the party who would be expected to call that witness.” (Internal quotation marks omitted.) Goodrum v. Commissioner of Correction, 63 Conn. App. 297 , 306 n.4, 776 A.2d 461 , cert. denied, 258 Conn. 902 , 782 A.2d 136 (2001).

2021In addition, as we have already explained, ‘‘an accused who exercises his right to refuse to testify has a constitutional right to a no adverse inference instruction when requested’’ under Carter v. Kentucky, supra, 450 U.S. 288 .

2021In addition, as we have already explained, ‘‘an accused who exercises his right to refuse to testify has a consti- tutional right to a no adverse inference instruction when requested’’ under Carter v. Kentucky, supra, 450 U.S. 288 .

1992General Statutes § 54-84 (b) “serves to effectuate the fundamental constitutional right of a defendant not to testify in his criminal trial.” State v. Sinclair, supra. The very nature of the no adverse inference instruction in this statute “is to dispel and ameliorate the inevitable speculation and to mitigate the damage to the defendant”; State v. Tyson, 23 Conn. App. 28, 43 , 579 A.2d 1083 (1990); and “to reduce to a minimum any jury speculation as to why an accused would remain silent in the face of a criminal accusation.” State v. Smith, 201 Conn. 659, 662-63 , 519 A.2d 26 (1986).

1992General Statutes § 54-84 (b) “serves to effectuate the fundamental constitutional right of a defendant not to testify in his criminal trial.” State v. Sinclair, supra. The very nature of the no adverse inference instruction in this statute “is to dispel and ameliorate the inevitable speculation and to mitigate the damage to the defendant”; State v. Tyson, 23 Conn. App. 28, 43 , 579 A.2d 1083 (1990); and “to reduce to a minimum any jury speculation as to why an accused would remain silent in the face of a criminal accusation.” State v. Smith, 201 Conn. 659, 662-63 , 519 A.2d 26 (1986).

1998Vincent’s Medical Center, 232 Conn. 632, 641 , 657 A.2d 578 (1995) (Borden, J., concurring); State v. Wood, 208 Conn. 125, 140 , 545 A.2d 1026 , cert. denied, 488 U.S. 895 , 109 S. Ct. 235 , 102 L.

1998Vincent’s Medical Center, 232 Conn. 632, 641 , 657 A.2d 578 (1995) (Borden, J., concurring); State v. Wood, 208 Conn. 125, 140 , 545 A.2d 1026 , cert. denied, 488 U.S. 895 , 109 S. Ct. 235 , 102 L.

1998Vincent’s Medical Center, 232 Conn. 632, 641 , 657 A.2d 578 (1995) (Borden, J., concurring); State v. Wood, 208 Conn. 125, 140 , 545 A.2d 1026 , cert. denied, 488 U.S. 895 , 109 S. Ct. 235 , 102 L.

1998An inquiry into the appropriateness of a Secondino instruction is, accordingly, two-pronged: whether the witness is available and whether, under the facts of this case, the witness is one whom the state would naturally be expected to produce.” (Citations omitted; internal quotation marks omitted.) State v. Wood, 208 Conn. 125, 140 , 545 A.2d 1026 , cert. denied, 488 U.S. 895 , 109 S. Ct. 235 , 102 L.

1998Vincent’s Medical Center, 232 Conn. 632, 641 , 657 A.2d 578 (1995) (Borden, J., concurring); State v. Wood, 208 Conn. 125, 140 , 545 A.2d 1026 , cert. denied, 488 U.S. 895 , 109 S. Ct. 235 , 102 L.

1998Vincent’s Medical Center, 232 Conn. 632, 641 , 657 A.2d 578 (1995) (Borden, J., concurring); State v. Wood, 208 Conn. 125, 140 , 545 A.2d 1026 , cert. denied, 488 U.S. 895 , 109 S. Ct. 235 , 102 L.

