State v. Guilbert

****************************************************** The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. In no event will any such motions be accepted before the ‘‘officially released’’ date. All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Con- necticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be repro- duced and distributed without the express written per- mission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ******************************************************  STATE v. GUILBERT—CONCURRENCE ZARELLA, J., with whom McLACHLAN, J., joins, con- curring in the judgment. I agree with the majority that expert testimony may assist the jury in understanding certain factors that may affect the reliability of eyewit- ness identifications. I further agree that, to the extent this court concluded in State v. Kemp, 199 Conn. 473, 477, 507 A.2d 1387 (1986), and State v. McClendon, 248 Conn. 572, 586, 730 A.2d 1107 (1999), that expert testimony regarding such factors is ‘‘disfavored’’ because they are within the common knowledge of the average juror, Kemp and McClendon should be over- ruled. The majority, however, does not simply remove expert testimony from its ‘‘disfavored’’ status, thus leav- ing trial courts free to admit the proffered testimony in the exercise of their discretion. Rather, the majority elevates expert testimony to a preferred status by sug- gesting that it is presumptively admissible except when the trial court intends to give focused jury instructions, the eyewitness was familiar with the defendant before the commission of the crime, or the testimony fails to satisfy the same threshold reliability and relevance requirements that are applied to any other expert testi- mony, including expert testimony based on scientific evidence.1 I agree with the majority that expert testi- mony may be precluded in these circumstances. Indeed, I believe that focused jury instructions are the best method for assisting juries in understanding the factors that may affect the reliability of eyewitness identifica- tions and that trial courts should be encouraged to give such instructions in all cases involving eyewitness identifications where specific issues have been raised regarding their unreliability. See, e.g., State v. Hender- son, 208 N.J. 208, 296, 298, 27 A.3d 872 (2011) (directing trial courts to give enhanced jury instructions ‘‘to guide juries about the various factors that may affect the reliability of an eyewitness identification in a particular case’’ but leaving discretion with trial court as to when during trial to give instructions and whether to allow expert testimony). I do not agree, however, with the majority’s presumption that expert testimony is other- wise admissible because such a presumption fails to recognize the value of cross-examination and closing argument as a means of bringing reliability issues to the jury’s attention and does not allow consideration of strong corroborating evidence of the defendant’s guilt, thus interfering with a trial court’s broad discretion in determining whether expert testimony is admissible based on the totality of the circumstances. In addition, I disagree with the majority that the trial court abused its discretion in precluding the expert testimony in this case but that the error was nonetheless harmless. The majority’s harmless error analysis relies in part on its determination that the jury instructions were ‘‘adequate,’’ a ground on which the majority states that expert testimony may be precluded but that it deemed insufficient in concluding that the trial court had abused its discretion. Thus, the majority’s inconsis- tent treatment of the jury instructions in its abuse of discretion and harmless error analysis is likely to bewil- der many courts and cause unnecessary confusion. Indeed, some courts may feel compelled to admit expert testimony as a precautionary measure, regardless of whether they intend to give focused jury instructions, merely to avoid appellate review. Accordingly, although I agree with the majority that Kemp and McClendon should be overruled and that expert testimony should be restored to its rightful place as one of several tools available to assist juries in assessing the reliability of eyewitness identifications, my disagreement with other portions of the majority’s analysis in part I of the opin- ion2 leaves me no other choice but to respectfully con- cur in the judgment. I In removing expert testimony from the ‘‘disfavored’’ status to which it was consigned in Kemp and McClen- don, the majority concludes that such testimony is pre- sumptively admissible subject to the specified excep- tions. I disagree for two reasons. First, the majority repeats the same mistake made by this court in Kemp and McClendon of relegating certain methods, namely, cross-examination and closing argument, to a ‘‘disfa- vored’’ status without acknowledging that both may be used with devastating effect in challenging a potentially unreliable identification. The majority’s presumption in favor of expert testimony also is inconsistent with the recent decision of the United States Supreme Court in Perry v. New Hampshire, U.S. , 132 S. Ct. 716, 728–30, 181 L. Ed. 2d 694 (2012), which implicitly endorsed a more balanced approach when it concluded that cross-examination, opening and closing