State v. Kim

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The “officially released” date that appears near the beginning of an opinion is the date the opinion will be published in the Connecticut Law Journal or the date it is released as a slip opinion. The operative date for the beginning of all time periods for the filing of 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 Connecti- cut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the 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 an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************

State v. Kim

ECKER, J., concurring. I agree with the majority that the trial court abused its discretion by instructing the jury regarding consciousness of guilt on this record and that the error was harmless under the circumstances. I also agree with part III B of the majority opinion, which imposes procedural rules limiting the use of the con- sciousness of guilt instruction in future cases. I write separately because my agreement with the majority is qualified in two respects.

First, based largely on the concerns raised by Justice D’Auria in part I of his concurring and dissenting opin- ion, I do not agree with those aspects of the majority opinion in which the majority expresses reluctance to exercise this court’s supervisory authority in the present case on the basis of limitations imposed by the doctrines of supervisory authority or stare decisis. In light of the cogent discussion of these issues in the dissenting opin- ion, it is unnecessary to further elaborate the reasons that these two legal doctrines create no impediment to our exercise of supervisory authority over the conscious- ness of guilt jury instruction. If we were to determine, on the merits, that this instruction adversely impacts the administration of justice in Connecticut courts, then we would have not merely the right, but the responsibility, to exercise our supervisory authority to remedy the harm. If not us, then who? And, if we were to find—as we do in this case—that the instruction, though improper, did not cause harm in this particular case, our cases make it clear that we can adopt a new rule for prospective application only. See, e.g., State v. Carrion, 313 Conn. 823, 852, 100 A.3d 361 (2014).

Second, because I see substantial merit in the abolition- ist argument set forth in part II of the concurring and dissenting opinion, I wish to qualify my endorsement of the reformist approach adopted by the majority regard- ing the continued availability of a modified consciousness of guilt instruction for use on a much more restricted basis. I join the majority in this holding because I am hopeful that the reform works and provides sufficient

State v. Kim guidance to trial courts charged with the task of limiting use of the instruction to those unusual cases in which it is truly necessary. It is difficult for me to conceive of a situation in which the instruction would be needed, and neither the state nor the majority has supplied an illustrative hypothetical, but I am willing to accept that the instruction might someday find its application. If this court, in the future, concludes that this reform has not served its intended purpose, or has resulted in new or unforeseen problems, or otherwise has validated the critique set forth in part III of the concurring and dissenting opinion, then I would urge the court at that time to adopt the more absolutist position advocated by Justice D’Auria.

************************************************ The “officially released” date that appears near the beginning of an opinion is the date the opinion will be published in the Connecticut Law Journal or the date it is released as a slip opinion. The operative date for the beginning of all time periods for the filing of 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 Connecti- cut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the 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 an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************ D’AURIA, J., with whom McDONALD, J., joins, con- curring in part and dissenting in part. I agree with the majority that the trial court abused its discretion by instructing the jury on consciousness of guilt. I disagree with part III of the majority opinion, however, insofar as it suggests that either the limiting principles of our supervisory authority over the administration of jus- tice or the doctrine of stare decisis should prevent us from discontinuing use of the consciousness of guilt instruction. Further, I question the majority’s decision to perpetuate the continued validity of the consciousness of guilt instruction. I would either abolish the instruc- tion altogether or limit its use to cases in which it is requested by the defense or the defense does not object to the state’s request that the instruction be given, and the trial court provides a balanced and neutral instruc- tion that recites both parties’ characterization of the evidence at issue. Finally, I believe this case presents a closer call on the issue of harm than the majority sug- gests, and, ultimately, I do not have a fair assurance that the trial court’s error did not substantially affect the jury’s verdict.

I

The defendant, Yong Sik Kim, asks this court to find that the consciousness of guilt instruction given in this case was erroneous and harmful and to overturn his conviction. The defendant and the amici also ask us to eliminate the consciousness of guilt instruction in its totality; that is, direct that trial courts no longer provide the instruction, and leave it to counsel’s arguments and jurors’ own logic and experience to determine what, if any, inferences to draw from the evidence of a defen- dant’s supposed guilty conscience. The majority, con- cluding that the instruction was harmless in the present case, finds no injustice requiring a remedy but accepts the defendant’s invitation to revisit the utility of the instruc- tion—in part. Rather than do away with the instruction altogether, however, the majority restricts trial courts’ discretion to provide the instruction—discretion we all agree the trial court abused in the present case. See part II of this opinion. Under the majority’s new framework, the trial court should provide a consciousness of guilt instruction only if a tailored instruction will aid the jury beyond counsel’s arguments and the court’s general instructions on witness credibility and circumstantial evidence such that the need for the instruction outweighs the potential risks it poses and, either (1) the state can explain why the instruction is necessary or (2) the defense either requests the instruction or does not object.

I do not agree with the majority’s reluctance to embrace the position of both parties and the amici that the con- sciousness of guilt instruction is no longer necessary. At oral argument before this court, counsel for the state admitted that the instruction is not “critical” or required for jurors to capably assess the evidence at issue. Meanwhile, both the defendant and the amici have declined to take the position that the instruction should be maintained, even at the request of the accused in a particular case. Nor have I heard a persuasive argu- ment for maintaining the instruction. I agree with the defendant that the wisest course is to do away with the instruction entirely. In particular, I disagree with part III of the majority opinion to the extent it suggests that the principles that moderate the use of our supervisory authority or animate the doctrine of stare decisis weigh against eliminating the consciousness of guilt instruc- tion entirely any more than they weigh against nearly eliminating the instruction and constructing a new rubric for trial courts to follow in deciding when to employ it, as the majority does today.

A

First, the majority unnecessarily applies the standard that governs the exercise of our supervisory authority to overturn a defendant’s conviction—an extraordinary remedy subject to justifiably demanding scrutiny—when the standard that governs the exercise of our supervisory authority to articulate procedural rules or guidance for trial courts prospectively is not subject to this stringent standard. Although the defendant asks this court to use its supervisory authority to both overturn his convic- tion and to abolish consciousness of guilt instructions in future cases, the two questions present distinct inquiries for this court.

As the majority correctly explains, our cases invok- ing our supervisory authority to articulate procedures and rules that guide trial courts in the administration of justice fall into two categories. In the first category are those cases in which we “articulate a procedural rule as a matter of policy . . . without reversing convic- tions or portions thereof.” (Internal quotation marks omitted.) State v. Carrion, 313 Conn. 823, 850, 100 A.3d 361 (2014). “In the second category are cases [in which] we [exercise] our supervisory powers to . . . rem- edy a perceived injustice with respect to a preserved or unpreserved claim on appeal.” (Internal quotation marks omitted.) Id. Though our earlier cases have not always clearly articulated this distinction, in recent years this court has made an effort to differentiate and clarify these categories and the standards that govern each. See, e.g., State v. Elson, 311 Conn. 726, 768–71 n.30, 91 A.3d 862 (2014); State v. Diaz, 302 Conn. 93, 106–107 n.11, 25 A.3d 594 (2011); see also State v. Carrion, supra, 850. In State v. Carrion, supra, 313 Conn. 851, we explained that, for purposes of the second category of cases, a defendant must establish that the use of our supervisory authority is “truly necessary” to justify the “ ‘extraor- dinary remedy’ ” of reversing a conviction under our supervisory powers. (Emphasis omitted.) Id. The first category, on the other hand, involves cases, including the present case, in which this court has determined that the defendant had received a fair trial but that it was nevertheless appropriate to provide direction for trial courts to promote fairness in future cases. “[B]ecause we are not imposing any remedy in the case—let alone the extraordinary remedy of a new trial—there is no need for this court to justify the use of extraordinary measures prior to exercising its supervisory authority.” (Emphasis in original.) Id., 852. Instead, “we are free to invoke our supervisory authority prospectively when prudence and good sense so dictate.” Id. Because the majority concludes that the trial court’s error was harmless, and thus that the extraordinary remedy of a reversal of the defendant’s conviction is unwarranted, I would think that it would be unneces- sary to determine whether this court should invoke its supervisory authority to “reverse his conviction and categorically eliminate those instructions.” Rather, the present case falls squarely into the first category, in which we exercise our supervisory authority to articulate a procedural rule without disturbing a conviction while requiring only that “prudence and good sense” dictate the elimination of the consciousness of guilt instruction, or preserving it, as the majority does today, in a limited form. State v. Carrion, supra, 313 Conn. 852.

This court frequently invokes its supervisory author- ity to prophylactically direct trial courts to provide, eliminate, or modify a particular jury instruction when we have determined that the instruction at issue, even when viewed in isolation, presents a risk of misleading a future jury or otherwise undermines principles of fairness.1 In fact, modifications to jury instructions, along with judicially crafted and mandated canvasses of parties,2 constitute the most often employed uses of our supervisory authority. Though we recognize that this court adopts prospective procedural rules to address only serious matters that serve to protect the integrity and fairness of the judicial system as a whole; see, e.g., In re Daniel N., 323 Conn. 640, 645–46, 150 A.3d 657 (2016); our case law demonstrates that considerations favoring the use of our supervisory authority are at their zenith when we decide to craft, modify, or abolish a particular jury instruction to eliminate the risk that a future jury will be misled.

To state the obvious, I have not convinced a majority of the court today that prudence and good sense call for categorically eliminating consciousness of guilt instruc- tions in Connecticut courts. However, to do so would only require this court to determine, as other courts have, Conn. 49, 74–76, 801 A.2d 730 (2002) (revising “Chip Smith” charge and directing use of specific version of that charge in future cases); State v. Aponte, 259 Conn. 512, 522, 790 A.2d 457 (2002) (prohibiting future use of jury instruction that “one who uses a deadly weapon on the vital part of another ‘will be deemed to have intended’ the probable result of that act and that from such a circumstance the intent to kill properly may be inferred”); State v. Griffin, 253 Conn. 195, 209–10, 749 A.2d 1192 (2000) (prohibiting future use of “ ‘two-inference’ ” jury instruction); State v. Devalle, 250 Conn. 466, 475–76, 736 A.2d 125 (1999) (prohibiting jury instruction stating that reasonable doubt is not doubt suggested by “ ‘ingenuity of counsel’”); State v. Schiappa, 248 Conn. 132, 168, 175, 728 A.2d 466 (prohibiting jury instruction that requirement of proof beyond reasonable doubt is rule designed “ ‘to protect the innocent and not the guilty’ ”), cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999). that sound judicial policy justifies the exercise of our supervisory authority to eliminate the instruction—the same justification required for the majority to conclude that it is “appropriate to invoke our supervisory author- ity to clarify the proper use of consciousness of guilt instructions and to identify certain features that such instructions should and should not include” when given. Part III B of the majority opinion. In other words, the exercise of supervisory authority to prospectively elimi- nate a jury instruction is no more extensive an exercise of judicial power and requires no greater justification than prospectively modifying a jury instruction under our supervisory authority.

B

Similarly, principles of stare decisis do not prevent this court from prohibiting the future use of consciousness of guilt instructions any more than they prevent this court from departing from our precedent and limiting the instances in which the instruction should properly be given, as the majority has done today. Though this court has acknowledged the importance of stare decisis to the stability and continuity of our jurisprudence, we have also recognized that the principles of stare decisis are not “an insurmountable barrier to a court’s reconsideration of its prior precedent. . . . [T]he value of adhering to [past] precedent is not an end in and of itself . . . .” (Internal quotation marks omitted.) State v. Salamon, 287 Conn. 509, 520, 949 A.2d 1092 (2008). Rather, “[c]onsistency must also serve a justice related end.” (Internal quotation marks omitted.) Id.