2020Co., 328 Conn. 60, 70 , 176 A.3d 1167 (2018); Duncan v. Mill Manage- ment Co. of Greenwich, Inc., 308 Conn. 1 , 28, 60 A.3d 222 (2013). 24 The trial court’s exclusion of Barner’s deposition testimony, like its pretrial ruling on the defendants’ motion in limine, placed the plaintiff on notice that the trial court intended to hold her to the representations she had made in requesting an adverse inference instruction.

2020Co., 328 Conn. 60, 70 , 176 A.3d 1167 (2018); Duncan v. Mill Manage- ment Co. of Greenwich, Inc., 308 Conn. 1 , 28, 60 A.3d 222 (2013). 24 The trial court’s exclusion of Barner’s deposition testimony, like its pretrial ruling on the defendants’ motion in limine, placed the plaintiff on notice that the trial court intended to hold her to the representations she had made in requesting an adverse inference instruction.

2019I just don’t think there’s any evidence there.’’ ‘‘[T]o prevail on appeal, [the defendant] must show both that the trial court abused its discretion in refusing to give the adverse inference instruction on the [missing evidence] and that it was more probable than not that the failure to give the requested instruction affected the result of the trial.’’ (Internal quotation marks omitted.) State v. Johnson, 67 Conn. App. 299, 314 , 786 A.2d 1269 (2001), cert. denied, 259 Conn. 918 , 791 A.2d 566 (2002). ‘‘Although an adverse inference instruction may be appropriate under certain circumstances, a

2019I just don’t think there’s any evidence there.’’ ‘‘[T]o prevail on appeal, [the defendant] must show both that the trial court abused its discretion in refusing to give the adverse inference instruction on the [missing evidence] and that it was more probable than not that the failure to give the requested instruction affected the result of the trial.’’ (Internal quotation marks omitted.) State v. Johnson, 67 Conn. App. 299, 314 , 786 A.2d 1269 (2001), cert. denied, 259 Conn. 918 , 791 A.2d 566 (2002). ‘‘Although an adverse inference instruction may be appropriate under certain circumstances, a

2019I just don’t think there’s any evidence there.’’ ‘‘[T]o prevail on appeal, [the defendant] must show both that the trial court abused its discretion in refusing to give the adverse inference instruction on the [missing evidence] and that it was more probable than not that the failure to give the requested instruction affected the result of the trial.’’ (Internal quotation marks omitted.) State v. Johnson, 67 Conn. App. 299, 314 , 786 A.2d 1269 (2001), cert. denied, 259 Conn. 918 , 791 A.2d 566 (2002). ‘‘Although an adverse inference instruction may be appropriate under certain circumstances, a

2012State v. Santangelo, 205 Conn. 578, 595-96 [ 534 A.2d 1175 ] (1987).” The court declined to give the requested charge, reasoning that the record did not provide a factual basis for such an instruction. 2 “Although an adverse inference instruction may be appropriate under certain circumstances, a trial court is not required to give an adverse inference instruction in every case involving missing evidence. ... [T]o prevail on appeal, [the defendant] must show both that the trial court abused its discretion in refusing to give the adverse inference instruction on the [missing evidence] and that i

2019I just don’t think there’s any evidence there.’’ ‘‘[T]o prevail on appeal, [the defendant] must show both that the trial court abused its discretion in refusing to give the adverse inference instruction on the [missing evidence] and that it was more probable than not that the failure to give the requested instruction affected the result of the trial.’’ (Internal quotation marks omitted.) State v. Johnson, 67 Conn. App. 299, 314 , 786 A.2d 1269 (2001), cert. denied, 259 Conn. 918 , 791 A.2d 566 (2002). ‘‘Although an adverse inference instruction may be appropriate under certain circumstances, a

