State v. Bellamy

Full title: State of Connecticut v. Brandon Montrell Bellamy

Court: Supreme Court of Connecticut.

Date published: Oct 25, 2016

323 Conn. 400 (Conn. 2016)

147 A.3d 655

Opinion

SC 19337

10-25-2016

State of Connecticut v. Brandon Montrell Bellamy

James B. Streeto, senior assistant public defender, for the appellant (defendant). James M. Ralls, assistant state's attorney, and Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Kevin C. Doyle, former senior assistant state's attorney, for the appellee (state).

ZARELLA, J.

James B. Streeto, senior assistant public defender, for the appellant (defendant).

James M. Ralls, assistant state's attorney, and Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Kevin C. Doyle, former senior assistant state's attorney, for the appellee (state).

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.

ZARELLA, J. The defendant, Brandon Montrell Bellamy, appeals from the judgment of the Appellate Court affirming his conviction, rendered after a jury trial, of two counts of murder in violation of General Statutes § 53a–54a (a), and one count each of assault in the first degree in violation of General Statutes § 53a–59 (a) (5), criminal possession of a pistol in violation of General Statutes § 53a–217c (a), and carrying a pistol without a permit in violation of General Statutes § 29–35. The defendant claims that the Appellate Court incorrectly determined that he waived his unpreserved jury instruction claim under the rule established in State v. Kitchens , 299 Conn. 447, 482–83, 10 A.3d 942 (2011).¹ The defendant further contends that the rule in Kitchens should be overturned because it is confusing, unworkable, interferes with an appellate court's discretion to review unpreserved claims and does not serve the interests of justice.² We conclude, following a careful review of the record, that the Appellate Court correctly determined that the defendant waived his unpreserved jury instruction claim. We also conclude that the rule in Kitchens should not be overturned. Accordingly, we affirm the judgment of the Appellate Court.

1 The court granted certification on the following issue: “Did the Appellate Court properly determine that the defendant's unpreserved instructional claim had been waived under [Kitchens ]?” State v. Bellamy , 312 Conn. 914, 93 A.3d 597 (2014).

2 On November 18, 2015, after oral argument had been scheduled, we ordered the parties to file supplemental briefs on the following issue: “Should this court overrule [Kitchens ] and permit review of unpreserved claims of instructional error that meet the reviewability requirements of State v. Golding , 213 Conn. 233, 239–40, (1989), unless the error was induced or the claim was expressly waived by the party raising the claim on appeal?”

I

We begin with the defendant's waiver claim. The defendant contends that the trial court's instruction on identification witnesses was deficient because it did not inform the jury that the certainty of a witness' identification does not mean that the identification is accurate, or that factors such as distance, lighting, a witness' emotional state and the time between the crime and the witness identification are also relevant in considering the accuracy of an identification. The state responds that defense counsel indicated that he understood and accepted the trial court's proposed instruction, and, therefore, the defendant's claim is unreviewable under the waiver rule in Kitchens . We agree with the state that the defendant's claim is unreviewable.³ The following facts and procedural history are relevant to our resolution of this claim. On Thursday, November 4, 2010, two days after commencement of the evidentiary portion of the trial, the court gave counsel a draft of the proposed jury instructions. The court also notified counsel that, if they would like to make any additional changes to the instructions, they should inform the court by the following Monday, November 8, although counsel were free to file supplemental instruction requests after that time in light of additional evidence. The court added: “If there's anything either in the court's language or an additional area that I would call nonstandard that you want included, please let the court know.” The court also stated that it expected jury deliberations to begin on Tuesday, November 9. The proposed instructions do not appear to have been marked for identification or otherwise made part of the record.

3 Although we ordinarily would consider the defendant's waiver claim only after a determination that it was of constitutional magnitude under the second prong of State v. Golding , 213 Conn. 233, 239, 567 A.2d 823 (1989), the state acknowledged in its brief to this court that the issue of whether the claim was constitutional was “briefed ... but not addressed by the Appellate Court.” The state further acknowledged that the grant of certification to appeal to this court did not include consideration of the constitutional issue. Accordingly, the state's argument with respect to waiver, our analysis of the defendant's waiver claim and our reconsideration of the rule in Kitchens are all based on a presumption that the defendant's claim is of constitutional magnitude, as that issue has not been raised or briefed in this court.

On Monday, November 8, following conclusion of the evidence, the trial court stated for the record that it was going to meet with counsel in chambers for “a legal charging conference.” The court explained: “[I]t's the actual law the court is going to give tomorrow as it relates to the charges themselves and any kind of law that would apply to this case based on identification witnesses, inconsistent testimony, etc., charges that need to go to the jury in order to complete the record of the case.” The court added that it would try to incorporate any specific requests by counsel into the proposed charge. The court also indicated that it had given counsel copies of the court's proposed general and specific instructions. A brief recess followed, during which the court consulted with counsel in chambers. After the recess, the court described the proceeding to follow as “our legal session for the charging conference.” The court first observed that it had given counsel for both sides copies of the proposed general instructions. It then described certain changes unrelated to the identification issue that it intended to make in response to requests by counsel, adding that it also intended to change the instructions to read that it was the state's burden to prove beyond a reasonable doubt that the defendant had committed the charged crimes, to which defense counsel specifically assented. The court next discussed the proposed identification instruction, explaining: “With respect to identification, I did give an identification section in the charge which outlines on page 14 that the jur[ors] must be satisfied in making the identification, including some of the factors they can consider in this evidence. However, I'm going to expand that language to include ... language to the effect that, in every criminal prosecution, it is the state's responsibility to show that the defendant is the person who committed the offense, and if they are not satisfied of that evidence, then they cannot find the defendant guilty of any particular offense. I'm going to highlight that because, obviously, that is an issue in this case.” The court also indicated its willingness to change language in the proposed instructions referring to the possession of a weapon, as suggested by defense counsel. After the court asked if there were any other exceptions, defense counsel responded: “Not at this time, Your Honor.” The court replied: “Okay, I appreciate your coming back up, and, with that, because the charge is now complete, we can go right to the jury .... Okay?” Defense counsel simply responded: “Thank you, Your Honor.” The court then adjourned for the day.

When the proceeding resumed the next morning, the court initially noted that it had conducted an on-the-record charging conference the previous day, during which it had made certain changes to the jury instructions suggested by counsel. The court also clarified that the jury instructions would contain no reference to lesser included offenses, and both counsel agreed that this was appropriate. After the court asked if there was “[a]nything else” of concern the parties wanted to discuss before the jury was brought into the courtroom, counsel responded: “Nothing from [the] defense, Your Honor.” The jury then returned to the courtroom, and the court delivered its instructions.

The trial court's jury instructions addressed the issue of identification two different times. The court first addressed the identification issue indirectly when it instructed the jury regarding how to decide whether to believe a witness' testimony.⁴ It later addressed the issue directly in its charge on identification.⁵ Defense counsel took no exception to either instruction. Defense counsel instead stated that he did not object to the instructions, agreed with the state regarding a clarification relating to the elements in the weapons counts, and asked the court to eliminate the instruction on proof of the felony conviction. The court agreed to the suggested changes and asked if there was anything else defense counsel wanted to discuss, to which counsel replied in the negative.

4 The court initially charged that the jury, in deciding whether to believe all, some or none of a witness' testimony, should consider a number of factors, including: (1) “Was the witness able to see, hear and know the things about which the witness testified?” (2) “How well was the witness able to recall and describe those things?” (3) “What was the witness' manner and demeanor while testifying?” (4) “Did the witness have any interest in the outcome of this case or any bias or prejudice concerning any party or any matter involved in the case?” (5) “How reasonable was the witness' testimony considered in light of all of the evidence in the case?” (6) “Was the witness' testimony contradicted by what that witness has said or done at another time or by the testimony of other witnesses or other evidence.”

5 The court subsequently instructed: “Identity is an issue in every criminal case. An element of each offense is the identity of the perpetrator. The state must prove to you beyond a reasonable doubt that this defendant was the individual who committed the crimes that the jury considers. Therefore, the burden in this case is on the prosecution to prove beyond a reasonable doubt not only that the crimes charge[d] were committed but also that the defendant was the person who committed the crime[s]. If the state does not prove the identity of the defendant as the perpetrator beyond a reasonable doubt [with respect to] any of the offenses charged, you must find him not guilty of the offense[s]. You must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you convict him. It is your duty to recall and weigh and consider all of the evidence relating to the identification of the defendant. You should consider the opportunity the witness had to observe the defendant, the degree of certainty of the identification made by the witness, whether the witness knew the defendant before the identification [and] any other circumstances that you think are relevant to the issue of identification of the defendant.”

The defendant was convicted on all counts. On January 7, 2011, the court held a sentencing hearing. At the hearing, defense counsel initially argued in support of three postverdict motions the defendant had filed to arrest judgment, for judgment of acquittal, and for a new trial. In his argument, counsel stated that all three motions were based principally on the allegedly rapid speed with which the jury instructions had been delivered. Counsel specifically argued: “[I]t's not the content of the jury instructions. The jury instruction says we went through the charging conference. We conferred. We agreed on them. I didn't take any exceptions. The issue I had, Your Honor, was the speed with [which] the court went through the instructions to the jury.” Counsel indicated that the speed of the instructions was important because it affected the jurors' ability to follow them. The court denied all three motions, reasoning that “the jur[ors] did have the benefit of the actual transcript of the court's instructions going in with them in their deliberative process.”

Thereafter, the defendant appealed from the judgment of conviction.⁶ The defendant claimed, among other things, that “the [jury] instructions on the issue of [the accuracy of an] identification were prejudicially erroneous and deprived him of [his constitutional right to] a fair trial ....” State v. Bellamy , 149 Conn.App. 665, 669, 89 A.3d 927 (2014). The defendant specifically contended that the instructions departed from the standard criminal jury instructions promulgated by the Judicial Branch because they failed to inform the jury that the certainty of a witness' identification does not equate with its accuracy. Id. He also contended that the instructions had failed to list other relevant factors relating to the accuracy of a witness identification, such as distance, lighting, the emotional state of the witness, and the time between the crime and the identification. Id. The defendant, who apparently had filed no request to charge, conceded that this claim was unpreserved and sought review under State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989).⁷ State v. Bellamy , supra, at 671, 89 A.3d 927. The Appellate Court noted, however, that a claim that has been waived at trial fails to satisfy the third prong of Golding .⁸ Id., at 671–72, 89 A.3d 927. The court thus determined that, in order to decide whether the defendant's claim was reviewable under Golding , it was required, under Kitchens , to first consider whether the claim had been waived at trial. Id. Applying the waiver rule in Kitchens , the court ultimately concluded that the claim had been waived. Id., at 673–74, 89 A.3d 927. The court summarized: “[D]efense counsel, having been provided with a draft copy of the jury instructions and a meaningful opportunity to review them and to alert the court to any potential issues, declined to object in any way to the portion concerning identification, and affirmatively expressed his satisfaction with the content of the instructions. Under these circumstances, the defendant has waived his claim of instructional error, and, accordingly, it fails under the third prong of Golding .” Id. ; see also footnote 3 of this opinion.

6 The defendant initially appealed to this court, which transferred the appeal to the Appellate Court.

7 In Golding , we stated a defendant may prevail on an unpreserved claim when: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Footnote omitted.) State v. Golding , supra, 213 Conn. at 239–40, 567 A.2d 823 ; see also In re Yasiel R ., 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third prong of Golding by eliminating word “clearly” before “exists” and “deprived”).

8 “A defendant in a criminal prosecution may waive one or more of his or her fundamental rights. ... [I]n the usual Golding situation, the defendant raises a claim on appeal [that], while not preserved at trial, at least was not waived at trial. ... [A] constitutional claim that has been waived does not satisfy the third prong of the Golding test because, in such circumstances, we simply cannot conclude that injustice [has been] done to either party ... or that the alleged constitutional violation ... exists and ... deprived the defendant of a fair trial ....” (Citation omitted; internal quotation marks omitted.) State v. Kitchens , supra, 299 Conn. at 467, 10 A.3d 942.

On appeal to this court, the defendant contends that the Appellate Court incorrectly concluded that he waived his claim of instructional error. We disagree. In Kitchens , we stated: “[W]hen the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal. Such a determination by the reviewing court must be based on a close examination of the record and the particular facts and circumstances of each case.”⁹ State v. Kitchens , supra, 299 Conn. at 482–83, 10 A.3d 942. In the present case, all of the foregoing criteria were satisfied. The trial court gave both defense counsel and the state a copy of its proposed jury instructions four days before the charging conference. Two of the four days fell on a weekend, thus providing counsel with even more time to review the instructions. The court also solicited comments from counsel regarding modifications to the instructions during the in-chambers charging conference, during the proceedings in open court directly after the charging conference and on the following day immediately before instructing the jury. In addition, when the court discussed portions of the identification instruction on the record, defense counsel expressed no dissatisfaction with the instruction, although he commented on several other instructions. Counsel thus indicated that he had read and understood the instructions in their entirety and took no issue with any part, including the instruction on identification. Finally, defense counsel explicitly conceded during the sentencing hearing that he had agreed with the substance of the jury instructions before they were given and that his only objection was to the speed with which they had been delivered by the court. Accordingly, we conclude that the defendant implicitly waived his jury instruction claim under the rule articulated in Kitchens .

9 The defendant repeatedly states that the court in Kitchens deemed a lack of assertion of a right, or silence, to constitute a waiver. This is incorrect. The court in Kitchens emphasized that waiver “involves the idea of assent”; (internal quotation marks omitted) State v. Kitchens , supra, 299 Conn. at 469, 10 A.3d 942 ; and that implied waiver occurs when counsel “affirmatively accepts the instructions proposed or given ....” Id., at 483, 10 A.3d 942. Accordingly, to the extent the defendant equates the waiver rule articulated in Kitchens with forfeiture, or “the failure to make the timely assertion of a right”; (internal quotation marks omitted) id., at 474, 10 A.3d 942 ; he mischaracterizes the rule, just as Justice Katz mischaracterized the rule in her concurring opinion in Kitchens . Id., at 500–501, 10 A.3d 942 (Katz J. , concurring) (stating that waiver rule improperly “lend[s] credence to a wholly novel system of categorizing unpreserved trial errors under which, essentially, a defendant will be deemed to have waived Golding review of an instructional claim merely by participating in a charging conference and failing to object to jury instructions proposed by the court or the state ” [emphasis added] ).

Notwithstanding these compelling facts, the defendant claims that he did not agree to the trial court's identification instruction. He contends that, in the absence of a marked copy of the jury instructions, there is no evidence in the record that defense counsel reviewed and approved of the precise language of the identification instruction. He also notes that, although the trial court stated during the on-the-record charging conference that it intended to broaden and expand on the language in the proposed instruction, there is no evidence that defense counsel had an opportunity to review and approve of the revised instruction before it was given. He thus argues that defense counsel's statement at the sentencing hearing that he agreed with the content of the jury instructions “cannot be reconciled” with the state's burden of establishing waiver by showing that counsel reviewed the precise language being challenged on appeal, especially in light of counsel's claim at the hearing regarding the speedy delivery of the instructions. We disagree.

We first observe that the waiver rule in Kitchens does not require that a copy of the proposed jury instructions be marked as an exhibit. It only requires evidence that the trial court gave the parties a “copy of the proposed jury instructions” and that the reviewing court's determination of implied waiver “be based on a close examination of the record and the particular facts and circumstances of each case.” State v. Kitchens , supra, 299 Conn. at 482–83, 10 A.3d 942. Thus, in most instances, a combination of facts and circumstances rather than any single fact will support a finding of waiver. Moreover, a marked copy would not necessarily have provided the desired clarity as to what defense counsel waived because courts often make last minute changes to the jury instructions in on-the-record consultations with counsel immediately prior to their delivery, when there may be no time to memorialize the changes in a written document. Finally, to the extent the defendant suggests that the lack of a marked copy in the present case prevented the reviewing court from knowing that the trial court's draft included an instruction on eyewitness identification, we know that the draft included such an instruction because the trial court referred to it during the on-the-record charging conference when it stated that it “did give an identification [instruction] in the charge,” and the court even referred to the page containing the part of the instruction it wanted to amend. Accordingly, although a marked copy of the proposed jury instructions may be helpful in determining whether defense counsel assented to an instruction that is challenged on appeal, it is not a requirement under Kitchens if the record contains other persuasive evidence that defense counsel had knowledge of, and assented to, the instructions that were given.

Second, insofar as the defendant claims that he had no notice of the content of the final charge on witness identification because the court stated that it intended to “expand” that instruction, the defendant takes the trial court's language out of context and ignores the explanation that followed. What the court actually stated was that it intended to expand the language on page 14 of the proposed instructions “to include ... language to the effect that, in every criminal prosecution, it is the state's responsibility to show that the defendant is the person who committed the offense, and if [the jurors] are not satisfied of that evidence, then they cannot find the defendant guilty of any particular offense. I'm going to highlight that because, obviously, that is an issue in this case.” Accordingly, the trial court explained precisely how it intended to expand the language in the identification instruction and referred to the actual page on which the new language would be added. Furthermore, and as the Appellate Court noted, the only other change to the instructions even indirectly relating to witness identification was the court's addition of language instructing that the state had the burden to prove identity beyond a reasonable doubt; State v. Bellamy , supra, 149 Conn. App. at 672 n.3, 93 A.3d 597; which has no relevance to the defendant's claim on appeal.

As for the defendant's suggestion that defense counsel indicated during the sentencing hearing that he had trouble following the jury charge because of its speedy delivery, the record shows that counsel's reference to a speedy delivery at the hearing had nothing to do with his ability to understand, and thus object to, the instructions that were given. The record instead shows that counsel was referring to the jurors' possible inability to understand the instructions because of their speedy delivery. The defendant thus misconstrues counsel's argument at the sentencing hearing.

Finally, the cases on which the defendant relies are inapposite because their facts are distinguishable from the facts in the present case. See State v. Davis , 311 Conn. 468, 478, 88 A.3d 445 (2014) (finding no waiver because trial court's stated intention to deliver charge proposed by state “ ‘in essence, maybe not exactly,’ ” which defense counsel had not read, failed to provide adequate notice to defendant, and, therefore, “the trial court's failure to provide the defendant with the precise content of the proposed jury instructions deprived him of a meaningful opportunity to review the charge”); State v. Devalda , 306 Conn. 494, 505 n.15, 50 A.3d 882 (2012) (finding no waiver because record failed to indicate “when or whether the defendant received a written copy of the proposed jury instructions”); State v. Brown , 299 Conn. 640, 659, 11 A.3d 663 (2011) (finding no waiver because record failed to indicate whether copy of final instructions given to counsel included correct charge or charge actually delivered to jury); State v. Collins , 299 Conn. 567, 597, 598, 10 A.3d 1005 (finding no waiver because record contained “no indication” that trial court gave defendant advance copy of proposed jury instruction and, therefore, reviewing court could not “say with certainty whether the defendant had a meaningful opportunity to review the written instruction itself and to challenge any objectionable language therein”), cert. denied, ––– U.S. ––––, 132 S.Ct. 314, 181 L.Ed.2d 193 (2011). Although it is true that, in one case, State v. Coleman , 304 Conn. 161, 170 n.3, 174, 37 A.3d 713 (2012), this court observed in dictum¹⁰ that discussing the specific language of a challenged jury instruction, in the absence in the record of a rough draft or the original completed draft, supported a finding that the defendant in that case had been given a meaningful opportunity to review the charge, this statement was not intended as a general rule that specific reference to the language at issue is a prerequisite to a finding of waiver if there is other evidence that the defendant has been given a meaningful opportunity to review the instructions. We therefore reject the defendant's contention that he did not waive his jury instruction claim in the present case.

10 There was no claim in Coleman that the defendant did not have a meaningful opportunity to review the trial court's jury instructions. See State v. Coleman , supra, 304 Conn. at 170 n.3, 37 A.3d 713.

II

We next consider whether this court should overturn the waiver rule in Kitchens . The defendant contends that unpreserved claims of instructional error that satisfy the first two prongs of Golding should be considered by reviewing courts unless the error was induced or the claim was expressly waived by the challenging party. He specifically contends that Kitchens created an irrebuttable and incorrect presumption that all defense counsel who have had a meaningful opportunity to review draft jury instructions have knowledge of any and all constitutional errors contained therein, and that, through inaction or a silent record, all counsel are deemed under Kitchens to have waived a client's constitutional right to proper jury instructions for tactical reasons.¹¹ He further contends that this presumption is unrealistic because competent counsel who is aware of constitutional error never would waive a client's right to proper jury instructions, and the better explanation for counsel's silence is “[o]versight in the heat of battle,” when time constraints do not allow for a lengthy review of the instructions. Accordingly, the defendant does not characterize counsel's silence or inaction with respect to an alleged instructional error as waiver, but as forfeiture, which federal courts define as “the failure to make the timely assertion of a right”; United States v. Olano , 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ; accord State v. Kitchens , supra, 299 Conn. at 474, 10 A.3d 942 ; see also State v. Kitchens , supra, at 475 n.20 ; and review under the plain error doctrine. See State v. Kitchens , supra, at 475 n.20. The defendant adds that the Kitchens rule improperly circumvents the policy expressed in Golding that unpreserved constitutional error should be reviewed and improperly shifts the responsibility for ensuring that the jury instructions are correct from the trial court and the state, where it belongs, to the defense.

11 In their supplemental briefs, both the defendant and the state ask this court to take judicial notice of the appeal in State v. Herring , 323 Conn. 526, 147 A.3d 653 (2016), and to adopt the arguments made by the parties and the amicus curiae in that case, in which the issue of whether the waiver rule in Kitchens should be overturned is also raised.

The state responds that the defendant misunderstands the meaning of the Kitchens waiver rule. The state argues that, when the trial court asks counsel to make an informed and binding judgment regarding whether to accept the jury instructions and counsel acquiesces, counsel waives the procedural right to object to the instructions on any of the multitude of possible grounds that counsel might presently be aware of or later perceive. Thus, “procedural waiver of the opportunity to object, by a professional who knew what was at stake, foreclosed any number of possible challenges that counsel might or might not have considered.” The state further argues that this understanding of waiver comports with Connecticut's uncontroverted waiver doctrine and that overturning the rule would invalidate an entire body of waiver jurisprudence in this jurisdiction. The state maintains that the waiver rule in Kitchens is good policy because it gives parties an incentive to participate in the formulation of the jury instructions in a timely manner when errors can be corrected, thus promoting fair trials. We agree with the state.

We begin by noting that this court adopted the waiver rule in Kitchens in order to clarify the law and to encourage the formation of accurate jury instructions consistent with the principles of fundamental fairness and the finality of judgments. To accomplish these objectives, the court explained that implied waiver may be found only after the trial court provides counsel with a written copy of the proposed instructions, allows counsel a meaningful opportunity to review them and solicits counsel's comments regarding proposed changes or modifications. State v. Kitchens , supra, 299 Conn. at 482–83, 10 A.3d 942. Counsel, in turn, must affirmatively accept by words or conduct the instructions proposed or given. See id., at 483–84, 10 A.3d 942. If the record contains evidence that any of these steps has been omitted, implied waiver may not be found. Thus, the rule “would not allow waiver to be presumed from a silent record or from defense counsel's mere acquiescence in, or failure to object to, the jury instructions. A silent record, by definition, would not satisfy the [rule] because there would be no factual basis from which the court could infer a waiver, and mere acquiescence or failure to object, without more, would provide an insufficient basis for a finding of waiver because there would be no evidence from which the court could determine whether counsel had been given a meaningful opportunity to review, comment on and express satisfaction with the instructions, or whether counsel had, in fact, expressed such satisfaction before or after the instructions were given.”¹² Id. at 483 n.23, 10 A.3d 942. We further explained that our rules of practice provide counsel with many opportunities to participate in the crafting of jury instructions, including the filing of a written request to charge and the request for an on-the-record charging conference. Id., at 488, 493–94, 10 A.3d 942. Accordingly, the waiver rule in Kitchens , which represents a synthesis of our precedent and our rules of practice, provides counsel with the means necessary to apprise the court of his views and to ensure the accuracy of the jury instructions. The rule also serves as notice to counsel of the responsibility to participate in formulating the jury instructions and of the potentially adverse consequences that may follow should counsel fail to act.

12 To the extent the defendant argues that the court in Kitchens “deemed a lack of assertion of a right, or silence, to be waiver,” or that Kitchens “presum[ed] waiver from inaction,” it misreads our holding in Kitchens .

In light of these considerations, we emphatically disagree with the notion that the implied waiver rule is fundamentally unfair because it is based on the presumption that counsel was aware of, and rejected as a matter of trial strategy, every conceivable challenge to the jury instructions. The rule is not unfair because, as the state correctly observed and we stated in Kitchens , what is waived is the procedural right to appeal any defect in the jury instructions. See id., at 483, 494, 10 A.3d 942. Even before our decision in Kitchens , Connecticut law provided that approval of the jury instructions by trial counsel acts as a waiver of all potential jury instruction claims and not merely claims arising from jury instructions that defense counsel specifically discussed on the record at trial. For example, in State v. Holness , 289 Conn. 535, 543–45, 958 A.2d 754 (2008), we specifically rejected the defendant's argument that he did not knowingly and intelligently waive his jury instruction claim and concluded that the defendant had waived every potential constitutional claim relating to the trial court's limiting instruction on hearsay evidence when defense counsel, in the exercise of his professional judgment, accepted the limiting instruction as satisfactory, even though counsel later argued he had been unaware that he could have raised a claim that the defendant's rights were violated under Crawford v. Washington , 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We explained that the state was not required to establish that defense counsel was aware of a possible constitutional claim in the factual scenario presented, but, rather, the trial court was entitled to presume that, in our adversary system, counsel was familiar with the relevant constitutional principles and had acted competently in determining that the limiting instruction was adequate to safeguard the defendant's sixth amendment rights. State v. Holness , supra, at 544, 958 A.2d 754. We similarly concluded in State v. Brewer , 283 Conn. 352, 360–61, 927 A.2d 825 (2007), decided a little more than one year before Holness , that defense counsel's expressed satisfaction with a jury instruction on a lesser included offense constituted a waiver of the defendant's right to claim constitutional error on a ground not specifically discussed at trial.¹³ Thus, application of the waiver rule in Kitchens to a defendant's subsequent procedural right to challenge the jury instructions on any substantive ground is consistent with the principle articulated in prior cases that the waiver of a procedural right constitutes the waiver of all of the claims within it.

13 In Brewer , the trial court instructed the jury that it must unanimously find the defendant not guilty of the murder charge before it could consider the lesser included offense of manslaughter, which the defendant later challenged on appeal. State v. Brewer , supra, 283 Conn. at 353, 927 A.2d 825. There was no evidence in the record, however, that defense counsel in Brewer supplied, affirmatively requested or advocated for the specific unanimity language that the defendant challenged on appeal, even though counsel had sought the lesser included offense instruction. See id., at 357 n.7, 927 A.2d 825. Thus, the court in Brewer did not characterize defense counsel's failure to preserve the claim pertaining to the unanimity language as induced or invited error. Rather, the court treated counsel's failure to object to this language as a waiver because counsel “specifically expressed his satisfaction with the [lesser included offense] instruction when queried by the trial court.” Id., at 361, 927 A.2d 825. We add that, to the extent the court in State v. Ebron , 292 Conn. 656, 681–82, 975 A.2d 17 (2009), overruled in part by State v. Kitchens , 299 Conn. 447, 10 A.3d 942 (2011), described the claim in Brewer as one of induced error, its description was incorrect.

Justice Palmer, writing for the court, explained in Holness that “[t]o conclude otherwise would require the trial court to canvass defense counsel with respect to counsel's understanding of the relevant constitutional principles before accepting counsel's agreement on how to proceed ... [and] there is nothing in our criminal law that supports such a requirement.”¹⁴ State v. Holness , supra, 289 Conn. at 544, 958 A.2d 754. That is because a comprehensive canvass of this nature not only would be difficult if not impossible to conduct, but would not promote this court's interest in judicial economy, given the time required to determine whether counsel was aware of every conceivable constitutional principle under which an instructional flaw might be identified.