Although we should never capriciously depart from precedent, when this court has determined, as the majority has today, that an existing jury instruction is ill-advised, potentially misleading, or has outlived its usefulness, stare decisis has not inhibited this court from modifying or eliminating that instruction. See, e.g., State v. Carrion, supra, 313 Conn. 847–49; State v. Aponte, 259 Conn. 512, 522, 790 A.2d 457 (2002); State v. Schiappa, 248 Conn. 132, 168, 175, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999). This is true even when those instructions have survived decades of common use and failed challenges; see, e.g., State v. Medrano, 308 Conn. 604, 629–31, 65 A.3d 503 (2013) (discontinuing use of instruction regarding defendant’s interest in outcome of case after decades of rejecting challenges to such variously worded instructions); and when we abolish both the use of a jury instruction and abrogate the underlying evidentiary rule itself. See State v. Malave, 250 Conn. 722, 738–39, 737 A.2d 442 (1999) (mindful of importance of stare decisis but nonetheless abandoning missing witness evidentiary rule and instruction in criminal cases), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000). Considerations in favor of stare decisis are less prohibi- tive when the issue is one of judicial policy, including how our trial courts instruct juries. See, e.g., Payne v. Tennessee, 501 U.S. 808, 828, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991) (considerations in favor of stare decisis are at their nadir in cases involving procedural and evidentiary rules).

The majority contends that the defendant has not demonstrated “compelling reasons” it believes are neces- sary under the stare decisis doctrine to justify departing from precedent and has not advanced new arguments that this court has not previously rejected. Part III A of the majority opinion. However, the majority apparently has found the defendant’s arguments at least somewhat more persuasive today than this court has in the past given that it has decided to narrow the circumstances in which a trial court should provide the consciousness of guilt instruction and to modify certain features of the charge, departing from precedent due, in part, to the repeated and varied challenges to these instructions that have come before this court.

Because modifying or creating new procedural rules necessarily requires a departure from precedent, we do not typically weigh the principles of stare decisis when deciding to articulate prospective guidance regarding judicial policy under our supervisory authority. It is precisely because we recognize that a jury instruction we have previously endorsed poses a risk that a future jury will be misled that we decide to craft, modify or abolish a jury instruction.

The majority’s approach overrules decades of precedent (albeit not by name) just as eliminating the instruction altogether would. The majority institutes new criteria requiring the state, upon objection by the defense to the state’s request for the instruction, to provide the trial court with a justification for why the instruction is necessary in a particular case. Our precedents have, of course, found no error when the state has not provided a justification that would meet the guidelines the majority announces today. Similarly, our precedents have never taken issue with trial courts’ providing juries with the Judicial Branch’s model consciousness of guilt instruc- tion; see footnote 14 of the majority opinion; which suggests only that the court recite the state’s position as to the consciousness of guilt evidence, or with a writ- ten instruction with the label or heading “Consciousness of Guilt,” which the majority cautions against today. It is impossible, then, to come away from the majority opinion believing that many of our earlier cases are left undisturbed. See, e.g., State v. Cooper, 353 Conn. 510, 561, 343 A.3d 465 (2025) (instruction provided over defense counsel’s objection without special justification by state recited only state’s evidence, referenced “ ‘guilty conscience’ ” and included phrase, “ ‘flight when unex- plained’ ”); State v. Coward, 292 Conn. 296, 314, 972 A.2d 691 (2009) (instruction referred only to state’s char- acterization of evidence); State v. Luster, 279 Conn. 414, 422–23 n.3, 902 A.2d 636 (2006) (instruction included reference to “ ‘guilty knowledge’ ” and “ ‘[f]light, when unexplained’ ”); State v. Figueroa, 257 Conn. 192, 196 n.8, 777 A.2d 587 (2001) (instruction included refer- ence to “ ‘guilty consciousness’ ” and recited only state’s evidence); State v. Hines, 243 Conn. 796, 811 n.10, 812 and n.12, 709 A.2d 522 (1998) (court declined defense counsel’s request to include innocent explanations for flight in consciousness of guilt instruction and included phrase, “ ‘[f]light, when unexplained’ ”).

Further, as the majority admits, “an examination of our precedent . . . reveal[s] that our cases involving consciousness of guilt have not clearly distinguished between the admissibility of consciousness of guilt evi- dence and the separate question of whether a trial court should instruct the jury on that evidence.” Part III B of the majority opinion. It is self-contradictory, in my view, for the majority in the same breath to assert that stare decisis should protect any precedent that remains untouched by its own reform. It does not follow that the principles of stare decisis do not prevent this court from amending the instruction but do require that this court hold onto fragments of the instruction simply because we have, in the past, declined to abolish or amend the instruction at all.

C

When addressing the propriety of consciousness of guilt instructions in future cases, this court should focus solely on whether the instruction, in any form, serves a justice related end, an issue squarely presented and thoroughly briefed.3 I am not convinced that it does, even when provided in the limited circumstances the majority has outlined today. Rather, I believe the time has come to abandon consciousness of guilt instructions entirely in Connecticut courts. The revisions the majority has promulgated today, though certainly a vast improve- ment, in my view highlight the inherent deficiencies of the instruction and illustrate that the instruction has outlived its usefulness, if ever it had any. Alternatively, I would not adopt the majority’s burden shifting frame- work and instead would limit the use of the instruction only to cases in which the defense has requested it or has no objection to the state’s request, and the court provides a balanced and neutral instruction that recites both parties’ characterization of the evidence at issue. I would discontinue the use of consciousness of guilt instructions for many of the policy reasons articulated by the defendant and the amici, and highlighted by the majority. Juries are likely to give undue weight to a defendant’s actions when a neutral judge emphasizes the culpability inference derived from the evidence and instructs them that the defendant’s conduct may be moti- vated by a guilty conscience. See, e.g., State v. Malave, supra, 250 Conn. 735 (“[t]here is a difference between what the jury might infer on its own, which can never be completely controlled, and what the jury might think when the absence of certain evidence is highlighted by . . . the judge’s instructions” (internal quotation marks omitted)). Courts have long recognized the need to aban- don the practice of trial courts summarizing or otherwise marshalling evidence absent special circumstances. See, e.g., United States v. Mundy, 539 F.3d 154, 158 (2d Cir. 2008) (describing flight instruction as “vestige of the late nineteenth and early twentieth centuries, when it was common practice for judges to summarize and comment upon the evidence generally” that has “[f]or good reason . . . fallen into widespread disfavor” because “[j]udges cannot marshal the evidence without exercising their own judgment” and invading province of jury). Trial courts have great influence over juries, and the risk that their endorsement of one of several possible inferences that could reasonably be drawn from the defendant’s conduct more explicitly than others carries a great risk of undue harm to defendants. See id.; see also State v. Hernandez, 218 Conn. 458, 462, 590 A.2d 112 (1991) (“[t]he influence of the trial judge on the jury is neces- sarily and properly of great weight and his lightest word or intimation is received with deference, and may prove controlling” (internal quotation marks omitted)).

I agree with the defendant that the competing infer- ences that could be drawn from the state’s consciousness of guilt evidence are more appropriately left to the argu- ments of the parties without the influence of the neutral trial court. See, e.g., United States v. Robinson, 475 F.2d 376, 384 (D.C. Cir. 1973) (“[t]he interest of justice is per- haps best served if this matter is reserved for counsel’s argument, with little if any comment by the bench”). The defendant, the majority, and the state agree that a court has no special expertise in the interpretation of human behavior, and jurors are fully capable of evaluating the evidence and arguments made by counsel and what infer- ences to draw from them. See United States v. Mundy, supra, 539 F.3d 157. To the extent juries are aided by instruction from the court on assessing circumstantial evidence and witness credibility, our general credibility and circumstantial evidence instructions provide suffi- cient guidance. Given the limited usefulness of a specific jury instruction on consciousness of guilt evidence, the risk that the instruction will unduly elevate the inference of consciousness of guilt will almost always outweigh the benefit.

Although the majority’s modifications to the con- sciousness of guilt instruction help neutralize risks, ultimately, the majority’s guidance highlights the fun- damental expendability of the instruction itself. The majority cautions that trial courts should instruct on consciousness of guilt only after balancing the need for the instruction against the potential risks associated with providing it. Therefore, before providing the instruction a trial court must determine that a tailored instruction will aid the jury beyond what counsel’s arguments and the general evidentiary instructions provide. However, as the majority notes, at oral argument counsel for the state struggled to articulate how the charge provided additional guidance to the jury.4 In fact, in its brief, the state, with admirable candor and with an eye toward practicality, suggests that, should this court adopt the limitations on the provision of the consciousness of guilt charge that the defendant urges, namely, that the charge be given only when the defense does not object, the defen- dant has not offered an innocent explanation for his conduct, and the evidence has considerable probative value—then this court “might as well simply abolish the charge entirely.” I see no greater value in keeping the charge under the reformed conditions that the major- ity today announces. An instruction on consciousness of guilt, in my view, is at best duplicative of the court’s general instructions on witness credibility and circum- stantial evidence and, at worst, unfairly prejudicial to the defendant because it emphasizes an inference of guilt over other possible inferences.

The state argues that this logic calls into question the validity of other instructions that a jury is perhaps fully capable of going without, and it is possible that this is true. However, I am reluctant to conclude that we should not abandon an instruction that is of minimal usefulness to the jury, that the state concedes is not necessary, and that carries a high risk of harm, simply because similar scrutiny of other jury instructions in cases not before us might warrant the same conclusion if challenged in the future. Further, I agree with the defendant that this instruction is perhaps more risky than other noncritical jury instructions because it strikes closest to the ultimate issue in any criminal case—the defendant’s guilt.

Because neither the state nor the majority can articu- late precisely why or when the jury needs guidance from the court on consciousness of guilt evidence beyond the court’s general instructions and the arguments of the parties, I conclude that the instruction is not worth keeping. Courts in jurisdictions across the country have cautioned against, discouraged, or prohibited conscious- ness of guilt instructions in some circumstances. See, e.g., United States v. Mundy, supra, 539 F.3d 157; United States v. Robinson, supra, 475 F.2d 384; Rob- bins v. People, 142 Colo. 254, 260, 350 P.2d 818 (1960) (consciousness of guilt instructions on flight are “ ‘rarely advisable’ ”); Fenelon v. State, 594 So. 2d 292, 294– (Fla. 1992) (comment on flight evidence should be reserved for counsel rather than court); Renner v. State, 260 Ga. 515, 518, 397 S.E.2d 683 (1990) (error for trial court in future criminal cases to charge jury on flight); Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001) (error to provide flight instruction due to its great potential to mislead jury); State v. Marsh, 392 N.W.2d 132, 133 (Iowa 1986) (trial court should ordinarily not draw atten- tion to specific evidence); State v. Cathey, 241 Kan. 715, 731, 741 P.2d 738 (1987) (“It is clearly erroneous for a judge to instruct the jury on a defendant’s con- sciousness of guilt by flight, concealment, fabrication of evidence, or the giving of false information. Such an instruction singles out and particularly emphasizes the weight to be given to that evidence by the jury.”); State v. Grant, 275 S.C. 404, 408, 272 S.E.2d 169 (1980) (flight charge places undue emphasis on circumstantial evidence and should not be used); State v. Menard, 424 N.W.2d 382, 384 (S.D. 1988) (model jury instruction on consciousness of guilt regarding flight or concealment “should be used sparingly”); Hawkins v. State, Docket No. 02-15-00338-CR, 2016 WL 4474351, *5 (Tex. Crim.