2019I just don’t think there’s any evidence there.’’ ‘‘[T]o prevail on appeal, [the defendant] must show both that the trial court abused its discretion in refusing to give the adverse inference instruction on the [missing evidence] and that it was more probable than not that the failure to give the requested instruction affected the result of the trial.’’ (Internal quotation marks omitted.) State v. Johnson, 67 Conn. App. 299, 314 , 786 A.2d 1269 (2001), cert. denied, 259 Conn. 918 , 791 A.2d 566 (2002). ‘‘Although an adverse inference instruction may be appropriate under certain circumstances, a

2016In State v. Sinclair, supra, 197 Conn. 574 , 500 A.2d 539 , we queried, in dictum, "whether total noncompliance with § 54-84(b) can ever be harmless." Id., at 584 , 500 A.2d 539 .

2016In State v. Sinclair, supra, 197 Conn. 574 , 500 A.2d 539 , we queried, in dictum, "whether total noncompliance with § 54-84(b) can ever be harmless." Id., at 584 , 500 A.2d 539 .

2016Accordingly, because the trial court's omission of the no adverse inference instruction "is of constitutional dimension, [t]he applicable test requires the state to prove beyond a reasonable doubt that, from the viewpoint of the charge as a whole, there is no reasonable possibility that the jury was misled." 3 (Internal quotation marks omitted.) State v. Townsend, 206 Conn. 621 , 626, 539 A.2d 114 (1988).

2016Accordingly, because the trial court's omission of the no adverse inference instruction "is of constitutional dimension, [t]he applicable test requires the state to prove beyond a reasonable doubt that, from the viewpoint of the charge as a whole, there is no reasonable possibility that the jury was misled." 3 (Internal quotation marks omitted.) State v. Townsend, 206 Conn. 621 , 626, 539 A.2d 114 (1988).

2016Thereafter, in State v. Suplicki, supra, 33 Conn.App. 126 , 634 A.2d 1179 , the Appellate Court elected to decide the question that we left open in Sinclair and concluded that the total omission of the no adverse inference instruction is not amenable to harmless error analysis.

2016Thereafter, in State v. Suplicki, supra, 33 Conn.App. 126 , 634 A.2d 1179 , the Appellate Court elected to decide the question that we left open in Sinclair and concluded that the total omission of the no adverse inference instruction is not amenable to harmless error analysis.

2013Before trial, the defendant filed a motion to dismiss, pursuant to State v. Morales, 232 Conn. 707 , 657 A.2d 585 (1995), aff'd after remand, 39 Conn. App. 617 , 667 A.2d 68 , cert. denied, 235 Conn. 938 , 668 A.2d 376 (1995), or, alternatively, requested an instruction that the jury could draw an adverse inference based on the state’s failure to preserve certain evidence.

2013Before trial, the defendant filed a motion to dismiss, pursuant to State v. Morales, 232 Conn. 707 , 657 A.2d 585 (1995), aff'd after remand, 39 Conn. App. 617 , 667 A.2d 68 , cert. denied, 235 Conn. 938 , 668 A.2d 376 (1995), or, alternatively, requested an instruction that the jury could draw an adverse inference based on the state’s failure to preserve certain evidence.

2013Before trial, the defendant filed a motion to dismiss, pursuant to State v. Morales, 232 Conn. 707 , 657 A.2d 585 (1995), aff'd after remand, 39 Conn. App. 617 , 667 A.2d 68 , cert. denied, 235 Conn. 938 , 668 A.2d 376 (1995), or, alternatively, requested an instruction that the jury could draw an adverse inference based on the state’s failure to preserve certain evidence.

2013Before trial, the defendant filed a motion to dismiss, pursuant to State v. Morales, 232 Conn. 707 , 657 A.2d 585 (1995), aff'd after remand, 39 Conn. App. 617 , 667 A.2d 68 , cert. denied, 235 Conn. 938 , 668 A.2d 376 (1995), or, alternatively, requested an instruction that the jury could draw an adverse inference based on the state’s failure to preserve certain evidence.