argument, expert testimony and jury instructions all have value in guarding against an unfair trial by assisting juries in assessing the trustworthiness of an eyewitness identifi- cation. In Perry, the United States Supreme Court deter- mined that the fallibility of eyewitness evidence, in the absence of improper state conduct, did not warrant a due process rule that would require a trial court to screen the evidence for reliability before allowing the jury to assess its creditworthiness. Id., 728, 730. In explaining its reasons for reaching this conclusion, the court noted that juries traditionally determine the relia- bility of evidence and that other protections are built into our adversarial system that caution juries against placing undue weight on eyewitness testimony of ques- tionable reliability. Id., 728–30. These protections include (1) the defendant’s right to confront the witness, (2) the defendant’s right to the effective assistance of counsel, who can expose flaws in the eyewitness’ testi- mony during cross-examination and focus the jury’s attention on the fallibility of the testimony during open- ing and closing arguments, (3) eyewitness specific jury instructions warning the jury to take care in appraising identification evidence, (4) the constitutional require- ment that the government prove the defendant’s guilt beyond a reasonable doubt, (5) rules of evidence per- mitting trial judges to exclude relevant evidence if its probative value is substantially outweighed by its preju- dicial impact or potential for misleading the jury, and, lastly, (6) expert testimony in appropriate cases on the hazards of eyewitness identification evidence. Id. Giv- ing no particular weight to any of these methods, the court then examined the evidence and concluded that, among the safeguards at work in the petitioner’s trial were a statement by his attorney during opening argu- ment cautioning the jury as to the vulnerability of the disputed eyewitness identification, his attorney’s effec- tive cross-examination of the eyewitness and another witness, his attorney’s frequent reference during cross- examination to the weaknesses of the identification, and the trial court’s lengthy jury instructions on identifi- cation testimony and the factors that the jury should consider in evaluating that testimony. Id., 729–30. The more balanced approach described in Perry is necessary because eyewitness identifications are made in widely differing circumstances, and a variety of potentially effective methods are available for bringing reliability issues to a jury’s attention. Thus, each case should be considered on its own facts, and trial courts should be allowed broad discretion in deciding whether any particular combination of methods, including clos- ing argument, cross-examination and jury instructions, both before and after an eyewitness has testified, as well as at the close of the evidence, is sufficient to assist juries in assessing the reliability of an eyewitness identification without expert testimony. In other words, although cross-examination and closing argument, in and of themselves, may be inadequate to bring the unre- liability of an eyewitness identification to the jury’s attention, trial courts should be allowed to consider the totality of the circumstances in deciding whether to admit or preclude expert testimony.3 Accordingly, to the extent the majority concludes that expert testimony is presumptively admissible unless the trial court gives focused jury instructions, the eyewitness was familiar with the defendant before the commission of the crime or the proposed testimony otherwise fails the test for the admission of expert testimony, the majority goes too far and repeats the mistake made in Kemp and McClendon of unnecessarily limiting the trial court’s discretion. A totality of the circumstances approach is justified on several grounds. Although the majority makes some- what contradictory statements on the matter, I agree with its observation that ‘‘[t]he defendant makes no claim—and there is no basis for such a claim—that the impropriety was of constitutional magnitude.’’4 Foot- note 45 of the majority opinion. Thus, the preclusion of expert testimony on the reliability of an eyewitness identification is not a constitutional violation; see, e.g., Buell v. Mitchell, 274 F.3d 337, 357–58 (6th Cir. 2001) (habeas petitioner does not have constitutional right to present expert testimony on reliability of eyewitness identification); Burwell v. Superintendent of Fishkill Correctional Facility, United States District Court, Docket No. 06 Civ. 787 (JFK) (S.D.N.Y. July 10, 2008) (‘‘[n]o [United States] Supreme Court decision has held that the exclusion of expert testimony on the reliability of eyewitness identifications violates a defendant’s con- stitutional rights’’); Smith v. Booker, United States Dis- trict Court, Docket No. 05-CV-40291-FL (E.D. Mich. November 14, 2006) (habeas petitioner was not deprived of his constitutional right to fair trial when trial court declined to assign him expert in eyewitness identifications); and defendants are not entitled to have experts testify on their behalf, even in the absence of focused jury instructions. Moreover, there is no consensus among other juris- dictions that expert testimony is necessarily the best method, other than focused jury instructions, for