14 We also noted that, “in circumstances in which defense counsel's waiver of a constitutional claim cannot be justified, that is, when the waiver constitutes a violation of the defendant's right to the effective assistance of counsel, the defendant may seek recourse through habeas corpus proceedings. Such proceedings are available to safeguard the constitutional rights of any defendant who has been prejudiced by the ineffective assistance of his or her attorney.” State v. Holness , supra, 289 Conn. at 544 n.8, 958 A.2d 754.

Our reasoning in Kitchens is also consistent with Connecticut and federal law governing a criminal defendant's waiver of other basic constitutional rights. These include the right to a jury trial; see, e.g., State v. Rizzo , 303 Conn. 71, 102–103, 31 A.3d 1094 (2011) (waiver of right to jury trial does not require canvass of various potential advantages of having jury decide case, and general knowledge of right being waived is sufficient), cert. denied, ––– U.S. ––––, 133 S.Ct. 133, 184 L.Ed.2d 64 (2012) ; the right to a probable cause hearing; see, e.g., State v. Wilkins , 159 Conn.App. 443, 454, 123 A.3d 92 (waiver of right to probable cause hearing is valid “even when the trial court's waiver canvass does not exhaustively detail the procedural rights waived”), cert. denied, 319 Conn. 935, 125 A.3d 208 (2015) ; the right to enter a guilty plea; see, e.g., United States v. Ruiz , 536 U.S. 622, 630, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002) (guilty plea is knowing and final waiver, “despite various forms of misapprehension under which a defendant might labor”); United States v. Broce , 488 U.S. 563, 573, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) (“[o]ur decisions have not suggested that conscious waiver is necessary with respect to each potential defense relinquished by a plea of guilty”); Edwards v. United States , 256 F.2d 707, 709 (D.C. Cir.) (“a layman should expect a plea of guilty to be treated as ... a waiver of all defenses known and unknown”), cert. denied, 358 U.S. 847, 79 S.Ct. 74, 3 L.Ed.2d 82 (1958) ; Mainiero v. Liburdi , 214 Conn. 717, 725, 573 A.2d 1207 (1990) (“[I]n order for a plea to be knowingly, voluntarily and intelligently made, a trial court is required to advise a defendant that his plea operates as a waiver of three fundamental constitutional rights—jury trial, confrontation and self-incrimination. ... There is no requirement, however, that the defendant be advised of every possible consequence of such a plea.” [Citation omitted; internal quotation marks omitted.] ); State v. Gilnite , 202 Conn. 369, 374, 383, 521 A.2d 547 (1987) (“an unconditional nolo contendere plea, when intelligently and voluntarily made, operates as a waiver of all nonjurisdictional defects and bars later challenges to pretrial proceedings,” but “[t]here is no requirement ... that the defendant be advised of every possible consequence of such a plea”); the right to competent counsel; see, e.g., Faretta v. California , 422 U.S. 806, 836, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (court was not required to assess whether pro se defendant knew how well he had mastered intricacies of law in order to represent himself because “his technical legal knowledge ... was not relevant to an assessment of his knowing exercise of the right to defend himself”); State v. D'Antonio , 274 Conn. 658, 711, 877 A.2d 696 (2005) (knowing and voluntary waiver of right to counsel does not require that defendant have “perfect comprehension of each element of a criminal charge”); and the right to raise a double jeopardy claim. See, e.g., United States v. Cordoba , 71 F.3d 1543, 1546 (10th Cir. 1995) (“[D]ouble jeopardy rights may be waived by agreement, even where double jeopardy was not specifically referred to by name in the plea agreement, when the substance of the agreement is to allow for double prosecution. ... Conscious waiver is not necessary with respect to each potential defense relinquished by a plea agreement.” [Citations omitted.] ); State v. Price , 208 Conn. 387, 390, 544 A.2d 184 (1988) (constitutional immunity from double jeopardy is not constitutional right whose waiver must meet knowing, intelligent and voluntary standard but personal right that will be considered waived if not affirmatively pleaded at trial). In light of this overwhelming precedent, it makes sense to apply the same reasoning to trial counsel, who not only are presumed to understand the law and to provide competent representation, but are invited by our rules of practice to participate in the formulation of the jury instructions.¹⁵ Accordingly, jury instruction waiver under Connecticut law never has been limited to instructions specifically discussed on the record at trial but has been understood as a waiver of the right to appeal all conceivable jury instruction claims that could have been raised in the trial court.

15 Chief Justice Rogers contends that “a broad waiver of claims of instructional error” is not analogous to the abandonment of claims that might have been made in connection with a waiver of other constitutional rights, such as the right to trial, to counsel or to a probable cause hearing, because a criminal defendant who waives such rights “consciously chooses to relinquish claims, known or unknown, in exchange for something he or she values—a favorable plea, the right to self-representation or a strategic advantage, respectively.” Footnote 15 of Chief Justice Rogers' concurring opinion. We disagree. There is no such “exchange” because waiver of the foregoing rights is within the complete control of the defendant. Even if the waivers are viewed as involving a so-called “exchange,” however, the gains to which Chief Justice Rogers refers do not necessarily have any clear practical value. Waiving the right to trial counsel, for example, does not provide defendants who have no knowledge of the law or legal experience with any obvious benefit other than the satisfaction of self-representation, despite the newly acquired ability to control trial strategy. In contrast, criminal defendants who waive a claim of instructional error are still able to utilize the wide array of procedural tools available to ensure that the jury instructions are correct. As discussed in this opinion, these tools include the rules of practice, which provide defendants and their counsel with numerous opportunities to participate in the formulation of the jury instructions throughout the proceedings. Chief Justice Rogers specifically recognizes this benefit when she states: “[T]here are features unique to jury instructions that justify holding counsel to a higher standard of accountability for failing to preserve claims of error. ... Specifically, jury instructions are carefully formulated outside of the rush of trial pursuant to the rules of practice that afford counsel a large degree of participation in a structured process. The purpose of these rules is to detect error at the earliest possible juncture, and the threat of an implied waiver of an instructional claim on appeal, at least in narrowly defined circumstances, provides an appropriate incentive for the opportunity to be taken seriously.” Footnote 16 of Chief Justice Rogers' concurring opinion. She adds, and we agree, that “[t]he detection of error at trial, without the necessity of an appeal, is the most desirable outcome for purposes of both fairness to defendants and the efficient operation of the court system.” Id. We finally note that a criminal defendant who waives the right to trial, to counsel or to a probable cause hearing, like a defendant who waives the right to challenge a jury instruction, still waives all of the potential claims that he might have been entitled to bring if the right had not been waived. Accordingly, the waiver of a claim of instructional error is analogous to the waiver of other constitutional rights.

In sum, overturning Kitchens on the ground that waiver should be construed more narrowly would be inconsistent with Holness , Brewer and other cases in which we have indicated that counsel's approval of the jury instructions waives all potential claims of instructional error. We have observed, with respect to other errors during trial proceedings, that “[w]hat this court said over [100] years ago still remains true today. A defendant must avail himself of the opportunity to make an objection and if he does not avail himself of the opportunity, he must be [held] to a waiver of the objection. Otherwise he would be permitted to lie by and speculate upon the chances of a verdict, and that cannot be tolerated.” (Internal quotation marks omitted.) State v. Evans , 165 Conn. 61, 66, 327 A.2d 576 (1973), quoting State v. Tuller , 34 Conn. 280, 295 (1867) ; see also Wainwright v. Sykes , 433 U.S. 72, 89, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (waiver rule discourages “ ‘sandbagging’ ” by taking chances on acquittal, with intent to raise claims in habeas proceeding if gamble fails); State v. Kurvin , 186 Conn. 555, 566, 442 A.2d 1327 (1982) (“[p]ermitting [instructional] claims of error which could have been raised at trial to be raised for the first time on appeal encourages trial by ambuscade and tends to transform criminal trials into games of chance”). We thus see no reason in the present case to depart from our precedent and from our general waiver doctrine by overturning the rule in Kitchens , which is based on the same rationale articulated in Holness and Connecticut's other prior waiver cases.

The defendant nonetheless takes issue with all four policy grounds on which the court in Kitchens relied in concluding that the waiver rule is justified, including (1) the presumption that counsel is competent, (2) the rules of practice that provide for counsel's participation in the crafting of instructions, (3) the rules of fairness that place responsibility with the trial court and counsel to ensure that the instructions are correct, and (4) the existence of habeas review as a potential safety net. See State v. Kitchens , supra, 299 Conn. at 486–89, 10 A.3d 942. We address each ground in turn.

First, to the extent the defendant contends that the Kitchens waiver rule presumes counsel is omniscient, rather than competent, and that the rule does not allow for consideration of possible distractions, fatigue, discouragement or simple ignorance, the defendant misunderstands the rule, the meaning of competent counsel and the ability of counsel to identify errors before the instructions are given. As we previously discussed in greater detail, waiver in the context of jury instruction claims, jury trials, probable cause hearings, guilty pleas, and claims of ineffective assistance of counsel and double jeopardy does not contemplate knowledge by trial counsel or the defendant of every conceivable claim that might be raised on appeal. Trial counsel thus need not be omniscient under the waiver rule in Kitchens in order to provide a defendant with adequate representation.

Insofar as the defendant also suggests that the rule will unfairly penalize defendants because of inadvertent mistakes by counsel resulting from fatigue, distractions or other factors relating to the rapid pace of a trial, competent counsel do not defer consideration of jury instructions until the last minute, thereby increasing the possibility of committing inadvertent mistakes. Counsel necessarily must consider what the state will be required to prove and how the jury should be instructed well before commencement of the trial proceedings in order to prepare a defense. Thereafter, our rules of practice provide counsel with multiple opportunities to participate in the formulation of proper jury instructions based on counsel's professional assessment of what the jury needs to know to decide the case fairly. Viewed in this light, the rule in Kitchens merely encourages counsel to utilize these opportunities, thus enhancing the probability that the instructions will be accurate. We therefore reject the defendant's claim that the waiver rule sets an unattainable standard that requires more than competent counsel. In fact, the opposite is true. As Justice Katz observed in her concurring opinion in Kitchens , a review of Connecticut cases decided between 2000 and 2010 indicates that “the number of cases in which a defendant obtains reversal of his conviction on the basis of Golding review of instructional errors is negligible”; id., at 523, 10 A.3d 942 (Katz , J. , concurring); thus demonstrating that, prior to Kitchens , counsel rarely made major mistakes when assenting to jury instructions at trial and suggesting that this will continue to be the case. In sum, instead of unfairly burdening counsel or posing a difficult challenge, the waiver rule in Kitchens provides the court, the state and trial counsel with an additional procedural tool for ensuring that the instructions are correct.¹⁶

16 In her concurring opinion in Kitchens , Justice Katz noted that, from January 1, 2000, to May 5, 2010, this court considered approximately seventy criminal appeals in which a defendant requested Golding review of instructional error and found reversible error in only six cases. State v. Kitchens , supra, 299 Conn. at 522 n.17, 10 A.3d 942 (Katz , J. , concurring). During that same period, the Appellate Court considered approximately 250 criminal appeals in which a defendant requested Golding review of instructional error and found reversible error in only seventeen cases. Id.

The defendant next claims that, although the rules of practice provide for counsel's participation in the formulation of jury instructions, the degree of participation necessary for waiver to be found never has been clearly enunciated, thus creating confusion and no clear pattern among cases decided after Kitchens for future guidance. We disagree. The rules of practice, together with the waiver rule in Kitchens , provide exceptionally clear guidance as to how counsel may avoid waiver and successfully preserve a jury instruction claim. For example, the rules of practice provide that counsel may file a written request to charge; Practice Book §§ 42–16, 42–17 and 42–18 ; request an on-the-record charging conference; Practice Book § 42–19 ; obtain a summary of the substance of the proposed instructions at the close of evidence; Practice Book § 42–19 ; discuss modification of the instructions for purposes of correction or clarification; Practice Book § 42–24 ; and be given notice and the opportunity to make suggestions when the jury requests additional instructions following the start of deliberations. Practice Book § 42–27. The specificity of these rules suggests that counsel who fail to participate in formulating the jury instructions but have been given a meaningful opportunity to review them are on official notice that, unless they have objected to a particular instruction or a portion thereof, they have waived all future jury instruction claims. The rules of practice therefore serve the twin goals of providing the jury with accurate instructions and protecting the courts from expending limited resources on the adjudication of collateral attacks on the verdict that otherwise might have been avoided.

Finally, even if there may be no clear pattern among the cases decided following Kitchens , the lack of such a pattern is not because the rule itself has never been clearly enunciated; rather, it is because reviewing courts are required to determine whether the unique facts and circumstances in any given case support a finding of waiver. This is no different from the type of “facts and circumstances” analysis we conduct in other contexts; State v. Davalloo , 320 Conn. 123, 144 n.15, 128 A.3d 492 (2016) (application of marital communications privilege “necessarily depends on the facts and circumstances of a particular matter”); see also Trusz v. UBS Realty Investors, LLC , 319 Conn. 175, 214 n.26, 123 A.3d 1212 (2015) (future resolution of conflict between employee's and employer's free speech rights under General Statutes § 31–51q will be “in light of the particular facts and circumstances then presented” [internal quotation marks omitted] ); or from the “totality of the circumstances” test the court conducts when assessing the constitutionality of challenged out-of-court eyewitness identifications; (internal quotation marks omitted) State v. Marquez , 291 Conn. 122, 160, 967 A.2d 56, cert. denied, 558 U.S. 895, 130 S.Ct. 237, 175 L.Ed.2d 163 (2009) ; or the probable cause necessary for a warrantless arrest based on an informant's tip. State v. Johnson , 286 Conn. 427, 437, 944 A.2d 297, cert. denied, 555 U.S. 883, 129 S.Ct. 236, 172 L.Ed.2d 144 (2008). Cases subject to these tests do not fall easily into predictable

patterns because the facts and circumstances in each case are necessarily unique.¹⁷

17 In a separate but related argument, the defendant contends that the waiver rule in Kitchens should be overturned because it has resulted in conflicting and confusing decisions by reviewing courts as to what constitutes a “ ‘meaningful opportunity’ ” to review the instructions and what constitutes an “ ‘adequate record’ ” to support waiver. The defendant also argues that the waiver rule is inconsistent with the goals of “efficient appellate administration” and “the correction of manifest injustice.” We disagree.
As previously discussed, waiver decisions cannot be compared on the basis of a single factor, as the defendant attempts to do in his argument to this court. Rather, it is the combination of facts and circumstances in each individual case that must be considered. For example, the amount of time deemed sufficient to constitute a meaningful opportunity to review the jury instructions depends on factors such as the length and complexity of both the trial and the instructions, which will very likely differ in each case. Thus, direct comparisons between cases simply cannot be made. Compare State v. Lavigne , 307 Conn. 592, 598 n.4, 57 A.3d 332 (2012) (concluding that opportunity to review extremely lengthy instructions ninety minutes before charging conference and then overnight did not constitute meaningful opportunity for review because of length and complexity of trial and counsel's need to use overnight time to prepare for closing argument), with State v. Lee , 138 Conn.App. 420, 453–54, 52 A.3d 736 (2012) (concluding that opportunity to review instructions two hours before charging conference and overnight constituted meaningful opportunity for review because counsel raised no concerns following day when queried by court), cert. granted, 321 Conn. 911, 136 A.3d 644 (2016). This does not lead to confusion, as the defendant suggests, but simply means that courts must conduct a holistic evaluation in every case, and counsel must use common sense in determining how to respond to the court's proposed instructions.

The defendant's corresponding argument that our law provides no guidance as to what constitutes an “ ‘adequate record’ ” to find waiver under Kitchens is likewise lacking in merit. In arguing that our case law is confusing on this issue, the defendant cites to three cases in which waiver was found and two cases in which waiver was not found, even though there was no marked copy of the trial court's proposed jury instructions in the record of any of the cases. In the three cases in which waiver was found, however, the record contained evidence not present in the other two cases, indicating that defense counsel had knowledge of the proposed jury instructions and a meaningful opportunity to review them. Compare State v. Bialowas , 160 Conn.App. 417, 427 n.7, 428, 125 A.3d 642 (2015) (although record contained no copy of court's proposed charge but only final amended version of instructions given to jury, defense counsel waived instructional claim because record showed that counsel received court's proposed charge three days before charge was given, court asked counsel prior to delivery of closing arguments whether he had “ ‘[a]nything else’ ” to state on record with regard to off-the-record charging conference, and counsel responded, “ ‘I don't think so, Your Honor’ ”), and State v. Osbourne , 138 Conn.App. 518, 543, 53 A.3d 284 (“[Defense counsel waived objection to the instruction as given because] [a]lthough the record does not reflect whether the court provided counsel with a written copy of its charge before it was given to the jury, the court held a charge conference before instructing the jury, and it is discernible from the record that the court's instructions to the jury were consistent with the instructions as discussed during the charge conference. [Defense counsel] did not object ... [or] take exception ... to the court's initial instruction, or to either of the court's subsequent reiterations of that instruction; nor did [defense counsel] object to the transcription of its instruction being provided to the jury. Because the court instructed on the interfering charge three times and then submitted a written copy of the instruction to the jury, it is reasonable to infer that defense counsel had knowledge of any potential flaws in the court's instruction, yet he failed to raise any claims regarding those flaws before the trial court.”), cert. denied, 307 Conn. 937, 56 A.3d 716 (2012), and State v. Bharrat, 129 Conn.App. 1, 17 and n.9, 18–19, 20 A.3d 9 (although record contained no copies of instructions circulated by court on two different occasions, defendant did not dispute state's assertion that jury instructions in circulated copies encompassed same instructions that court ultimately delivered, and, therefore, claim was waived because record reflected that court distributed copies of final charge to parties, summarized on record its recollection of charging conferences held with parties, informed counsel it would give more time to check instructions for potential errors, asked thereafter if counsel had “ ‘any addition, summation, disagreements, additions, [or] subtractions' ” from court's summary of charging conference, and, following jury charge, asked for further comments, to which defense counsel replied in negative), cert. denied, 302 Conn. 905, 23 A.3d 1243 (2011), with State v. Davis , supra, 311 Conn. at 479, 481, 88 A.3d 445 (defense counsel did not waive instructional claim because court did not provide counsel with precise content of proposed instructions, as “the only discussion of the jury instructions, prior to the delivery of the charge to the jury, was limited to the state's proposed charge, which defense counsel stated he had not read, and [to] ambiguous references to the [standard criminal jury] instructions on the Judicial Branch website” that court stated it would deliver “ ‘in essence, maybe not exactly’ ”), and State v. Devalda , supra, 306 Conn. at 505 n.15, 50 A.3d 882 (instructional claim was not waived because record surrounding discussion of charging conference failed to indicate when or whether defense received written copy of proposed jury instructions).

The defendant also claims that the rule in Kitchens unfairly places the entire burden on defendants because the defendant is the only party who suffers a penalty when a reviewing court finds waiver. He adds that the rule provides a disincentive for the state to identify and correct errors when it knows that a review of any potential error will be waived if it does not object to the instructions, thus allowing the state to enjoy all of the benefits and suffer none of the risks of its trial strategy. The defendant further contends that the rule improperly and unfairly shifts a portion of the decision as to which unpreserved claims are adjudicated from the court to the state. These arguments are unpersuasive.

First, they ignore the significant fact that only a defendant is entitled to raise on appeal a claim that the jury instructions were incorrect. This means that, if the defendant is acquitted on the basis of instructions that misstate an element of the crime, the state may not appeal from the judgment on that ground but must accept the acquittal, even if the evidence may have been sufficient to establish the defendant's guilt under the proper instruction. See State v. Ledbetter , 240 Conn. 317, 323, 692 A.2d 713 (1997) (“under most circumstances, the state may not appeal from a judgment of acquittal, even when that judgment may have been the result of a misconstruction of the law”). Moreover, the state has an ethical obligation to seek justice and to bring to the court's attention any inaccuracy or deficiency in the jury instructions. The state thus has a strong incentive to make sure that the jury instructions are correct. Second, a finding of waiver opens the door to a future habeas proceeding on which the state and the court will be required to expend additional limited resources that could have been devoted to other pending trials.¹⁸ Third, trial courts have a duty “to give jury instructions that are accurate in law, adapted to the issues and adequate to guide the jury in reaching a correct verdict”; State v. Butler , 207 Conn. 619, 636, 543 A.2d 270 (1988) ; and no judge, as a matter of pride and reputation, wants a reviewing court to deem the jury charge legally incorrect or inadequate to guide the jury. As a consequence, the waiver rule serves as an incentive for all those involved in the trial proceedings, including the state and the presiding judge, to make certain that the jury instructions are accurate,¹⁹ a conclusion with which the defendant indirectly agrees in his argument on judicial economy.²⁰

18 The defendant's suggestion that a state's attorney who spots an error might deliberately ignore it, “secure in the knowledge that [a] Kitchens waiver will bar review of that error on appeal,” reflects a cynical view that we reject.

19 Evidence that jury instructions are likely to be more carefully crafted in light of Kitchens is provided by State v. Herring , 323 Conn. 526, 147 A.3d 653 (2016), a companion case in which the trial court, nearly ten months following the release of our decision in Kitchens , held an on-the-record charging conference during which it examined the proposed instructions page by page and queried the parties as to whether they had any objection to the instructions on each page.

20 The defendant contends that “[a] habeas action costs the system money, time, and resources. A public defender or assigned counsel is likely needed, both at trial and on appeal. Judges, state's attorneys, and judicial staff are required for trial and appeal. An appellate judge who [finds a] Kitchens waiver during the direct appeal may, a few years later, be presented with the same issue in the habeas appeal.”

As for the defendant's argument that the Kitchens waiver rule allows the state to exercise undue influence over whether unpreserved constitutional claims are reviewed under Golding because the state may decide against making a waiver claim in some cases for tactical reasons, this argument is highly speculative. The defendant does not suggest what that tactical advantage might be, and we perceive none. By failing to make a waiver claim, the state must then defend against the claim and risk a decision by the reviewing court in favor of the defendant. Even if the defendant's argument had some degree of validity, the defense must bear its share of responsibility for making certain that the jury instructions are correct. Thus, when defense counsel fails to take advantage of the many opportunities available during the trial proceedings to obtain accurate instructions, the defendant cannot blame the state for deciding in some cases and not in others to assert a claim of waiver. Regardless of any uncertainty, however, defendants should expect the state to assert a waiver claim in any case in which such a claim may be validly raised and have no reason to complain if the state fails to do so.

With respect to habeas review, the defendant argues that review typically takes place several years after the resolution of a direct appeal, prevents the speedy correction of obvious constitutional errors and puts further pressure on an already overburdened habeas docket. We agree that habeas review delays the resolution of an instructional claim that is deemed waived on direct appeal. We nonetheless consider habeas review good policy because only in the habeas court may a record be developed sufficient to determine whether counsel waived the claim for constitutionally acceptable strategic reasons. See State v. Kitchens , supra, 299 Conn. at 497, 10 A.3d 942. As we explained in Kitchens : “[A] habeas proceeding provides a superior forum for the review of a claim of ineffective assistance because it provides the opportunity for an evidentiary hearing in which the attorney whose conduct is challenged may testify regarding the reasons he did not contest the instruction at trial. ... A habeas proceeding thus enables the court to determine whether counsel's failure to take exception or otherwise to participate in formulating the instructions was due to mere incompetence or to counsel's trial strategy, which would not be possible in a direct appeal in which there is no possibility of an evidentiary hearing. An aggrieved party is thus not without recourse in the event that the court deems a claim of instructional impropriety waived on appeal.” (Citation omitted.) Id., at 496–97, 10 A.3d 942. In other words, the factual record on direct appeal is insufficient to determine whether counsel was making a strategic decision or whether his failure to object to the instruction was an oversight.

Kitchens provides a perfect example of the value of habeas review. On direct appeal, this court determined that the defendant had waived his unpreserved claim of instructional error. Id., at 500, 10 A.3d 942. The defendant then filed a habeas petition, in which he argued that his trial counsel rendered ineffective assistance, in part for failing to object to the jury instructions on intent that he challenged on direct appeal. See Kitchens v. Warden , Superior Court, judicial district of Tolland, Docket No. TSR–CV–11–4003979–S, 2014 WL 5355471 (Conn.Super. Sept. 17, 2014), aff'd sub nom. Kitchens v. Commissioner of Correction , 167 Conn.App. 851, 143 A.3d 1208 (2016). The habeas court concluded, however, that the defendant's trial counsel did not act improperly when he failed to object because it was part of his trial strategy. Id. Counsel testified that his theory of defense was that the defendant had done nothing wrong, that the victim was injured by accident and that some of the claimed events on the night in question did not occur. Id. Counsel therefore focused at trial on weaknesses in the victim's testimony and her lack of credibility instead of on the intent instructions, which counsel testified had “ ‘no impact’ ” on his theory of defense. Id. He also told the habeas court that he had no concerns about the instructions, which the trial court had indicated were pattern instructions, in view of the law and theory under which he was litigating the case. See id. Thus, this court's determination in Kitchens that the defendant implicitly waived his claim of instructional error on intent was vindicated by trial counsel's testimony during the habeas proceeding that he had no problem with the jury instructions.²¹ The concurring justices in Kitchens , on the other hand, would have reviewed the defendant's claim regarding the contested jury instruction without the benefit of the knowledge gained at the habeas proceeding that counsel had made a strategic choice to accept the instructions that were given.²² See State v. Kitchens , supra, 299 Conn. at 526, 10 A.3d 942 (Katz , J. , concurring); id., at 551, 10 A.3d 942 (Palmer , J. , concurring).

21 Trial counsel's testimony at the habeas proceedings in Kitchens also refutes the defendant's suggestion in the present case that counsel would never implicitly waive jury instruction claims as a matter of trial strategy. Counsel may have perfectly legitimate reasons, as he did in Kitchens , to create a theory of defense that not only does not involve the issue raised in the jury instruction claim on appeal, but would be weakened by a jury instruction request inconsistent with the chosen theory.

22 To the extent the defendant claims that habeas review does not eliminate the unfairness of finding implied waiver in cases in which counsel challenges an aspect of settled law on direct appeal that was not challenged in the trial proceedings, we note that the defendant is in the same position as all other defendants to whom the law has applied in the past. Moreover, there is nothing to prevent trial counsel from challenging settled law in the trial proceedings, thereby preserving the claim for appellate review. See State v. Brewer , supra, 283 Conn. at 361 n.11, 927 A.2d 825 (futility is no excuse for failing to preserve challenge to jury instructions that comply with precedent). We nonetheless leave the merits and a full discussion of this argument for another day, when such a claim is presented to this court on direct appeal. We also decline to address the parties' arguments regarding the effect of Kitchens on plain error review because it is the subject of a pending appeal before this court. See State v. McClain , 319 Conn. 902, 122 A.3d 637 (2015) (granting certification to review issue of whether “the Appellate Court properly determine[d] that an implied waiver of a claim of instructional error that satisfies [Kitchens ] also forecloses plain error review” [citation omitted] ).

We finally disagree with the defendant's argument that the court in Kitchens mislabeled forfeiture as waiver and that this court should follow federal waiver law, which provides that, in cases that do not involve invited or induced error, waiver occurs only when the challenged instruction is discussed on the record and defense counsel stipulates or specifically approves of the instruction by words or other conduct. See, e.g., United States v. Polouizzi , 564 F.3d 142, 153 (2d Cir. 2009) (claim of instructional error was waived because, “[f]aced with the parties' incompatible positions regarding the proposed definition of unlawfulness, the [D]istrict [C]ourt proposed a third option,” and defendant, having been “[p]resented with this option ... indicated that the instruction was satisfactory”); United States v. Sanders , 520 F.3d 699, 702 (7th Cir. 2008) (claim of instructional error was waived because defense counsel expressly stated that she preferred challenged aiding and abetting instruction over alternative instruction). This is similar to the argument made by Justice Katz in her concurrence in Kitchens . State v. Kitchens , supra, 299 Conn. at 510–15, 525, 10 A.3d 942 (Katz , J. , concurring). We remain unpersuaded by this argument for three reasons.