App. August 25, 2016, pet. ref’d) (jury instruction on flight improper because it comments on weight of evi- dence); State v. Jefferson, 11 Wn. App. 566, 571, 524 P.2d 248 (1974) (instructions that place emphasis on specific circumstantial evidence should be discarded); Hadden v. State, 42 P.3d 495, 508 (Wyo.) (giving of flight instruction to jury in future cases will constitute reversible error), cert. denied, 537 U.S. 868, 123 S. Ct. 272, 154 L. Ed. 2d 114 (2002).5 I see little virtue in delaying the elimination of such a widely criticized and marginally beneficial instruction.

Alternatively, I would preserve the instruction only in cases in which the defense requests the instruction or has no objection to the state’s request that it be given. The majority preserves the instruction, even over an objection by the defense, if the state can explain why the instruction is necessary; “that is, why the jury cannot, despite the court’s general instructions on circumstan- tial evidence and reasonable inferences, be expected to evaluate the consciousness of guilt evidence and draw the appropriate inferences without the court’s express guidance.” Part III B of the majority opinion. Further, the majority contends, “when the prosecutor cannot dem- onstrate that a specific consciousness of guilt instruction is necessary, the added instruction may do more to distort the jury’s deliberative process than to assist it and should not be given.” Id. Yet, the majority does not provide an example of what this hypothetical justification would entail, and the state’s concession at oral argument before this court that the instruction is not “critical” and that the jury does not need the instruction to capably assess the evidence suggests that this is an impossible task. Some might characterize my position as more “abso- lutist” or a greater exercise of judicial policymaking than the majority exercises today, but I do not see it that way. I respect that the currently constituted court has tacitly concluded that prudence and good sense dic- tate amending the instruction and implementing a new burden shifting test for the parties and trial courts to employ. My approach, on the other hand, would leave the parties to argue to the jury the inferences to be drawn from consciousness of guilt evidence without involv- ing the trial court. In my view, this is a more judicially modest approach.

Though I hope that, after today’s opinion, the con- sciousness of guilt instruction is used more sparingly, and is neutral and harmless when given, I believe that the majority’s commitment to maintaining an instruction with such limited value and high risk places an unneces- sary burden on trial judges and serves to generate avoid- able issues for appeal. If the instruction is ever given over an objection by the defense, this court or the Appellate Court will be in the always challenging position of try- ing to determine if the instruction was harmful, should we find that the instruction was given in error, until we inevitably abolish the instruction entirely. I turn to the question of harm next.

II

I agree with the majority that, even under binding law at the time of the defendant’s trial, the trial court abused its discretion by providing a consciousness of guilt instruction that unduly magnified the probative value of the consciousness of guilt evidence and blatantly favored the state’s characterization of the evidence. However, in my view, this case presents a closer call on the issue of harm than the majority’s brief treatment of the issue suggests, and I cannot agree that the trial court’s error did not deprive the defendant of a fair trial. In particu- lar, I do not agree that the erroneous instruction was rendered harmless in part by mitigating language in the offending (and now nearly abolished) instruction itself, or by other instructions the court provided to the jury. Nor do I agree that the split verdict that the jury returned in this case supports the conclusion that the instructional error was harmless. Finally, though I agree that the state presented sufficient evidence to sup- port the charges on which the jury found the defendant guilty, I am not convinced that the evidence was strong enough to render the court’s error in this case harmless. First, I do not agree that the court’s general instruc- tions on circumstantial evidence and witness credibility mitigated any harm caused by the court’s error. By pro- viding the jury with general circumstantial evidence and credibility instructions, while additionally providing a specific separate instruction on consciousness of guilt, highlighting and adopting only the state’s interpreta- tion of the evidence, the trial court exacerbated rather than mitigated the impact of the instruction. Further, if the erroneous consciousness of guilt instruction that the court gave the jury in the present case, which overtly sided with the state, can be rendered harmless by other general jury instructions, it is difficult to imagine when the instruction, if given in error, would ever be harm- ful. This simultaneously suggests that the general jury instructions completely overcome any remaining utility of the consciousness of guilt instruction and undermine the majority’s justification for amending and eliminating the instruction in so many contexts to minimize prejudice to the defendant.

I also do not accept that features of the court’s jury charge mitigated the impact of its error in providing the instruction and endorsing the state’s characterization of the evidence. The majority reasons that the conscious- ness of guilt instruction provided to the jury contained an “important limiting caveat”; part II of the majority opinion; by explaining to the jury that it could draw an inference of consciousness of guilt only if it first found that the evidence proved the relevant conduct and that the conduct was influenced by the criminal act and not any other reason. It is illogical, in my view, to conclude that the language of the model consciousness of guilt instruction itself renders the error harmless. Providing the model consciousness of guilt instruction language describing more precisely when it is appropriate to infer guilt from any particular evidence in no way mitigates the court’s error when the court summarized only the state’s evidence in the jury charge and placed its imprimatur on the state’s pejorative characterization of the evi- dence that the defendant had “chang[ed] his story . . . .” I am also not convinced that the fact that the jury found the defendant not guilty on multiple counts should increase our confidence that the erroneous instruction was harmless under the circumstances of this case. A split verdict might, in some cases, indicate that which the law already assumes: that the jury did not, as the majority states, “mechanically [translate] the court’s characterization of the evidence into a blanket finding of guilt”; part II of the majority opinion; see, e.g., State v. Ancona, 256 Conn. 214, 219, 772 A.2d 571 (2001) (“ ‘[u]nless there is evidence to the contrary, the jury is presumed to follow the court’s instructions’ ”). It does not necessarily follow, however, that the instruction in this case did not mislead the jury, nor does the major- ity provide any analysis of the evidence and charges to justify drawing that conclusion in this case. I cannot conclude that, because the jury did not find, beyond a reasonable doubt, each element of all of the charged crimes, the jury was therefore not influenced by the court’s erroneous instruction. See State v. Iban C., 275 Conn. 624, 644–45, 881 A.2d 1005 (2005) (rejecting state’s claim that acquittal on more serious charge of first degree sexual assault suggested that jury, which found defendant guilty on lesser charges, was not influenced by improper testimony). The majority’s conclusion sug- gests that the jury’s split verdict increases our confidence that the erroneous instruction was harmless because the jury assessed the victim’s credibility; however, it is the defendant’s credibility that an unbalanced consciousness of guilt instruction impacts. It is just as plausible in this case that the court’s putting its imprimatur on the state’s theory that the defendant “change[d] his story,” and its corresponding assumption that this reflected a guilty conscience, was what tipped the balance in the state’s favor on the least serious of the crimes charged, convinc- ing the jury to find the defendant guilty only of two third degree offenses, even though it could not find that the state had sustained its burden of proving facts sufficient to establish elements of crimes of significantly greater gravity. See State v. Maguire, 310 Conn. 535, 562–63 n.13, 78 A.3d 828 (2013) (rejecting state’s argument that defendant’s acquittal on two more serious sexual assault charges meant jury was not unduly influenced by prosecutorial impropriety).

In the present case, the state’s amended information contained six counts. First, the state alleged that the defendant had violated General Statutes § 53a-70 (a) (1), sexual assault in the first degree. Specifically, the state alleged that the defendant had digitally penetrated the victim’s vagina by use of force, causing her to fear physical injury. The state presented the victim’s tes- timony and the testimony of an emergency medicine physician, William Begg, who examined the victim at the hospital. The state also entered into evidence photos of the victim’s injuries and her statement to the police, as well as evidence that the defendant’s DNA was found on the victim’s pants.

Second, the state charged the defendant with sexual assault in the third degree in violation of General Stat- utes § 53a-72a (a) (1) (A), alleging that the defendant had compelled the victim to submit to sexual contact with one of the victim’s breasts by use of force. The state relied on the victim’s testimony that the defendant had pushed her to the floor and held her down, lifted her shirt and bra, licked and touched her breasts, and squeezed her vagina. The state also relied on evidence of the defendant’s DNA on the inside of the victim’s pants, as well as Begg’s tes- timony about bruising present on the victim’s shoulder and chest four days after the incident.

Third, the state alleged that the defendant had unlaw- fully restrained the victim under circumstances that exposed her to a substantial risk of physical injury in violation of General Statutes § 53a-95 (a). Again, the state presented the victim’s testimony that the defen- dant had held her down as she begged him to let her go, as well as Begg’s testimony regarding her injuries, in support of this charge.

Fourth, the state charged the defendant with assault in the third degree of an elderly person in violation of General Statutes § 53a-61a (a) (1), alleging that he had intentionally caused physical injury to the victim, who was at least sixty years old. The state presented the vic- tim’s testimony that the defendant had pushed her to the ground, pushed her onto a bed by her shoulders, and grabbed her arms, as well as Begg’s testimony regarding her injuries.

Fifth, the state charged the defendant with strangula- tion in the second degree in violation of General Statutes § 53a-64bb (a), alleging that he had restrained the victim by her neck or throat, or obstructed her nose or mouth with the intent to impede her ability to breathe. The state presented the victim’s testimony that the defendant had placed his hand on her neck and covered her nose and mouth, and that she felt she could not breathe. The state also presented the testimony and reports of Begg, who had examined the victim and found what he referred to as “questionable bruising” on the victim’s neck.

Sixth, and finally, the state charged the defendant with threatening in the second degree in violation of General Statutes § 53a-62 (a) (1), alleging that the defendant, by physical threat, had intentionally placed or attempted to place the victim in fear of imminent serious physical injury. The state relied on the victim’s testimony that the defendant had raised his hand as if to hit her, as well as the defendant’s own testimony that he had raised his hand to strike her and that the victim blinked in response and appeared to be afraid.

The defendant testified in his own defense, stating that he was at the victim’s home at her request to inspect her windows, a request he had previously declined. He stated that, shortly after he arrived, the victim indicated that she was going to shower while he inspected the windows and that she emerged from the shower, having changed out of her clothes and into a black lingerie style night- gown. He denied assaulting the victim and testified that the victim had initiated contact with him, hugging and grabbing him from behind while he attempted to leave the victim’s home. The defendant testified that he was surprised and angered by her advances and pushed her away forcefully, insulted her, and put his hand up to strike her. He stated that he then softened his tone of voice, promised he would not tell anyone about what had occurred, and left.

The consciousness of guilt evidence that the state presented was that the “defendant initially told Jill [Swearingen] and Alex Ache [employees of the company where both the defendant and the victim worked] that he never went to [the victim’s] residence on July 9, 2018,” though he later admitted that he did. The defendant never denied his presence at the victim’s home to the police. The state argued that the defendant’s initial inconsistencies with the company’s employees was evi- dence of the defendant’s guilt. At trial, the defendant offered his own explanation, consistent with what he had told the police during his interview, that he had promised the victim he would not tell anyone about what had happened between them. He explained further that he ultimately told the police about the details of what had happened during his interview with them days later “[b]ecause I’m in a lawful place, I have to [tell] the truth, and I told everything the truth.”

The jury found the defendant guilty of sexual assault in the third degree and assault of an elderly person in the third degree. However, the jury found him not guilty of the more serious charge of sexual assault in the first degree, as well as unlawful restraint in the first degree, strangulation in the second degree, and threatening in the second degree. We can never be certain why a jury finds a defendant guilty, beyond a reasonable doubt, on any particular charge. However, in assessing whether the jury was misled by the trial court’s erroneous and imbalanced instruction—an instruction that will be given rarely, if ever, in future cases due to the high risk that it will mislead juries—it is fair to assume that the jury did not credit all of the victim’s testimony. In particular, there is doubt, objectively, that the jury credited the victim’s testimony that the defendant had digitally penetrated her or strangled her, even though the jury found that the evidence supported the allegations that the defendant had some sort of forceful—includ- ing sexual—contact with the victim and caused her to sustain physical injury.