bring- ing the potential unreliability of an eyewitness identifi- cation to a jury’s attention. Although expert testimony may be helpful to a jury in some circumstances, such testimony, like cross-examination and closing argu- ment, is subject to its own imperfections and deficien- cies. These include that it may (1) be unfocused and rambling, (2) involve dueling experts employed to emphasize differing interpretations of the current research, thereby confusing jurors, (3) significantly increase the cost of litigation, (4) extend the length of the trial, and (5) inadvertently invade the province of the jury by stating an opinion on the credibility of the eyewitness.5 See, e.g., State v. Henderson, supra, 208 N.J. 298 (citing less need for expert testimony when trial court gives enhanced jury instructions because instructions are ‘‘focused and concise, authoritative . . . [neutral], and cost-free . . . [and] they avoid pos- sible confusion to jurors created by dueling experts; and they eliminate the risk of an expert invading the jury’s role or opining on an eyewitness’ credibility’’); see also C. Sheehan, note, ‘‘Making the Jurors the ‘Experts’: The Case for Eyewitness Identification Jury Instructions,’’ 52 B.C. L. Rev. 651, 674–77 (2011) (expert testimony is subject to various pitfalls, including poten- tially prejudicial effect, disproportionate benefit to affluent defendants and tendency to increase length and cost of criminal trials by producing ‘‘ ‘battle of the experts’ ’’). I also disagree with the majority that a defendant should be allowed to present expert testimony on eye- witness identifications even when there is strong cor- roborating evidence of the defendant’s guilt. The majority states that, ‘‘[a]lthough some courts have con- cluded that it is not an abuse of discretion for a trial court to exclude otherwise admissible expert testimony on the reliability of eyewitness identifications when the eyewitness’ testimony is corroborated by other evi- dence of the defendant’s guilt . . . we do not believe that a defendant should be precluded from presenting such testimony merely because the state has presented other evidence of guilt that the jury reasonably could credit. Broadly speaking, when the identity of the perpe- trator is disputed and the state seeks to use eyewitness testimony to identify the defendant as the perpetrator, the defendant should be permitted to adduce relevant expert testimony on the fallibility of the eyewitness’ identification, at least in the absence of an adequate substitute for the testimony, such as comprehensive focused jury instructions.’’ (Citations omitted.) In con- trast, I believe that trial courts should be allowed to consider substantial corroborating evidence when determining whether to admit expert testimony because, in cases in which the record contains such evidence, the importance of expert testimony is corres- pondingly diminished and would be an unnecessary distraction to the jury. See, e.g., United States v. Crot- teau, 218 F.3d 826, 833 (7th Cir. 2000) (‘‘when there is corroborating evidence, expert testimony regarding the reliability of eyewitness identification is not neces- sary’’); United States v. Moore, 786 F.2d 1308, 1313 (5th Cir. 1986) (trial court did not abuse its discretion in excluding expert testimony on reliability of eyewitness identifications because other evidence of guilt was ‘‘overwhelming’’); Commonwealth v. Watson, 455 Mass. 246, 258, 915 N.E.2d 1052 (2009) (‘‘[when] there is addi- tional evidence to corroborate an [eyewitness’] identifi- cation, a judge does not overstep the bounds of discretion in excluding expert testimony’’); People v. LeGrand, 8 N.Y.3d 449, 459, 867 N.E.2d 374, 835 N.Y.S.2d 523 (2007) (‘‘[i]n the event that sufficient corroborating evidence is found to exist, an exercise of discretion excluding eyewitness expert testimony would not be fatal to a jury verdict convicting [a] defendant’’); People v. Young, 7 N.Y.3d 40, 45, 850 N.E.2d 623, 817 N.Y.S.2d 576 (2006) (corroborating evidence ‘‘was strong enough for the trial court reasonably to conclude that the expert’s testimony would be of minor importance’’). But cf. Johnson v. State, 272 Ga. 254, 257, 526 S.E.2d 549 (2000) (‘‘[when] eyewitness identification of the defendant is a key element of the [s]tate’s case and there is no substantial corroboration of that identifica- tion by other evidence, trial courts may not exclude expert testimony without carefully weighing whether the evidence would assist the jury in assessing the relia- bility of eyewitness testimony and whether expert . . . testimony [on eyewitness identifications] is the only effective way to reveal any weakness in an eyewitness identification’’ [emphasis added]); State v. Wright, 147 Idaho 150, 158, 206 P.3d 856 (App. 2009) (‘‘[w]hen an eyewitness identification of the defendant is a key ele- ment of the prosecution’s case but is not substantially corroborated by evidence giving it independent relia- bility, and the defendant offers qualified expert testi- mony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury, it will ordinarily be error to exclude that testimony’’ [emphasis added; internal quo- tation marks omitted]). Thus, for example, when the state introduces uncontested DNA evidence as well as an eyewitness identification linking the defendant to the