First, waiver under Kitchens , which requires that counsel affirmatively express satisfaction with the instructions proposed or given, is consistent with our precedent on waiver and inconsistent with this court's understanding of forfeiture as “the failure to make the timely assertion of a right ....” (Internal quotation marks omitted.) State v. Davis , supra, 311 Conn. at 495, 88 A.3d 445 ; accord Mozell v. Commissioner of Correction , 291 Conn. 62, 71, 967 A.2d 41 (2009).

Second, the defendant's claim that Connecticut should follow federal waiver law overlooks the fact that federal law is not monolithic and that some federal courts in recent years have adopted a view of waiver similar to that of Kitchens . For example, the Eleventh Circuit Court of Appeals has concluded repeatedly during the past fifteen years that defendants have waived jury instruction claims by indicating to the trial court that the instructions were acceptable even in the absence of an on-the-record discussion of the precise instruction challenged on appeal. See United States v. Carter , 776 F.3d 1309, 1323 (11th Cir. 2015) (declining to review claim of instructional error with respect to certain counts of indictment because counsel made only one objection regarding jury instructions on those counts, which was sustained, and, therefore, defendant waived right to appeal any other previously unchallenged aspect of jury instructions concerning those counts); United States v. Silvestri , 409 F.3d 1311, 1337 (11th Cir.) (“[w]hen a party responds to a court's proposed jury instructions with the words ‘the instruction is acceptable to us,’ such action constitutes invited error,” and, therefore, defendant affirmatively waived right to challenge instruction when his counsel told court that jury instructions “ ‘covered the bases' ”), cert. denied, 546 U.S. 1048, 126 S.Ct. 772, 163 L.Ed.2d 598 (2005) ; United States v. Fulford , 267 F.3d 1241, 1247 (11th Cir. 2001) (having stated through counsel that court's proposed supplemental instruction in response to jury question “ ‘is acceptable to us,’ ” defendant “waived his right to appeal that instruction”). Courts in the First and Second Circuits also have found waiver under similar facts. See United States v. Hansen , 434 F.3d 92, 101 (1st Cir.) (defense counsel not only failed to object to court's omission of proposed instruction, but also affirmatively stated “ ‘I am content’ ” after court instructed jury, and, therefore, claim of improper jury instruction was waived on appeal), cert. denied, 549 U.S. 894, 127 S.Ct. 203, 166 L.Ed.2d 164 (2006) ; Beastie Boys v. Monster Energy Co ., 66 F.Supp.3d 424, 451 (S.D.N.Y. 2014) (“At the charge conference, the [c]ourt invited counsel ‘to comment on each page [of the draft jury instructions] on which you have an issue.’ ... Although [the defendant] raised other issues ... it did not object to the proposed instructions .... To the extent [the defendant's] present argument implicitly challenges the jury instructions given at trial, it is waived.” [Citations omitted.] ). Accordingly, the defendant's portrayal of the rule in Kitchens as contrary to federal waiver law fails to acknowledge that some federal courts have begun to adopt a broader view as to the facts required to support a finding of an implied waiver.

Third, and even more significant, the defendant's argument overlooks the fact that federal waiver law is inconsistent with our jurisprudence, thus making a comparison of federal and Connecticut law extremely difficult, if not impossible. Although Connecticut and federal law both distinguish between forfeiture and waiver on the ground that “forfeiture is the failure to make the timely assertion of a right [whereas] waiver is the intentional relinquishment or abandonment of a known right”; (internal quotation marks omitted) United States v. Olano , supra, 507 U.S. at 733, 113 S.Ct. 1770 ; accord Mozell v. Commissioner of Correction , supra, 291 Conn. at 71, 967 A.2d 41 ; the practical consequences of this distinction are different under Connecticut and federal law.

Federal review of unpreserved trial errors is governed by rule 52 (b) of the Federal Rules of Criminal Procedure, which provides that “[a] plain error that affects substantial rights may be considered even though it was not brought to the court's attention.”²³ Rule 52 (b), however, is permissive rather than mandatory. United States v. Olano , supra, 507 U.S. at 735, 113 S.Ct. 1770. “If the forfeited error is ‘plain’ and ‘affect[s] substantial rights,’ the [reviewing] court ... has authority to order correction ... but is not required to do so.” Id. Thus, “[t]he standard of ‘plain error’ ... goes only to the issue of reviewability and not to the issue of whether a reversal is warranted. ... [A]n error unobjected to at trial may be so plain as to warrant review under [r]ule 52 (b); yet the error may be harmless and, therefore, not justify a reversal.” United States v. Wilson , 690 F.2d 1267, 1274 (9th Cir. 1982), cert. denied, 464 U.S. 867, 104 S.Ct. 205, 78 L.Ed.2d 178 (1983). The exception to rule 52 (b) is when there has been a waiver of the unpreserved claim. United States v. Olano , supra, at 732–33, 113 S.Ct. 1770. A finding of waiver requires evidence that the defendant knowingly and voluntarily approved of the disputed instruction after an on-the-record discussion of the instruction during the trial proceedings; see, e.g., United States v. Conner , 583 F.3d 1011, 1026 (7th Cir. 2009) ; United States v. Polouizzi , supra, 564 F.3d at 1153, 564 F.3d 142; or very clear evidence that the failure to object was due to tactical considerations. See, e.g., United States v. Cooper , 243 F.3d 411, 416 (7th Cir.), cert. denied, 534 U.S. 825, 122 S.Ct. 64, 151 L.Ed.2d 31 (2001).

23 The following test is applied to determine whether a claim of unpreserved error may be reviewed under rule 52 (b) of the Federal Rules of Criminal Procedure. “First, there must be an error or defect—some sort of [d]eviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. ... Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. ... Third, the error must have affected the appellant's substantial rights .... Fourth ... if the above three prongs are satisfied, the [reviewing] court ... has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Puckett v. United States , 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009), quoting United States v. Olano , supra, 507 U.S. at 732–34, 736, 113 S.Ct. 1770.

In contrast, Connecticut waiver law is construed more broadly than federal waiver law, and plain error review more strictly. An unpreserved constitutional claim that has not been waived under Kitchens may be afforded Golding review but is not automatically afforded plain error review, as in the federal courts. That is because the plain error doctrine in Connecticut, “codified at Practice Book § 60–5, is an extraordinary remedy used by appellate courts [only] to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment, for reasons of policy. ... In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... Plain error is a doctrine that should be invoked sparingly. ... Implicit in this very demanding standard is the notion ... that invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review. ... [Thus, an appellant] cannot prevail under [the plain error doctrine] ... unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Citations omitted; internal quotation marks omitted.) State v. Myers , 290 Conn. 278, 289, 963 A.2d 11 (2009).

In sum, federal law generally, but not always, limits waiver in jury instruction cases to a small number of cases in which the disputed instruction has been discussed on the record at trial or in which there is clear evidence in the record that the instruction was accepted by defense counsel for tactical reasons. Virtually all other jury instruction claims are considered forfeited and are subject only to plain error review. Although plain error may be found in some cases, a remedy is not mandated but, rather, is granted at the discretion of the reviewing court upon a showing that the error was clear and affected the defendant's substantial rights. In Connecticut, however, the system for reviewing unpreserved constitutional claims is more complicated. Unpreserved claims that have not been waived are not automatically reviewed under the plain error doctrine because the plain error doctrine in Connecticut, unlike under federal law, is one of reversibility rather than reviewability. In other words, plain error is reserved for the very few cases in which the alleged error is so extraordinary that automatic reversal is required, there being no need for a discretionary determination by the court regarding the imposition of a remedy. Consequently, most forfeited claims of constitutional dimension in Connecticut are reviewed under Golding if they have not been waived. Given these differences, the defendant's comparison of forfeited claims under state law with forfeited claims under federal law that are afforded plain error review is inappropriate because it presumes that plain error review is the same in the state and federal systems. It is not. We therefore reject the defendant's comparison of state and federal law on waiver and forfeiture as misleading and irrelevant.

We instead agree with the state that the rule in Kitchens improves the process of constructing fair and balanced jury instructions because it provides incentives to the parties and the court to ensure that the instructions are accurate. In contrast, allowing appellate review of any unpreserved jury instruction claim of constitutional magnitude under Golding gives appellate counsel unbridled freedom to raise a multiplicity of jury instruction claims that trial counsel waived for tactical reasons, as was the case in Kitchens . Finally, the defendant never explains why an express waiver is not subject to many of the same deficiencies attributed to an implicit waiver, such as the failure of counsel to perceive a defect in a particular instruction, even though counsel may have suggested or specifically approved of the instruction during an on-the-record charging conference. We therefore conclude that the implied waiver rule this court adopted in Kitchens should not be overturned.

The concurring justices disagree with the Kitchens waiver rule on the ground that it is too expansive and upsets the balance achieved under Golding . Chief Justice Rogers, who embraces an approach to waiver similar to the federal approach, is specifically concerned that habeas review is not an effective and equivalent substitute for direct appellate review of novel constitutional claims because it involves substantial delay and provides an inhospitable framework for resolving such claims. She also contends that the waiver rule has spawned an entirely new area of jurisprudence addressing whether the requirements for waiver have been met, and fears that a claim of instructional error deemed waived under Kitchens will be raised anew in a habeas proceeding. We disagree.

With respect to her first concern, Chief Justice Rogers overlooks our express determination in this case to “leave the merits and a full discussion of this argument for another day, when such a claim is presented to this court on direct appeal.” Footnote 22 of this opinion. As for her contention that the waiver rule in Kitchens has created an entirely new area of jurisprudence, there is no evidence to support this claim. Kitchens is only one in a long line of cases over the course of several decades in which Connecticut courts have considered implied waiver in the context of jury instruction claims. See State v. Kitchens , supra, 299 Conn. at 470–72, 10 A.3d 942 (citing more than fifteen years of precedent addressing implied waiver of jury instruction claims). Thus, clarification of Connecticut's waiver law in Kitchens has not resulted, nor will it result, in an entirely new area of jurisprudence. Reviewing courts always have been required to examine the specific facts and circumstances of each case to determine whether waiver occurred. The only difference between past and future waiver cases is that the rule is more specific under Kitchens with respect to jury instructions because it incorporates the requirements of the rules of practice. It is therefore unlikely that courts will spend more time addressing waiver claims in the post-Kitchens era. Rather, courts are likely to spend less time reviewing such claims because Kitchens narrowed the concept of waiver by specifying the conditions under which waiver may be found and precluding waiver solely on the ground that counsel generally agreed with the proposed instructions. This will potentially result in more accurate jury instructions and fewer waiver claims for reviewing courts to consider. Indeed, Chief Justice Rogers concedes that the rule in Kitchens has resulted in a reduction in the number of direct appeals substantively addressing claims of instructional error. Not surprisingly, an examination of habeas cases decided in the post-Kitchens era also reveals that very few defendants have filed petitions alleging ineffective assistance of trial counsel on the ground that counsel implicitly waived a jury instruction claim under Kitchens . See, e.g., Kitchens v. Warden , supra, Superior Court, Docket No. TSR–CV–11–4003979–S ; Bharrat v. Commissioner of Correction , Superior Court, judicial district of Tolland, Docket No. TSR–CV–12–4004615–S (August 27, 2014), appeal dismissed, 167 Conn.App. 158, 143 A.3d 1106 (2016). Moreover, the petitions in those cases also contained claims of error unrelated to Kitchens . Chief Justice Rogers' concern that Kitchens will result in an entirely new area of jurisprudence and a greater workload for Connecticut courts is thus unwarranted.

Finally, to the extent Chief Justice Rogers prefers the federal approach to determining whether a jury instruction claim has been waived, we point to the imbalance that would result from attempting to combine federal and state waiver law. Although federal waiver law permits the review of a greater number of claims than would be permissible under state law because more federal claims are deemed forfeited, and thus reviewable, than would be deemed reviewable under Kitchens , the ultimate remedy under the federal plain error doctrine is more difficult to obtain than the remedy available under Golding that Chief Justice Rogers recommends. That is because the federal remedy for plain error is discretionary, whereas the remedy under Golding is automatic reversal of the judgment if the four-pronged test of Golding is satisfied. Accordingly, permitting Connecticut courts to review a greater number of claims by following federal forfeiture law in the absence of a state remedy comparable to the stringent federal plain error remedy for determining whether claims succeed opens the door to the abuses that Golding review was intended to discourage, such as trial by ambuscade. See, e.g., Moye v. Commissioner of Correction , 316 Conn. 779, 784–85, 114 A.3d 925 (2015). Adoption of the federal standard on forfeiture to determine whether jury instruction claims may be reviewed, as Chief Justice Rogers suggests, also would result in two different waiver standards for determining whether unpreserved claims may be reviewed, one standard for reviewing jury instruction claims and another standard for reviewing other unpreserved claims, which would lead to confusion and unnecessary inconsistency in our waiver law.

We turn next to Justice Palmer's concurring opinion, in which he also argues that the waiver rule in Kitchens should be overturned. We reject his lengthy analysis in all respects because, among other things, it is based in part on the construction of a false dichotomy between the reasoning in Kitchens and the present case, and on an incorrect understanding of how the court in Kitchens used the term “acquiescence” when discussing the state's claims and Connecticut's prior waiver law. We also reject Justice Palmer's approach to waiver, which is far more extreme than the federal approach and, to our knowledge, has not been adopted by any other jurisdiction. Indeed, the approach he suggests would have the effect of virtually eliminating Connecticut's implied waiver doctrine in the context of jury instruction claims. We address each point in turn.

Justice Palmer initially contends that the implied waiver rule in Kitchens was predicated on the legal fiction, or presumption, “that a defense counsel who reviews and then acquiesces in the trial court's proposed instructions has considered and declined to raise every potential objection to every part of the instructions” but that we have “disavowed” this rationale and now justify the rule on the ground that “defense counsel, upon reviewing the trial court's proposed jury charge, knowingly and voluntarily waives her client's procedural right to later challenge those instructions on appeal.” This is simply untrue. There is no difference in the reasoning articulated in Kitchens and the present case.

Justice Palmer constructs a false dichotomy lacking any basis in fact. The court in Kitchens repeatedly explained, as we do in the present case, that waiver involves the “intentional relinquishment or abandonment of a known right or privilege”; (internal quotation marks omitted) State v. Kitchens , supra, 299 Conn. at 469, 10 A.3d 942 ; accord id., at 474, 10 A.3d 942 ; and that, “among the rights that may be waived by the action of counsel in a criminal proceeding is the right of a defendant to proper jury instructions.” Id., at 467. The court in Kitchens also described the state's argument as whether the defense had “waived or forfeited the right to challenge [the jury instructions] on appeal”; id., at 473, 10 A.3d 942 ; ultimately concluding that, if the criteria for the Kitchens waiver rule are satisfied, “the defendant may be deemed to have knowledge of any potential flaws [in the jury instructions] and to have waived implicitly the constitutional right to challenge the instructions on direct appeal.” Id., at 483, 10 A.3d 942. Thereafter, the court in Kitchens similarly acknowledged that “implied waiver, as alleged in [that] case, arises from an inference that the defendant knowingly and voluntarily relinquished the right in question”; (emphasis omitted) id. ; and that competent counsel is presumed, “when determining whether a defendant's waiver of a constitutional right or statutory privilege has been knowing and intelligent.” Id., at 489, 10 A.3d 942. Insofar as the court in Kitchens also stated in a footnote that counsel's acceptance of the jury instructions following sufficient notice of their content supports an inference that counsel had knowledge of all potential constitutional defects contained therein; id., at 487 n.25, 10 A.3d 942 ; that statement was intended to explain in part why waiver constitutes a knowing and voluntary relinquishment of the right to appeal a jury instruction claim. Accordingly, there is no basis for Justice Palmer's argument that our reasoning in the present case differs on this essential point from the reasoning in Kitchens .

Justice Palmer also argues that the court in Kitchens failed to provide clear guidance as to what constitutes implied waiver, in part because the court used the term “acquiescence” in a “misleading and inconsistent manner.” He contends that “Kitchens described as acquiescence everything from defense counsel's sitting silently by and failing to object to the court's jury charge to defense counsel's expression of affirmative satisfaction or agreement with the charge,” and that the result of this inconsistency is confusion and a lack of understanding as to the type of conduct that may lead to a finding of waiver. Justice Palmer also claims that the court in Kitchens and the majority opinion in the present case have indicated that “mere acquiescence” constitutes waiver, which entails passive acceptance. This is not the case.

Justice Palmer continues to misunderstand the reasoning in Kitchens and the present case. The court in Kitchens did not use the term “acquiescence” when articulating the modified waiver rule but described implied waiver as requiring, among other things, counsel's “affirmative acceptance” of the instructions that were given.²⁴ State v. Kitchens , supra, 299 Conn. at 484, 496, 10 A.3d 942 ; see also id., at 482–83, 10 A.3d 942. The court in Kitchens also expressly cautioned that “mere acquiescence” is not sufficient to establish waiver.²⁵ Id., at 483 n.23, 10 A.3d 942. As we explain in this opinion and in Kitchens , “mere acquiescence” is insufficient to establish waiver because a finding of waiver requires that all of the facts and circumstances be taken into account, including “whether counsel had been given a meaningful opportunity to review, comment on and express satisfaction with the instructions, [and] whether counsel had, in fact, expressed such satisfaction before or after the instructions were given.” Id. Justice Palmer's fixation on the court's occasional use of the term “acquiescence” in Kitchens when describing the state's arguments and the decisions of other jurisdictions discussing waiver claims, and his suggestion that Kitchens intended waiver to be found only when there is mere acquiescence with respect to the court's proposed instructions, is thus unjustified. To the extent Justice Palmer's concern may stem from the fact that neither Kitchens nor this opinion precisely defines the meaning of “affirmative acceptance,” we determined in Kitchens that whether counsel has satisfied this requirement is best left to the discretion of the reviewing court after examining the record before it. Moreover, we are not aware of any case in which a reviewing court has construed “affirmative acceptance” as meaning passive acquiescence. See, e.g., State v. Johnson , 316 Conn. 45, 53, 111 A.3d 436 (2015) (affirmative acceptance means counsel must express satisfaction with instruction, not merely acquiesce in it); State v. Webster , 308 Conn. 43, 63, 60 A.3d 259 (2013) (finding waiver in part because court solicited comments from counsel several times during and following charging conference, and counsel ultimately affirmatively accepted instructions proposed and given). In sum, nothing in Kitchens or this opinion supports Justice Palmer's suggestion that Kitchens endorsed a definition of implied waiver that requires no more than passive acceptance of the jury instructions without actually agreeing to them, and his preoccupation with the court's reference to “acquiescence” in Kitchens when describing the state's argument and how other courts have understood waiver in the past is irrelevant. Justice Palmer also argues that Kitchens should be overruled under the doctrine of stare decisis. We disagree with this argument because we have concluded that Kitchens was correctly decided. We thus need not address this issue any further.

24 The court stated: “We conclude that, when the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal. Such a determination by the reviewing court must be based on a close examination of the record and the particular facts and circumstances of each case.” State v. Kitchens , supra, 299 Conn. at 482–83, 10 A.3d 942.

25 The court stated: “The standard that we describe would not allow waiver to be presumed from a silent record or from defense counsel's mere acquiescence in, or failure to object to, the jury instructions. A silent record, by definition, would not satisfy the standard because there would be no factual basis from which the court could infer a waiver, and mere acquiescence or failure to object, without more, would provide an insufficient basis for a finding of waiver because there would be no evidence from which the court could determine whether counsel had been given a meaningful opportunity to review, comment on and express satisfaction with the instructions, or whether counsel had, in fact, expressed such satisfaction before or after the instructions were given.” State v. Kitchens , supra, 299 Conn. at 483 at n.23, 10 A.3d 942.

In explaining his own view as to when implied waiver should be found, Justice Palmer resurrects his argument in Kitchens that “an unpreserved claim that instructional error of constitutional magnitude has occurred should be unreviewable under Golding only when (1) defense counsel induced or invited the error, or (2) it clearly can be inferred that counsel—or the defendant—actually was aware of the alleged defect in the instruction but chose for strategic or other reasons not to object (true waiver).”²⁶ Given his critique of Kitchens and his apparent willingness to accept the concept of implied waiver, even though narrowly drawn, this standard makes no sense for two reasons.

26 In his concurrence in Kitchens , Justice Palmer stated that “waiver may be implied—that is, it may be inferred—only if the record reveals conduct by counsel demonstrating both that counsel had knowledge of the potential constitutional claim and intentionally decided to raise it, presumably for strategic reasons.” (Emphasis in original.) State v. Kitchens , supra, 299 Conn. at 537, 10 A.3d 942 (Palmer , J. , concurring).

First, the unavailability of Golding review in cases of induced or invited error is based on exactly the same presumption, or “legal fiction,” Justice Palmer rejects as “illogical,” “unfounded” and “implausible” in the context of implied waiver under Kitchens . The presumption is that the claim is unreviewable because the defendant had knowledge of any potential flaws in the instructions that were given but intentionally disregarded them for strategic reasons. State v. Kitchens , supra, 299 Conn. at 470, 10 A.3d 942 (“[t]he rationale for declining to review jury instruction claims when the instructional error was induced or the claim was implicitly waived is precisely the same: [t]o allow [a] defendant to seek reversal [after] ... his trial strategy has failed would amount to allowing him to [induce potentially harmful error and then] ... ambush the state [and the trial court] with that claim on appeal” [internal quotation marks omitted] ); accord State v. Fabricatore , 281 Conn. 469, 482, 915 A.2d 872 (2007) ; State v. Gibson , 270 Conn. 55, 67, 850 A.2d 1040 (2004) ; State v. Cruz , 269 Conn. 97, 106, 848 A.2d 445 (2004). In neither circumstance is the record required to show that the defendant was actually aware of the specific instructional error that is claimed on appeal. Accordingly, Justice Palmer's unwillingness to allow Golding review in cases of induced or invited error is at odds with his willingness to allow Golding review of claimed error that has been implicitly waived under Kitchens .

Second, Justice Palmer's definition of implied waiver, which would limit waiver to cases in which “it clearly can be inferred that counsel—or the defendant—actually was aware of the alleged defect in the instruction but chose for strategic or other reasons not to object (true waiver),” is so narrow that it abolishes, for all intents and purposes, the implied waiver doctrine in Connecticut in the context of jury instruction claims. In Kitchens , the court responded to this same, now recycled argument by observing that the concept of implied waiver under Justice Palmer's definition very likely would be “eviscerate[d]” because “there appears to be no way that counsel may clearly demonstrate such knowledge except by expressly informing the court.”²⁷ State v. Kitchens , supra, 299 Conn. at 485 n.25, 10 A.3d 942. It also bears repeating that Justice Palmer was the author of the majority opinion in State v. Holness , supra, 289 Conn. at 535, 958 A.2d 754, in which the court concluded that the defendant had waived his unpreserved jury instruction claim when defense counsel expressed satisfaction with the contested instruction because the state was not required to establish that counsel was aware of the potential constitutional flaw. See id., at 543–44, 958 A.2d 754. Rather, the court in Holness stated that the trial court was entitled to presume that counsel was familiar with the relevant constitutional principles and had acted competently in agreeing to the jury instruction challenged on appeal. See id., at 544, 958 A.2d 754. Justice Palmer's present views thus are inconsistent with the position he articulated as the author of the majority opinion in Holness .

27 In response to our conclusion that Justice Palmer's idiosyncratic definition very likely would eviscerate the concept of implied waiver, he cites several “traditional, preKitchens ” cases in which the court found waiver under reasoning he considers consistent with his definition. Footnote 6 of Justice Palmer's concurring opinion. In none of those cases, however, did the court find waiver under reasoning consistent with his definition because there was no indication in any of those cases that defense counsel was aware that the instruction was defective when counsel agreed to the instruction later challenged on appeal, as Justice Palmer's definition requires. See State v. Hampton , 293 Conn. 435, 447, 449–50, 978 A.2d 1089 (2009) (defense counsel waived instructional claim on ground that he had accepted instruction that was given as “ ‘in order,’ ” and thus correct); State v. Whitford , 260 Conn. 610, 633, 799 A.2d 1034 (2002) (defense counsel waived instructional claim on ground that counsel, “[b]y agreeing to the proposed instruction, and by failing to object to the supplemental charge as given ... effectively conceded that it was sufficient to cure any previous impropriety”); State v. Jones , 193 Conn. 70, 88–89, 475 A.2d 1087 (1984) (instructional claim was waived when counsel “accepted ... as correct” jury instruction later challenged on appeal); State v. Fuller , 158 Conn.App. 378, 389–90, 119 A.3d 589 (2015) (defense counsel waived instructional claim under Kitchens because counsel indicated multiple times that there were “no issues with the charge”). In relying on the foregoing cases, Justice Palmer fails to distinguish between a proposed instruction being raised at trial and defense counsel agreeing to it, on the one hand, and defense counsel knowing that the instruction is incorrect and agreeing to it, on the other.

We conclude with the observation that Justice Palmer, in his enthusiasm to overturn the waiver rule in Kitchens , makes many other points that are either unsupported or supported by irrelevant sources to which he cites. For example, he declares that incarcerated defendants will suffer unnecessarily under Kitchens as a result of having to litigate their jury instruction claims in habeas proceedings and proclaims that Juma Lahai, the petitioner in Lahai v. Warden , Superior Court, judicial district of Tolland, Docket No. TSR–CV–09–4003028–S, 2012 WL 1959065 (Conn.Super. May 7, 2012), “remained incarcerated for a full year longer than was necessary to review and vindicate his [Kitchens ] claim.” Text accompanying footnote 41 of Justice Palmer's concurring opinion. A quick check of the facts, however, reveals that Justice Palmer is mistaken. In State v. Lahai , 128 Conn.App. 448, 18 A.3d 630, cert. denied, 301 Conn. 934, 23 A.3d 727 (2011), the Appellate Court rejected Lahai's jury instruction claim because the error was induced by defense counsel, who specifically requested the instruction that was given. See id., at 457, 18 A.3d 630. The court cited Kitchens only for its passing reference to the doctrine of induced error, and not for its clarification of the implied waiver rule. See id. Thereafter, the habeas court noted that both parties had conceded that the error was induced when it concluded that the error was prejudicial under the second prong of Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Lahai v. Ward en , supra. Accordingly, the parties in Lahai did not rely on Kitchens , and Justice Palmer's citation to Lahai in describing the purportedly deleterious effects of Kitchens is unsupported by the history of that case.²⁸

28 We note that, after the court concluded that the doctrine of induced error precluded Lahai from prevailing under Golding ' s third prong; State v. Lahai , supra, 128 Conn. App. at 457, 18 A.3d 630 ; see State v. Golding , supra, 213 Conn. at 240, 567 A.2d 823 ; it added that, even if defense counsel had not induced the error, Lahai's claim would have been waived under Kitchens . See State v. Lahai , supra, at 459–60, 18 A.3d 630. This brief reference to Kitchens , however, following the court's conclusion that the error had been induced, does not change the fact that Kitchens was not essential to the habeas court's holding and had nothing to do with any delay in reaching a final resolution of Lahai's jury instruction claim.