Ultimately, then, I conclude that, whether the court’s instructional error was harmless in this case can be resolved only by considering the strength of the state’s evidence relating to the charges on which the jury found the defendant guilty, to determine if it is reasonably probable that the jury was misled by the court’s error in giving the consciousness of guilt instruction—both because the evidence did not support the instruction and because it was so blatantly unbalanced. See State v. Edwards, 334 Conn. 688, 717, 224 A.3d 504 (2020) (nonconstitutional instructional errors are harmless if it is not reasonably probable that jury was misled). The majority’s own recounting of the instruction and the evi- dence that supported it persuades me that the language of the trial court’s consciousness of guilt instruction6 was harmful to the defendant and that this is something about which we do not have to speculate. As the majority indicates, the factual record on the consciousness of guilt evidence at issue “was far less definitive” than what the trial court portrayed to the jury. Part II of the major- ity opinion. The trial court informed the jury that the defendant had “change[d] his story” after first denying to Swearingen and Ache that he had gone to the victim’s residence on the day in question. As the majority indi- cates, however, Ache’s testimony left “uncertain both whether the defendant actually made any inconsistent statement and the circumstances in which any such statement was made.” Id. Further, the majority notes that, unlike in situa- tions involving a suspect’s untruthful denials to law enforcement, “the inferential link to consciousness of guilt remains attenuated” in that the evidence of the defendant’s supposed consciousness of guilt came “not so much [from] a false statement as [from] inconsistent statements made in the course of a single interview con- ducted by the defendant’s employer as part of its inter- nal investigation, under circumstances that, as Ache’s testimony suggests, may have been shaped by ‘work [the defendant] was doing with his attorney . . . .’ ” Id. Yet, the trial court characterized the defendant as having “change[d] his story,” which the majority acknowledges “carries a distinctly pejorative connotation, suggesting not merely inconsistency but a lack of credibility or an attempt to mislead . . . [that] risked signaling to the jury that the court endorsed the view that the defendant had made a false statement indicative of guilt, rather than leaving the jury free to assess the evidence and competing inferences on its own.” Part II of the majority opinion. By marshaling evidence only in support of the state’s case and endorsing the state’s pejorative characterization of the defendant’s statements, the court’s instruction overstated the evidence in the state’s favor when it was the jury’s sole province to evaluate that evidence.

Thus, the majority has concluded (and I agree) that, considering “the limited probative value of the under- lying testimony and the inference in the instruction that favored the state’s interpretation,” the trial court abused its discretion by giving the instruction. Id. The harm caused by the particular unbalanced instruction the court gave therefore exceeded the risk of harm inherent in any consciousness of guilt instruction, which exists “[a]ny time a trial court singles out a particular piece of evidence in its instructions or identifies a specific infer- ence that may be drawn from that evidence,” and today leads the majority to almost (but not quite) eliminate the instruction in all but a small fraction of cases. Part III B of the majority opinion, A defendant establishes harm as a result of a noncon- stitutional error by demonstrating that “it is reasonably probable that the jury [was] misled . . . .” (Internal quota- tion marks omitted.) State v. Adam P., 351 Conn. 213, 230, 330 A.3d 73 (2025). Specifically, “the defendant bears the burden of demonstrating that the [impropriety] was harmful. . . . [A] nonconstitutional [impropriety] is harmless when an appellate court has a fair assurance that the [impropriety] did not substantially affect the verdict.” (Internal quotation marks omitted.) State v. Boyd, 295 Conn. 707, 743, 992 A.2d 1071 (2010), cert. denied, 562 U.S. 1224, 131 S. Ct. 1474, 179 L. Ed. 2d 314 (2011). Given the trial court’s endorsement of the state’s interpretation of the defendant’s behavior over the explanations the defendant provided when testify- ing in his defense, and the jury’s finding nonetheless that the defendant was not guilty of four more serious charges, I cannot say that I have a “fair assurance” on this evidentiary record that the court’s error in giving the instruction, and the prejudice that flowed from it, as previously detailed, did not affect the jury’s verdict. Although I agree that the state presented sufficient evidence to support the victim’s version of events, and therefore to support the charges of sexual assault in the third degree and assault of an elderly person in the third degree, the defendant provided his explanation for the physical evidence. The defendant did not deny having physical contact with the victim, which could account for the DNA evidence the state presented, as well as the evidence of the victim’s injuries. The defendant testified that the victim initiated physical contact with him, hugging and grabbing him from behind while he attempted to leave the victim’s home, and that he force- fully grabbed her arms and pushed her away. The case still largely turned on the testimonial credibility of the victim and the defendant, notwithstanding the physical evidence, which was not implausibly consistent with the defendant’s account. Given the defendant’s acquittal on four of the charged offenses, it is reasonable to conclude that the jury did not credit the victim’s account of the assault in its entirety.

In addition to the victim’s testimony, the state pre- sented the jury with photos of bruising on the victim that were taken at the hospital days after the assault. The state also offered the testimony of Begg, who observed bruising on the victim’s left breast, upper arm, and right knee that he described as consistent with injuries that had occurred days earlier. Therefore, I agree that the victim’s and Begg’s testimony, along with photos, sufficiently supported the victim’s version of events as to the charges of sexual assault in the third degree and assault of an elderly person in the third degree. This does not necessarily mean, however, that the evidence was sufficiently strong that it rendered the court’s error harmless in this particular case. Begg could not provide similarly definitive testimony regarding injuries to the victim’s neck and vagina that would have supported the state’s charge of sexual assault in the first degree and strangulation in the second degree, and it is reasonable to conclude that the not guilty verdict on those charges reflects the jury’s inability to credit the victim’s testi- mony concerning those charges. Further, the defendant’s testimony about how he rejected her advances, pushed her away forcibly, and raised his hand as if to slap the victim was consistent not only with her injuries but also with his statements to the police five days after the incident and the victim’s testimony that the defendant had raised his hand to hit her.

All members of this court agree that the trial court improperly endorsed the state’s evidence, even though the defendant provided his own version of events during his testimony. I cannot say with sufficient confidence that the court’s consciousness of guilt instruction did not improperly impede the jury’s ability to indepen- dently assess the credibility of the defendant’s testimony against that of the victim such that the instruction did not influence the jury’s verdict.

I therefore respectfully concur in part and dissent in part.

************************************************ The “officially released” date that appears near the beginning of an opinion is the date the opinion will be published in the Connecticut Law Journal or the date it is released as a slip opinion. The operative date for the beginning of all time periods for the filing of 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 Connecti- cut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the 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 an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************ STATE OF CONNECTICUT v. YONG SIK KIM (SC 21086)

Mullins, C. J., and McDonald, D’Auria, Ecker, Alexander, Dannehy and Bright, Js.

Syllabus Convicted of sexual assault in the third degree and assault of an elderly person in the third degree in connection with the assault of a coworker, the defendant appealed. The incident giving rise to the defendant’s convic- tion occurred outside of work hours, at the victim’s condominium, after the victim had invited the defendant over to assist her with certain home repairs. Shortly after the assault, the victim reported the incident to the company that employed the victim and the defendant, and the company’s human resources manager, S, and plant manager, A, then interviewed the defendant. During that interview, the defendant initially denied having been at the victim’s condominium when the assault allegedly took place. At trial, the defendant testified in his own defense and admitted on direct examination that he was not entirely truthful during his interview with S and A. The defendant specifically testified that it was the victim who had made advances toward him and that he was not entirely truthful during that interview because of a promise to the victim not to tell anyone about the incident. On cross-examination, however, the defendant testified that he had never denied going to the victim’s condominium. At the prosecutor’s request, and over defense counsel’s objection, the trial court instructed the jury on consciousness of guilt, determining that such an instruction was warranted because of the defendant’s purportedly conflicting statements regarding his presence at the victim’s condominium on the date of the assault. The court specifically instructed the jury in relevant part that that the state had presented evidence that the defendant initially informed S and A that he never went to the victim’s condominium on the date in question, “only to change his story” by later admitting that he had gone there on that date. On appeal, the defendant claimed that the trial court had improperly instructed the jury on consciousness of guilt and that this court should invoke its supervisory authority to reverse his conviction and to preclude courts from instructing juries on consciousness of guilt. Held: The trial court abused its discretion by instructing the jury in the present case on consciousness of guilt, but the error was nevertheless harmless.

Although the court instructed the jury that the defendant had “change[d] his story” regarding his presence at the victim’s condominium on the date in question, the evidence adduced at trial was unclear as to whether the defendant had actually made any inconsistent statement and unclear as to the circumstances pursuant to which any such statement had been made.

Moreover, the inferential link to consciousness of guilt was attenuated, the probative value of the evidence concerning consciousness of guilt was mini- mal, and the court’s singling out that evidence presented a risk of unduly magnifying its probative value or suggesting that it warranted closer scrutiny than other evidence.

Furthermore, the trial court compounded matters by failing to provide a balanced, neutral instruction and by instead adopting the state’s charac- terization of the evidence, as the use of the phrase “change[d] his story” carried a distinctly pejorative connotation suggesting the defendant’s lack or credibility or an attempt to mislead.

Nevertheless, this court concluded that the trial court’s instructional error was harmless, as it was not reasonably probable that the jury was misled by the trial court’s consciousness of guilt instruction.

Several features of the court’s instruction mitigated the impact of the court’s error in giving the instruction and its characterization of the evidence.

Specifically, the court delivered comprehensive instructions on circumstantial evidence and witness credibility, and reminded the jury that the drawing of inferences from a witness’ conduct was entirely within its province.

Moreover, the court’s instruction on consciousness of guilt contained an important limiting caveat, namely, that the jury could draw an inference of consciousness of guilt only if it first found that the evidence established the relevant conduct and that such conduct was influenced by the criminal act or acts and not by any other reason.

Furthermore, the evidence of the defendant’s guilt was strong and included corroborating physical evidence that independently supported the victim’s account of the incident.

In addition, the jury found the defendant not guilty on several other charges, which made it less likely that the jury mechanically translated the trial court’s characterization of the evidence into a blanket finding of guilt.

This court denied the defendant’s invitation to invoke its supervisory author- ity to direct Connecticut courts to abandon the use of consciousness of guilt instructions altogether and to reverse his conviction.

After reviewing the history and criticisms of the consciousness of guilt instruction in Connecticut courts and in other jurisdictions, this court determined that the exercise of its supervisory authority to abandon the use of such an instruction was not warranted, the court having reasoned that the decision whether to provide such an instruction rests within the sound discretion of a trial court, that a trial court is uniquely situated to determine whether the evidence supports the instruction and whether it will aid rather than confuse the fact finder, and that this gatekeeping function, along with the availability of appellate review, provided important safeguards against the unwarranted or unfair use of the instruction.

Moreover, although the state is the party that most often asks for the instruc- tion, there are circumstances in which the defense might prefer that it be given to cabin the force of the prosecutor’s argument by reminding the fact finder that the consciousness of guilt evidence does not necessarily reflect or create a presumption of guilt and must be evaluated with caution.

Furthermore, considerations of stare decisis counseled against the categori- cal elimination of the instruction in Connecticut courts.

However, this court deemed it necessary to invoke its supervisory authority to clarify the limited circumstances in which it is proper to instruct on con- sciousness of guilt and to identify certain features that such an instruction should and should not include.

The decision to admit consciousness of guilt evidence is distinct from the decision to highlight such evidence through a specific instruction, and a trial court, in exercising its discretion, should undertake a careful, case-specific assessment concerning whether a specific instruction is warranted and, if so, the appropriate form it should take.