crime, there generally is no need for expert testi- mony on the reliability of the identification. The corrob- orative value of DNA evidence, which has been used on numerous occasions to exonerate defendants who have been wrongfully convicted on the strength of an eyewitness identification; see, e.g., E. Connors et al., Office of Justice Programs, United States Dept. of Jus- tice, ‘‘Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Inno- cence after Trial’’ (June 1996) pp. 2, 15; is such that expert testimony would be of little value. The majority, however, fails to recognize that when strong corrobo- rating evidence is consistent with an eyewitness identi- fication, expert testimony would be not only time consuming and costly, but potentially confusing rather than helpful to the jury. Unlike the majority, I am persuaded by the logic in Patterson, in which the District of Columbia Court of Appeals stated that, ‘‘under some, but not all circum- stances, [expert] testimony should be admitted when the jury requires assistance in deciding the verity of an identification. But, this issue, in discrete cases, must be tested on whether it was an erroneous exercise of discretion exercised under all circumstances present, not under a rule that such testimony must always be admitted because jurors are not fit to decide the issue unaided by expert testimony. When other evidence points to the verity of a victim’s identification of the accused, such as the victim’s depiction of the gun in a sketch immediately after the crime and the . . . recov- ery of a gun [by the police] in the motel matching that description, that evidence is a legitimate consideration for the trial judge in exercising judgment on whether to exclude such expert testimony. Life experiences are sufficient and a trial judge must be vested with discre- tion to sort out the various situations where experts may illuminate the question.’’6 (Emphasis added.) Pat- terson v. United States, supra, 37 A.3d 238. In sum, I agree that expert testimony may be war- ranted when the trial court does not intend to give focused jury instructions, the eyewitness was unfamil- iar with the defendant before the commission of the crime, and the proposed testimony satisfies the applica- ble reliability and relevance requirements. I nonetheless believe that other methods are also effective in bringing the potential unreliability of an eyewitness identifica- tion to the attention of the jury and that trial courts, in deciding whether to admit or preclude expert testi- mony, should be allowed to consider under a totality of the circumstances analysis how those methods have been used in the case at hand and whether there is substantial corroborating evidence of the defendant’s guilt. Accordingly, to the extent this view is inconsistent with that of the majority, I disagree with the majority’s analysis and conclusions. II I also disagree with the majority that the trial court in the present case abused its discretion in precluding expert testimony regarding the identification made by Scott Lang, the only eyewitness who was unfamiliar with the defendant before the shooting. The trial court had valid reasons for precluding the testimony and instructed the jury as to the factors that might affect the reliability of the identification. Furthermore, the majority’s harmless error analysis relies on reasoning that is inconsistent with its newly established rule as to when expert testimony is admissible. Accordingly, I believe the majority opinion will lead to much confusion among trial courts regarding the extent of their discre- tion to preclude expert testimony on eyewitness identi- fications. The principle that trial courts have broad discretion in ruling on evidentiary matters is deeply rooted in our jurisprudence. ‘‘It is axiomatic that [t]he trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . In this regard, the trial court is vested with wide discretion in determining the admissi- bility of evidence . . . . Accordingly, [t]he trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discre- tion. . . . Furthermore, [i]n determining whether there has been an abuse of discretion, every reasonable pre- sumption should be made in favor of the correctness of the trial court’s ruling, and we will upset that ruling only for a manifest abuse of discretion. . . . Despite this deferential standard, the trial court’s discretion is not absolute. . . . Thus, [i]n reviewing a claim of abuse of discretion, we have stated that [d]iscretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . In general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors.’’ (Citations omitted; internal quotation marks omitted.) State v. Jacobson, 283 Conn. 618, 626–27, 930 A.2d 628 (2007).  