Justice Palmer makes a similar mistake when claiming that the concept of waiver should be narrowly drawn so as not to unduly limit Golding review. He cites State v. Pond , 315 Conn. 451, 108 A.3d 1083 (2015), as a case in which this court was able to clarify the law and resolve a split of opinion in the Appellate Court after “the state argued unsuccessfully that the instructional claims of the defendant ... were waived under Kitchens ....” Text accompanying footnote 28 of Justice Palmer's concurring opinion. The state, however, did not argue in Pond that the claims were waived under Kitchens . To the extent the Appellate Court in Pond considered instructional error before the case was appealed to this court, the issue was whether the defendant had induced the instructional error, not whether he had waived his claim of instructional error under Kitchens . See State v. Pond , 138 Conn.App. 228, 238, 50 A.3d 950 (2012), aff'd, 315 Conn. 451, 108 A.3d 1083 (2015). Thus, Kitchens was cited only for its reference to the doctrine of induced error. See id. In fact, the Appellate Court specifically observed that “[t]he state does not appear to rely on the waiver doctrine of [Kitchens ].”²⁹ Id. Justice Palmer further declares that, “with five years now having passed since this court decided Kitchens , time and experience have borne out my concerns, and those of Justice Katz, that the majority's reliance on habeas proceedings as a panacea was seriously misplaced. When Kitchens was decided, we predicted that the rule would increase rather than decrease the burden on judicial resources because any time saved in avoiding appellate review of instructional error would be more than offset by the need for a full habeas trial on the issue. In fact, of the six cases decided in the year following this court's decision in Kitchens in which the Appellate Court found claims of instructional error waived under Kitchens , four already have resulted in habeas petitions related to the alleged instructional error.³⁰

29 Justice Palmer's attempt to downplay the significance of this fact by stating that the Appellate Court would have found a waiver under Kitchens if the trial court had satisfied the Kitchens criteria for implied waiver, thus preventing review of the defendant's claim, is wholly speculative.

30 See Carrion v. Warden , Superior Court, judicial district of Tolland, Docket No. TSR–CV–11–4004163–S, 2015 WL 9920777 (Conn.Super. Dec. 15, 2015) ; Bharrat v. Commissioner of Correction , supra, Superior Court, Docket No. TSR–CV–12–4004615S; Lahai v. Warden , supra, Superior Court, Docket No. TSR–CV–09–4003028S ; see also Myers v. Warden , Superior Court, judicial district of Tolland, Docket No. TSR–CV–14-4005938–S (withdrawn August 12, 2016).

“When Kitchens was decided, we also warned that habeas proceedings would only push back the inevitable, as petitioners whose ineffective assistance of counsel claims were denied on collateral review ultimately would return to the Appellate Court for review of those decisions. Sure enough, the first generation of post-Kitchens habeas appeals is now coming home to roost. See, e.g., Bharrat v. Commissioner of Correction , 167 Conn.App. 158, 143 A.3d 1106 (2016).” (Footnotes altered.) Justice Palmer thus suggests an impending flood of new habeas litigation based on Kitchens . We nonetheless ask, what, exactly, is coming home to roost?

Justice Palmer cites four habeas cases during the past five years in which a Kitchens claim was purportedly raised. Four cases in five years, however, can hardly be regarded as an intolerable consequence of Kitchens . Moreover, none of the cited cases is relevant because the rule in Kitchens was either not raised or only one of several issues raised by the petitioner. In Carrion v. Warden , Superior Court, judicial district of Tolland, Docket No. TSR–CV–11–4004163–S (December 15, 2015), for example, the petitioner, Christopher Carrion, asserted three claims of error, only one of which was a claim of ineffective assistance based on instructional impropriety.³¹ Furthermore, the habeas court in Carrion did not consider trial counsel's conduct under the performance prong (first prong) of Strickland . See id. ; see also Strickland v. Washington , supra, 466 U.S. at 687, 104 S.Ct. 2052. This court previously had concluded, in a majority opinion authored by Justice Palmer, that, even if it assumed, without deciding, that Carrion's claim of instructional impropriety had not been implicitly waived under Kitchens , the challenged instruction had not deprived Carrion of a fair trial. State v. Carrion , 313 Conn. 823, 827, 100 A.3d 361 (2014). The habeas court in Carrion thus disposed of the Kitchens claim in a single sentence, noting this court's conclusion that the instruction was not harmful and stating that “the issue as to this jury instruction is res judicata ....” (Emphasis omitted.) Carrion v. Warden , supra. Carrion is now appealing from the judgment denying his habeas petition to the Appellate Court but has raised no jury instruction claim. Carrion v. Commissioner of Correction , Connecticut Appellate Court, Docket No. AC 38794 (appeal filed January 15, 2016). Accordingly, there is no basis for Justice Palmer's conclusion that Carrion is the first of many “post-Kitchens habeas appeals ... coming home to roost.” To the contrary, instructional error in Carrion was only a minor part of Carrion's ineffective assistance of counsel claim and is not being litigated in the appeal from the habeas court's judgment.

31 The other two claims were that Carrion's trial counsel was ineffective for failing to investigate and failing to call witnesses. Carrion v. Warden , supra, Superior Court, Docket No. TSR–CV–11–4004163–S.

As for the other three cases that Justice Palmer cites, the court determined in Lahai v. Warde n , supra, Superior Court, Docket No. TSR–CV–09–4003028–S, that the instructional error had been induced; and no Kitchens claim was raised in Myers v. Warden , Superior Court, judicial district of Tolland, Docket No. TSR–CV–14–4005938-S (withdrawn August 12, 2016), or in the habeas proceeding and appeal that followed in Bharrat . See generally Bharrat v. Commissioner of Correction , supra, 167 Conn.App. at 158, 143 A.3d 1106 ; Bharrat v. Commissioner of Correction , supra, Superior Court, Docket No. TSR–CV–12–4004615–S. Consequently, Justice Palmer provides no reliable support for his claim that a large amount of habeas litigation will be coming home to roost in the post-Kitchens era.

Justice Palmer finally suggests, as he did in Kitchens , that the waiver of a jury instruction claim under Kitchens may be overcome if defense counsel informs the trial court that he has not raised a constitutional challenge to the charge because he is unaware of any such claim. See State v. Kitchens , supra, 299 Conn. at 541, 10 A.3d 942 (Palmer , J. , concurring). He also suggests that the defense bar should test this theory. We reject these suggestions not only for the reasons stated in Kitchens ; see id., at 485 n.25, 108 A.3d 1083 ; but for the additional reason that such conduct would be inconsistent with our rules of practice, which seek to encourage good faith participation by counsel in the formulation of jury instructions. Qualified approval of the jury instructions, as Justice Palmer suggests, also would effectively limit waiver in this context to claims of induced or invited error.

The judgment of the Appellate Court is affirmed.

In this opinion EVELEIGH, ESPINOSA and ROBINSON Js. concurred.

ROGERS, C. J., concurring. I agree with the defendant, Brandon Montrell Bellamy, that this court's marked expansion of the doctrine of implied waiver of claims of jury instructional error in State v. Kitchens , 299 Conn. 447, 10 A.3d 942 (2011), was mistaken and, therefore, I would overrule that decision and return to the much narrower conception of implied waiver that previously governed our jurisprudence in this area. Application of a more restrictive implied waiver rule leads me to conclude that the defendant's claim of instructional error is reviewable on its merits pursuant to State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989).^{1 1} Nevertheless, the defendant's claim fails under Golding because it does not raise a claim of constitutional error.^{2 2}

1 Under State v. Golding , supra, 213 Conn. at 239–40, 567 A.2d 823, a criminal defendant can prevail on an unpreserved claim of constitutional error if all of the following conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation ... exists and ... deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Footnote omitted.) See also In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third prong of Golding ).

1 See part I A of this opinion.

2 See, e.g., State v. Cerilli , 222 Conn. 556, 567, 610 A.2d 1130 (1992) (claim that court should have charged jury on issue of identification is one of instructional, not constitutional error); see also State v. Inglis , 151 Conn.App. 283, 289, 94 A.3d 1204 (“[c]laims pertaining to the adequacy of a court's instructions on misidentification are not constitutional in nature”), cert. denied, 314 Conn. 920, 100 A.3d 851 (2014).

2 State v. Golding , 213 Conn. 233, 567 A.2d 823 (1989). Golding , which defines the conditions under which a criminal defendant may prevail on an unpreserved claim of constitutional error, represents an exception to the general rule that objections not timely raised at trial will be deemed forfeited and, therefore, unreviewable on appeal. See id., at 239–40, 567 A.2d 823.

It is well established that “Golding [review] is a narrow exception to the general rule that an appellate court will not entertain a claim that has not been raised in the trial court. The reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial—after it is too late for the trial court or the opposing party to address the claim—would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party. ... Nevertheless, because constitutional claims implicate fundamental rights, it also would be unfair automatically and categorically to bar a defendant from raising a meritorious constitutional claim that warrants a new trial solely because the defendant failed to identify the violation at trial. Golding strikes an appropriate balance between these competing interests: the defendant may raise such a constitutional claim on appeal, and the appellate tribunal will review it, but only if the trial court record is adequate for appellate review.” (Internal quotation marks omitted.) Moye v. Commissioner of Correction , 316 Conn. 779, 784–85, 114 A.3d 925 (2015). Upon reflection, I believe that Kitchens improperly upset the balance struck by Golding for a substantial category of cases, those raising jury instructional error, and did so for questionable reasons. Returning to a narrower implied waiver rule would support the goals of Golding yet prevent the abuse of the leniency it affords.

In Kitchens , this court announced the following general rule to determine whether a claim of jury instructional error will be deemed to have been waived by trial counsel and, therefore, unreviewable on appeal: “[W]hen the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal. Such a determination by the reviewing court must be based on a close examination of the record and the particular facts and circumstances of each case.” State v. Kitchens , supra, 299 Conn. at 482–83, 10 A.3d 942. The court explained that the foregoing rule rests on an “inference, or ‘assumption’ of fact”; (emphasis omitted) id., at 487 n.25, 10 A.3d 942 ; that counsel was aware of the defect later raised on appeal and decided not to assert it at trial, and, therefore, that a waiver could be found without evidence that counsel actually knew of the defect. Id., at 483, 10 A.3d 942. In that sense, we acknowledged, the implied waiver rule depended on a “legal fiction.” Id., at 487 n.25, 10 A.3d 942.

Upon further consideration, I am convinced that the inference upon which the Kitchens rule relied was an unreasonably broad one, and that the circumstances described in Kitchens more accurately reflect, in the majority of instances, a forfeiture of the right to claim a specific error in the instructions rather than a waiver of that right.^{3 3} See State v. Davis , 311 Conn. 468, 495–503, 88 A.3d 445 (2014) (Palmer, J. , concurring). As a result, Kitchens effectively has carved out a particular category of unpreserved trial error and deemed it unworthy of review pursuant to State v. Golding , supra, 213 Conn. at 239–40, 567 A.2d 823. While Golding permits appellate consideration of any other type of unpreserved constitutional claim, Kitchens revokes the right to such review by invoking the unrealistic assumption that defendants, through their counsel, knowingly and purposefully have relinquished that right in the described circumstances.^{4 4} In my view, the benefits of this approach do not outweigh the costs, either to defendants with meritorious claims of harmful instructional error, to the court system or to society as a whole.

3 The difference between a waiver and a forfeiture is that a “forfeiture is the failure to make the timely assertion of a right,” whereas a “waiver is the intentional relinquishment or abandonment of a known right.” (Internal quotation marks omitted.) United States v. Olano , 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ; see also Mozell v. Commissioner of Correction , 291 Conn. 62, 70–71, 967 A.2d 41 (2009). Federal courts variously have characterized forfeitures as “more inadvertent” than waivers; Freytag v. Commissioner of Internal Revenue , 501 U.S. 868, 894 n.2, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (Scalia, J, dissenting); as “accidental blunder[s]”; United States v. Hamilton , 499 F.3d 734, 735 (7th Cir. 2007), cert. denied, 552 U.S. 1129, 128 S.Ct. 951, 169 L.Ed.2d 782 (2008) ; or as “matter[s] of oversight ....” United States v. Yu – Leung , 51 F.3d 1116, 1122 (2d Cir. 1995).

3 “The distinction between a forfeiture of a right ... and a waiver of that right ... is that [w]hereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.” (Internal quotation marks omitted.) Mozell v. Commissioner of Correction , 291 Conn. 62, 70–71, 967 A.2d 41 (2009) ; accord United States v. Olano , 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Forfeiture thus occurs as a matter of course if an objection is not timely raised, whereas waiver requires an actual informed decision not to press the right. Although we have not always used these terms with the appropriate precision, our Golding jurisprudence is premised on the distinction between them. Specifically, we long have held that, whereas most claims of error that are not timely raised at trial are deemed to be forfeited and, thus, not reviewable on appeal, unpreserved claims of constitutional magnitude are reviewable, assuming all of the Golding requirements are satisfied, unless the defendant or defense counsel voluntarily chooses to waive them. See, e.g., Mozell v. Commissioner of Correction , supra, at 70–71, 967 A.2d 41 ; see also State v. Davis , 311 Conn. 468, 503–504, 88 A.3d 445 (2014) (Palmer , J. , concurring).

4 “When a party consents to or expresses satisfaction with an issue at trial, claims arising from that issue are deemed waived and may not be reviewed on appeal.” (Internal quotation marks omitted.) Mozell v. Commissioner of Correction , 291 Conn. 62, 71, 967 A.2d 41 (2009). On the other hand, as we acknowledged in State v. Kitchens , supra, 299 Conn. at 474, 10 A.3d 942, mere forfeiture “is not a bar to appellate review of an unpreserved Golding claim but, rather, the precise reason why such review is permissible.”

4 See, e.g., State v. Fabricatore , 281 Conn. 469, 471, 915 A.2d 872 (2007) ; see also State v. Charles , 134 Conn.App. 242, 244, 39 A.3d 750, cert. denied, 304 Conn. 930, 42 A.3d 392 (2012) ; State v. Diaz , 109 Conn.App. 519, 535, 952 A.2d 124, cert. denied, 289 Conn. 930, 958 A.2d 161 (2008). Fabricatore defies easy classification. Although we began that decision by identifying the case as one of express waiver; State v. Fabricatore , supra, at 471, 915 A.2d 872 ; later in the decision, we suggested that it presented a question of implied waiver; id., at 478, 915 A.2d 872 ; and we also likened the claim to induced error. Id., at 482–83, 915 A.2d 872.

In Kitchens , we relied on a number of additional factors in support of an expansive implied waiver rule, among them the remaining availability of habeas review. See State v. Kitchens , supra, 299 Conn. at 496–98, 10 A.3d 942. Upon further reflection, I now realize that, to a defendant with a meritorious constitutional claim, habeas review is not an effective and equivalent substitute for direct appellate review. First, because of the delay attendant to filing a habeas petition, receiving a full hearing and awaiting a decision thereon, a party who ultimately prevails in that forum likely will have spent years of his or her life incarcerated for a conviction that was constitutionally infirm. It is no answer that these cases are relatively few. Second, unlike a direct appeal decided pursuant to Golding , a habeas appeal presents an inhospitable framework for novel constitutional claims or those that require the overruling of established authority in order to succeed. Compare In re Yasiel R. , 317 Conn. 773, 780–81, 120 A.3d 1188 (2015) (party may prevail under third prong of Golding even in absence of existing, binding precedent supporting his or her constitutional claim), with Ledbetter v. Commissioner of Correction , 275 Conn. 451, 461–62, 880 A.2d 160 (2005) (“numerous state and federal courts have concluded that counsel's failure to advance novel legal theories or arguments does not constitute ineffective performance” and citing cases),^{5 5} cert. denied sub nom. Ledbetter v. Lantz , 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006).^{6 6} The unavailability of Golding review for a particular category of unpreserved constitutional claims does not just harm individual defendants who might have raised those claims on direct appeal. It also has costs for society as a whole, by decreasing and/or delaying the availability of appellate jurisprudence, primarily concerning the criminal law. In addition to correction of trial error for the benefit of individual defendants, appellate review serves the societal function of articulating, developing and refining the common law. R. Calhoun, “Waiver of the Right to Appeal,” 23 Hastings Const. L.Q. 127, 172 (1995). “Historically, courts of appeal have been relied upon to announce, clarify and harmonize the rules of decision employed by the legal system in which they serve. ... This is a concern that extends far beyond an individual defendant's desire for access to corrective process.” (Footnotes omitted; internal quotation marks omitted.) Id. As we have recognized in our jurisprudence governing vacatur, judicial decisions are not merely for the litigants, but are “valuable to the legal community as a whole.” (Internal quotation marks omitted.) State v. Boyle , 287 Conn. 478, 489, 949 A.2d 460 (2008). Notably, when this court or the Appellate Court analyzes a claim under Golding , it contributes to the development of the law regardless of whether the claim succeeds and results in relief for the defendant.

5 “Under the two-pronged [test of Strickland v. Washington , 466 U.S. 668, 687–94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], a defendant can only prevail on an ineffective assistance of counsel claim if he proves that (1) counsel's performance was deficient, and (2) the deficient performance resulted in actual prejudice. ... To demonstrate deficient performance, a defendant must show that counsel's conduct fell below an objective standard of reasonableness for competent attorneys. ... To demonstrate actual prejudice, a defendant must show a reasonable probability that the outcome of the proceeding would have been different but for counsel's errors.” (Citations omitted.) Davis v. Commissioner of Correction , 319 Conn. 548, 555, 126 A.3d 538 (2015).

5 See, e.g., State v. Hampton , 293 Conn. 435, 445–50, 978 A.2d 1089 (2009) (defense counsel was clearly aware of defect subsequently raised on appeal when trial court twice raised with counsel question whether unanimity instruction was required); State v. Whitford , 260 Conn. 610, 631–34, 799 A.2d 1034 (2002) (challenge was waived when defense counsel raised same objection at trial and accepted trial court's curative instruction); State v. Jones , 193 Conn. 70, 85–89, 475 A.2d 1087 (1984) (challenge was waived when trial counsel excepted to charge later challenged on appeal and also participated in fashioning supplementary charge to cure error). The contention by the majority that in none of these cases was trial counsel aware of the defect that subsequently was challenged on appeal is patently false and borders on disingenuous. See footnote 27 of the majority opinion.

6 This court has yet to clarify whether a claim that is deemed waived pursuant to Kitchens nevertheless is subject to review on direct appeal under the plain error doctrine. See State v. McClain , 319 Conn. 902, 122 A.3d 637 (2015) (This court granted certification to appeal, limited to the following question: “Did the Appellate Court properly determine that an implied waiver of a claim of instructional error that satisfies State v. Kitchens , [supra, 299 Conn. at 447, 10 A.3d 942 ], also forecloses plain error review?”). Even in the event that we ultimately hold that such review remains available, however, it seems clear that, under the stringent standard governing claims of plain error, defendants raising such claims would be less likely to prevail under that framework than they would have been under the Golding standard. See State v. Myers , 290 Conn. 278, 289, 963 A.2d 11 (2009) (explaining that plain error doctrine “is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party ... [and] is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings” [internal quotation marks omitted] ). Moreover, novel claims or those requiring the overruling of existing jurisprudence also are unlikely to succeed under this rule, because “[i]t is axiomatic that the trial court's proper application of the law existing at the time of trial cannot constitute reversible error under the plain error doctrine.” (Internal quotation marks omitted.) State v. Darryl W. , 303 Conn. 353, 374, 33 A.3d 239 (2012).

6 See, e.g., State v. Fuller , 158 Conn.App. 378, 394–98, 119 A.3d 589 (2015) (defendant claimed on appeal that trial court should have given misidentification instruction, even though such instruction would have contradicted and undermined his trial theory that he was present at scene of crime but was legally in possession of allegedly stolen items); see also United States v. Crowley , 318 F.3d 401, 411 (2d Cir.) (“[the defendant's] failure even to raise the issue suggests a reasonable strategic choice that the defense was better off arguing that [he] never had a criminal intent, rather than making the argument—novel in federal law, and perhaps lacking in jury appeal—that he began with a criminal purpose but abandoned it”), cert. denied, 540 U.S. 894, 124 S.Ct. 239, 157 L.Ed.2d 171 (2003). In arguing that reverting to the traditional, preKitchens definition of implied waiver would “eviscerate” the concept of implied waiver; footnote 27 of the majority opinion; or narrow it to the point of abolition, the majority thus ignores the existence of cases such as Hampton , Whitford , Jones , and Fuller , each of which relied on and exemplifies the concept. See footnotes 5 and 6 of this opinion. Of course, there will be fewer instances of implied waiver under the traditional definition than under Kitchens ' dramatically expanded definition. But that is as it should be. In many areas of the law, we require that an individual expressly declare his intent to waive his fundamental constitutional rights, and, when we relax that strict requirement, we should be in no great hurry to find waiver by implication.

Another purpose of appeals is to legitimize state decision making. “In other words, appeals are an essential part of the overall procedural structure which operates to assure us that the system is a fair one. It is essential that the system not only be fair but that it be perceived as fair.” R. Calhoun, supra, 23 Hastings Const. L.Q. 178. The right to appeal “assures the public, rightly or wrongly, that trial court decisions will be reviewed for accuracy and fairness and adds an aura of probity to the criminal justice process.” Id. In my view, addressing a constitutional issue substantively when the record is adequate to do so, rather than deeming it unreviewable, adds considerably to this endeavor.

Further, I am not convinced that the benefits of the Kitchens rule outweigh these costs. In particular, I question whether the intended efficiencies truly will be achieved. Although the rule has reduced the number of direct appeals addressing claims of jury instructional error substantively, it has spawned an entirely new area of jurisprudence addressing whether the requirements for a waiver have been met.^{7 7} Moreover, when claims are deemed waived under Kitchens , they are not necessarily disposed of with finality. Rather, at least some, and perhaps many, merely will be deferred, only to be raised anew in a habeas action.^{8 8} Furthermore, the habeas forum is less efficient than a direct appeal in that a trial must be held, at which counsel must explain his or her reasons for failing to object to the instruction at issue, perhaps with yet another appeal to follow. As the majority acknowledges, “a finding of waiver [in a direct appeal] opens the door to a future habeas proceeding on which the state and the court will be required to expend additional limited resources that could have been devoted to other pending trials.” Given these circumstances, I am inclined to conclude that disposing of an unpreserved claim of instructional error at the earliest opportunity, on its merits pursuant to Golding , is the most efficient approach.

7 A search of Connecticut appellate jurisprudence postdating Kitchens , encompassing a period of approximately five years, returns more than forty cases applying its holding, with varying results.

7 See, e.g., State v. Coward , 292 Conn. 296, 305–306, 972 A.2d 691 (2009) ; State v. Cruz , 269 Conn. 97, 102, 105, 848 A.2d 445 (2004).

8 For this reason, applying Kitchens is akin to playing a game of slow-motion, jurisprudential “whack-a-mole.” The reviewing court considering the defendant's direct appeal may slap down an unpreserved instructional claim as waived, and therefore unreviewable, today, only to have the claim pop up anew in a habeas court elsewhere in the state in the future.

8 See, e.g., State v. Foster , 293 Conn. 327, 340–42, 977 A.2d 199 (2009) ; State v. Holness , 289 Conn. 535, 541–45, 958 A.2d 754 (2008) ; State v. Brewer , 283 Conn. 352, 355, 357 n.7, 360–61, 927 A.2d 825 (2007) ; State v. Fabricatore , 281 Conn. 469, 475, 915 A.2d 872 (2007) ; see also State v. Gibson , 270 Conn. 55, 66–68, 850 A.2d 1040 (2004) (finding induced error when defense counsel declined limiting instruction offered by court). The majority contends that Brewer was not a case of induced or invited error but, instead, stands for a broad implied waiver rule. See footnote 13 of the majority opinion. It is clear, however, that, in Brewer , we relied not only on the fact that defense counsel in that case expressed satisfaction with the challenged lesser included offense instruction, but also that he specifically requested such an instruction and then verified that the instruction as given—presumably including the challenged section on unanimity—was what he had sought. See State v. Brewer , supra, at 357 and n.7, 927 A.2d 825. For that reason, in State v. Ebron , 292 Conn. 656, 975 A.2d 17 (2009), overruled in part on other grounds by State v. Kitchens , 299 Conn. 447, 10 A.3d 942 (2011), we held Brewer up as a case of induced error. See State v. Ebron , supra, at 681, 975 A.2d 17 (noting that, in Brewer , “[the] defendant could not prevail under [the] third prong of Golding when he affirmatively requested exact lesser included offense instruction challenged on appeal and expressed satisfaction with that charge”). The same can be said of Holness , in which defense counsel requested and then specifically approved the language of the limiting instruction at issue. See id., at 681, 975 A.2d 17.

For the foregoing reasons, I believe that this court should abandon the Kitchens experiment of broadly denying direct appellate review of unpreserved constitutional claims of jury instructional error and, instead, return to the much narrower conception of implied waiver in this area that predated Kitchens . Under pre-Kitchens implied waiver jurisprudence, a waiver was not deemed to have occurred by application of any preconceived general rule, but rather, was determined more flexibly on a case-by-case basis in view of all the relevant facts and circumstances. Claims of instructional error that were not identified at trial were deemed waived by defense counsel's approval of the charge^{9 9} only when, at the very least , there was specific, on-the-record discussion of the particular instruction later claimed to be defective on appeal, and defense counsel, thereafter, explicitly assented to that instruction.^{10 10}

9 As this court discussed in State v. Kitchens , supra, 299 Conn. at 477–80, 10 A.3d 942, some cases have held claims of instructional error to have been waived impliedly by conduct, even in the absence of an overt agreement to the instruction at issue.

9 See, e.g., State v. Cooper , 38 Conn.App. 661, 670, 664 A.2d 773, cert. denied, 235 Conn. 908, 665 A.2d 903 (1995), cert. denied, 517 U.S. 1214, 116 S.Ct. 1837, 134 L.Ed.2d 940 (1996).

10 See State v. Hampton , 293 Conn. 435, 449–50, 978 A.2d 1089 (2009) (defendant waived claim pertaining to unanimity aspect of sexual assault charge when trial court twice highlighted unanimity issue in charge conferences and defense counsel thereafter expressed approval of charge); State v. Brewer , 283 Conn. 352, 357 n.7, 361, 927 A.2d 825 (2007) (defendant waived claim pertaining to unanimous acquittal aspect of lesser included offense instruction by expressly approving lesser included offense instruction after discussion regarding its necessity); State v. Fabricatore , 281 Conn. 469, 475, 481, 915 A.2d 872 (2007) (defendant waived claim pertaining to duty to retreat aspect of self-defense instruction by, inter alia, expressing satisfaction with self-defense instruction after discussion about it); State v. Hankerson , 118 Conn.App. 380, 386–87, 389, 983 A.2d 898 (2009) (defendant waived claim pertaining to causation aspect of felony murder instruction by expressly approving felony murder instruction after discussion of it), cert. denied, 298 Conn. 932, 10 A.3d 518 (2010) ; State v. Collazo , 115 Conn.App. 752, 760, 974 A.2d 729 (2009) (defendant waived objection to instructing jury that he could be convicted as either principal or accessory when that approach was discussed and counsel agreed to it), cert. denied, 294 Conn. 929, 986 A.2d 1057 (2010) ; State v. Velez , 113 Conn.App. 347, 360–61, 966 A.2d 743 (defendant waived claim pertaining to supplemental intent instruction by discussing instruction with court then agreeing twice to that instruction), cert. denied, 291 Conn. 917, 970 A.2d 729 (2009) ; State v. Khuth , 111 Conn.App. 184, 192–93, 958 A.2d 218 (defendant waived claim pertaining to definition of “aided,” when he specifically agreed with definition given by court and objected to any alteration of it in response to jury query), cert. denied, 289 Conn. 957, 961 A.2d 423 (2008) ; State v. Diaz , 109 Conn.App. 519, 536–37, 952 A.2d 124 (defendant waived claim pertaining to instruction addressing missing evidence when, following extended colloquy between court and counsel, he affirmatively expressed consent to that instruction), cert. denied, 289 Conn. 930, 958 A.2d 161 (2008) ; compare State v. Rodriguez – Roman , 297 Conn. 66, 86–87, 3 A.3d 783 (2010) (defendant did not waive claim pertaining to racketeering instruction when, following brief discussion, counsel expressed satisfaction with conspiracy instruction); State v. Reynolds , 118 Conn.App. 278, 307, 983 A.2d 874 (2009) (defendant did not waive claim pertaining to consent instruction by assenting generally, or specifically to other parts of charge), cert. denied, 294 Conn. 933, 987 A.2d 1029 (2010).
In light of the weight of this authority, I am not persuaded by the majority's contention that, “[e]ven before our decision in Kitchens , Connecticut law provided that approval of the jury instructions by trial counsel acts as a waiver of all potential jury instruction claims and not merely claims arising from jury instructions that defense counsel specifically discussed on the record at trial.” (Emphasis in original.) Specifically, neither of the two cases cited as authority for that proposition appear to support it, because in each case, the particular instruction at issue on appeal was discussed and accepted by trial counsel on the record. See State v. Holness , 289 Conn. 535, 541–44, 958 A.2d 754 (2008) (defendant waived claim that he was cross-examined in violation of his right to confrontation, using information from statement of unavailable witness, by counsel's requesting, then agreeing to, cautionary instruction as remedy); see also State v. Brewer , supra, 283 Conn. at 357 n.7, 927 A.2d 825 (defendant waived claim pertaining to unanimous acquittal aspect of lesser included offense instruction by expressly approving instruction after discussion regarding its necessity).