When a prosecutor requests a consciousness of guilt instruction over the defense’s objection, a trial court should require the prosecutor to explain why the instruction is necessary, including why the fact finder cannot, despite the court’s general instructions on circumstantial evidence and reasonable inferences, be expected to evaluate the consciousness of guilt evidence and to draw appropriate inferences without the court’s express guidance.

When the defense requests a consciousness of guilt instruction or does not object to one, the instruction may serve a protective function, and there is no reason for the trial court not to give it.

If a trial court determines that a consciousness of guilt instruction is war- ranted, it should ensure that the instruction is neutral and balanced in order to reduce the risk of any improper influence on the fact finder.

This court declined to rewrite a model consciousness of guilt instruction but observed that the Judicial Branch’s model instruction in effect as of the date of this opinion was not entirely balanced.

Accordingly, this court provided guidance for future consciousness of guilt instructions, including recommendations that a trial court convey the posi- tion of both the state and the defense as to their respective views about what the evidence regarding consciousness of guilt reflects, include clarifying language advising the fact finder that feelings of guilt do not necessarily reflect actual guilt, indicate that consciousness of guilt evidence, standing alone, is insufficient to prove guilt, eliminate use of the phrase “flight, when unexplained” when a defendant’s flight after the crime serves as the basis for the instruction, and avoid using the label or heading “consciousness of guilt” in the instruction delivered orally and in the written charge provided to the fact finder. (One justice concurring separately; two justices concurring in part and dissenting in part in one opinion) Argued February 4—officially released July 28, 2026 Procedural History Substitute information charging the defendant with the crimes of sexual assault in the first degree, sexual assault in the third degree, unlawful restraint in the first degree, assault of an elderly person in the third degree, strangulation in the second degree, and threatening in the second degree, brought to the Superior Court in the judicial district of Danbury and tried to the jury before Stango, J.; verdict and judgment of guilty of sexual assault in the third degree and assault of an elderly person in the third degree, from which the defendant appealed. Affirmed.

Jeffrey C. Kestenband, for the appellant (defendant). Ronald G. Weller, senior assistant state’s attorney, with whom, on the brief, were David R. Applegate, state’s attorney, Tori L. Ludwig, assistant state’s attorney, and Russell C. Zentner, senior assistant state’s attorney, for the appellee (state).

Pamela S. Nagy, supervisory assistant public defender, John R. Day, deputy chief public defender, and Jennifer Bourn, chief of legal services, filed a brief for the Division of Public Defender Services as amicus curiae.

Lisa J. Steele and Conrad Ost Seifert filed a brief for the Connecticut Criminal Defense Lawyers Association as amicus curiae.

Opinion

DANNEHY, J. Following a jury trial, the defendant, Yong Sik Kim, was convicted of assault of an elderly person in the third degree and sexual assault in the third degree, arising from an incident that occurred while he was at a coworker’s condominium to assist with home repairs. He laims that the trial court improperly instructed the jury on consciousness of guilt, arguing that the consciousness of guilt evidence lacked sufficient probative value to warrant such an instruction. The defendant further claims that this court should invoke its supervisory authority to abolish consciousness of guilt instructions altogether, advancing several criticisms of those instructions.1

For the reasons that follow, we agree with the defen- dant that the trial court abused its discretion in giving the consciousness of guilt instruction in this case, but we conclude that the error was harmless. Further, we conclude that the defendant has not demonstrated that the invocation of our supervisory authority is warranted to reverse his conviction and categorically eliminate those instructions. We acknowledge, however, that our prior decisions have not always clearly distinguished between the admissibility of consciousness of guilt evi- dence and the separate question of when a trial court should instruct the jury specifically on that evidence. In light of that ambiguity, as well as other important considerations discussed in this opinion, we conclude that it is appropriate to invoke our supervisory author- ity to clarify the limited circumstances in which it is proper to use such instructions and to identify certain features that they should (and should not) include when given. See, e.g., State v. Aponte, 259 Conn. 512, 522, 790 A.2d 457 (2002).

I

The jury reasonably could have found the following facts. In July 2018, the victim,2 who was then sixty years old, and the defendant, then fifty-eight years old, were coworkers and had known each other for approximately twenty-five years. The victim’s husband had died approx- imately five months earlier, and her adult daughter, who resided in New York, was assisting her in coordinating renovations of her Danbury condominium. Dissatisfied with prior work performed in the unit, the victim asked the defendant to provide an estimate to replace several windows. The defendant occasionally performed side jobs for fellow employees and had previously helped the vic- tim and her husband on at least four separate occasions. On July 9, 2018, at the victim’s request, the defendant went to her condominium to inspect the windows in need of repair. After examining windows in the living room and bedrooms, the defendant closed a bedroom window, turned toward the victim, grabbed her, and then pushed her to the floor. He kissed her and licked her face and body, pulled up her shirt and bra, and licked one of her breasts. The victim resisted. She asked the defendant why he was doing this and attempted to push him away. When she yelled, the defendant threatened to put a rag in her mouth if she continued to resist and placed his hand over her mouth and nose. The defendant then sat on the victim’s thighs, continued to hold her down, squeezed her breast and vagina, and kissed her as she pleaded with him to stop. When the victim asked to sit up so that she could breathe, the defendant pulled her up, pushed her on the bed, and pulled down her pants and underwear. The defendant then inserted one finger into her vagina. The victim was afraid and in pain and continued to beg him to stop. When she asked again why he was doing this, the defendant responded that she was a good person, that she was single, and that he thought she needed sex. The defendant eventually ended the assault and walked toward the door, allowing the victim to pull up her cloth- ing. He stated that he would speak with the condomin- ium manager about the windows. Before leaving, he apologized to the victim, asked for her forgiveness, and requested that she not tell anyone about the incident. After the defendant left, the victim remembered that she had prearranged dinner plans with her cousin and aunt that evening. She took a shower and decided to attend that dinner but did not disclose the assault to them because she wished to speak with her daughter first. She later washed the clothing she had worn that day, except for her underwear, which she discarded, and a pair of black pants, which she placed on top of the toilet tank in her bathroom.

The victim returned to work the following day. When a coworker asked about the window repairs, the vic- tim began to cry and referred to the defendant as “a monster,” but stated that she could not elaborate any further because the defendant was at work that day and she feared retaliation. The following day, however, she disclosed the details of the assault to her coworker. She also reported the incident to her employer’s human resources manager.

Several days later, on July 13, 2018, the victim informed her daughter of the assault. The next day, accompanied by her daughter, she reported the incident to the police. Her daughter provided the police with the black pants the victim had worn on the day of the assault, which had not been washed, as well as the victim’s bed- sheet. The victim was thereafter examined at a hospital. An emergency medicine physician observed bruising on her left breast, left upper arm, and right knee, as well as possible bruising on her neck. The victim also reported pain in her perineal area and outer vagina. The doctor testified that the bruising was consistent with impacts occurring several days earlier.

On July 26, 2018, Jill Swearingen, the human resources manager for the company where the victim and the defendant worked, and Alexander Ache, the company’s plant manager, interviewed the defendant.

At trial, the prosecutor asked Swearingen whether she recalled asking the defendant “whether [the defendant] went to an employee’s house . . . .” Swearingen responded: “My recollection is that, initially, he indicated that he did not, but, upon asking him further questions, he did reveal that he did go to an employee’s house.” When the prosecutor asked Ache whether he recalled Swear- ingen asking the defendant whether “he had gone to an employee’s house,” Ache responded: “Yeah, she asked that in the beginning, and his initial response was no, and that was in the context of the work that he was doing with his attorney, but then, later on, we were discussing about a visit to [the victim’s] house afterwards.” Ache testified that the defendant had told them that he went to the victim’s condominium “to help assist with, you know, looking at some windows that needed repair at her house.” Swearingen testified that, when asked whether the defendant and the victim had any physical contact on that day, the defendant stated that their shoulders may have touched while inspecting the windows but nothing more.

On August 9, 2018, the defendant, accompanied by counsel, was interviewed by the police. The defendant was arrested and charged with multiple offenses in Novem- ber 2018.3 Prior to trial, the state forensic laboratory conducted DNA testing on the victim’s black pants as well as her bedsheet. Testing revealed the presence of the defendant’s DNA on the exterior hip and waistband of the pants, as well as on the interior front and back panels in the crotch area.4 The defendant’s DNA was not found on the bedsheet.

At trial, the defendant testified in his own defense, acknowledging that he had gone to the victim’s condo- minium but denying that he had assaulted her. According to the defendant, after work on July 9, 2018, he went to the victim’s condominium at her request to inspect the windows she wanted replaced. When he arrived, the victim had not yet returned home from work, so he waited outside. Once she arrived, the two went inside together; it was a hot summer day and both of them were warm. The defendant testified that he was still sweating from being at work. The victim proceeded to offer him something to drink, which he accepted.

The defendant further testified that, because of the heat, the victim wished to take a shower and asked him to inspect the windows in the meantime. When the vic- tim emerged from the bathroom following her shower, the defendant described her as wearing a black, lingerie style nightgown. She then proceeded to show him the new furniture she had purchased in conjunction with her renovation. The defendant testified that, at some point around that time, he suddenly developed a severe headache, his face became flushed, and he felt what he described as “a lot of pressure in [his] bottom area . . . .” He clarified that he had developed an erection, which he found confusing, as he had not experienced one in a very long time, and that the sensation seemed to him inexplicable. He testified that he was uncomfortable and embarrassed because the victim kept looking at his private parts. He testified that he told the victim he needed to leave and began walking toward the door, at which point the victim came up from behind him and hugged and grabbed him. He testified that, when he turned around, she hugged him again.

The defendant then testified that he was suprised by the victim’s advances and pushed her away. He believed the victim must have developed romantic feelings for him. Having no interest in her and feeling angered by her conduct,5 he told her that she was “ugly,” “too old,” and that she “had terrible breath . . . .” Seeing that she revealed a mixture of three contributors, including the victim’s DNA, the defendant’s DNA, and the DNA of one unknown individual. was upset and that she might cry, he softened his tone, promising her that he would tell no one about what had occurred. He testified that he left the residence shortly thereafter.

The defendant also was asked about the meeting he had with Swearingen and Ache. When asked whether he had been entirely truthful during that meeting with them, he stated that he had not. He testified that he answered many of their questions honestly, and, although he did not deny being at the victim’s condominium, he did not tell them everything because he had promised the vic- tim that he would not disclose that he had rejected her advances. On cross-examination, the prosecutor probed the defendant’s omissions to his employer, asking him, among other things, whether he told human resources that the victim had looked at his “privates” while he was there. He indicated that he did not, remarking rhe- torically: “How can I tell that to [human resources]?” He reiterated that he did not tell his employer everything because he had promised the victim he would not tell anyone, but clarified that he shared all of the details with the police because he had an obligation to do so.6 Following the parties’ presentation of evidence, the trial court charged the jury. Although defense counsel objected to a consciousness of guilt instruction, the court concluded that the instruction was warranted, “limited . . . to the one denial by testimony showing that [the defendant] denied at first, to [human resources], having even been at the scene of the alleged crime on the date and time it took place.” The court had previously noted on the record that, on direct examination, the defendant attempted to account for his initial lack of candor with human resources, testifying that he had been less than truthful because of a promise he allegedly had made to the victim. The court stated that, on cross-examination, the defendant retreated from that explanation and testified that he had never denied going to the condominium in the first instance. The court reasoned that this change of testimony made a consciousness of guilt instruction suitable.7 Following its deliberations, the jury found the defendant guilty of sexual assault in the third degree and assault of an elderly person in the third degree but found him not guilty on all other charges. The court imposed a total effective sentence of five years of imprisonment, suspended after twenty-seven months, followed by fifteen years of probation. This appeal followed.8 II

The defendant seeks reversal of his conviction on the ground that the trial court improperly charged the jury on consciousness of guilt. He argues that the instruction was improper because the consciousness of guilt evidence at trial lacked considerable probative value, especially in light of the innocent explanation he gave for his conduct. He also contends that the court unwittingly took the state’s side in its instruction by using certain negative phraseology.9 We agree that the trial court abused its discretion by giving the instruction under the circum- stances of this case.