Mindful of these principles, I first discuss whether the trial court in the present case properly precluded the expert testimony under State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998). I then examine whether the expert testimony, even if admissible under Porter, was properly precluded under a totality of the circumstances analysis. I conclude by explaining why I disagree with the majority’s reasoning as applied to the facts of the present case. A The following additional facts are relevant to a con- sideration of this issue. The trial court conducted a Porter hearing following the state’s presentation of evi- dence. During the hearing, Charles A. Morgan III, a forensic psychiatrist and the defendant’s expert wit- ness, testified that the scientific evidence he intended to discuss was based on research involving military personnel. Morgan explained that his principle interest was post-traumatic stress disorder and that, although he had published more than forty peer reviewed papers during his career, he was not one of the primary researchers in the field of eyewitness memory, and only two of his recently published papers, in 2004 and 2007, had examined the accuracy of eyewitness identifica- tions in relation to high stress events. The subjects of both studies were active duty military personnel enrolled in survival school training to prepare for being held as prisoners of war. The subjects were placed in isolation, exposed to high stress interrogations in a well lighted room for more than thirty minutes and were in some cases threatened with physical punishment, pushed around, slapped and struck. Approximately forty-eight hours later, they were asked to identify their interrogators. The studies found, among other things, that the accuracy of an identification was lower when the level of stress was higher and that there was no relationship between a subject’s confidence in the iden- tification and its accuracy. Morgan testified that the 2004 study had been published in a peer reviewed jour- nal, the 2007 study replicating the earlier study was about to be published at the time of the defendant’s trial, and a third study had been submitted but not yet accepted for publication. On cross-examination, Mor- gan added that he had testified regarding the accuracy of eyewitness memory only three other times, one of which was in the context of a war crimes trial in The Hague, Netherlands, and another in the context of a claim involving post-traumatic stress disorder, which was the focus of most of his work and the bulk of his publications. In response to detailed questioning by the court, Morgan further explained that the memory of a person like Lang, the only eyewitness to observe the shooting other than William Robinson, the victim, might be subject to unknown variables, such as intoxication, the effect of which had not yet been studied, and that, although the military subjects in Morgan’s study had not experienced the same kind of stress as Lang, the high level of stress in both situations would have the same effect on memory. Morgan also stated, upon being asked whether ‘‘misattribution’’ or ‘‘retrofitting’’ was a concept within the common knowledge of jurors, that he did not know of any scientific data indicating the level of understanding in the general population regard- ing these concepts and the effect of misinformation on memory. When the court asked why Morgan’s testimony would be more helpful than a jury instruction, Morgan indicated that a jury instruction, if followed, also could be ‘‘very helpful . . . .’’ The trial court then considered the relevance and reliability of the expert testimony. Although the court initially concluded that Morgan had a special skill or knowledge, it questioned whether post-traumatic stress studies involving military personnel were applicable to civilians. The court also concluded that the substance of Morgan’s testimony on the factors that might affect reliability was within the common knowledge of the average juror, had been adequately addressed by direct and cross-examination of the witnesses and would be further discussed during closing arguments. In this regard, the court specifically concluded that (1) jurors have knowledge that stress, particularly during an inci- dent of violence, has an effect on the reliability of an eyewitness identification, (2) the effect of a time lapse between when a witness sees an event and when the witness reports it to the police had been, and would continue to be, addressed by cross-examination and summation, (3) the effect of postevent information on an identification had been raised in the questioning of several witnesses and was within the common knowl- edge of the jurors, and (4) the effect of the level of certainty of several eyewitnesses had been alluded to during cross-examination. The court observed that it had wide discretion in ruling on the matter and would be required to weigh and balance whether the proposed testimony would overpower other factors that the jury needed to consider with respect to the identification procedure, such as whether to credit or discredit, in whole or in part, the testimony of various witnesses. The court further concluded that Morgan’s theories had been insufficiently tested, had no known or potential rate of error and were not generally accepted within the scientific community, which Morgan appeared to acknowledge. The court emphasized that it did not believe that the results of studies in a military setting could be properly applied in a civilian setting and that it was not satisfied that anything other than a jury instruction was necessary in the present case. After noting that the Porter standard for admitting scientific testimony was flexible, the court concluded that Mor- gan’s testimony would not assist the jury inasmuch as it was neither relevant, because of its military subjects, nor reliable from a scientific standpoint. The court stated that it had prepared jury