2001“Although an adverse inference instruction may be appropriate under certain circumstances, a trial court is not required to give an adverse inference instruction in every case involving missing evidence.” State v. Lyle, 40 Conn. App. 288, 292 , 670 A.2d 871 , cert. denied, 237 Conn. 903 , 674 A.2d 1332 (1996). “[T]o prevail on appeal, [the defendant] must show both that the trial court abused its discretion in refusing to give the adverse inference instruction on the [missing evidence] and that it was more probable than not that the failure to give the requested instruction affected the result

1997See State v. Figueroa, 235 Conn. 145, 174-75 , 665 A.2d 63 (1995); State v. Lyle, 40 Conn. App. 288, 294 , 670 A.2d 871 , cert. denied, 237 Conn. 903 , 674 A.2d 1332 (1996).

2001“Although an adverse inference instruction may be appropriate under certain circumstances, a trial court is not required to give an adverse inference instruction in every case involving missing evidence.” State v. Lyle, 40 Conn. App. 288, 292 , 670 A.2d 871 , cert. denied, 237 Conn. 903 , 674 A.2d 1332 (1996). “[T]o prevail on appeal, [the defendant] must show both that the trial court abused its discretion in refusing to give the adverse inference instruction on the [missing evidence] and that it was more probable than not that the failure to give the requested instruction affected the result

1997See State v. Figueroa, 235 Conn. 145, 174-75 , 665 A.2d 63 (1995); State v. Lyle, 40 Conn. App. 288, 294 , 670 A.2d 871 , cert. denied, 237 Conn. 903 , 674 A.2d 1332 (1996).

2001“Although an adverse inference instruction may be appropriate under certain circumstances, a trial court is not required to give an adverse inference instruction in every case involving missing evidence.” State v. Lyle, 40 Conn. App. 288, 292 , 670 A.2d 871 , cert. denied, 237 Conn. 903 , 674 A.2d 1332 (1996). “[T]o prevail on appeal, [the defendant] must show both that the trial court abused its discretion in refusing to give the adverse inference instruction on the [missing evidence] and that it was more probable than not that the failure to give the requested instruction affected the result

2001“Although an adverse inference instruction may be appropriate under certain circumstances, a trial court is not required to give an adverse inference instruction in every case involving missing evidence.” State v. Lyle, 40 Conn. App. 288, 292 , 670 A.2d 871 , cert. denied, 237 Conn. 903 , 674 A.2d 1332 (1996). “[T]o prevail on appeal, [the defendant] must show both that the trial court abused its discretion in refusing to give the adverse inference instruction on the [missing evidence] and that it was more probable than not that the failure to give the requested instruction affected the result

1999The party seeking the adverse inference instruction bears the burden of proving both prongs of the test, and the trial court must make a preliminary determination that there is evidence in the record to support these elements.” (Internal quotation marks omitted.) State v. Lewis, 245 Conn. 779, 813-14 , 717 A.2d 1140 (1998).

1999The party seeking the adverse inference instruction bears the burden of proving both prongs of the test, and the trial court must make a preliminary determination that there is evidence in the record to support these elements.” (Internal quotation marks omitted.) State v. Lewis, 245 Conn. 779, 813-14 , 717 A.2d 1140 (1998).

1987In his request to charge, the defendant referred to State v. Hamele, 188 Conn. 372 , 449 A.2d 1020 (1982), which is the only case in which we have discussed an adverse inference instruction in the context of destroyed evidence. 10 In State v. Hamele, supra, 379-80 , the trial court refused to suppress testimony regarding certain physical evidence which had been destroyed before trial and thus was unavailable for testing by defense experts.

1987In his request to charge, the defendant referred to State v. Hamele, 188 Conn. 372 , 449 A.2d 1020 (1982), which is the only case in which we have discussed an adverse inference instruction in the context of destroyed evidence. 10 In State v. Hamele, supra, 379-80 , the trial court refused to suppress testimony regarding certain physical evidence which had been destroyed before trial and thus was unavailable for testing by defense experts.