10 The majority is, therefore, incorrect when it contends that the rationales underlying the two rules are the same and that the doctrine of induced error, no less than Kitchens ' expansive implied waiver rule, is predicated on a legal fiction. It is true that the induced error doctrine assumes that the defendant has made a strategic choice and that it holds him to the consequences of that choice. But there is no fiction therein—requesting a particular jury instruction is necessarily an exercise of trial strategy, regardless of the reason or purpose for the request—and we have made a policy determination that Golding review should not be available if the defendant later second-guesses that strategy and seeks to attack his own proposed instructions. The court in Kitchens likewise could have carved out for policy reasons a broader exception to Golding review for unpreserved jury instruction challenges when defense counsel merely acquiesces in the trial court's instructions. Its primary misstep was that, rather than being seen as further scaling back on Golding review, the Kitchens majority tried to piggyback on the doctrine of waiver by improperly labeling as implied waiver conduct that (1) often is not at all strategic, and (2) satisfies none of the criteria for a knowing, voluntary relinquishment of a fundamental right. The irony—and the fundamental slight-of-hand in Kitchens —is that it is precisely those elements of a true waiver, which exempt it from Golding review, that are lacking in a so-called Kitchens waiver.

Stated otherwise, the record demonstrated that counsel was focused on the specific instruction later claimed to be erroneous, thought about it, and then indicated to the trial court that he or she had no issue with that instruction.^{11 11} Again, an assessment of waiver is dependent on all of the circumstances surrounding this on-the-record discussion of the instruction at issue, and counsel's agreement thereto, but at a very minimum, a focused discussion and agreement must have occurred.^{12 12} This approach more closely resembles that generally taken in the federal courts,^{13 13} which also permit appellate review of forfeited claims but deny it to waived claims.^{14 14} Although even a narrower implied waiver rule rests on an inference, rather than actual proof, that counsel consciously decided to abandon a known claim, it is a much more reasonable inference^{15 15} and, I believe, one that appropriately accounts for the varying interests of defendants, the state, courts and society at large.^{16 16}

11 The nature and degree of focus may have varied, but, at a minimum, there was an actual substantive discussion of the instruction at issue that indicates that counsel truly was thinking about that instruction. In contrast, a rote call and response exercise, pursuant to which a trial court reads through a proposed jury charge on the record, pausing after each instruction to secure counsel's agreement therewith, would not result in an implied waiver of claims of error as to each approved instruction, absent additional, meaningful discussion of the contents of an instruction.

11 “The doctrine of judicial estoppel ... advances notions of fair play by precluding a party from inducing judicial action by taking one legal position and then taking a contrary position later to achieve further advantage over the same adverse party.” State v. Hargrove , 48 Kan.App.2d 522, 548–49, 293 P.3d 787 (2013).

12 This is not to say that, in all cases in which a focused discussion occurs, an implied waiver inevitably will be found. For example, the specific instruction at issue may be lengthy or complex, counsel may not have had much time to review it, and the on-the-record discussion may have been limited to an isolated aspect of the instruction. Under the totality of those circumstances, inferring waiver of a claim pertaining to an entirely different portion of the instruction would not be reasonable.

12 See, e.g., State v. Rodriguez – Roman , 297 Conn. 66, 86, 3 A.3d 783 (2010) (unpreserved instructional claim was reviewable when “defense counsel generally acquiesced in the jury instructions but did not affirmatively request the instruction”); State v. Ebron , 292 Conn. 656, 680, 975 A.2d 17 (2009) (claim was reviewable “because the defendant, while acquiescing to the charge as given at trial, did not actively induce the trial court to act on the challenged portion of the instruction”), overruled in part by State v. Kitchens , 299 Conn. 447, 10 A.3d 942 (2011) ; State v. Madigosky , 291 Conn. 28, 35 n.7, 966 A.2d 730 (2009) ( “[t]here was no induced instructional error ... because the defendant had not submitted a request to charge or suggested any instructional language” [internal quotation marks omitted] ); State v. Griggs , 288 Conn. 116, 126–27 n.13, 951 A.2d 531 (2008) (mere acquiescence does not bar Golding review); see also State v. Williams , 202 Conn. 349, 363, 521 A.2d 150 (1987) (“[t]his court has consistently held that a claim that the judge improperly instructed the jury on an element of an offense is appealable even if not raised at trial”).

13 See, e.g., United States v. Polouizzi , 564 F.3d 142, 148, 153 (2d Cir. 2009) (defendant waived claim of error pertaining to definition of “wrongfulness” when he agreed to definition proposed by court); United States v. Sanders , 520 F.3d 699, 702 (7th Cir. 2008) (defendant waived claim pertaining to adequacy of supplemental instruction by explicitly approving that instruction); compare United States v. Hamilton , 499 F.3d 734, 736 (7th Cir. 2007) (defendant did not waive claim pertaining to intent instruction where judge did not query defense counsel specifically about that instruction or ask whether he agreed to it), cert. denied, 552 U.S. 1129, 128 S.Ct. 951, 169 L.Ed.2d 782 (2008).

13 For this reason, the majority is simply incorrect when it contends that overruling Kitchens also would require that we overrule those decisions. Each of those decisions was properly decided under our long-standing, preKitchens implied waiver jurisprudence.

14 In the federal courts, unpreserved claims of trial error that have not been waived are reviewable pursuant to rule 52 (b) of the Federal Rules of Criminal Procedure, which provides that “[a] plain error that affects substantial rights may be considered even though it was not brought to the [District] [C]ourt's attention.” The United States Supreme Court has articulated a four-pronged rule to determine whether rule 52 (b) review will be afforded: “First, there must be an error or defect—some sort of [d]eviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant .... Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. ... Third, the error must have affected the appellant's substantial rights .... Fourth ... if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” (Citations omitted; emphasis altered; internal quotation marks omitted.) Puckett v. United States , 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). As the foregoing test indicates, federal plain error review differs from Connecticut's highly restrictive plain error doctrine; see footnote 6 of this concurring opinion; and is more closely analogous to this state's Golding review.
I disagree with the majority that it is appropriate to have fewer jury instructional claims reviewable under our state waiver rule than under federal waiver doctrine, because relief for a proven violation is more automatic under Golding than under federal plain error review, which provides for discretionary relief. It is axiomatic that Golding review is limited to claims of constitutional magnitude, whereas federal plain error review is available for nonconstitutional claims as well. Accordingly, it stands to reason that more automatic relief should follow under Golding , because it necessarily will apply to a smaller universe of more egregious claims.

14 I recognize that, prior to Kitchens , the Appellate Court in certain instances found that unpreserved claims of jury instruction error had been waived solely on the basis of defense counsel's acquiescence in the trial court's draft charge. The Appellate Court reached that result, however, only because it, like the majority in Kitchens , relied on cases such as State v. Cooper , supra, 38 Conn.App. at 661, 664 A.2d 773, without recognizing that those cases require something beyond mere acquiescence before a court may find that a defendant has waived his right to a properly instructed jury.

15 Our case law permits juries to draw reasonable and logical inferences from the evidence presented at trial, and disallows them from engaging in speculation and conjecture. State v. Morrill , 193 Conn. 602, 608, 478 A.2d 994 (1984). I believe that appellate courts should operate within the same parameters. It does not reasonably and logically follow from defense counsel's global review of a set of jury instructions, and general consent thereto, that he or she was aware of all potential flaws in the instructions and decided to disregard them. Conversely, when defense counsel's attention is drawn to a specific instruction, and he or she thereafter expresses satisfaction with that instruction, an inference that counsel agreed to the instruction, despite knowledge of some irregularity in it, is a much more reasonable inference.
Relatedly, I disagree with the majority that implying a broad waiver of claims of instructional error, both known and unknown, pursuant to Kitchens is analogous to a defendant's abandonment of various claims in connection with his or her waiver of other constitutional rights, specifically, the rights to a trial, counsel or a probable cause hearing. In each of the latter three instances, a criminal defendant overtly and consciously chooses to relinquish claims, known or unknown, in exchange for something he or she values—a favorable plea, the right to self-representation or a strategic advantage, respectively. This is unquestionably true, notwithstanding the majority's assessment of the benefit received, in the case of a waiver of counsel, as negligible, or its focus on what a defendant subject to a Kitchens waiver retains rather than on that which he or she has forfeited. In contrast, with an implied waiver pursuant to Kitchens , the defendant is presumed , by operation of law, to have abandoned a valuable right to appeal, not in exchange for something, but by merely agreeing to the proposed jury instructions. In my view, when a waiver is to be implied from circumstances and is not the result of any conscious quid pro quo, the scope of that waiver should be restrictive rather than broad.

15 Curiously, the majority notes that it is “not aware of any case in which a reviewing court has construed ‘affirmative acceptance’ as meaning passive acquiescence,” and yet it declines to address any of these cases, none of which appears to contain even a whiff of affirmative acceptance.

16 Conceivably, in a particular case, counsel may agree with a specific jury instruction, after discussion of that instruction with the trial court, yet still be unaware of a defect therein. In such an instance, a claim relating to that defect, although deemed waived on appeal, in actuality was only forfeited. Even under those circumstances, however, I do not believe that it is fundamentally unfair to deny direct appellate review of the claim pursuant to Golding , particularly in light of the competing consideration of avoiding an ambuscade of the trial court and opposing counsel. As we explained in Kitchens , there are features unique to jury instructions that justify holding counsel to a higher standard of accountability for failing to preserve claims of error. See State v. Kitchens , supra, 299 Conn. at 482–85, 10 A.3d 942. Specifically, jury instructions are carefully formulated outside of the rush of trial pursuant to the rules of practice that afford counsel a large degree of participation in a structured process. The purpose of these rules is to detect error at the earliest possible juncture, and the threat of an implied waiver of an instructional claim on appeal, at least in narrowly defined circumstances, provides an appropriate incentive for the opportunity to be taken seriously. See id., at 495–96, 128 A.3d 492.
The detection of error at trial, without the necessity of an appeal, is the most desirable outcome for purposes of both fairness to defendants and the efficient operation of the court system. “Waiver is based on the principle that [c]ontemporaneous objection gives the trial court the opportunity to correct its own errors and thereby avoids unnecessary delays through appeals, reversals, and new trials.” (Internal quotation marks omitted. ) In re Eternity E. , Docket Nos. 01–2009, 01–2010, 2001 WL 1313822, at *3, 248 Wis.2d 985, 638 N.W.2d 395 (Wis. App. October 25, 2001) (decision without published opinion, 248 Wis.2d 985, 638 N.W.2d 395 [2001] ), review denied, 250 Wis.2d 559, 643 N.W.2d 96 (2002). “Moreover, [a] waiver rule encourages attorneys to diligently prepare their cases for trial ... and discourages the strategy of building in errors to ensure a new trial in the event of a guilty verdict.” (Citation omitted.) State v. Lucas , Docket No. 92–0477–CR, 178 Wis.2d 875, 506 N.W.2d 426, 1993 WL 322517, at *6 (Wis. App. August 26, 1993) (decision without published opinion, 178 Wis.2d 875, 506 N.W.2d 426 [1993] ). In short, requiring claims of error first to have been presented to a trial court “reflects a policy of encouraging the efficient use of judicial resources.” Ericson v. King , Docket No. 60327–2–I, 2008 WL 2955872, at *2, 146 Wash.App. 1023, –––– (Wn. App. Aug. 4, 2008) (decision without published opinion, 146 Wash.App. 1023 [2008] ).

16 The notion that Kitchens cases are so fact dependent that no guidance can be provided is a red herring. In many instances, the trial court record reveals only that, when given the opportunity to object to any of the court's instructions, defense counsel merely indicates that she has no objections, that the instructions are acceptable or okay, or something to that effect. There is absolutely no reason why this court cannot and should not offer litigants and reviewing courts general guidance as to which “magic words” will result in waiver in those circumstances, and which will allow the defendant to preserve his appellate rights. See part I D of this opinion.

Applying the narrower, pre-Kitchens analysis to the facts of this case leads me to conclude that the defendant's instructional claim was not waived and, therefore, should be reviewed pursuant to State v. Golding , supra, 213 Conn. at 239–40, 567 A.2d 823. The defendant's claim is that the trial court's instruction on identification was improper, because it did not include certain factors that a jury should consider when determining whether a particular identification is reliable. The record indicates that, following the trial court's distribution of written copies of its proposed charges, the court held an in-chambers, off-the-record charging conference with counsel. Thereafter, on the record, the trial court described certain changes to the instructions that it would be making. The trial court mentioned in particular that its proposed charge included an identification instruction that included some factors to be considered, without any elaboration as to those factors, then it stated that it would be adding language to the effect that it was the state's burden to show that the defendant was the person who had committed the crime.^{17 17} There was no on-the-record discussion between the trial court and counsel concerning the identification instruction. After describing one other instruction, the trial court asked counsel whether they had any further exceptions, and both counsel stated that they did not.

17 The trial court stated: “With respect to identification, I did give an identification section in the charge which outlines on page 14 what the jury must be satisfied in making the identification including some of the factors they can consider in this evidence. However, I'm going to expand that language to include the language to the effect that in every criminal prosecution, it is the state's responsibility to show that the defendant is the person who committed the offense and if they are not satisfied of that evidence then they cannot find the defendant guilty of any particular offense. I'm going to highlight that because obviously that is an issue in this case.”

17 Webster's Third New International Dictionary defines an “inference” as “the act of passing from one or more propositions, statements, or judgments considered as true to another the truth of which is believed to follow from that of the former ....” (Emphasis added.) Webster's Third New International Dictionary (2002) p. 1158.

Under these circumstances, I would not find a waiver of the defendant's instructional claim. First, there is no copy of the trial court's proposed instructions in the record. Furthermore, although the record suggests that the trial court and counsel discussed the identification instruction in chambers, the extent of that discussion and defense counsel's participation therein is not apparent. Finally, there is no substantive, on-the-record discussion of the instruction to evidence defense counsel's focus thereon. Rather, the trial court's description of the instruction, to which counsel thereafter simply agreed, is quite general. In my view, this is not enough to infer waiver.

Although I believe that the defendant's request for Golding review of his claim should not be foreclosed due to waiver, I nevertheless conclude that the claim necessarily fails for another reason. Specifically, because the claim is instructional and not constitutional in nature; see footnote 2 of this concurring opinion; it cannot prevail under the second prong of Golding . Accordingly, I would affirm the judgment of the Appellate Court based on different reasoning. See Small v. Commissioner of Correction , 286 Conn. 707, 709, 946 A.2d 1203 (2008).

For the foregoing reasons, I respectfully concur.

PALMER, J., with whom McDONALD, J., joins, concurring in the judgment.

In State v. Kitchens , 299 Conn. 447, 10 A.3d 942 (2011), a narrow majority of this court concluded that, when a trial court has afforded defense counsel a meaningful opportunity to review its proposed jury instructions, and when, in the course of an on-the-record charging conference, defense counsel agrees with or simply acquiesces in¹ those instructions, an appellate court will not later review an unpreserved claim that the instructions violated the constitutional rights of the defendant. See id., at 482–83, 10 A.3d 942. The stated rationale for carving out this unique exception to Golding ² review was that a defense counsel who acquiesces in the proposed instructions may be deemed to have implicitly or impliedly waived, on behalf of the defendant, any objections thereto. See id., at 483, 10 A.3d 942.

Constrained by centuries of precedent, the majority in Kitchens was forced to acknowledge that a person executes a waiver only when he intentionally and voluntarily chooses to relinquish a known right. Id., at 469, 10 A.3d 942. This same standard applies regardless of whether the waiver is implied (by conduct) or express (verbal), and, indeed, the state bears an especially high burden of proof when seeking to establish that a criminal defendant has waived by implication one of his fundamental constitutional rights. See part I B of this opinion. In seeking to justify its new rule, then, the Kitchens majority faced a conundrum: on what basis can we conclude that any defense counsel who merely acquiesces in an incorrect jury instruction has knowingly and voluntarily chosen to waive her client's right to a properly instructed jury, when it is at least as likely that, in the “the hurried and ... hectic process of trial”; People v. Ladas , 12 Ill.2d 290, 294, 146 N.E.2d 57 (1957) ; she simply failed to identify the defect later claimed on appeal?

Kitchens ' initial solution to this conundrum was to take refuge in what the majority in that case conceded as a pure “legal fiction,” namely, the presumption that a defense counsel who reviews and then acquiesces in the trial court's proposed instructions has considered and declined to raise every potential objection to every part of the instructions. (Internal quotation marks omitted.) State v. Kitchens , supra, 299 Conn. at 487 n.25, 10 A.3d 942. This legal fiction justification for the Kitchens rule was illogical and unfounded from the start, and, to their credit, both the state and the majority in the present case now appear to have disavowed it. In its stead, however, they have set an equally implausible rationale, namely, that each defense counsel, upon reviewing the trial court's proposed jury charge, knowingly and voluntarily waives her client's procedural right to later challenge those instructions on appeal.

Unfortunately, this new theory fares no better than Kitchens ' original legal fiction theory. There is a strong presumption against a finding of waiver, especially with respect to the constitutional rights of criminal defendants, and waiver—whether substantive or procedural—can be found only when there is unambiguous evidence that the defendant, with full understanding of his rights, actually intends to waive them. Each of these principles is black letter law, and each is deeply and firmly rooted in the law of this state. The Kitchens rule violates all of them. To jettison these well established rules, merely to achieve a desired policy outcome, is to place at risk not only our Golding jurisprudence, and the fundamental rights of criminal defendants, but all of the other branches of the law in which the concept of waiver plays a significant role.

Rather than adding epicycle upon epicycle in a futile attempt to salvage the unprecedented and unnecessary Kitchens rule, we should admit the obvious. Descriptively, mere acquiescence, without something more, simply does not meet the high standard our law imposes for establishing a waiver of a defendant's constitutional rights. Normatively, the policy arguments that appear to animate these continued efforts to undercut our well established Golding jurisprudence are untested and unpersuasive. I therefore agree with the defendant, Brandon Montrell Bellamy, that Kitchens should be overruled as a failed experiment and that we should return to our pre-Kitchens jurisprudence governing the reviewability of unpreserved claims. See part I of this opinion. Specifically, an unpreserved claim that instructional error of constitutional magnitude has occurred should be unreviewable under Golding only when (1) defense counsel induced or invited the error, or (2) it clearly can be inferred that counsel—or the defendant—actually was aware of the alleged defect in the instruction but chose for strategic or other reasons not to object (true waiver).

Although I conclude that the defendant's unpreserved claim of instructional error was not waived under the proper legal standard, I do agree with the state that the claim is unreviewable under Golding because the alleged error is not of constitutional magnitude. See part II of this opinion. For this reason, I concur in the judgment.

I

KITCHENS SHOULD BE OVERRULED

Although the court in Kitchens was not always clear or precise in its use of the term “waiver,” I understand the Kitchens rule—that the defendant implicitly waives the right to raise unpreserved claims of instructional error on appeal—to encompass both a descriptive element (it purports to describe the defendant's actual conduct) and a normative element (it tells us what the legal consequences of that conduct should be). See 28 Am. Jur. 2d 503–504, Estoppel and Waiver § 37 (2011). Descriptively, the court in Kitchens posited that acquiescence under the conditions outlined in that case supports an inference that defense counsel did in fact knowingly and voluntarily relinquish any and all challenges to the proposed instructions. See State v. Kitchens , supra, 299 Conn. at 483–85, 10 A.3d 942. Normatively, the court concluded that, for various reasons of public policy, it is desirable and appropriate to treat such challenges as waived and unreviewable on appeal. See id., at 486–98, 10 A.3d 942. Both of these conclusions are indefensible.

In this part of the opinion, I explain the three fundamental flaws in the Kitchens rule, both as originally rationalized in Kitchens and as reconstituted by the state in the present case: (1) it represents a dramatic departure from our prior Golding jurisprudence; see part I A of this opinion; (2) descriptively, it is predicated on an illogical and fictitious account of what actually happens when defense counsel acquiesces in the trial court's jury instructions; see part I B of this opinion; and (3) normatively, it carves out an unwarranted exception to Golding review for instructional errors on the basis of untested and unpersuasive policy arguments. See part I C of this opinion. I also explain how the Kitchens rule easily can be defeated; see part I D of this opinion; and why I am not persuaded by the state's argument that stare decisis requires that we retain the Kitchens rule despite these serious defects. See part I E of this opinion.

A

Kitchens Overturned and Confused Our Golding Jurisprudence

In Kitchens , the stated goal of the majority was to clarify Connecticut law on implied waiver, particularly with respect to jury instruction challenges. State v. Kitchens , supra, 299 Conn. at 474, 10 A.3d 942. Unfortunately, by misconstruing our Golding jurisprudence in order to reach a desired policy outcome, Kitchens failed to achieve that goal, and the majority in the present case has simply made matters worse. In addition, muddled and inconsistent use of key terminology, both in the present case and in Kitchens , has left reviewing courts without adequate guidance when addressing such claims.

1

Kitchens Misstated and Departed from Our Golding Jurisprudence

I recognize that the question of whether a defendant has waived his constitutional rights hinges to some degree on the unique facts and circumstances of any given case. Nevertheless, our cases addressing the reviewability of unpreserved claims of instructional error divide fairly readily into three general categories.

First, at one end of the spectrum, are those cases in which defense counsel sits silently by as the court instructs the jury, with counsel giving no indication whether she objects to or agrees with the court's instructions. See, e.g., State v. Kurvin , 186 Conn. 555, 557, 563–64, 442 A.2d 1327 (1982). Although run-of-the-mill claims of instructional error are forfeited if not timely raised at trial and, therefore, are not reviewable on appeal, there is general agreement that such conduct by counsel does not constitute an implied waiver of unpreserved claims of constitutional error.³ See State v. Kitchens , supra, 299 Conn. at 483 n.23, 10 A.3d 942. Accordingly, such claims are reviewable on appeal if the Golding requirements are otherwise satisfied. See id.

Second, at the other end of the spectrum, is a broad class of cases in which something in the record indicates either that defense counsel has knowingly and voluntarily waived, on behalf of the defendant, the particular objection at issue on appeal (true waiver), or that she has induced or invited the instructional error that is subsequently challenged on appeal. We have found true waiver both when defense counsel expressly waives the objection at issue,⁴ and in various situations in which the only reasonable inference is that counsel actually intends to waive the objection (implied waiver). This court or the Appellate Court has found implied waiver, for instance, when it is clear from the record that defense counsel actually was aware of the alleged instructional defect but declined to object or agreed to a curative instruction and thus impliedly waived any objection,⁵ and also when the trial court record strongly suggests that defense counsel declined to object to a particular instruction for identifiable strategic reasons.⁶ Similarly, we have found induced or invited error under three circumstances: (1) when counsel drafts for the court the instructions later challenged on appeal;⁷ (2) requests that the trial court draft or reiterate the challenged instruction;⁸ or (3) adopts the challenged instruction, or the legal principle on which it is based, as a component of the defense theory.⁹ Although the majority in Kitchens contended that we did not rely on the concepts of induced or invited error in cases of the latter two types; see id., at 469–70, 472, 88 A.3d 445 ; that clearly is not true. Several of the cited cases, while also using the general term “waiver,” expressly refer to the alleged error as one that was induced or invited by the defendant. See, e.g., State v. Fabricatore , 281 Conn. 469, 481–83 and n.18, 915 A.2d 872 (2007) ; State v. Cooper , 38 Conn.App. 661, 670, 664 A.2d 773, cert. denied, 235 Conn. 908, 665 A.2d 903 (1995), cert. denied, 517 U.S. 1214, 116 S.Ct. 1837, 134 L.Ed.2d 940 (1996) ; see also State v. Scognamiglio , 202 Conn. 18, 25, 519 A.2d 607 (1987). Moreover, in each cited case, we relied on the fact that counsel not only declined to object to the instruction at issue, but also actively requested the sort of instruction later challenged on appeal or somehow adopted the principle of law on which it was predicated. See footnotes 8 and 9 of this opinion. Indeed, legal scholars have long classified under the rubric of induced error not only cases such as State v. Coward , 292 Conn. 296, 305, 972 A.2d 691 (2009), and State v. Cruz , 269 Conn. 97, 105, 107, 848 A.2d 445 (2004), in which the appellant drafts or requests the actual challenged instruction, but also cases in which the appellant either requests that the court give an instruction of that sort; see W. Maltbie, Connecticut Appellate Procedure in the Supreme Court of Errors of Connecticut (2d Ed. 1957) § 96, p. 117 and n.16; or invokes the contested rule of law; see id., § 40, pp. 45–46; see also State v. Akande , 299 Conn. 551, 560, 11 A.3d 140 (2011) (implicitly recognizing that State v. Foster , 293 Conn. 327, 977 A.2d 199 [2009], was case of induced error).

As to this second category of cases, I am in complete agreement with the majority that, if defense counsel either (1) induces or invites the claimed error, or (2) truly and unequivocally waives any objection, with the possible exception of plain error, the claim is not reviewable on appeal, even if the error is of constitutional magnitude. The rationale for the rule that a party who induces or invites an error cannot be heard on appeal to complain about that error is essentially one of unclean hands: “[t]o allow [a] defendant to seek reversal [after] his trial strategy has failed would amount to allowing him to induce potentially harmful error, and then ambush the state [and the trial court] with that claim on appeal.” (Internal quotation marks omitted.) State v. Cruz , supra, 269 Conn. at 106, 848 A.2d 445 ; see also Gaffney v. Board of Trustees of the Orland Fire Protection District , 360 Ill.Dec. 549, 969 N.E.2d 359, 368 (2012) (“it would be manifestly unfair to grant a party relief based on error introduced into the proceedings by that party”); Tenbusch v. Linn County , 172 Or.App. 172, 177 n.6, 18 P.3d 419 (induced error doctrine guards against strategic gaming of judicial system), review denied, 332 Or. 305, 27 P.3d 1045 (2001).

