State v. Outing (concurring)
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****************************************************** 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 Connecticut 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 Connecticut 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 reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** STATE v. OUTING CONCURRENCE NORCOTT, J., concurring. For the reasons that are artfully explained in his comprehensively researched concurring opinion, I agree wholeheartedly with Justice Palmer that the time has come to overrule our prior decisions in State v. Kemp, 199 Conn. 473, 507 A.2d 1387 (1986), and State v. McClendon, 248 Conn. 572, 730 A.2d 1107 (1999), to the extent that they be read as holding inadmissible expert testimony concerning the reliability of eyewitness identifications. I therefore join him in concluding that, with respect to reliability, the trial court improperly refused to admit into evidence the expert testimony of Jennifer Dysart introduced by the defendant, J Veil Outing, at the hearing on his motion to suppress eyewitness identification testimony. I write separately, however, to recognize the validity of the majority s prudential concerns about whether this case presents us with the appropriate vehicle for overruling these flawed precedents. I agree with the majority that this is not the ideal case for reconsidering these precedents, because: (1) under well established due process principles, we need not consider the reliability of the identification herein because it was obtained using a procedure that properly was found, after consideration of parts of Dysart s proffered testimony, not to be unnecessarily suggestive; see, e.g., Manson v. Brathwaite, 432 U.S. 98, 107, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); and (2) there are preservation problems, namely, the defendant s failure to proffer Dysart s expert testimony into evidence at the subsequent jury trial.1 Given, however, this court s inherent authority to change and develop the rules of evidence through case-by-case common-law adjudication ; State v. DeJesus, 288 Conn. 418, 454, 953 A.2d 45 (2008); as well as the hazards of gross injustice presented by all2 eyewitness identification testimony, which are well documented in Justice Palmer s concurring opinion, I simply do not think it appropriate or wise to wait for the right record to come before us before we act to correct this dangerously outmoded body of case law. See, e.g., State v. Salamon, 287 Conn. 509, 520, 949 A.2d 1092 (2008) ( [t]he value of adhering to [past] precedent is not an end in and of itself . . . if the precedent reflects substantive injustice [internal quotation marks omitted]). Accordingly, I join Justice Palmer s concurring opinion. 1 I respectfully disagree with the majority s alternate conclusion that we need not address this issue because, in any event, the failure to admit Dysart s expert testimony would have been harmless error. Particularly in the evidentiary field, we previously have overruled prior case law without regard to the fact that the resulting evidentiary error turned out to be harmless. See State v. Malave, 250 Conn. 722, 740 43, 737 A.2d 442 (1999) (abandoning missing witness rule set forth in Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 [1960], but concluding that trial court s missing witness instruction was harmless error on facts of case), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000); George v. Ericson, 250 Conn. 312, 327 28, 736 A.2d 889 (1999) (engaging in harmless error analysis after overruling evidentiary rule precluding testimony by nontreating physician). 2 On this record, I need not consider separately the significant concerns that attend cross-racial eyewitness identifications in particular. See footnote 14 of Justice Palmer s concurring opinion.
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