Consciousness of guilt evidence refers to certain post- crime conduct or statements by an accused—such as fleeing, destroying evidence, making false statements, or intimidating witnesses—“[that] may fairly be inferred to have been influenced by the criminal act.” (Inter- nal quotation marks omitted.) State v. DePastino, 228 Conn. 552, 563, 638 A.2d 578 (1994). Although multiple considerations bear on whether a court should instruct on that evidence, an instruction may be given only if there is a reasonable view of the evidence from which the jury could conclude that the defendant’s conduct or statements implied a consciousness of guilt. See State v. Scott, 270 Conn. 92, 105–106, 851 A.2d 291 (2004), cert. denied, 544 U.S. 987, 125 S. Ct. 1861, 161 L. Ed. 2d 746 (2005). “[T]he decision to give a consciousness of guilt instruction is left to the sound discretion of the trial court.” (Internal quotation marks omitted.) State v. McClain, 324 Conn. 802, 820, 155 A.3d 209 (2017). So long as the instructions are “correct in law, adapted to the issues and sufficient for the guidance of the jury,” we will not find the instructions improper. (Internal quotation marks omitted.) State v. Johnson, 288 Conn. 236, 285, 951 A.2d 1257 (2008). In the present case, the trial court, over defense coun- sel’s objection, charged the jury on consciousness of guilt. The instruction provided: “Consciousness of guilt. In any criminal trial, it is permissible for the state to show that conduct or statements made by a defendant after the time of the alleged offense, may have been influenced by the criminal act, that is, the conduct or statements show a consciousness of guilt. For example, a person’s false statements as to his or her whereabouts at the time of the offense may tend to show a consciousness of guilt. “In this case, the state presented evidence that the defendant initially told [Swearingen] and [Ache] that he never went to [the victim’s] residence on July 9, 2018, only to change his story a short time later by admitting that he had gone to [the victim’s] residence on that day. Such a statement does not, however, raise a presump- tion of guilt.

“If you find the evidence proved, and also find that the acts were influenced by, the criminal act and not by any other reason, you may, but are not required to, infer from this evidence that the defendant was acting from a guilty [conscience]. It is up to you as judges of the facts to decide whether the defendant’s statements, if proved, reflect a consciousness of guilt and to consider such in your deliberations in conformity with these instructions.” Although the defendant’s statements to his employer during its internal investigation were relevant and admis- sible for the jury’s consideration, the question presented here is whether the trial court abused its discretion in giving the consciousness of guilt instruction in connec- tion with those statements. We conclude that it did. The trial court instructed the jury that the state had presented evidence that the defendant initially denied to both Swearingen and Ache that he went to the victim’s residence on July 9, 2018, but “change[d] his story” shortly thereafter by admitting that he had done so. Ache’s testimony, however, was far less definitive.

Although Ache indicated that the defendant initially responded, “no,” when asked whether he had gone to an employee’s home, Ache testified that the defendant’s response arose “in the context of the work that he was doing with his attorney,” and that the discussion later turned to a visit to the victim’s residence. This testimony leaves uncertain both whether the defendant actually made any inconsistent statement and the circumstances in which any such statement was made.

Even if the evidence were construed more definitively— namely, that the defendant initially denied going to the victim’s residence and then, during the same interview, acknowledged that he had done so—the inferential link to consciousness of guilt remains attenuated. Our cases recognizing false statements as probative of conscious- ness of guilt often involve material misrepresentations made to law enforcement officers in an effort to evade detection or arrest. See, e.g., State v. McClain, supra, 324 Conn. 816 (consciousness of guilt “instruction typi- cally emphasizes a defendant’s false statements to the police”). By contrast, the evidence at issue in the present case is not so much a false statement as inconsistent statements made in the course of a single interview con- ducted by the defendant’s employer as part of its inter- nal investigation, under circumstances that, as Ache’s testimony suggests, may have been shaped by “work that [the defendant] was doing with his attorney . . . .” In these circumstances, when the probative value of the consciousness of guilt evidence is minimal, singling out that evidence through a specific instruction risks unduly magnifying its probative value or suggesting that it warrants closer scrutiny than other evidence.

The trial court’s instruction compounded these con- cerns by failing to provide a balanced, neutral instruc- tion and by adopting the state’s characterization of the evidence. Specifically, the court’s use of the phrase “change[d] his story” carries a distinctly pejorative con- notation, suggesting not merely inconsistency but a lack of credibility or an attempt to mislead. This phrasing risked signaling to the jury that the court endorsed the view that the defendant had made a false statement indicative of guilt, rather than leaving the jury free to assess the evidence and competing inferences on its own. Given the limited probative value of the underly- ing testimony and the inference in the instruction that favored the state’s interpretation, we conclude that the trial court abused its discretion in giving the con- sciousness of guilt instruction. Instead, the trial court should have simply relied on its general circumstantial evidence and witness credibility instructions and have permitted counsel to argue the significance, if any, of the defendant’s statements.10

Having concluded that the trial court erred in giving the consciousness of guilt instruction, we must next determine whether the defendant is entitled to a new trial. We have explained that “[c]onsciousness of guilt claims are not constitutional in nature.” (Internal quo- tation marks omitted.) State v. Cooper, 353 Conn. 510, 562, 343 A.3d 465 (2025). In circumstances like these, in which the instructional error does not involve a con- stitutional violation, “the defendant bears the burden of demonstrating that the court’s error was harmful.” State v. Baltas, 311 Conn. 786, 822, 91 A.3d 384 (2014). A defendant can establish harm if he can demonstrate that “it is reasonably probable that the jury [was] mis- led . . . .” (Internal quotation marks omitted.) State v. Adam P., 351 Conn. 213, 230, 330 A.3d 73 (2025). In other words, he must show that “it [was] more probable than not that the action of the trial court affected the result.” State v. Ali, 233 Conn. 403, 425, 660 A.2d 337 (1995). In assessing whether an instructional error is harmless, we examine “both the evidence and issues in the case and the charge as a whole.” State v. Prioleau, 235 Conn. 274, 288, 664 A.2d 743 (1995); see also State v. Adam P., supra, 233.

Applying that standard, we conclude that the trial court’s instructional error was harmless. First, several features of the charge as a whole mitigate the impact of the court’s error in giving the instruction and its characterization of the evidence therein. See State v. Campbell, 328 Conn. 444, 528, 180 A.3d 882 (2018).

The trial court delivered comprehensive instructions on circumstantial evidence and witness credibility, and it reminded the jury that the drawing of inferences from inquiry instead focuses on the defendant’s state of mind at the time of the postcrime statement and whether the statement was influenced by the criminal act. Inconsistencies in the defendant’s subsequent trial testimony do not bear on that inquiry and cannot therefore supply the basis for the instruction. See, e.g., United States v. Clark, 45 F.3d 1247, 1251 (8th Cir. 1995) (explaining that consciousness of guilt instruction based on false exculpatory statements is properly aimed at evidence of defendant’s pretrial fabrications, not at defendant’s trial testimony). Accordingly, to the extent the trial court relied on inconsistencies in the defendant’s trial testimony in deciding to give its instruction regard- ing the defendant’s pretrial statements, that reliance was misplaced. a witness’ conduct was entirely within its province. Further, the consciousness of guilt instruction itself contained an important limiting caveat: the jury was told that it could draw an inference of consciousness of guilt only if it first found that the evidence proved the relevant conduct and, further, that such conduct was influenced by the criminal act and not by any other rea- son. Read as whole, these instructions, together with the uncontested evidence that the defendant never denied to the police that he was at victim’s condominium on the day of the assault, provided an appropriate framework within which the jury could assess the significance—or insignificance—of the defendant’s statements to his employer, independent of the court’s characterization. Second, the evidence of guilt introduced by the state was strong. See State v. Adam P., supra, 351 Conn. 239–40. Unlike many sexual misconduct prosecutions, which turn largely on testimonial credibility, the state presented corroborating physical evidence that indepen- dently supported the victim’s account. The examining physician observed bruising on the victim and docu- mented her complaints of vaginal pain. The physician further testified that, based on the coloration of the bruises, they were consistent with having been inflicted several days earlier—timing that aligned with the vic- tim’s description of the assault. In addition, the defen- dant’s DNA was identified on the interior crotch area of the black pants worn by the victim on the day in ques- tion. Taken together, this evidence provided substantial, independent corroboration of the victim’s allegations, thereby diminishing the likelihood that the instruction affected the verdict.

Finally, the jury in this case found the defendant not guilty on multiple counts. In light of that verdict, it is less likely that the jury mechanically translated the court’s characterization of the evidence into a blanket finding of guilt. Cf. id., 242 (“although there are limits to what inferences we may properly draw from a jury’s verdict, the jury’s split verdict . . . increases our confidence that the erroneous instruction was harmless”). As such, we are not persuaded that it was reasonably probable that the jury was misled by the trial court’s instruction in this case.

III

Having concluded that the defendant has not estab- lished reversible error, we turn next to the defendant’s contention that we should invoke our supervisory author- ity to abandon all consciousness of guilt instructions in Connecticut and reverse his conviction.

The defendant advances three principal criticisms of the instructions. He contends that (1) “[j]urors are likely to give undue weight to a defendant’s actions when [a] neutral trial court instructs that the actions may have been motivated by a guilty conscience”; (2) “[t]he consciousness of guilt instruction is potentially misleading due to the many possible innocent reasons for the particular conduct”; and (3) “[t]he competing inferences to be drawn from the [actions] at issue are inherently argumentative and, thus, more appropriately addressed by the parties in closing arguments.”11 In response, the state disagrees and argues that conscious- ness of guilt instructions are useful in aiding the jury in the proper use of such evidence. The state also argues that Connecticut has long permitted such instructions and that the principle of stare decisis should give us pause in overruling decades of our precedent. Although we are not persuaded that the exercise of our supervi- sory authority is warranted to categorically prohibit consciousness of guilt instructions and to reverse the defendant’s conviction, we conclude that invocation of that authority is appropriate to clarify their proper use and to identify certain features that they should (and should not) include when given.

A

Criticisms of consciousness of guilt instructions, like the ones advanced by the defendant, stretch back more than a century. See, e.g., Alberty v. United States, 162 U.S. 499, 510–11, 16 S. Ct. 864, 40 L. Ed. 1051 (1896); Hickory v. United States, 160 U.S. 408, 413, 417, 16 S. Ct. 327, 40 L. Ed. 474 (1896). See generally, e.g., R. Hutchins & D. Slesinger, “Some Observations on the Law of Evidence—Consciousness of Guilt,” 77 U. Pa. L. Rev. 725 (1929). In 1896, for example, the defendants in Hickory and Alberty challenged the trial court’s jury instructions regarding their purported flight following the murders with which they were charged, arguing that these instructions gave undue prominence to the evidence of flight and treated them as establishing a presumption of guilt. Alberty v. United States, supra, 508–10; Hick- ory v. United States, supra, 413. In both cases, the trial court had instructed the jury using a biblical passage that stated: “The wicked flee when no man pursueth, but the innocent are as bold as a lion.” (Internal quotation marks omitted.) Hickory v. United States, supra, 416; see also Alberty v. United States, supra, 509 (virtually identical language). The United States Supreme Court reversed their convictions, reasoning that the instructions given in their cases effectively created a legal presumption of guilt—“so strong and so conclusive that it was the duty of the jury to act on it as axiomatic truth . . . .” Alberty v. United States, supra, 510; accord Hickory v. United States, supra, 422.