The doctrine of waiver, by contrast, is animated largely by the principle of respect for autonomy.¹⁰ As one scholar has explained, “once the defendant has made a free and informed decision to forgo his constitutional defenses, he may constitutionally be held to the consequences of his election.” P. Westen, “Away from Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure,” 75 Mich. L. Rev. 1214, 1254–55 (1977). In addition, the principle of judicial estoppel¹¹ underlies the doctrines of both waiver and induced error. See S.H.V.C., Inc . v. Roy , 188 Conn. 503, 510, 450 A.2d 351 (1982). By contrast, the rationales on which the state relies—the finality of criminal convictions, fairness to the trial court and the state, and incentivizing diligence by defense counsel at a time when errors can still be corrected—apply equally to types of claims other than instructional errors. In Golding , we made a determination that those considerations are outweighed by the principle that a criminal defendant, at risk of life and liberty, should not be wrongly deprived of his fundamental constitutional rights due to the inadvertence of defense counsel. See State v. Brunetti , 279 Conn. 39, 55, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S.Ct. 1328, 167 L.Ed.2d 85 (2007) ; see also part I C of this opinion. The only category of cases over which I disagree with the majority with respect to the reviewability of unpreserved claims is the third category of cases, namely, those in which defense counsel vocalizes that she has no objection to, is satisfied with, or agrees to the court's instructions, but does not otherwise waive her client's right to object or induce the claimed error by drafting, requesting, or adopting the challenged instruction. Prior to Kitchens , we consistently held that claims of this sort are reviewable on appeal if they otherwise satisfy the four Golding requirements.¹² I am not aware of any pre-Kitchens case—and the majority is unable to cite any—in which this court presumed waiver solely on the basis of defense counsel's acquiescence in the trial court's draft instructions. Although the majority in Kitchens maintained that we found waiver by acquiescence in cases such as State v. Hampton , 293 Conn. 435, 450, 988 A.2d 167 (2009), State v. Foster , supra, 293 Conn. 342, 977 A.2d 636, State v. Holness , 289 Conn. 535, 542, 958 A.2d 754 (2008), State v. Brewer , 283 Conn. 352, 353, 927 A.2d 825 (2007), and State v. Fabricatore , supra, 281 Conn. at 481, 915 A.2d 872 ; see State v. Kitchens , supra, 299 Conn. at 471–72, 10 A.3d 942 ; in reality, each of those cases featured significant additional indicia of either true waiver or induced error.¹³ See State v. Ebron , 292 Conn. 656, 680–82, 975 A.2d 17 (2009), overruled in part on other grounds by State v. Kitchens , 299 Conn. 447, 10 A.3d 942 (2011). The Kitchens rule thus represents a novel and, as I explain more fully hereinafter; see part I C of this opinion; wholly unwarranted departure from our well established Golding jurisprudence with respect to this third category of instructional error cases.¹⁴ 2

Kitchens Failed To Provide Clear Guidance

One flaw in Kitchens , then, is that the majority in that case, like the majority in the present case, failed to properly distinguish between (1) cases in which defense counsel merely acquiesced in the trial court's proposed jury charge, and in which we traditionally found unpreserved constitutional claims reviewable under Golding , and (2) cases in which counsel actively induced or knowingly and voluntarily waived objections to the charge at issue, and in which we found unpreserved claims unreviewable under the third prong of Golding . A second, related flaw is that the majority in Kitchens further muddled these distinctions and failed to provide the reviewing court with clear guidance by using key terminology in a misleading and inconsistent manner. Perhaps the best (or worst) example of this is the court's inconsistent use of the term “acquiescence.” Descriptively, the majority in Kitchens described as acquiescence everything from defense counsel's sitting silently by and failing to object to the court's jury charge, to defense counsel's expression of affirmative satisfaction or agreement with the charge. Compare, e.g., State v. Kitchens , supra, 299 Conn. at 476 n.20, 10 A.3d 942 (equating acquiescence with mere awareness of and failure to object to instruction at issue), with id., at 478–79 n.21, 10 A.3d 942 (referring to counsel's expressed satisfaction with instructions as acquiescence); see also id., at 466, 480, 482, 10 A.3d 942 (referring to conduct in Kitchens as example of acquiescence). Of greater concern, Kitchens provided diametrically opposed guidance as to the legal consequences that follow from a finding that defense counsel acquiesced in the trial court's proposed jury instructions. Compare id., at 483 n.23, 10 A.3d 942 (“[t]he standard that we describe would not allow waiver to be presumed ... from defense counsel's mere acquiescence in, or failure to object to, the jury instructions”), with id., at 494–95 n.27, 10 A.3d 942 (acquiescence is presumed to be tactical and, therefore, results in waiver).

Similarly, although the court in Kitchens , and the majority in the present case, repeatedly reassures us that defense counsel implicitly waives jury instruction challenges only by “affirmatively” accepting the trial court's proposed instructions; id., at 482–83, 10 A.3d 942 ; see id., at 496, 10 A.3d 942 ; see also footnote 9 of the majority opinion; in the same breath, the majority cautions that counsel's mere acquiescence will result in waiver, even though that acquiescence, by definition, entails passive rather than affirmative acceptance. See Black's Law Dictionary (10th Ed. 2014) p. 27 (defining “acquiesce” as “[t]o accept tacitly or passively; to give implied consent”); Merriam-Webster's Collegiate Dictionary (11th Ed. 2003) p. 11 (defining “acquiesce” as “to accept, comply or submit tacitly or passively”); see also Aguilar Gonzalez v. Mukasey , 534 F.3d 1204, 1209 (9th Cir. 2008) (“[a]cquiescence is not an affirmative act”); State v. Devalda , 306 Conn. 494, 508, 50 A.3d 882 (2012) (“acquiescence ... commonly is understood to be a form of consent typified by passivity or lack of protest, rather than active agreement” [emphasis omitted; footnote omitted] ).

If the majority is committed to retaining the Kitchens rule, then it should use this second opportunity to clarify our waiver jurisprudence to provide clearer guidance as to what sorts of conduct by defense counsel will and will not be deemed to constitute an implied waiver. Moreover, the majority should have the courage of its convictions with respect to Kitchens . If waiver is to be found only in cases in which there is an actual affirmative assent, then the majority should clarify that the numerous post-Kitchens cases in which defense counsel simply passively acquiesced in the trial court's jury instructions were wrongly decided and that the appellants in those cases were entitled to have their claims reviewed. See, e.g., State v. Akande , supra, 299 Conn. at 559, 562, 11 A.3d 140 (finding waiver when defense counsel, given opportunity to object to proposed instructions, merely replied, “ ‘[n]o, Your Honor’ ”); State v. Brown , 153 Conn.App. 507, 534, 101 A.3d 375 (2014) (finding waiver merely because “[a]t no time during the charging conference did [defense] counsel challenge the court's instructions on the elements of conspiracy”), cert. granted, 319 Conn. 901, 122 A.3d 636 (2015) ; State v. Reddick , 153 Conn.App. 69, 82, 100 A.3d 439 (finding waiver when defense counsel merely “stated that he had no further objection to the draft instructions”), cert. dismissed, 314 Conn. 934, 102 A.3d 85 (2014), and cert. denied, 315 Conn. 904, 104 A.3d 757 (2014) ; State v. Lee , 138 Conn.App. 420, 450, 451, 52 A.3d 736 (2012) (finding waiver when defense counsel merely indicated that there were no disagreements as to charge and “voiced no other exceptions or concerns”), cert. granted, 321 Conn. 911, 136 A.3d 644 (2016).¹⁵ On the other hand, if mere acquiescence is now to be the stuff of waiver, then the majority should stop repeating the affirmative assent language, which gives the misleading impression that waiver will be implied only when counsel expresses actual agreement with the trial court's instructions. Call a fig a fig, and tell both the bar and the public how low the standard now is for finding that counsel has, without ever actually agreeing to the court's instructions, extinguished a client's right to raise constitutional claims on appeal.¹⁶

B

Kitchens Improperly Conflated Acquiescence and Waiver

In part I A of this opinion, I explained how the court in Kitchens misread this court's Golding jurisprudence and how, prior to Kitchens , we treated unpreserved claims of instructional error as forfeited but not waived when defense counsel merely acquiesced in a trial court's draft jury charge. In this part of the opinion, I explain why the majority in Kitchens erred in deviating from that precedent because mere acquiescence, while possibly supporting a finding of forfeiture, will never satisfy the well established standards for an implied waiver of fundamental constitutional rights. In its present attempt to shore up the obvious flaws in Kitchens ' analysis of the issue, the state has succeeded only in replacing a fiction with a fallacy.

1

Shortcomings of the Original Kitchens Rationale

In Kitchens , the state argued that a defense counsel who, following a meaningful opportunity to review the trial court's proposed jury charge, fails to object that the charge is deficient in some particular way, should be deemed to have done so for strategic reasons and, therefore, to have impliedly waived that objection. State v. Kitchens , Conn. Supreme Court Records & Briefs, March Term, 2010, State's Brief pp. 21–22. The majority in Kitchens largely adopted both the state's proposed rule and the stated rationale for the rule, holding that, “when the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal.” (Emphasis added.) State v. Kitchens , supra, 299 Conn. at 482–83, 10 A.3d 942. In other words, as the majority in Kitchens repeatedly emphasized, the Kitchens rule was predicated on the theory that competent defense counsel would have been aware of any and all potentially meritorious constitutional objections to the court's proposed charge and, therefore, that counsel's choice not to object must have been intentional and strategic. See, e.g., id., at 469, 10 A.3d 942 (counsel is assumed to have intended natural consequences of failure to raise known claim); id., at 470, 10 A.3d 942 (theory of implied waiver is predicated on assumption that failure to raise claim was result of trial strategy); id., at 482, 10 A.3d 942 (Kitchens discussed as example of case in which court “could infer counsel's knowledge of the alleged impropriety”); id., at 491–92, 10 A.3d 942 (competent counsel may be presumed to have been familiar with governing law and to have exercised professional judgment when waiving potential claims); id., at 495 n.27, 50 A.3d 882 (“we build on the presumption of competent counsel by presuming that counsel would have identified the instructional error if given a proper and meaningful opportunity to review the instructions”). The court summarized the rationale underlying the Kitchens rule as follows: “[I]f counsel had sufficient notice of the jury instructions and was aware of their content, an inference, or assumption of fact ... can be made that counsel also was aware of any potential constitutional defect that the instructions may have contained and, with full understanding of that defect, opted to refrain from objecting for strategic reasons.” (Citation omitted; emphasis omitted; internal quotation marks omitted.) Id., at 487 n.25, 10 A.3d 942. Notably, although the cited passage suggests that the Kitchens rule is based on a factual inference¹⁷ that counsel is aware of all potential objections, the majority in Kitchens ultimately acknowledged that this so-called inference is nothing more than a “legal fiction.” (Internal quotation marks omitted.) Id.

The obvious structural cracks in Kitchens ' original foundation—both conceptual and practical—have been widely recognized.¹⁸ The term “waiver” has almost universally been defined as the “voluntary surrender or relinquishment of some known right,” or some equivalent expression. 28 Am. Jur. 2d, supra, § 35, p. 501; see also Johnson v. Zerbst , 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (“a waiver is ordinarily an intentional relinquishment of abandonment of a known right or privilege”); cf. State v. Kitchens , supra, 299 Conn. at 483, 10 A.3d 942. Conceptually, the notion that a factual inference that there has been a knowing and voluntary relinquishment of a fundamental constitutional right can be predicated on a legal fiction is at best an oxymoron and at worst a dangerous absurdity. It would be ludicrous, for example, in the closely related context of medical informed consent, to suggest that a physician who performed elective surgery without informing a patient of the various risks involved could justify the omission by reference to a legal fiction, such as that any patient who previously worked in the health-care sector can be presumed already to have such knowledge. Cf. Logan v. Greenwich Hospital Assn ., 191 Conn. 282, 294–95, 465 A.2d 294 (1983). It makes even less sense to impute to a criminal defendant knowledge of the myriad challenges that might be brought against a proposed set of jury instructions, as would be required to execute a valid waiver, when even his attorney's awareness of such claims is admittedly fictitious.¹⁹

18 See, e.g., State v. Kitchens , supra, 299 Conn. at 500–501, 10 A.3d 942 (Katz , J. , concurring); id., at 530–32, 10 A.3d 942 (Palmer , J. , concurring); W. Horton & K. Bartschi, “2011 Appellate Review,” 86 Conn. B.J. 1, 1–2 (2012) ; C. Ray & M. Weiner, “State v. Kitchens : The Decision Not To Decide,” Connecticut Lawyer, March, 2011, p. 43.

19 Although there are, no doubt, instances in which reliance on a legal fiction is necessary or appropriate, the court's unapologetic and inapt reliance on the concept in Kitchens calls to mind one well-known critique of legal fiction: “[Lawyers] feed [on] untruth, as [addicts] do [on] opium, at first from choice and with their eyes open, afterwards by habit, [until] at length they lose all shame, avow it for what it is, and swallow it with greediness, not bearing to be without it.” (Internal quotation marks omitted.) L. Harmon, “Falling Off the Vine: Legal Fictions and the Doctrine of Substituted Judgment,” 100 Yale L.J. 1, 3–4 (1990), quoting J. Bentham, A Comment on the Commentaries, in A Comment on the Commentaries and a Fragment on Government (1977) p. 59.

The practical fallacies in the original justification for the Kitchens rule are equally apparent. When there is nothing in the record to indicate either that defense counsel was aware of the constitutional claim at issue or that counsel intentionally opted to forgo every possible objection to the defective instruction, it is unrealistic to infer, as Kitchens requires, that counsel had knowledge of the claim and intentionally abandoned it. See State v. Kitchens , supra, 299 Conn. at 538–39, 10 A.3d 942 (Palmer , J. , concurring). “[B]ecause waiver is the intentional relinquishment or abandonment of a known right ... Kitchens requires us to presume, first, that counsel thought of every possible claim, from the most meritorious to the most frivolous, and everything in between, and, second, that, upon due consideration of each and every one of those claims, counsel decided to abandon them all, presumably for strategic reasons. Because it is obviously impossible for any defense attorney, or any team of defense attorneys, to conceive of all potential claims, whether meritorious or not, it is clear that Kitchens is predicated on a palpably unrealistic assumption.” (Citation omitted; emphasis omitted.) State v. Davis , 311 Conn. 468, 497, 88 A.3d 445 (2014) (Palmer , J. , concurring); see also id. (explaining that, in reality, “competent defense attorneys invariably raise any and all [potentially meritorious] claims of which they are aware”).

The defects in the original justification for Kitchens , then, are twofold. Kitchens relies on a fiction when the law calls for truth. And the fiction is a flimsy one at that.

2

Shortcomings of the New Kitchens Rationale

Apparently recognizing these flaws in Kitchens ' foundation, both the state and the majority have now jettisoned the legal fiction rationale. In the present case, they take pains to disavow Kitchens ' premise that defense counsel, merely having reviewed and acquiesced in a proposed jury charge, may be presumed to have considered and rejected every potential challenge thereto.

Instead, to replace the missing cornerstone, the state now offers—and the majority embraces—a new justification for Kitchens ' implied waiver theory. It goes as follows: “[W]hen the trial court asks counsel to make an informed and binding judgment regarding whether to accept the jury instructions and counsel acquiesces, counsel waives the procedural right to object to the instructions on any of the multitude of possible grounds that counsel might presently be aware of or later perceive.” (Emphasis added.) In other words, Kitchens now rests on the theory that defense counsel, by acquiescing in or assenting to the court's jury charge, knowingly and voluntarily relinquishes not a set of specific challenges or objections thereto but, rather, the procedural right of the defendant to later complain about any aspect of the charge. In the remainder of this part of this opinion, I explain why the state's new rationale fares no better than the old one, and why it does not warrant a departure from our pre-Kitchens jurisprudence.

The state contends that its new theory does not, in fact, break any new ground but simply applies the preexisting doctrine that the “waiver of the right to exercise a right precludes [the] later assertion of any and all claims bundled within that right.” The state argues that this sort of procedural waiver is well established, both in the Golding context and with respect to the waiver of other constitutional rights. The argument fails on many levels.

I begin by observing that the state's new theory fails to draw the proper parallel between other constitutional rights and the one at issue in Kitchens . When a defendant waives freedoms such as the right to counsel or the right to trial by jury, he is waiving just that. What he surrenders, fundamentally, is the assistance of an attorney, or the presence of a jury to decide his fate. That he may later be barred from complaining on appeal that he was deprived of his sixth amendment rights is a consequence of that waiver, but the ability to appeal per se is not the right that is waived. In Kitchens cases, by the same token, what the defendant allegedly waives is not a general procedural right to object or appeal but, rather, the due process right to be tried by a jury that has been properly instructed on the essential elements of the charged crimes, the state's burden of proof, and other constitutionally significant points of law. See, e.g., State v. Avila , 223 Conn. 595, 603, 613 A.2d 731 (1992) (right to properly instructed jury is guaranteed by due process clauses of fourteenth amendment to United States constitution and article first, § 8, of Connecticut constitution); see also State v. Golding , 213 Conn. 233, 241, 567 A.2d 823 (1989) (jury that is properly instructed as to essential elements of charged crimes is necessary to ensure fair trial). What the state needs to demonstrate, then, is that, by acquiescing in the trial court's instructions, a defendant, through counsel, knowingly and voluntarily relinquishes the right to a properly instructed jury, with the understanding that one consequence of that waiver may be the inability to challenge on appeal any subsequently discovered defects in the instructions. As I discuss hereinafter, the circumstances under which any competent attorney would knowingly and voluntarily make such a waiver, or advise a client to do so, are extremely limited. Whereas defense counsel might waive a particular instructional challenge for strategic or other reasons, it is virtually inconceivable that she would freely choose to relinquish a defendant's general right to enforce his right to a properly instructed jury.

Before I discuss the specific flaws in the state's new macro waiver theory, I review the well established principles that govern the law of waiver. “The party alleged to have waived a right must have had both knowledge of the existing right and the intention of forgoing it.” Black's Law Dictionary, supra, p. 1813 (defining “waiver”); see also State v. Kitchens , supra, 299 Conn. at 469, 10 A.3d 942. With respect to the knowledge element, “[w]aiver arises from an affirmative act and is consensual. It involves the idea of assent, and assent is an act of understanding.” (Footnote omitted.) 28 Am. Jur. 2d, supra, § 183, p. 648; see also State v. Kitchens , supra, at 469, 10 A.3d 942. With respect to intent, because “a waiver is the intentional abandonment or relinquishment of a known right ... an intent to waive must be shown by unequivocal acts or conduct that [is] inconsistent with any intention other than to waive ....” (Footnote omitted.) 28 Am. Jur. 2d, supra, § 35, pp. 501–502; see also State v. Johnson , 316 Conn. 45, 55–56, 111 A.3d 436 (2015) ; Gardner v. New London , 63 Conn. 267, 277, 28 A. 42 (1893) ; Zenon v. R.E. Yeagher Management Corp ., 57 Conn.App. 316, 327, 748 A.2d 900 (2000). Courts should find a waiver, then, only in the “voluntary abandonment or surrender by a capable person of a right known to him or her to exist with the intent of forever depriving him or her of the benefits of the right.” 28 Am. Jur. 2d, supra, § 183, pp. 647–48. These same standards apply regardless of whether the alleged waiver is express or implied. See, e.g., Wadia Enterprises, Inc . v. Hirschfeld , 224 Conn. 240, 251–52, 618 A.2d 506 (1992).

To summarize the governing law, in order to find that a defendant has waived by implication a constitutional right, it must be established (1) unequivocally (2) that the defendant is generally aware of the costs and benefits of waiving the right, and (3) that, with the choice either to retain or relinquish the right, the defendant voluntarily opts to abandon it. Accordingly, if it could be established unequivocally that defense counsel did in fact knowingly and voluntarily waive her client's procedural right to object to a trial court's proposed jury charge, then I might agree that the client could be precluded on appeal from challenging particular aspects of the jury charge, even defects of which the defendant and defense counsel were unaware at the time of trial. The problem is, in the typical Kitchens scenario, none of these three preconditions for a valid implied waiver is in fact satisfied. Kitchens improperly presumes waiver in the absence of clear evidence thereof; it does so despite the fact that no reasonable defendant or defense counsel would knowingly execute such a waiver; and it deprives the defendant of the ability to choose not to waive his rights, rendering meaningless both the concept of a right and that of a waiver.

The first problem with the state's new theory is that it, no less than the original Kitchens rationale, violates the fundamental principle that the waiver of a criminal defendant's constitutional rights cannot be presumed or imputed, but must be demonstrated clearly and unequivocally. “[T]o establish a waiver of a legal right, there must be a clear, unequivocal, and decisive act of a party showing such a purpose.” 28 Am. Jur. 2d, supra, § 183, p. 648; see also Gardner v. New London , supra, 63 Conn. at 277, 28 A. 42. Although it is true that a waiver need not be express but, instead, can be implied by conduct, waiver nevertheless cannot be imputed or presumed. See, e.g., State v. Gore , 288 Conn. 770, 775, 783–84, 955 A.2d 1 (2008) ; see also C. Tams, “Waiver, Acquiescence, and Extinctive Prescription,” in The Law of International Responsibility (J. Crawford et al. eds., 2010) pp. 1035–36.

A necessary corollary of this principle is that there is a strong presumption against a finding of waiver, especially a waiver of the constitutional rights of a criminal defendant. See, e.g., North Carolina v. Butler , 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979) (“courts must presume that a defendant did not waive his rights”); Miranda v. Arizona , 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (“[t]his [c]ourt has always set high standards of proof for the waiver of constitutional rights”). As the United States Supreme Court explained in Johnson v. Zerbst , supra, 304 U.S. 458, 58 S.Ct. 1019, “courts indulge every reasonable presumption against waiver of fundamental constitutional rights and ... do not presume acquiescence in the loss of fundamental rights .” (Emphasis added; footnote omitted; internal quotation marks omitted.) Id., at 464, 58 S.Ct. 1019 ; accord State v. Woods , 297 Conn. 569, 583–84, 4 A.3d 236 (2010).

It is crystal clear, then, that the concept of implied waiver is not a talisman that courts can raise whenever they would prefer not to consider an unpreserved claim on appeal. Rather, an implied waiver must be a true waiver, knowing and voluntary, and courts must be equally certain before concluding that a defendant has waived by implication his fundamental rights. The only difference between express and implied waiver is that, in the latter case, it is the defendant's conduct, rather than his statements, that leaves no doubt of his intent to waive his rights. So, with respect to the fifth amendment right against self-incrimination, for example, waiver may be inferred when a suspect or a defendant, having been properly instructed as to his right to remain silent, proceeds to make a statement to the police or to testify in his own defense. Under those circumstances, assuming that the suspect or the defendant understands what is meant by the right to remain silent, his subsequent choice to make a statement or to testify necessarily implies a voluntary intent to waive that right. See, e.g., State v. Talton , 197 Conn. 280, 295, 497 A.2d 35 (1985) (“[b]y speaking, the defendant has chosen unambiguously not to assert his right to remain silent”). Similarly, a state will be found to have waived by implication its sovereign and constitutional immunity only when no other conclusion reasonably can be drawn. As the United States Supreme Court explained in Edelman v. Jordan , 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), “[c]onstructive consent is not a doctrine commonly associated with the surrender of constitutional rights, and we see no place for it here. In deciding whether a [s]tate has waived its constitutional protection under the [e]leventh [a]mendment, we will find waiver only [when] stated by the most express language or by such overwhelming implications ... as (will) leave no room for any other reasonable construction.” (Internal quotation marks omitted.) Id., at 673, 94 S.Ct. 1347 ; see also Envirotest Systems Corp . v. Commissioner of Motor Vehicles , 293 Conn. 382, 389–90, 978 A.2d 49 (2009) ( “[I]n order for a court to conclude that a statute waives [this state's] sovereign immunity by force of necessary implication, it is not sufficient that the claimed waiver reasonably may be implied from the statutory language. It must, by logical necessity, be the only possible interpretation of the language. ... [W]e must interpret any uncertainty as to the existence of a waiver as preserving sovereign immunity.” [Citation omitted; emphasis omitted.] ). Neither the state nor the majority has identified any other fundamental right the true waiver of which would be implied merely by presumption, without unequivocal evidence of an actual intent to waive.²⁰ Nevertheless, the majority, while changing course as to exactly what right is being waived, retains the improper presumption that defense counsel who reviews and acquiesces in the court's proposed instructions knowingly and intentionally waives her client's right to a properly instructed jury, even when the instructions later prove to be defective. Neither the state nor the majority offers any justification for its departure from the black letter legal principle that we will not presume the waiver of fundamental constitutional rights.

20 I recognize that, following federal law, this court has evaluated implied waivers of a defendant's double jeopardy rights according to a different standard. See United States v. Dinitz , 424 U.S. 600, 609–10 n.11, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976) (double jeopardy waiver need not satisfy “knowing, intelligent, and voluntary standard,” by which waivers of other constitutional rights are evaluated); State v. Chimenti , 115 Conn.App. 207, 230 n.19, 972 A.2d 293 (same), cert. denied, 293 Conn. 909, 978 A.2d 1111 (2009). Several rationales have been suggested for this age-old rule: it may be assumed that a criminal defendant will have full knowledge of any previous prosecutions for the same alleged offense; see White v. State , 23 Okla.Crim. 198, 204–205, 214 P. 202 (1923) ; double jeopardy rights are uniquely subject to abuse and gamesmanship; see Levin v. United States , 5 F.2d 598, 600–601 (9th Cir. 1925), cert. denied, 269 U.S. 562, 46 S.Ct. 21, 70 L.Ed. 412 (1925) ; Dalton v. People , 224 Ill. 333, 337–38, 79 N.E. 669 (1906) ; State v. White , 71 Kan. 356, 359–60, 80 P. 589 (1905) ; and the federal rules of criminal procedure, as well as the corresponding procedural rules of certain states, dictate that such claims are waived if not timely raised. See United States v. Herzog , 644 F.2d 713, 716 (8th Cir. 1981), cert. denied, 451 U.S. 1018, 101 S.Ct. 3008, 69 L.Ed.2d 390 (1981) ; Ex parte Hall , 94 N.J. Eq. 108, 119, 118 A. 347 (1922). None of those rationales applies to claims of instructional error, which, the state concedes, can be waived only on the basis of a knowing and voluntary decision.

The second problem with the state's new macro waiver theory is that, unlike with constitutional protections such as the right to counsel and the right against self-incrimination, there is no reason either to conclude or to assume that the defendant in a typical Kitchens scenario has made a knowing and intelligent decision that the benefits of waiving the right outweigh the costs. Although it is true that a defendant need not have an omniscient understanding of every possible repercussion of such a decision in order to execute a valid waiver, a reviewing court must at least assure itself that the defendant is aware of the basic tradeoffs involved. For example, a defendant who opts to testify in his own defense must understand that, in order to obtain the benefits of setting before the jury his version of the facts and his believability as a witness, he must expose himself to the risks associated with cross-examination and impeachment. See, e.g., Brown v. United States , 356 U.S. 148, 154–55, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958). Similarly, in order to knowingly and intelligently

waive the right to counsel, a defendant must understand that the benefits of self-representation—autonomy and control over trial strategy—are purchased at the cost of an attorney's legal experience, judgment, and familiarity with the rules of practice, all of which help to ensure that the defendant will receive a fair trial. See, e.g., Faretta v. California , 422 U.S. 806, 834–35, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ; State v. Townsend , 211 Conn. 215, 218–19, 558 A.2d 669 (1989). In a typical Kitchens case, by contrast, unless there is evidence either that the parties discussed the specific defect at issue, or that defense counsel's failure to object was intentional and strategic, there simply is no basis for concluding that the defendant made an informed and intelligent decision to waive his right to a properly instructed jury.

The state's new theory, namely, that a defendant knowingly chooses to waive not specific objections but, rather, the right to object, presents in turn a new difficulty: why would a defendant ever knowingly waive the right to challenge legally deficient jury instructions when he receives nothing whatsoever in return? For each of the other rights to which the state and the majority analogize the right to a properly instructed jury that was at issue in Kitchens , a defendant presumably understands that he will derive some important benefit in exchange for relinquishing the right and, possibly, the ability to appeal if unforeseen problems later arise. For example, a defendant forgoes: the right to counsel for the ability to control his own representation; the right against self-incrimination for the opportunity to testify in his own defense and to tell the jury his side of the story; the right to a jury trial for the ability to have a dispassionate and legally knowledgeable judge determine his guilt; and the right to a trial for the reduced sentencing risk associated with a guilty plea.²¹ With Kitchens , by contrast, one is hard pressed to identify any reason why an informed, intelligent defendant, or defense counsel, would ever choose to waive the right to argue that the jury was improperly charged as to the elements of the charged crimes, the state's burden of proof, or other constitutionally significant legal principles.²² As Judge Sheldon of the Appellate Court has recently explained, “[r]egardless of counsel's particular trial strategy on behalf of his client, he simply has no excuse not to insist that the jury be properly instructed on each essential element of every charged offense .... [T]here is no conceivable tactical justification for defense counsel not to preserve his client's right not to be convicted without proof beyond a reasonable doubt of each essential element of each charged offense by insisting that proper jury instructions be given on those elements ....” Holloway v. Commissioner of Correction , 145 Conn.App. 353, 366–67, 77 A.3d 777 (2013). And if no competent counsel or defendant would waive such a right, then on what basis does the majority assume that all such decisions are knowing and intelligent?