instructions that the parties would have the opportunity to review and then proceeded to grant the motion to preclude Morgan’s tes- timony. Thereafter, the parties reviewed the proposed jury instructions, and defense counsel requested that the instruction concerning the effect of stress on an eyewit- ness identification when a weapon is used include a statement that stress in this circumstance decreases reliability. The court indicated that it was not inclined to add the proposed language but that defense counsel could object after the instruction was given. The follow- ing day, defense counsel asked the court if it had made the requested change. The court responded that, although it had not used the language that counsel had suggested, it had added the word ‘‘impact’’ so that the instruction now read: ‘‘[Y]ou should also consider a witness’ physical and emotional condition such as stress during an incident where a weapon was used since that may impact on the reliability of an identifica- tion.’’ Defense counsel did not object to the revised instruction. After the court gave the jury instructions, defense counsel took exception to only one instruction unrelated to the instructions on eyewitness testimony. When the court inquired as to whether counsel had any further objections, he replied in the negative. In light of the trial court’s concerns that Morgan’s research lacked scientific rigor, was not generally accepted within the scientific community, was con- ducted in a military setting and might not be applicable to a civilian population, I would conclude that the trial court did not abuse its discretion in precluding Morgan’s testimony under Porter because it did not decide the matter ‘‘so arbitrarily as to vitiate logic’’ and did not base its conclusion ‘‘on improper or irrelevant factors.’’ (Internal quotation marks omitted.) State v. Jacobson, supra, 283 Conn. 627. To the contrary, the factors that the trial court considered in deciding whether to admit the testimony were exactly those factors that it should have considered under a Porter analysis. Morgan him- self acknowledged that his expertise was in the area of post-traumatic stress disorder, that he was not a primary researcher in the field of, and had not done extensive research on, the accuracy of eyewitness mem- ory, that many variables other than stress that had not been studied might affect accuracy, that the military subjects of his studies had not experienced the same type of stress as Lang and that there was no scientific data indicating the level of understanding in the general population regarding the effect of misinformation on memory and retrofitting. Morgan also conceded that a jury instruction ‘‘could be very helpful . . . .’’ More- over, ‘‘[i]t is well established that [i]t is within the prov- ince of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence. . . . Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the wit- ness’ conduct, demeanor and attitude. . . . An appel- late court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom.’’ (Internal quota- tion marks omitted.) Gianetti v. Norwalk Hospital, 304 Conn. 754, 772–73, 43 A.3d 567 (2012). Accordingly, the trial court properly exercised its broad discretion in concluding that Morgan’s research on military subjects had no relevance in the present context under the crite- ria established in Porter and would not be helpful to the jury.7 B Even assuming that the trial court improperly deter- mined under Porter that Morgan’s testimony did not satisfy the requirements of reliability and relevance, the court properly precluded his testimony under a totality of the circumstances analysis because at least three other factors, all of which were noted by the court, served to bring the potential unreliability of Lang’s eye- witness identification to the jury’s attention. These included questions raised by counsel during the direct and cross-examination of Lang, defense counsel’s clos- ing argument and the court’s intended jury instructions. With respect to the first factor, both the assistant state’s attorney (prosecutor) on direct examination and defense counsel on cross-examination questioned Lang regarding the possible effect of his past drinking prob- lems on his judgment and memory, the alleged inconsis- tencies between his testimony at trial and his descrip- tion of the shooting to the police, and the effect of his seeing the defendant’s photograph in the newspaper on the accuracy of his identification. For example, the prosecutor elicited testimony from Lang on direct examination that, in the year following the shooting, he voluntarily entered a treatment facility after an arrest for operating a motor vehicle while under the influence of alcohol and that a form that he completed in connec- tion with his admission indicated that he had an impaired memory, poor judgment and poor insight. The prosecutor also queried Lang on direct and redirect examination as to whether his identification of the defendant had been influenced by seeing the defen- dant’s photograph in the newspaper. On cross-examina- tion, defense counsel attacked the certainty of Lang’s identification by asking if he recalled telling the police that he did not recognize the shooter or the victim. Defense counsel also elicited testimony that Lang had a history of driving under the influence