Since Hickory and Alberty, defendants in Connecticut have mounted their own challenges to various conscious- ness of guilt instructions. They have argued that such instructions “[were] not fair because [they] did not recite the possible innocent inferences to be drawn” from their conduct; State v. Groomes, 232 Conn. 455, 472, 656 A.2d 646 (1995); were “not evenhanded”; id., 473; accord State v. Figueroa, 257 Conn. 192, 196, 777 A.2d 587 (2001); were “imbalanced”; State v. Silva, 113 Conn. App. 488, 492, 966 A.2d 798 (2009); or “improperly put the court’s imprimatur on the state’s version of events . . . .” State v. Coward, 292 Conn. 296, 314, 972 A.2d 691 (2009); accord State v. Johnson, supra, 288 Conn. 285. Some defendants urged that the inferences to be drawn from a defendant’s postcrime conduct should be presented through arguments made by counsel, not an instruction by the court. See, e.g., State v. Groomes, supra, 472. Despite these criticisms, this court has declined numer- ous invitations to ban consciousness of guilt instruc- tions. See, e.g., State v. Cooper, supra, 353 Conn. 563 n.27; State v. Coward, supra, 292 Conn. 316; State v. Luster, 279 Conn. 414, 425–26, 902 A.2d 636 (2006); State v. Figueroa, supra, 257 Conn. 197; State v. Hines, 243 Conn. 796, 813, 816, 709 A.2d 522 (1998); State v. Groomes, supra, 232 Conn. 474; see also State v. Carl- son, 226 Conn. App. 514, 546–47, 318 A.3d 283, cert. denied, 350 Conn. 911, 324 A.3d 143 (2024). We have largely upheld the use of those instructions on the basis that “it is [a judge’s] duty to inform the jury what the law is as applicable to the facts of the case . . . .” (Internal quotation marks omitted.) State v. Coward, supra, 316. Like Connecticut, a majority of jurisdictions permit consciousness of guilt instructions, although the scope, requirements, and formulation of those instructions vary. See, e.g., People v. Frazier, 16 Cal. 5th 814, 839, 552 P.3d 932, 323 Cal. Rptr. 3d 741 (2024) (“[t]he giv- ing of [a flight] instruction is statutorily required when flight evidence is relied [on] by the prosecution” (internal quotation marks omitted)), cert. denied, ___U.S. __ , 145 S. Ct. 1186, 221 L. Ed. 2d 264 (2025); Thompson v. State, 393 Md. 291, 309–10, 901 A.2d 208 (2006) (noting that petitioner’s position that flight instruction should be held per se improper “has been adopted by a minority of . . . sister states” and concluding that “the flight instruc- tion may be appropriate under certain circumstances”); Commonwealth v. Steadman, 489 Mass. 372, 386, 183 N.E.3d 412 (2022) (“[a]n instruction on consciousness of guilt is appropriate where the jury may draw an inference of guilt from evidence of flight, concealment, or similar acts, such as false statements to the police, destruction or concealment of evidence, or bribing or threatening a witness” (internal quotation marks omitted)); State v. Nelson, 970 N.W.2d 814, 830 (S.D. 2022) (consciousness of guilt instruction regarding defendant’s refusal to take blood test following suspicion of driving under influence was permissible because “[t]he instructions, as a whole, adequately informed the jury as to how [it] could, or could not, consider the evidence of the refusal to consent to the blood draw, the possible inference that could be drawn, and the jury’s role in assessing what weight, if any, to afford this evidence”); see also 1 L. Sand et al., Modern Federal Jury Instructions–Criminal (2025) ¶ 6.05, pp. 6-30 through 6-36 (discussing consciousness of guilt instructions in federal courts).

A minority of jurisdictions, however, have limited or barred such instructions in certain contexts, primar- ily in cases involving a defendant’s alleged flight. See, e.g., Renner v. State, 260 Ga. 515, 518, 397 S.E.2d 683 (1990) (“[although] the state may offer evidence of and argue flight, it shall be error for a trial court in a crimi- nal case to charge the jury on flight”); State v. Wrenn, 99 Idaho 506, 508, 584 P.2d 1231 (1978) (“[w]e are of the opinion that because of the debatable significance of flight as evidence of guilt, an instruction on flight should not ordinarily be given”); State v. Grant, 275 S.C. 404, 407, 272 S.E.2d 169 (1980) (“[although] an instruction on flight has been acceptable law for some time in most jurisdictions, we are inclined to think that henceforth it is more appropriate for the judge to decline any charge whatsoever on this issue”); Hadden v. State, 42 P.3d 495, 508 (Wyo.) (“we hold that hereafter . . . the giving of a flight instruction to the jury, in a criminal case, shall be reversible error”), cert. denied, 537 U.S. 868, 123 S. Ct. 272, 154 L. Ed. 2d 114 (2002).

Relying on his criticisms of consciousness of guilt instructions, the defendant asks us to invoke our super- visory authority to categorically eliminate them and to reverse his conviction. This court has explained that the exercise of our supervisory authority is “an extraor- dinary remedy to be invoked only when circumstances are such that the issue at hand, [although] not rising to the level of a constitutional violation, is nonetheless of [the] utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole.” (Emphasis in original; internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 215, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004). “Generally, cases in which we have invoked our super- visory authority for rule making have fallen into two categories. . . . In the first category are cases wherein we have utilized our supervisory power to articulate a procedural rule as a matter of policy, either as [a] holding or dictum, but without reversing [the underlying judg- ment] or portions thereof. . . . In the second category are cases wherein we have utilized our supervisory powers to articulate a rule or otherwise take measures necessary to remedy a perceived injustice with respect to a preserved or unpreserved claim on appeal.” (Internal quotation marks omitted.) State v. Weatherspoon, 332 Conn. 531, 552–53, 212 A.3d 208 (2019). In other words, in this second category of cases, we employ our rule-making power and our power to reverse a conviction. See In re Daniel N., 323 Conn. 640, 647–48, 150 A.3d 657 (2016). Because “[c]onstitutional, statutory and procedural limi- tations are generally adequate to protect the rights of the defendant and the integrity of the judicial system,” this court will invoke its supervisory powers to reverse a conviction “only in the rare circumstance [in which] these traditional protections are inadequate to ensure the fair and just administration of the courts.” (Internal quotation marks omitted.) State v. Lockhart, 298 Conn. 537, 576–77, 4 A.3d 1176 (2010). The defendant has not persuaded us that the exercise of our supervisory authority is warranted to categori- cally eliminate consciousness of guilt instructions and to reverse his conviction. In Connecticut, consciousness of guilt instructions are not given as of right; the decision whether to provide one rests within the sound discretion of the trial court. See, e.g., State v. McClain, supra, 324 Conn. 820. Although the defendant argues that there are risks associated with giving such instructions, trial courts are uniquely situated to determine whether the evidence supports a requested instruction and whether it will aid, rather than confuse, the jury in its delibera- tions in a particular case. This gatekeeping function, together with the defendant’s right to appellate review, provides important safeguards against the unwarranted or unfair use of the instruction. Although we recognize that the trial court erred in the present case, we have also determined that error was harmless.

Moreover, although it is more often the state that requests a consciousness of guilt instruction, there are circumstances in which the defendant may prefer that the court give one. A defendant reasonably may conclude that, if the prosecutor is going to argue consciousness of guilt to the jury, a neutral and carefully worded instruc- tion from the court, explaining the limited significance of the evidence or that there may be innocent explanations for the defendant’s conduct, may temper the rhetori- cal effect of that line of argument.12 In such cases, the instruction can serve to cabin the force of the prosecu- tor’s argument by reminding the jury that the conduct does not necessarily reflect, or create a presumption of, guilt and must be evaluated with caution. These considerations weigh against the defendant’s proposed categorical elimination of the instructions.13 The stare decisis considerations raised by the state likewise counsel against exercising our supervisory authority to categorically eliminate such instructions and to reverse the defendant’s conviction. Although the question of whether this court should exercise its super- visory authority and the question of whether it should overrule its precedent under principles of stare decisis are analytically distinct, the two inquiries often converge when a party asks the court to invoke its supervisory authority in a manner that would require it to overrule its precedent. See, e.g., State v. Coward, supra, 292 Conn. 316 (“[t]he defendant has not presented us with a compelling reason to deviate from those conclusions and, accordingly, we decline his invitation to exercise our supervisory powers in the circumstances of the present case”). In the present case, the defendant asks us to over- rule decades of precedent permitting consciousness of guilt instructions and thereby reverse his conviction, but essentially advances the same arguments that this court has previously considered and rejected when addressing similar requests to abandon the instruction. See, e.g., id., 314; State v. Groomes, supra, 232 Conn. 472. Simply put, the defendant has not presented the kind of compelling reasons necessary to categorically eliminate conscious- ness of guilt instructions and to reverse his conviction. B

Although we decline the defendant’s invitation to abandon consciousness of guilt instructions altogether, we conclude that this case presents an appropriate oppor- tunity to articulate procedural rules for future cases. The arguments advanced by the defendant and the amici limited value. See id., 735–38. Specifically, in Malave, this court did not merely discontinue the use of the adverse inference instruction; it abrogated the underlying evidentiary principle itself, commonly referred to as the Secondino rule. Id., 738–39; see Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960). The elimination of the instruction thus followed naturally from the elimination of the rule that authorized the inference in the first place. In the present case, however, evidence of consciousness of guilt, which forms the basis for the corresponding jury instruction, remains admissible. Accordingly, the doctrinal foundation for such instructions has not been undermined in the same manner as the adverse inference rule at issue in Malave, and the analogy the defendant seeks to draw is therefore inapt. curiae, the Division of Public Defender Services and the Connecticut Criminal Defense Lawyers Association (CCDLA), together with an examination of our precedent, reveal that our cases involving consciousness of guilt have not clearly distinguished between the admissibil- ity of consciousness of guilt evidence and the separate question of whether a trial court should instruct the jury on that evidence. Our cases instead have generally upheld such instructions when admissible evidence of consciousness of guilt was presented at trial, suggesting that admissibility is the dispositive factor for giving such an instruction. See, e.g., State v. Scott, supra, 270 Conn. 105–106. There can be little dispute, however, that the considerations governing whether a trial court should specifically instruct the jury on particular evidence differ from those governing whether the court should admit that evidence in the first place. In light of this ambiguity in our case law, which presents the risk of trial courts giving such instructions in circumstances that may be unfair to defendants, the limited guidance that we have provided regarding these instructions, and the repeated and varied challenges to these instructions that have come before this court over the past several decades, we conclude that it is appropriate to invoke our supervisory authority to clarify the proper use of consciousness of guilt instructions and to identify certain features that such instructions should and should not include. See, e.g., State v. Elson, 311 Conn. 726, 764, 91 A.3d 862 (2014) (“[i]t is well settled that [a]ppellate courts possess an inherent supervisory authority over the administra- tion of justice” (internal quotation marks omitted)). Some background is warranted. Connecticut courts have long permitted the admission of consciousness of guilt evidence. See, e.g., State v. Ford, 109 Conn. 490, 496, 146 A. 828 (1929); State v. Cronin, 64 Conn. 293, 305, 29 A. 536 (1894). Consciousness of guilt evi- dence is circumstantial evidence that can be indicative of guilt itself. See State v. Groomes, supra, 232 Conn. 472. Although it “is a species of evidence that should be viewed with caution [and] it should not be admitted mechanically”; (internal quotation marks omitted) State v. Jones, 234 Conn. 324, 356, 662 A.2d 1199 (1995); it is generally admissible if there is a view of the evidence that would support a reasonable inference that the defen- dant’s postcrime conduct or statements were influenced by the criminal act. See, e.g., State v. DeMatteo, 186 Conn. 696, 702, 443 A.2d 915 (1982) (“[a] misstatement of a suspect to police officers is admissible against him in a later prosecution because it permits the jury to draw the reasonable inference that the misstatement was made in an attempt to avoid detection for the crime”). Of course, to be admissible, the probative value of the consciousness of guilt evidence must outweigh its prejudicial effect. State v. Hill, 307 Conn. 689, 698, 59 A.3d 196 (2013). We have explained that the fact that the evidence may support an innocent explanation as well as an inference of consciousness of guilt does not render its admission erroneous. E.g., State v. Gonzalez, 315 Conn. 564, 593– 94, 109 A.3d 453, cert. denied, 577 U.S. 843, 136 S. Ct. 84, 193 L. Ed. 2d 73 (2015). Rather, the parties remain free to argue what, if any, inferences should be drawn from the evidence, and “it is the province of the jury to sort through any ambiguity in the evidence in order to determine whether [such evidence] warrants the infer- ence that [the defendant] possessed a guilty conscience.” (Internal quotation marks omitted.) State v. Coccomo, 302 Conn. 664, 672, 31 A.3d 1012 (2011).