21 The majority contends that “[t]here is no such ‘exchange’ because waiver of the foregoing rights is within the complete control of the defendant.” Footnote 15 of the majority opinion. This makes little sense. Setting aside the fact that the majority's conclusion does not flow from its premise—the blackjack player has complete control over the decision to split a pair or to double down, but there is no doubt that each involves an exchange—the majority's premise is plainly false. It will come as some news to criminal defendants, for example, that they are in complete control of the plea bargaining process.

22 I do not foreclose the possibility that, in particular cases, counsel may waive this right in order to obtain a strategic benefit. As I discuss hereinafter, I agree that the right should be deemed waived in those cases in which such a strategic choice can clearly be established.

The third—and perhaps most significant—flaw in the state's new theory of implied waiver is that it improperly assumes that defense counsel in a Kitchens case voluntarily chooses to relinquish the defendant's right to challenge the jury instructions on appeal. In order for a decision “to be deemed voluntary, it must be the product of an essentially free and unconstrained choice.” United States v. Garcia , 890 F.2d 355, 360 (11th Cir. 1989) ; see also Webster's Third New International Dictionary (2002) p. 2564 (defining “voluntary” as “proceeding from the will: produced in or by an act of choice”). Each of the other rights to which the state and the majority analogize the right at issue in Kitchens involves a true choice. The defendant can retain counsel or represent himself; he can testify or remain silent; he can opt for trial by jury or a bench trial; he can plead guilty or take his chances at trial. Under Kitchens , by contrast, defense counsel who is unaware of any defects in the court's proposed instructions but wishes to retain her client's right to insist on a properly instructed jury and to contest any defects that later come to light is precluded from doing so. The trial court need only afford counsel a reasonable opportunity to review the instructions and then ask her whether they look okay. At that point, counsel cannot articulate objections of which she is not yet aware; nor can she refuse to answer the court's query.²³ Her only option is to acquiesce .

23 The state concedes that, in a Kitchens situation, the trial court asks defense counsel to make a “binding judgment” as to whether to accept the proposed instructions.

An obvious solution to this conundrum would be to allow counsel under those circumstances to inform the court that, following a careful review of the proposed charge, she is not presently aware of any defects but that her client wishes to retain his due process rights to a properly instructed jury should he later become aware of any defects in the charge. See State v. Kitchens , supra, 299 Conn. at 541, 10 A.3d 942 (Palmer , J. , concurring). In other words, counsel could represent to the court that the defendant “has not raised a constitutional challenge to the charge because he is unaware of any such claim , and not because he has elected to waive the [right ].” Emphasis in original.) Id. In Kitchens , I explained that, “[i]n view of the fact that the doctrine of implied waiver is employed for the purpose of ascertaining an actor's intent when that intent remains unstated , counsel's express statement disavowing waiver—reflecting counsel's actual intent —necessarily would trump any finding of implied waiver ....” (Emphasis in original.) Id. Unfortunately, the majority in Kitchens decided to foreclose that option, inexplicably pronouncing that even such a statement by counsel would constitute an “intentional waive[r].”²⁴ Id., at 487–88 n.25, 10 A.3d 942.

24 See part I D of this opinion.

At the most fundamental level, a criminal defendant cannot be said to have a constitutional right to a properly instructed jury if he can be forced to waive that right against his will and if the law provides no mechanism through which he can retain it if he so chooses. If the majority wishes to decide, for reasons of public policy, that the right to a properly instructed jury will be forfeited if not timely exercised,²⁵ and that unpreserved constitutional challenges to the instructions will not be subject to Golding review on appeal, that at least I can understand. But Kitchens , as currently rationalized, renders incoherent, in one fell swoop, both the concept of a right and that of a waiver. It is a high price to pay to avoid having to decide a few more instructional claims.²⁶ To summarize, there is a strong presumption against finding that a criminal defendant has waived his constitutional rights. Even implied waiver of those rights can be found only on the basis of unequivocal evidence that the defendant, with full knowledge and understanding of his rights, actually intends to waive them. These principles are black letter law, and each is deeply and firmly rooted in the law of Connecticut. The majority fails to explain either how these well established criteria are satisfied in the Kitchens context, or why they are not applicable. To jettison them, merely to achieve a desired policy outcome, is to place at risk not only our Golding jurisprudence, but all of the other branches of the law in which the concept of waiver plays a fundamental role: constitutional law, collective bargaining, tort, contract, insurance, even sovereign immunity. This, I continue to believe, is a serious mistake.

25 See footnote 3 of this opinion. Although the majority in Kitchens purported to maintain the well established distinction between forfeiture and waiver; see State v. Kitchens , supra, 299 Conn. at 474, 10 A.3d 942 ; as I previously have explained, the only reasonable reading of the Kitchens rule is that defense counsel, by failing to object following a review of the trial court's proposed jury instructions, forfeits the defendant's right to raise such challenges on appeal. See State v. Davis , supra, 311 Conn. at 499, 88 A.3d 445 (Palmer , J. , concurring) (Kitchens is “a forfeiture case masquerading as a waiver case” [emphasis omitted] ). The majority refuses to admit this obvious fact only because it will not acknowledge that Kitchens degraded the constitutional protections long secured by our Golding jurisprudence.

26 The fundamental flaw in the majority's reasoning is essentially the inverse of what philosophers have termed the “ ‘naturalistic fallacy’ ”; United States v. Chen , 257 F.Supp.2d 656, 663 n.26 (S.D.N.Y. 2003) ; or the mistake of assuming that because things are a certain way, they therefore should be that way. The majority makes the opposite mistake, imputing a waiver (descriptively) so as to obtain the procedural benefits of deeming an issue waived (normatively). To put it bluntly, the majority concludes that there is a waiver—a knowing, voluntary decision to relinquish the right to a properly instructed jury—for no reason other than that it wants there to be a waiver.

C

Kitchens Does Not Reflect Sound Judicial or Public Policy

In part I B of this opinion, I explained why I continue to believe that, from a descriptive standpoint, defense counsel who merely acquiesces in a trial court's proposed jury instructions does not thereby signify her client's unequivocal knowing and voluntary intent to relinquish any and all claims, both known and unknown, that the instructions are constitutionally deficient. Because mere acquiescence does not satisfy the well established requirements for a waiver of a defendant's constitutional rights, and because we consistently have held that unpreserved claims that satisfy the four prongs of Golding are reviewable on appeal unless waived, that should be the end of the story. However, because both the state and the majority also have offered various policy rationales why such claims should be treated as if they have been waived, I take this opportunity to reiterate why, from a normative standpoint, I do not believe that the Kitchens rule reflects sound judicial or public policy.

Rules of reviewability, such as Golding , require that we weigh the constitutional rights of a criminal defendant against the interests of the state in the prompt and efficient administration of justice. See, e.g., P. Westen, supra, 75 Mich. L. Rev. 1238. On the defendant's side of the ledger are all of the various rationales that underlie the long line of cases in which both this court and our sister courts have concluded that unpreserved claims of error should not be barred from appellate review when the record is adequate and the alleged error is of constitutional magnitude. See, e.g., State v. Golding , supra, 213 Conn. at 239–40, 567 A.2d 823 ; State v. Evans , 165 Conn. 61, 70, 327 A.2d 576 (1973) ; see also Wiborg v. United States , 163 U.S. 632, 658, 16 S.Ct. 1127, 41 L.Ed. 289 (1896). Chief among those rationales is that, in the event that the state has obtained a criminal conviction solely by violating a defendant's constitutional rights, “it would be a rank miscarriage of justice to allow [the conviction] to stand.” United States v. La Guardia , 902 F.2d 1010, 1013 (1st Cir. 1990). “In the fast and fluid nature of a trial, even the most competent counsel can overlook an issue that, in hindsight, appears to be a glaring error, devastating to an accused's interests.” T. Erisman, “Defining the Obvious: Addressing the Use and Scope of Plain Error,” 61 A.F. L. Rev. 41, 47 (2008). Golding reflects the fact that our “[r]ules of practice and procedure are devised to promote the ends of justice, not to defeat them.” Hormel v. Helvering , 312 U.S. 552, 557, 61 S.Ct. 719, 85 L.Ed. 1037 (1941). By reviewing allegations that criminal convictions have been obtained on the basis of serious constitutional violations, appellate tribunals not only ensure that potentially innocent defendants are not made to suffer imprisonment as a result of counsel's inadvertent mistakes, but also help to maintain public confidence in the administration of justice. See, e.g., People v. Ramos , 33 A.D.2d 344, 348, 308 N.Y.S.2d 195 (1970) ; cf. Clyatt v. United States , 197 U.S. 207, 222, 25 S.Ct. 429, 49 L.Ed. 726 (1905) ; State v. Miller , 202 Conn. 463, 469, 522 A.2d 249 (1987). Moreover, permitting appellate review under such circumstances “has a salutary effect on the prosecution's conduct of the trial. If the intelligent prosecutor wishes to guard against the possibility of reversible error, he cannot rely on the incompetence or inexperience of his adversary but, on the contrary, must ... intervene to protect the defendant from the mistakes of counsel.” (Internal quotation marks omitted.) United States v. Frady , 456 U.S. 152, 180, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (Brennan, J., dissenting). Reviewability thus helps to ensure that the state and the trial court, no less than defense counsel, guard vigilantly against any violations of a defendant's fundamental constitutional rights.

The availability of Golding review is especially important in the jury instruction context because of the substantial risk that erroneous instructions, once entrenched, will taint the results of, and go unchallenged in, numerous criminal prosecutions. Several of our recent Kitchens cases, including the companion case to the present case; see State v. Herring , 323 Conn. 526, 147 A.3d 653 (2016); involve claims that certain of the standard criminal jury instructions available on the Connecticut Judicial Branch website²⁷ are unconstitutional, either facially or as applied in a particular case. When standard instructions governing a particular point of law are available, both defense counsel and the trial court understandably may be hesitant to second-guess these instructions, which have been drafted and approved by the Criminal Jury Instruction Committee. See State v. Helmedach , 125 Conn.App. 125, 136, 8 A.3d 514 (2010) (presuming that standard jury instructions are correct in law), aff'd, 306 Conn. 61, 48 A.3d 664 (2012). In State v. Herring , supra, at 526, for example, the trial court informed counsel: “I took this straight from the jury instructions that are on the [Judicial Branch] website that are the standard that we should use. ... Unless you have a case that tells me that I should [deviate from those], I'm leery to stray from the standard instructions that have been tested and used over time.” The court later remarked: “I'm not going to change all of these charges and go against the standard instructions. I'm loathe to do that because that's where courts get into trouble, when they start making changes.” The deference that both defense counsel and the trial courts accord to the standard instructions creates a powerful structural impediment to the raising of constitutional challenges to those instructions at trial, as even the most diligent and competent counsel tend to focus their “political capital” on those objections that they deem reasonably likely to succeed. The availability of Golding review is, therefore, essential if defects in these widely used instructions are to be identified and corrected on appeal.

27 See Judge Support Services, Superior Court Operations, Connecticut Judicial Branch Criminal Jury Instructions, available at http://jud.ct.gov/JI/Criminal/Criminal.pdf (last visited October 11, 2016).

State v. Johnson , supra, 316 Conn. 45, 111 A.3d 436, is an important case in point. In Johnson , the Appellate Court determined that, under Kitchens , the defendant, Jennifer Johnson, had waived her unpreserved instructional challenge. See State v. Johnson , 137 Conn.App. 733, 760, 49 A.3d 1046 (2012), aff'd, 316 Conn. 45, 111 A.3d 436 (2015). On appeal to this court from the Appellate Court's judgment, we disagreed, concluding that, due to the unique procedural posture of the case, Johnson's claim had not been waived. State v. Johnson , supra, at 56–57, 111 A.3d 436. Reviewing her challenge to the standard jury instructions on nonexclusive constructive possession of contraband, we held that the standard instruction, which the trial court used at Johnson's trial, was constitutionally deficient. Id., at 61, 111 A.3d 436. Although we ultimately found the error to be harmless; id., at 64, 111 A.3d 436 ; the case afforded us an important opportunity to clarify this area of the law, an opportunity that would have been lost, or at least postponed indefinitely pending the filing and final resolution of a habeas petition, if the state had prevailed on its claim under Kitchens . See id., at 61–63, 111 A.3d 436. Similarly, State v. Pond , 315 Conn. 451, 108 A.3d 1083 (2015), in which the state argued unsuccessfully that the instructional claims of the defendant, Terrell Williams Pond, were waived under Kitchens , allowed us to review, clarify, and develop the law governing the mens rea element of criminal conspiracy, resolving a split of opinion in the Appellate Court.²⁸ See id., at 466–88, 108 A.3d 1083 ; see also State v. Carrion , 313 Conn. 823, 844–45, 847–49, 100 A.3d 361 (2014) (assuming without deciding that claim was not waived under Kitchens , and exercising supervisory authority to direct trial courts to refrain from instructing juries that state does not want conviction of innocent persons).

28 The majority accurately notes that, in Pond , the state, in arguing unsuccessfully that Pond's claim was unreviewable, cited induced error rather than implied waiver. The reason that the state did not also contend that Pond's claim had been waived apparently was that the trial court in that case did not hold an on-the-record charging conference or provide counsel with an advance copy of the charge, and thus did not satisfy the Kitchens criteria for implied waiver. State v. Pond , 138 Conn.App. 228, 238 n.7, 50 A.3d 950 (2012), aff'd, 315 Conn. 451, 108 A.3d 1083 (2015) ; see id., at 237, 50 A.3d 950. The takeaway is that, if the trial court had dotted all of its I's and crossed all of its T's, Pond's claim likely would have been held impliedly waived under Kitchens , resulting in injustice to him and depriving this court of an important opportunity to clarify and develop the law on criminal conspiracy. Put differently, it is only by reviewing the results of cases in which the defendant survived Kitchens that we can understand the important opportunities that are lost when the Kitchens rule is applied to bar appellate claims of instructional error.

In total, of the nearly twenty appeals decided in Connecticut in the five years following our decision in Kitchens in which the state argued unsuccessfully that an unpreserved claim of instructional error had been waived, or conceded that such a claim had not been waived, the reviewing court found instructional error—either harmless or reversible—in approximately 40 percent of the cases.²⁹ Similarly, prior to Kitchens , Golding review of unpreserved claims afforded us or the Appellate Court an important opportunity to clarify and develop the criminal law in instructional error cases such as State v. Arroyo , 284 Conn. 597, 610, 935 A.2d 975 (2007) (clarifying standard governing trial court's decision to charge jury on third-party culpability evidence), State v. Whelan , 200 Conn. 743, 756–58, 513 A.2d 86 (reconciling inconsistent precedent and holding that “ ‘more probable than not’ ” instruction on circumstantial evidence impermissibly diluted state's burden of proving guilt beyond reasonable doubt), cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986), State v. Nugent , 199 Conn. 537, 545, 508 A.2d 728 (1986) clarifying common-law right of bail bondsman to apprehend principal), State v. Burke , 182 Conn. 330, 333, 438 A.2d 93 (1980) (holding that trial court must give no unfavorable inference instruction unless defendant requests otherwise), and State v. Sitaras , 106 Conn.App. 493, 507, 942 A.2d 1071 (instructing trial courts to refrain from using certain language in standard criminal jury charge), cert. denied, 287 Conn. 906, 950 A.2d 1283 (2008). If the Kitchens rule is retained, such opportunities will become increasingly scarce as trial courts adopt the practice of forcing defense counsel to execute a Kitchens waiver. Indeed, in most of the recent cases in which the state failed to prevail on its waiver argument under Kitchens , the defendant's claim was deemed not to have been waived only because the record did not indicate that the trial court had given defense counsel adequate opportunity to review and comment on the draft charge or a supplemental charge. If the trial court had dotted all of its I's and crossed all of its T's, the errors likely would have gone uncorrected on appeal.³⁰ On the other side of the ledger, the state and the majority contend that Kitchens claims should be treated as unreviewable primarily for reasons of expediency and fairness. Neither rationale is persuasive.

29 See State v. Johnson , supra, 316 Conn. at 48, 111 A.3d 436 ; State v. Devalda , supra, 306 Conn. at 505 n.15, 506, 50 A.3d 882 ; State v. Baptiste , 302 Conn. 46, 49, 58, 23 A.3d 1233 (2011) (rejecting state's argument that defendant waived instructional claim under Kitchens and remanding case to Appellate Court, which subsequently found instructional error in State v. Baptiste , 133 Conn.App. 614, 628, 36 A.3d 697 [2012], appeal dismissed, 310 Conn. 790, 83 A.3d 591 [2014] ); State v. Brown , 299 Conn. 640, 659–60, 11 A.3d 663 (2011) ; State v. Opio – Oguta , 153 Conn.App. 107, 112 n.4, 114, 100 A.3d 461, cert. denied, 314 Conn. 945, 102 A.3d 1115 (2014) ; State v. Ruocco , 151 Conn.App. 732, 742–44, 95 A.3d 573 (2014), aff'd, 322 Conn. 796, 144 A.3d 354 (2016) ; State v. Antonaras , 137 Conn.App. 703, 725–26 and n.16, 49 A.3d 783, cert. denied, 307 Conn. 936, 56 A.3d 716 (2012) ; see also State v. Carrion , supra, at 313 Conn. at 844–45, 848, 100 A.3d 361 (declining to address claim that Appellate Court incorrectly concluded that defendant had waived claim regarding instructional impropriety because such impropriety was harmless in any event).

30 I am not persuaded by the state's argument that, if these rationales were compelling, they also would require the review of unpreserved claims that a defendant truly waives or induces. The rationales that I have discussed for reviewing unpreserved challenges to a jury instruction in cases in which defense counsel merely acquiesces are either muted or trumped by distinct considerations of fairness and reliance in the context of waiver or induced error. See footnotes 10 and 11 and accompanying text of this opinion.

With respect to expediency, finality, and judicial economy, the argument for retaining Kitchens appears to be animated by the antithetical fears that, if we were to return to the state of the law before Kitchens , either (1) this court and especially the Appellate Court would be inundated by and forced to dedicate scare judicial resources to resolving nonmeritorious jury instruction claims concocted after the fact by overzealous appellate counsel, or (2) an abundance of meritorious claims would result in the reversal of otherwise valid convictions and the need for costly retrials. In fact, the available data suggest that both of these speculative fears are largely unfounded.

With respect to the former concern, there is little evidence that, prior to Kitchens , our appellate system was bogged down trying to resolve a disproportionately high number of trivial or nonmeritorious claims challenging the constitutionality of criminal jury instructions. A thorough review of all of the claims of unpreserved error raised by criminal defendants in this court and the Appellate Court during the sixteen years leading up to our consideration of Golding , for example, revealed that 10.1 percent of jury instruction claims resulted in a finding of harmful error, whereas only 8.6 percent of noninstructional claims merited reversal. See State v. Golding , Conn. Supreme Court Records & Briefs, May Term, 1989, Appendix to the Defendant's Supplemental Brief pp. A1–A103 (surveying cases). By contrast, almost none of the claims that certain statements or testimony had been improperly admitted resulted in reversible error; see id. ; and, yet, there is no suggestion that meritless claims of that sort are clogging our appellate system and should be unreviewable on appeal.

Moreover, it is now clear that any lightening of our appellate docket as a result of Kitchens has been more than offset by what has become a veritable cottage industry in Kitchens litigation. That is to say, rather than dedicating our resources to resolving a defendant's legal claim on the merits, this court and the Appellate Court now expend significantly more effort resolving allegations by the state that a particular jury instructional claim has been waived and, therefore, is not entitled to appellate review. Because Kitchens calls for “a close examination of the record and the particular facts and circumstances of each case”; State v. Kitchens , supra, 299 Conn. at 483, 10 A.3d 942 ; our post-Kitchens cases fill many pages of the reports parsing the trial court records for a hint of waiver.³¹ By contrast, once an appellant survives Kitchens scrutiny, nonmeritorious claims of instructional error typically can be resolved on the merits in just a few pages or less.³² In some cases, the juxtaposition is especially pronounced. For example, in State v. Kirby , 137 Conn.App. 29, 46 A.3d 1056, cert. denied, 307 Conn. 908, 53 A.3d 222 (2012), the Appellate Court spent six pages determining whether the defendant's claim was waived under Kitchens but needed only one paragraph to dispense with his claim on the merits. See id., at 45–51, 46 A.3d 1056 ; see also State v. Ruocco , 151 Conn.App. 732, 739–43, 95 A.3d 573 (2014) (taking approximately five pages to dispose of waiver issue and devoting less than one page to merits of instructional claim), aff'd, 322 Conn. 796, 144 A.3d 354 (2016).

31 See, e.g., State v. Terry , 161 Conn.App. 797, 810–14, 128 A.3d 958 (2015) (five pages of waiver analysis), cert. denied, 320 Conn. 916, 131 A.3d 751 (2016) ; State v. Young , 161 Conn.App. 552, 556–63, 129 A.3d 127 (2015) (seven pages); State v. Bialowas , 160 Conn.App. 417, 426–30, 125 A.3d 642 (2015) (five pages); State v. Martone , 160 Conn.App. 315, 323–29, 125 A.3d 590 (six pages), cert. denied, 320 Conn. 904, 127 A.3d 187 (2015) ; State v. McClain , 154 Conn.App. 281, 289–93, 105 A.3d 924 (2014) (five pages), cert. granted, 319 Conn. 902, 122 A.3d 637 (2015) ; State v. Charles , 134 Conn.App. 242, 246–52, 39 A.3d 750 (six pages), cert. denied, 304 Conn. 930, 42 A.3d 392 (2012).

32 See, e.g., State v. Danforth , 315 Conn. 518, 537, 108 A.3d 1060 (2015) ; State v. Rabindranauth , 140 Conn.App. 122, 129–31, 58 A.3d 361, cert. denied, 308 Conn. 921, 62 A.3d 1134 (2013) ; State v. Hines , 136 Conn.App. 412, 419–21, 44 A.3d 886, cert. denied, 307 Conn. 903, 53 A.3d 219 (2012) ; State v. White , 127 Conn.App. 846, 856–58, 17 A.3d 72, cert. denied, 302 Conn. 911, 27 A.3d 371 (2011) ; see also United States v. Hamilton , 499 F.3d 734, 736–37 (7th Cir. 2007) (declining to address waiver issue and proceeding not only to resolve merits of defendant's claim but also to clarify conflicting circuit precedent as to mens rea element of fraud in three paragraphs), cert. denied, 552 U.S. 1129, 128 S.Ct. 951, 169 L.Ed.2d 782 (2008) ; State v. Bonilla , 317 Conn. 758, 770 n.10, 120 A.3d 481 (2015) (declining to address “intricacies” of Kitchens issue because merits of defendant's claim could be readily resolved).

Of course, judicial efforts do not always correlate perfectly to page counts in the official court reports. In some cases, however, it is beyond cavil that the resources we are dedicating to resolving Kitchens quibbles could be better spent interpreting the law. Consider State v. Davis , 131 Conn.App. 50, 26 A.3d 128 (2011), rev'd, 311 Conn. 468, 88 A.3d 445 (2014), in which the Appellate Court penned a ten and one-half page analysis of the Kitchens issue, ultimately concluding that the defendant's unpreserved claim of instructional error was impliedly waived. Id., at 55–65, 26 A.3d 128. We granted certification to appeal; State v. Davis , 302 Conn. 943, 29 A.3d 468 (2011) ; and, nearly three years later, issued majority and concurring opinions totaling nearly forty pages, in which we concluded that Kitchens did not in fact bar review of the defendant's claim. State v. Davis , supra, 311 Conn. at 483, 88 A.3d 445 ; see id., at 495, 88 A.3d 445 (Palmer , J. , concurring); id., at 505, 88 A.3d 445 (McDonald , J. , concurring). On remand, it required only ten and one-half pages of analysis for the Appellate Court to decide all of the defendant's claims on the merits. See State v. Davis , 154 Conn.App. 216, 223–33, 107 A.3d 962 (2014), cert. denied, 315 Conn. 918, 107 A.3d 961 (2015). Significant time and expense could have been saved if the Appellate Court had simply reached and resolved the unpreserved claims at the outset.

This is especially true in light of the fact that the failure to review a claim on direct appeal often will result in the need for a more resource intensive habeas trial on the same issue. As we explained in State v. Elson , 311 Conn. 726, 91 A.3d 862 (2014), “[t]his, of course, serves no judicial economy, as the rapidly written appellate opinion of today is nothing more than kicking the can down the road to be addressed in the habeas petition of tomorrow—a counterproductive action that actually increases the net workload of the judicial system.” (Internal quotation marks omitted.) Id., at 752, 91 A.3d 862.

Nor is there much support for the concern that overruling Kitchens would disturb settled decisions and force the state to retry criminal convictions long after the fact. In reality, and as the majority is forced to concede, “the number of cases in which a defendant obtain[ed] reversal of his conviction on the basis of Golding review ... [prior to Kitchens was] negligible.” State v. Kitchens , supra, 299 Conn. at 523, 10 A.3d 942 (Katz , J. , concurring); see also State v. Mungroo , 299 Conn. 667, 679 n.4, 11 A.3d 132 (2011) (Katz , J. , dissenting) (in decade preceding Kitchens , Supreme Court and Appellate Court together found reversible error on Golding review of jury instruction challenges approximately twice per year on average).³³ A far more frequent outcome before Kitchens was that appellate review revealed harmless errors in the trial court's jury instructions. See State v. Golding , supra, 213 Conn. at 241, 567 A.2d 823.³⁴ Such decisions play an important role in our jurisprudence: they provide a forum for clarifying and developing the law but place no additional burdens on the state or the judicial system. Indeed, as I discuss more fully hereinafter, they may eliminate the need for a costly habeas petition and subsequent appeals that would result from finding a claim unreviewable under Kitchens . Accordingly, I am not swayed by the parade of horribles that the state invokes in its brief.

33 Connecticut Criminal Defense Lawyers Association, which filed an amicus brief in State v. Herring , supra, 323 Conn. at 526, 147 A.3d 653, a companion case, cites similar statistics suggesting that the number of unpreserved claims of instructional error resulting in reversal was even lower during the sixteen years following our decision in State v. Evans , supra, 165 Conn. at 61, 327 A.2d 576, in 1973. During that period, our appellate courts found reversible error on the basis of unpreserved claims in only 3 percent of criminal appeals. State v. Golding , Conn. Supreme Court Records & Briefs, May Term, 1989, Defendant's Supplemental Brief p. 16.

34 In the five years preceding our decision in Kitchens , for example, this court and the Appellate Court found harmless unpreserved instructional error in more than one dozen cases, including State v. Rodriguez – Roman , 297 Conn. 66, 87, 3 A.3d 783 (2010), State v. Hampton , 293 Conn. 435, 462, 988 A.2d 167 (2009), Small v. Commissioner of Correction , 286 Conn. 707, 731, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz , 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008), State v. Thompson , 122 Conn.App. 20, 28, 996 A.2d 1218 (2010), aff'd, 305 Conn. 806, 48 A.3d 640 (2012), State v. Nance , 119 Conn.App. 392, 411, 413, 987 A.2d 376, cert. denied, 295 Conn. 924, 991 A.2d 569 (2010), State v. Nelson , 118 Conn.App. 831, 856, 986 A.2d 311, cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010), State v. Fleming , 111 Conn.App. 337, 352–53, 356, 958 A.2d 1271 (2008), cert. denied, 290 Conn. 903, 962 A.2d 794 (2009), State v. Haywood , 109 Conn.App. 460, 471, 952 A.2d 84, cert. denied, 289 Conn. 928, 958 A.2d 161 (2008), State v. Tok , 107 Conn.App. 241, 274, 945 A.2d 558, cert. denied, 287 Conn. 919, 951 A.2d 571 (2008), and cert. denied sub nom. State v. Jourdain , 287 Conn. 920, 951 A.2d 570 (2008), State v. Lawson , 99 Conn.App. 233, 245, 913 A.2d 494, cert. denied, 282 Conn. 901, 918 A.2d 888 (2007), State v. Rivet , 99 Conn.App. 230, 233, 912 A.2d 1103, cert. denied, 281 Conn. 923, 918 A.2d 274 (2007), State v. Youngs , 97 Conn.App. 348, 362, 904 A.2d 1240, cert. denied, 280 Conn. 930, 909 A.2d 959 (2006), and State v. McArthur , 96 Conn.App. 155, 181–83, 899 A.2d 691, cert. denied, 280 Conn. 908, 907 A.2d 93 (2006).