in the years before the shooting, that he had consumed two beers just before the shooting and that he could not recall whether there was a cast on the shooter’s left hand even though the two men were ‘‘shoulder to shoulder’’ at the time of the shooting. Defense counsel further questioned discrepancies in Lang’s testimony regarding how the shooter had exited the building, the gun used in the shooting and his recollection of how many days after the shooting he had seen the defendant’s photo- graph in the newspaper. In addition, defense counsel asked Lang about the effect of the photograph on his identification and why he had told the police that he recognized the defendant from the photograph if he was so certain on the night of the shooting that the defendant was the perpetrator. With respect to the second factor, two defense attor- neys addressed the unreliability of Lang’s eyewitness identification during closing argument, as the trial court had anticipated. The defense specifically argued that eyewitness identifications are suspect because of the passage of time between an event and its recollection, the effect of stress on memory when a weapon is used and the effect of postevent information such as media coverage on memory, all of which were deemed important in the present case.8 With respect to the third factor, the court gave jury instructions referring to issues of particular significance that served to guide the jurors in assessing the reliability of Lang’s identification.9 These included instructions to consider (1) ‘‘the opportunity and ability of the witness to observe the perpetrator at the time of the event and to make an accurate identification later,’’ (2) ‘‘whether the witness had adequate opportunity to observe the perpetrator [which may] be affected by such matters as the length of time available to make the observation, the distance between the witness and the perpetrator, the lighting conditions at the time of the offense, whether the witness had known or seen the person in the past, and whether anything distracted the attention of the witness,’’ (3) ‘‘[the] witness’ physical and emo- tional condition, such as stress during an incident where a weapon was used, since that may impact on the relia- bility of an identification,’’ (4) ‘‘postevent information, such as media coverage, [or] talking to or listening to others about who was the perpetrator,’’ (5) ‘‘that mem- ory can change over time and that the level of certainty indicated by a person may not always reflect a corres- ponding level of accuracy of an identification.’’ All of these issues also were raised during defense counsel’s cross-examination and closing argument. Moreover, defense counsel was apparently satisfied with the instructions because he made no objection after they were given. Accordingly, although the jury instructions were not extremely detailed, and thus barely adequate, they provided a sufficient ground on which to preclude Morgan’s testimony when considered together with defense counsel’s cross-examination and closing argument. Finally, admission of Morgan’s testimony was unnec- essary because there was strong corroborating evi- dence of the defendant’s guilt, including the testimony of the victim that the defendant was the shooter, the testimony of another witness that he saw the defendant running out of the bar immediately after the shooting, evidence that the gun used in the shooting was the same gun that the defendant used in two related shootings shortly thereafter, and the defendant’s subsequent flight from the country, all of which was before the court when it granted the motion to preclude Morgan’s tes- timony.10 In reviewing this claim, the court must be mindful that ‘‘[t]he trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.’’ (Emphasis added; internal quotation marks omitted.) State v. Jacobson, supra, 283 Conn. 626. Thus, ‘‘[i]n determining whether there has been an abuse of discretion, every reasonable presump- tion should be made in favor of the correctness of the trial court’s ruling, and we will upset that ruling only for a manifest abuse of discretion.’’ (Internal quotation marks omitted.) Id., 626–27. Accordingly, following Connecticut’s well established law on the trial court’s discretion in making evidentiary rulings, I am unable to comprehend how the majority can conclude that the trial court abused its discretion in precluding Mor- gan’s testimony. C In reaching the opposite conclusion, the majority’s abuse of discretion analysis is subject to several serious flaws. Of these, the most striking is that the majority disregards the trial court’s reasons for precluding the expert testimony under Porter. The majority explains that the trial court abused its discretion because Lang did not know the shooter, he had seen the defendant’s photograph in a newspaper before identifying him as the shooter and the other eyewitness who observed the shooting and who previously was acquainted with the defendant gave inconsistent testimony as to whether the defendant was the shooter. The majority also states elsewhere in its opinion, without any supporting analy- sis, that the jury instructions did ‘‘not suffice’’ because they were too broad. The majority thus concludes that Morgan’s testimony would have been helpful to the jury. This reasoning, however, is completely inconsistent with the