The consciousness of guilt instruction also “has a long history of precedent in this state.” State v. Jones, supra, 234 Conn. 355. Such instructions have appeared in Con- necticut case law for well over a century, with references dating back as early as 1894. See, e.g., State v. Rome, 64 Conn. 329, 336, 30 A. 57 (1894) (“[i]s his silence the stupidity of intoxication, or is it the silence of conscious guilt” (internal quotation marks omitted)). Prosecutors in this state regularly seek such instructions in the course of prosecuting their criminal cases.14 See, e.g., State v. McClain, supra, 324 Conn. 818–19 (consciousness of guilt instruction “ordinarily is sought by the state and opposed by the defendant”). As we have explained, whether to give a consciousness of guilt instruction is “left to the sound discretion of the trial court.” (Internal quotation marks omitted.) Id., 820.

Whether a trial court should give a particular instruc- tion rests on a variety of considerations, including, most notably, the core purpose of jury instructions—to assist the jury in understanding the governing legal principles and its role in determining the defendant’s guilt or inno- cence. See, e.g., State v. Bellamy, 323 Conn. 400, 429, 147 A.3d 655 (2016). We have made clear, however, that jury instructions are not intended to unduly emphasize particular evidence or to suggest how that evidence should be weighed. See, e.g., State v. Mebane, 350 Conn. 483, 495–96, 325 A.3d 168 (2024). “In any criminal trial it is permissible for the state to show that conduct or statements made by a defendant after the time of the alleged offense may have been influenced by the criminal act; that is, the conduct or statements show a consciousness of guilt. “ [<Include if appropriate:> For example, “ flight, when unexplained, may indicate consciousness of guilt if the facts and the circumstances support it. “a persppon’s possession of or attempt to conceal anything acquired through the crime may tend to show a conscious- ness of guilt. “a person’s false statements as to (his/her) whereabouts at the time of the offense may tend to show a consciousness of guilt.]

“Such (acts/statements) do not, however, raise a presumption of guilt. If you find the evidence proved and also find that the (acts/statements) were influenced by the criminal act and not by any other reason, you may, but are not required to, infer from this evidence that the defendant was acting from a guilty conscience.

“The state claims that the following conduct is evidence of conscious- ness of guilt: <describe specific evidence>.

“It is up to you as judges of the facts to decide whether the defendant’s (acts/statements), if proved, reflect a consciousness of guilt and to con- sider such in your deliberations in conformity with these instructions.” (Emphasis in original; footnotes omitted.) Connecticut Criminal Jury Instructions 2.6-3, available at https://www.jud.ct.gov/JI/Criminal/ Criminal.pdf (last visited July 21, 2026).

When deciding whether to give a consciousness of guilt instruction, a trial court must balance the need for the instruction against the potential risks associated with giving it. Any time a trial court singles out a particular piece of evidence in its instructions or identifies a specific inference that may be drawn from that evidence, there is some risk that the instruction will elevate that evidence or inference to the derogation of others. See, e.g., State v. Hernandez, 218 Conn. 458, 462, 590 A.2d 112 (1991) (“[t]he influence of the trial judge on the jury is neces- sarily and properly of great weight and his lightest word or intimation is received with deference, and may prove controlling” (internal quotation marks omitted)). Accord- ingly, although such evidence may be admissible as a mat- ter of evidentiary law, the decision to provide a focused instruction on consciousness of guilt presents a distinct and more sensitive inquiry. The court must consider not only whether the evidence supports the inference the state urges, but also whether a tailored instruction will aid the jury beyond what counsels’ arguments and the court’s general evidentiary instructions already provide. The mere fact that consciousness of guilt evidence has been admitted does not, without more, establish that an instruction on that evidence is warranted.

When the prosecutor requests such an instruction over the defense’s objection, the trial court should require the prosecutor to explain why the instruction is necessary— that is, why the jury cannot, despite the court’s general instructions on circumstantial evidence and reasonable inferences, be expected to evaluate the consciousness of guilt evidence and draw the appropriate inferences without the court’s express guidance. That inquiry is not merely procedural. Courts possess no special exper- tise in the interpretation of human behavior, and juries are, as a general matter, fully capable of assessing post- crime conduct and weighing the competing explanations for it without judicial prompting. Consequently, when the prosecutor cannot demonstrate that a specific con- sciousness of guilt instruction is necessary, the added instruction may do more to distort the jury’s delibera- tive process than to assist it and should not be given.15 When, on the other hand, the defense requests a con- sciousness of guilt instruction or does not object to one— for example, to ensure that the jury is told that there may be alternative explanations, consistent with innocence, for a defendant’s conduct or statements—the calculus changes. In that circumstance, the instruction may serve a protective function, and we see no reason for the court not to give it.

If a trial court determines that a consciousness of guilt instruction is warranted, it should ensure that the instruction is neutral and balanced in order to reduce the risk of any improper influence on the jury. The CCDLA, as amicus curiae, argues that we should rewrite Connecti- cut’s consciousness of guilt instruction.16 Although we decline to prescribe a model instruction for all circum- stances, we observe that the Judicial Branch’s model consciousness of guilt instruction, as currently drafted, is not entirely balanced. See footnote 14 of this opinion. For example, the instruction provides space for the court to recite the state’s position as to what evidence it claims reflects consciousness of guilt but leaves no correspond- ing space for the defendant’s position.17 The instruction also should more clearly convey that a defendant’s post- crime conduct or statement may not necessarily reflect a consciousness of guilt as to the specific crime charged and should include clarifying language that advises the jury that feelings of guilt, which are present in many innocent people, do not necessarily reflect actual guilt of a crime and that consciousness of guilt evidence, stand- ing alone, is insufficient to prove guilt with respect to the charged offenses.

CCDLA also points out that the model instruction 2.6-3 states that “ ‘flight, when unexplained, may indi- cate consciousness of guilt’ . . . .” (Emphasis added.) It argues that the italicized language “puts an unfair burden on defendants of color to testify to explain their reasons for flight, when their motivation to flee was related to systemic racism.” This court itself has recog- nized that “[t]here are a number of legitimate reasons why a law-abiding citizen may not desire to remain on the scene when the police appear, especially in a danger- ous neighborhood where police-citizen relations may be strained.” State v. Edmonds, 323 Conn. 34, 73, 145 A.3d 861 (2016). The state does not oppose deleting that language in the model instruction, and we see no reason for the committee overseeing the promulgation of those instructions not to do so.

Finally, trial courts should also be mindful of the label or heading they assign to the instruction, both in their oral delivery and in the written charge provided to the jury. As the defendant correctly notes, the first thing assertion, however, overlooks an essential detail of that case. In Scott, we said that the instruction was, in fact, balanced because the trial court’s charge emphasized the defendant’s explanation for his flight to Colorado and expressly admonished the jury not to infer consciousness of guilt if it found that the defendant had traveled there to comply with his military obligations rather than to evade questioning or arrest. Id. Accordingly, if a trial court decides to give a consciousness of guilt instruction identifying evidence relied on by the state, it should also inquire whether the defense requests a corresponding instruction that such conduct may admit of innocent explanations and, if so, whether the defense wishes the court to identify evidence supporting those alternative explanations. jurors often encounter when following along with the court’s written instructions is the title of the section— frequently “Consciousness of Guilt”—typically set off in bold, capital letters, underlining, or some combina- tion thereof. In the present case, for example, the head- ing appeared in bold. Because such a label can subtly favor the state by framing the evidence in a manner that presupposes the very inference the jury is being asked to consider, a trial court should avoid using it. In the limited circumstances previously discussed in which a consciousness of guilt instruction is proper, the court should instruct the jury on the relevant principles with- out employing a label orally or in writing that adopts the state’s characterization of the evidence.

In fact, the instruction can be given without using the phrase “consciousness of guilt” at all.18 Using the instruction given in the present case as an example, the court could have deleted the consciousness of guilt title and modified the charge along the following lines: “In any criminal trial, it is permissible for the state to show that conduct or statements made by a defendant after the time of the alleged offense, may have been influenced by the criminal act, that is, that the defen- dant’s conduct or statements show an effort to evade detection or avoid responsibility for the alleged crime. For example, a person’s false statements as to his or her whereabouts at the time of the offense may tend to show that the defendant was trying to evade detection or avoid responsibility for the alleged crime.” Similar language describing the defendant’s alleged efforts to evade detec- tion or avoid responsibility for the charged conduct could be substituted for the phrase “consciousness of guilt” throughout the instruction. Such revisions offer at least two advantages. First, as previously noted, our case law and the model instructions sometimes use the phrases “consciousness of guilt” and “guilty conscience” inter- changeably. Although they sound similar, they reflect distinct concepts. Eliminating the phrase “consciousness of guilt” from jury instructions would therefore reduce the risk that jurors conflate the two. Second, evidence of a defendant’s consciousness of guilt is probative only to the extent that it supports an inference that the defendant believed he was guilty of the charged offense. Framing the instruction instead in terms of the inference the state asks the jury to draw—that the defendant acted to avoid guilt evidence is more narrowly concerned with efforts to avoid legal culpability or detection. A defendant may be fully aware of his culpa- bility for a crime while feeling no remorse. Conversely, a person may experience a sense of guilt in connection with a crime for which he bears no legal responsibility, for example, when he knows another intends to commit an offense but fails to intervene. Importantly, consciousness of guilt evidence is circumstantial and does not, by itself, establish any element of the charged offense. Conflating it with proof of an actual “guilty conscience” risks overstating its probative value and confus- ing the jury. As noted, feelings of guilt, which many innocent people experience, do not necessarily reflect actual guilt. Accordingly, to the extent a consciousness of guilt instruction is given, it should also avoid reference to a “guilty conscience.” detection or responsibility—more precisely conveys the asserted relevance of the evidence.

In sum, although we decline the defendant’s invita- tion to categorically eliminate consciousness of guilt instructions, we emphasize that the decision to admit consciousness of guilt evidence is distinct from the deci- sion to highlight it through a specific jury instruction. In exercising their discretion, trial courts should under- take a careful, case-specific assessment of whether a consciousness of guilt instruction is warranted and, if so, the appropriate form it should take, following the considerations that we set forth in this opinion.

The judgment is affirmed.

In this opinion MULLINS, C. J., and ALEXANDER and BRIGHT, Js., concurred.