The state's second set of policy arguments relates to questions of fairness. I understand the state's position to be that defense counsel who fails to raise a potentially meritorious challenge during the charging conference does so either for tactical reasons or inadvertently. If the decision is tactical, the state contends, we should not give the defendant a second bite at the apple and permit counsel to try out a different tactic on appeal when the tactic utilized at trial was unsuccessful. By contrast, if the failure to object is inadvertent, then we should adopt rules of reviewability that will incentivize greater diligence or, in the absence of such rules, leave to the habeas courts any claims that counsel's performance was ineffective. In either case, the state believes that allowing a defendant to press on appeal objections that his counsel failed to raise at trial would be unfair both to the state and to the trial court. Although the state's concerns are well taken, I ultimately find its arguments to be unpersuasive. Turning first to the question of tactical or strategic waiver, I agree with the defendant that it is almost inconceivable that defense counsel would intentionally hold back a potentially meritorious objection and knowingly permit her client's constitutional rights to be trampled, solely so that, if her client is ultimately convicted, appellate counsel might advance a winning argument on appeal. As Judge Henry J. Friendly once explained, “it is exceedingly hard to visualize a case [in which] a defendant or his lawyer would deliberately lay aside a meritorious claim so as to raise it after the defendant was jailed.” H. Friendly, “Is Innocence Irrelevant? Collateral Attack on Criminal Judgments,” 38 U. Chi. L. Rev. 142, 158 (1970).

When the state and the majority presume that a decision to forgo potential objections to the trial court's proposed jury charge is strategic, however, I do not believe that this is the sort of strategy they have in mind.³⁵ Rather, the concern seems to be that a defendant, having pursued one strategy or theory of the case at trial and having failed to prevail, might change direction on appeal and argue that he should have received the benefit of instructions reflecting a different, perhaps contradictory, strategy.

35 It would be disturbing indeed if the majority, having rejected the “cynical” view that a state's attorney might allow an instructional error to go unnoticed in order to obtain a strategic advantage; footnote 18 of the majority opinion; were to adopt an equally cynical presumption regarding the conduct of defense counsel.

As I already discussed; see part I A of this opinion; when the record clearly suggests that defense counsel's failure to raise an instructional challenge at trial was the result of a tactical decision, I agree with the majority that the unpreserved claim should be deemed waived and unreviewable on appeal. This often will be the case, for instance, when counsel does not seek an instruction as to lesser included offenses in the hope that the jury will find the defendant not guilty of the more serious charge; see, e.g., United States v. Estrada – Fernandez , 150 F.3d 491, 496 (5th Cir. 1998) ; cf. L. Cunningham, “Appellate Review of Unpreserved Questions in Criminal Cases: An Attempt to Define the ‘Interest of Justice,’ ” 11 J. App. Prac. & Process 285, 321 (2010) ; or when counsel advances a theory of mistaken identity and refrains from seeking instructions, such as on self-defense or sexual consent, that would tend to suggest to the jury that the defendant was in fact the perpetrator. See, e.g., State v. Fuller , 158 Conn.App. 378, 384–85, 119 A.3d 589 (2015) ; see also United States v. Crowley , 318 F.3d 401, 411 (2d Cir.) (concluding that defense counsel's failure to seek instruction on renunciation represented reasonable strategic choice not to suggest to jury that defendant began with but later abandoned criminal purpose), cert. denied, 540 U.S. 894, 124 S.Ct. 239, 157 L.Ed.2d 171 (2003). Under those or similar circumstances, I have no difficulty concluding that counsel's failure to object was strategic and resulted in an implied waiver of any unpreserved challenges.

What I cannot agree to is Kitchens ' presumption that counsel's decision not to raise an objection at trial must be knowing and strategic, even when the record contains no indication thereof. See State v. Kitchens , supra, 299 Conn. at 470, 481–83, 10 A.3d 942. As Justice Katz explained in her concurring opinion in Kitchens , a presumption of strategic waiver “undermines this court's exhortation that Golding review is intended to break down any categorical or absolute bars to appellate review by foreclosing review of an entire class of trial errors. Moreover, by concluding that [a] mere failure to object to an improper instruction constitutes a waiver of the defendant's appellate rights, the [defendant is] essentially single [d] ... out to bear the consequences of the error despite the equal obligations [of] the trial court and the [state] to identify and to correct the error.” (Emphasis omitted.) Id., at 518–19, 10 A.3d 942 (Katz , J. , concurring); see also Moreno v. State , 341 P.3d 1134, 1146 (Alaska 2015) (“[w]hether the defendant made a tactical decision not to object or intelligently waived an opportunity to object must be plainly obvious from the face of the record, not presumed in the face of a silent or ambiguous record”).³⁶

36 If the majority is truly concerned that many unpreserved claims of instructional error are the result of secret strategic plans that are not apparent from the trial court record, then those concerns easily can be addressed simply by requiring that appeals alleging instructional error be accompanied by an affidavit by trial counsel stating that she was unaware of the alleged defects at the time of trial and that the defendant did not intend to waive any objections thereto. Cf. General Statutes § 52–190a (a) (attorney filing medical malpractice action must attach certificate stating that reasonable inquiry gave rise to good faith belief that grounds exist for action against each defendant). In the event that the state had cause to question the veracity of such a representation, the matter could be remanded to the trial court to make the necessary findings. See Practice Book § 60–2 (9) ; see also Henry v. Mississippi , 379 U.S. 443, 449–53, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). Such a procedure would allow any necessary factual determinations to be made by the court that tried the case, which is in the best position to assess whether the decisions of counsel were intentional and strategic, and dispense with the need for this court to engage in fact-finding functions for which it is ill-suited, or for a second, costly trial before a habeas court. And it would ensure that criminal defendants are not unfairly deprived of their constitutional right to a properly instructed jury solely on the basis of a presumption with little basis in reality regarding an error for which the defendant himself is almost certainly blameless. See State v. Hargrove , 48 Kan.App.2d 522, 551–53, 293 P.3d 787 (2013).

Lastly, the state contends that, even if counsel's failure to object is not strategic but, rather, merely inadvertent, we should treat any unpreserved objections as waived because such a rule will provide defense counsel, the state, and the trial court with an incentive to identify any instructional errors at trial, when they can be readily corrected. I must confess that I am at a loss to understand the majority's apparent belief that treating unpreserved challenges as waived, and insulating them from appellate review, will somehow incentivize the state and trial courts to exercise greater diligence in unearthing such errors. It is the state and the trial court, after all, that stand to lose should a conviction be overturned as a result of the court's instructional error. One would think that, if any extra motivation is required for them to look after the defendant's constitutional rights, it would be the possibility of reversal that would inspire them, rather than the impossibility. In any event, I will focus my analysis on the state's argument that the Kitchens rule is needed to motivate defense counsel to adequately scrutinize the court's instructions at trial. There are at least three problems with the state's argument.

First, the majority has provided no support, either empirical or anecdotal, for its assumption that denying review under Kitchens will reduce the number of cases in which defense counsel fails to identify and object to instructional errors due to mistake or inadvertence. As both courts and commentators have recognized, such a rule offers little deterrent value with respect to such oversights, “only marginally advances systemic fairness and does so by exacting a heavy price in individual fairness.” State v. Hargrove , 48 Kan.App.2d 522, 554, 293 P.3d 787 (2013) ; see also L. Cunningham, supra, 11 J. App. Prac. & Process 317 (trial attorneys should not be “held to the impossible standard of predicting, in the heat of battle, every conceivable legal issue that could provide for appellate relief after conviction”). In fact, the available evidence suggests that Kitchens has done little to increase the identification and rectification of instructional errors at trial, as this court and the Appellate Court have entertained dozens of claims of unpreserved instructional error in the five and one-half years since that case was decided, with no indication that the incidence of such claims is on the wane.

Second, even if Kitchens did create an incentive for defense counsel to exhaustively scrutinize each of the trial court's draft instructions for any possible error, it is far from clear that more efficient administration of justice would result. As the United States Supreme Court has cautioned, “such a rule would result in counsel's inevitably making a long and virtually useless laundry list of objections to [instructions] that were plainly supported by existing precedent.” Johnson v. United States , 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). Better instead to trust that competent counsel will identify and raise any defects apparent to her at the time of trial, as is her professional obligation; see State v. Mungroo , supra, 299 Conn. at 679–80, 11 A.3d 132 (Katz , J. , dissenting); W. Pizzi & M. Hoffman, “Jury Selection Errors on Appeal,” 38 Am. Crim. L. Rev. 1391, 1404–1405 (2001) ; and then to rely on the safety net of independent appellate review to identify those hidden defects or potentially erroneous standard instructions most worthy of our consideration.

Third, neither the state nor the majority has provided any compelling rationale for carving out this single exception to our general rule of Golding review. We continue to review unpreserved claims of constitutional error that arises during other phases of the trial—everything from voir dire to the taking of evidence to jury deliberations—even though a Kitchens -type rule arguably would incentivize defense counsel to more diligently root out error in those stages of the process as well. Why then a special rule for jury instructions?

The only answer that the state offers is that the drafting of jury instructions is unique in that, at least in theory, it is a more collaborative process, during which the rules of practice encourage the state, defense counsel, and the trial court to pause and jointly reflect on the proper way to instruct the jury on the law. See Practice Book §§ 42–16 through 42–19. This argument proves too much.

The exact same arguments that the state makes with respect to jury instructions could be made with respect to other phases of trial, such as the selection and exclusion of jurors during voir dire. See W. Pizzi & M. Hoffman, supra, 38 Am. Crim. L. Rev. 1435–36. Voir dire also is a collaborative process during which the state, defense counsel, and the trial court work together to select a fair, impartial, and qualified panel, as dictated by the rules of practice. See Practice Book § 42–3 (parties may stipulate as to reduced panel size); Practice Book § 42–4 (giving parties five days to challenge array); Practice Book §§ 42–5, 42–11 through 42–13 (parties and trial court are jointly responsible for selection of qualified panel). Jury selection, as with jury instruction, is a more deliberative process, unlike the trial itself, when defense counsel must make snap judgments as to whether to object to particular testimony or evidence. And yet, we have imposed no Kitchens -type rule to bar review of unpreserved claims concerning voir dire; nor do we presume that defendants have waived all such challenges. See, e.g., State v. Mejia , 233 Conn. 215, 231–32, 658 A.2d 571 (1995) ; State v. Baldwin , 224 Conn. 347, 369–70, 618 A.2d 513 (1993) ; but cf. State v. Hodge , 248 Conn. 207, 227, 726 A.2d 531 (unpreserved challenge under Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 [1986], was unreviewable under Golding because factual record was inadequate for appellate review), cert. denied, 528 U.S. 969, 120 S.Ct. 409, 145 L.Ed.2d 319 (1999).³⁷ We also continue to entertain unpreserved claims concerning plea agreements; State v. Das , 291 Conn. 356, 367–68, 968 A.2d 367 (2009) ; and sentencing; see State v. Elson , supra, 311 Conn. at 740–41, 91 A.3d 862 ; even though those too are more collaborative and less frenetic phases of the criminal justice process during which defense counsel might reasonably be expected to have identified and challenged any potential violations of the defendant's constitutional rights. See Practice Book §§ 39–1, 39–3 through 39–5, 39–13 through 39–16 (plea agreements); Practice Book §§ 43–5, 43–7, 43–13 through 43–16 (sentencing). Accordingly, I see no reason that challenges to jury instructions should be distinguished from all other claims of constitutional error as underserving of Golding review.³⁸

37 It bears noting that, whereas the rules of practice governing jury trials expressly inform the defendant that he may be deemed to have waived the right to a jury trial if he fails to make a timely election; Practice Book § 42–1 ; there is no corresponding waiver provision in the rules governing jury instructions.

38 It bears emphasizing in this respect that Golding itself was an instructional error case, and the Golding test clearly was intended from the outset to govern such claims. See State v. Golding , supra, 213 Conn. at 235, 567 A.2d 823. Moreover, I am not persuaded by the state's argument that Golding predated the era of in-depth charging conferences and, therefore, did not account for the importance of encouraging full participation in such conferences by both parties. In fact, our cases from that time period reflect that we recognized both the existence and the importance of collaborative charging conferences but that we placed a higher priority on ensuring that unwaived constitutional violations did not go unaddressed. See, e.g., State v. Sirimanochanh , 224 Conn. 656, 660–64, 620 A.2d 761 (1993) ; State v. Famiglietti , 219 Conn. 605, 618–19, 595 A.2d 306 (1991).

Lastly, I turn to the argument, advanced by the state and embraced by this court in Kitchens , that the Kitchens rule does not unfairly penalize criminal defendants for their attorneys' inadvertent failure to object to defective jury instructions because many defendants can obtain relief by filing a habeas action alleging ineffective assistance of counsel. See State v. Kitchens , supra, 299 Conn. at 482, 496–98, 10 A.3d 942. I remain unpersuaded. The reasons why a habeas action is not an adequate substitute for appellate review in this context have been fully expounded elsewhere. See, e.g., id., at 523–24, 10 A.3d 942 (Katz , J. , concurring); id., at 547–48, 10 A.3d 942 (Palmer , J. , concurring); see also L. Cunningham, supra, 11 J. App. Prac. & Process 318. Suffice it to say that many meritorious claims of serious instructional error will not be subject to correction in habeas actions, and even those petitioners who do ultimately prevail in such actions ordinarily must wait years, while they are wrongfully imprisoned, before they can obtain the benefit of such a ruling. Two points, however, do warrant further discussion.

First, with five and one-half years now having passed since we decided Kitchens , time and experience have borne out my concerns, and those of Justice Katz, that the majority's reliance on habeas proceedings as a panacea was seriously misplaced. When Kitchens was decided, we predicted that the rule would increase rather than decrease the burden on judicial resources because any time saved in avoiding appellate review of instructional error would be more than offset by the need for a full habeas trial on the issue. In fact, of the six cases decided in the year following our Kitchens decision in which the Appellate Court found claims of instructional error waived under Kitchens ,³⁹ four already have resulted in habeas petitions related to the alleged instructional error.⁴⁰

39 See State v. Beebe , 131 Conn.App. 485, 492–93, 27 A.3d 26 (2011), cert. denied, 303 Conn. 921, 34 A.3d 397 (2012) ; State v. Brown , 131 Conn.App. 275, 282, 26 A.3d 674 (2011), aff'd, 309 Conn. 469, 72 A.3d 48 (2013) ; State v. Myers , 129 Conn.App. 499, 510, 21 A.3d 499, cert. denied, 302 Conn. 918, 27 A.3d 370 (2011) ; State v. Bharrat , 129 Conn.App. 1, 18–19, 20 A.3d 9, cert. denied, 302 Conn. 905, 23 A.3d 1243 (2011) ; State v. Lahai , 128 Conn.App. 448, 460, 18 A.3d 630, cert. denied, 301 Conn. 934, 23 A.3d 727 (2011) ; State v. Carrion , 128 Conn.App. 46, 60, 16 A.3d 1232 (2011), aff'd, 313 Conn. 823, 100 A.3d 361 (2014).

40 See Carrion v. Warden , Superior Court, judicial district of Tolland, Docket No. TSR–CV–11–4004163–S (December 15, 2015); Bharrat v. Commissioner of Correction , Superior Court, judicial district of Tolland, Docket No. TSR–CV–12–4004615–S (August 27, 2014), appeal dismissed, 167 Conn.App. 158, 143 A.3d 1106 (2016) ; Lahai v. Warden , Superior Court, judicial district of Tolland, Docket No. TSR–CV–09–4003028–S (May 7, 2012) ; Myers v. Warden , Superior Court, judicial district of Tolland, Docket No. TSR–CV–14–4005938–S (withdrawn August 12, 2016). I focus on cases decided in the immediate wake of the Kitchens decision because we will not know for some period of time whether more recently decided Kitchens cases ultimately will result in habeas challenges.

When Kitchens was decided, we also warned that habeas actions would only push back the inevitable, as petitioners whose ineffective assistance of counsel claims were denied on collateral review ultimately would return to the Appellate Court for review of those decisions. Sure enough, the first generation of post-Kitchens habeas appeals is now coming home to roost. See, e.g., Bharrat v. Commissioner of Correction , 167 Conn.App. 158, 143 A.3d 1106 (2016).

In addition, when Kitchens was decided, we warned that the vindication of meritorious claims would be unreasonably and unfairly delayed. This prediction was realized in State v. Lahai , 128 Conn.App. 448, 18 A.3d 630, cert. denied, 301 Conn. 934, 23 A.3d 727 (2011). In that case, the Appellate Court declined to review the unpreserved instructional claim of Juma A. Lahai pursuant to Kitchens ; id., at 459–60, 10 A.3d 942 ; even though the state itself conceded that the court's instruction had improperly placed on Lahai the burden of proving self-defense. See id., at 451–52, 10 A.3d 942. We thereafter denied Lahai's petition for certification to appeal. State v. Lahai , 301 Conn. 934, 23 A.3d 727 (2011). In May, 2012, the habeas court granted Lahai's habeas petition and vacated his conviction. Lahai v. Warden , Superior Court, judicial district of Tolland, Docket No. TSR–CV–09–4003028–S (May 7, 2012). Lahai thus remained incarcerated a full year longer than was necessary to review and vindicate his claim.⁴¹ In the usual case, an incarcerated defendant will have to wait far longer for his constitutional rights to be vindicated because, ordinarily, the state will appeal from any adverse habeas judgment. Second, I am troubled by the state's argument that a defendant who is barred by Kitchens from raising a claim on appeal, and whose claim is not a candidate for habeas relief, has not thereby been treated unfairly because the same incorrect law also may have been applied to other defendants' cases. I would remind the state that the defendant's claim is not that he was treated less favorably than others by the criminal justice system, in violation of his right to equal protection of the law. His claim, rather, is that he was deprived of his fundamental right to due process of law and, possibly, wrongly imprisoned as a result. The fact that other defendants also may have been denied a fair trial will be of little consolation, no more than one who is deprived of the right to practice his religion, or whose land is taken without just compensation, will be content to know that his neighbor was treated with equal injustice.

41 The majority contends that, in Lahai , the Appellate Court “cited Kitchens only for its passing reference to the doctrine of induced error, and not for its clarification of the implied waiver rule.” This is plainly false. Although it is true that the Appellate Court concluded that Lahai had induced the challenged error; see State v. Lahai , supra, 128 Conn. App. at 457, 23 A.3d 727; that court also expressly discussed Kitchens ' clarification of the implied waiver rule and independently found that the instructional challenge at issue was impliedly waived under Kitchens . Id., at 459–60, 18 A.3d 630.

For all of the foregoing reasons, in the absence of clear evidence that a criminal defendant or defense counsel actually intended to waive a claim that a jury instruction violated the defendant's constitutional rights, I fail to see any reason why this court should insist on treating all such claims as if they had been waived.⁴²

42 Although I largely agree with the concurring opinion of Chief Justice Rogers, I do not share her view that “specific, on-the-record discussion of the particular instruction later claimed to be defective on appeal,” followed by defense counsel's explicit assent to that instruction, is sufficient to establish waiver by implication of the defendant's constitutional right to a properly instructed jury. (Emphasis in original.) Text accompanying footnote 10 of Chief Justice Rogers' concurring opinion. As I explained in this opinion, I would find waiver only when the well established criteria for waiver are actually satisfied. Although I understand that certain federal courts follow an approach similar to that advocated by Chief Justice Rogers, I do not believe that approach ever has been the law of this state.

D

The Kitchens Rule Can Easily Be Circumvented

As previously discussed, in Kitchens , I explained how the presumption that a criminal defendant intends to waive his right to challenge the jury instructions can be overcome if defense counsel “simply ... inform[s] the trial court that he has not raised a constitutional challenge to the charge because he is unaware of any such claim , and not because he has elected to waive the claim .” (Emphasis in original.) State v. Kitchens , supra, 299 Conn. at 541, 10 A.3d 942 (Palmer , J. , concurring). I continue to believe that such a statement by defense counsel necessarily would defeat any inference that the defendant has in fact voluntarily waived his right to a properly instructed jury, and I would encourage the defense bar to test this theory.

In Kitchens , the majority offered four arguments as to why, in its view, even an express statement that the defendant does not wish to waive any unpreserved instructional claims would be insufficient to overcome the presumption of implied waiver. See id., at 485–88 n.25, 10 A.3d 942. The majority in the present case reaffirms those arguments. For the reasons that follow, I continue to find the arguments of the majority at best unpersuasive and at worst deeply troubling.

The majority first argues that, if defense counsel is sincere in the statement that she is unaware of any constitutional defects in the court's charge, but such a defect does in fact exist, then counsel is necessarily ineffective and the habeas court provides the appropriate forum to address the problem. See id., at 487 n.25, 10 A.3d 942. I already have explained why a habeas court is not an adequate forum for resolving unpreserved jury instructional claims. More important, the argument that defense counsel who fails to identify any potential defect in a jury charge is ineffective is (1) wholly irrelevant to the issue of whether the defendant should be deemed to have knowingly waived a claim of which he and his counsel are unaware, and (2) contrary to well established law. See Ledbetter v. Commissioner of Correction , 275 Conn. 451, 461–62, 880 A.2d 160 (2005) “[C]ounsel's failure to advance novel legal theories or arguments does not constitute ineffective performance. ... Nor is counsel required to change then-existing law to provide effective representation.” [Citations omitted; internal quotation marks omitted.] ), cert. denied sub nom. Ledbetter v. Lantz , 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006).

The majority in Kitchens also asserted that I “cite[d] no legal support [in my concurrence in that case] for a blanket preservation by trial counsel of all constitutional challenges to jury instructions merely on the basis of counsel's in-court statement that he or she is ‘unaware’ of a constitutional violation.” State v. Kitchens , supra, 299 Conn. at 488 n.25, 10 A.3d 942. If there is no authority that specifically discusses the type of attestation I have described, it is only because no other jurisdiction has followed the lead of this court in Kitchens and adopted a novel rule of implied waiver that so clearly departs from established precedent and black letter law. In any event, it is a matter of common sense, as well as a firmly entrenched principle throughout the law, that an express reservation of rights precludes a contrary finding that a party has waived his or her rights by implication. See, e.g., RBC Nice Bearings, Inc . v. SKF USA, Inc ., 318 Conn. 737, 767, 123 A.3d 417 (2015) ; Connor v. Statewide Grievance Committee , 260 Conn. 435, 445, 797 A.2d 1081 (2002) ; State v. Kelley , 206 Conn. 323, 333–35, 537 A.2d 483 (1988) ; Olean v. Treglia , 190 Conn. 756, 772, 463 A.2d 242 (1983) ; Jones v. Civil Service Commission , 175 Conn. 504, 511–12, 400 A.2d 721 (1978) ; American Woolen Co . v. Maaget , 86 Conn. 234, 241, 85 A. 583 (1912).

The majority in Kitchens also worried that “such a ploy could open up a ‘Pandora's box,’ flooding Connecticut courts with cases alleging improper jury instructions on every conceivable issue and making a mockery of the trial court's attempt to query and solicit counsel's input on the jury instructions.” State v. Kitchens , supra, 299 Conn. at 488 n.25, 10 A.3d 942. There is no need to panic. What I am advocating is simply that we return to our pre-Kitchens jurisprudence, pursuant to which the parties are encouraged to collaborate with the trial court in the drafting of legally accurate jury instructions and a criminal defendant is deemed to have waived a claim when the record suggests that defense counsel was aware of the claim and failed to raise it for reasons of strategy or judgment, but claims of constitutional magnitude are otherwise reviewable under Golding . There was no deluge of unpreserved jury instructional claims back then, and there is no reason to fear that there will be one now if counsel merely circumvents the new Kitchens rule by honestly attesting that the fictional assumptions on which Kitchens relies are untrue in her client's case.

Lastly, the majority in Kitchens indicated that such a statement by defense counsel “would conflict directly with the mandate in rule 1.1 of the Rules of Professional Conduct that requires adequate preparation by counsel in representing a client, which presumably would include sufficient familiarity with the jury instructions to identify instructions that are constitutionally flawed.” Id. The majority in the present case doubles down on this alarming statement, cautioning that “such conduct [also] would be inconsistent with our rules of practice, which seek to encourage good faith participation by counsel in the formulation of jury instructions.” I find the majority's thinly veiled threats against defense counsel very concerning. It is preposterous to suggest that a commissioner of the Superior Court who, having engaged fully in a charging conference, merely and honestly informs the trial court that (1) she has thoroughly reviewed and considered its draft jury charge, (2) she is not aware of any constitutional defects other than those that she has articulated, but (3) her client does not wish to waive any challenges that might later become apparent (if, for instance, a federal court were subsequently to deem one of the instructions unconstitutional), thereby violates the rules of practice and exposes herself to charges of professional misconduct. The majority may, of course, disagree with me as to the legal implications of such an attestation with respect to overcoming the presumption of implied waiver. Under no circumstances, however, is it appropriate for this court to bullyrag a legal professional who, in the course of zealously defending her client, happens to expose the fact that the Kitchens emperor has no clothes.

E

Stare Decisis

Lastly, I am not persuaded by the state's argument that stare decisis, or respect for judicial precedent, requires adherence to Kitchens . It is well established that “a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it.” (Internal quotation marks omitted.) State v. Salamon , 287 Conn. 509, 519, 949 A.2d 1092 (2008). Setting aside the fact that Kitchens itself represented a departure from established precedent; see, e.g., State v. Ebron , supra, 292 Conn. at 679–82, 975 A.2d 17 ; and is, therefore, less entitled to stare decisis deference; see, e.g., Adarand Constructors, Inc . v. Pena , 515 U.S. 200, 234–35, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) ; there are at least three reasons why we are not bound to uphold the Kitchens rule.

First, the principal concerns that underlie the respect for judicial precedent—the need for stability and predictability in the law, and the importance of maintaining the institutional legitimacy of the judiciary—are at their nadir in cases such as this one, in which the highest court of a jurisdiction adopts prudential rules to manage its own docket and to determine which types of claims it will review. Although the parties read the history of our Golding jurisprudence differently, there is no dispute that the rules we have adopted to govern the review of unpreserved claims have evolved over the past several decades as we have sought to balance the various considerations discussed in part I C of this opinion. See generally State v. Kitchens , supra, 299 Conn. at 447, 10 A.3d 942 ; State v. Ebron , supra, 292 Conn. at 656, 975 A.2d 17 ; State v. Golding , supra, 213 Conn. at 233, 567 A.2d 823 ; State v. Evans , supra, 165 Conn. at 61, 327 A.2d 576. These considerations include (1) securing the fundamental constitutional rights of criminal defendants, (2) maintaining an orderly trial process in which potential errors are identified and remedied in a timely manner, (3) disposing of meritless appellate claims as efficiently as possible, (4) treating with fairness both the trial court and the state, and (5) providing an opportunity for appellate courts to clarify and develop the law outside the “the hurried and ... hectic process of trial ....” People v. Ladas , supra, 12 Ill.2d at 294, 146 N.E.2d 57. The legislative and executive branches of government, which have their own considerations to balance, routinely and appropriately tweak their practices and procedures so as to best manage their affairs and conduct the business of the people. Kitchens is of the same ilk, and there is no reason why our commitment to maintaining stability and predictability in the law should require that, as an institution of government, we bind ourselves to unserviceable rules of procedure. Like the political branches, this court must have the freedom and flexibility not only to experiment with new procedures, but also to set such experiments aside when time and experience have proven them to be unworkable and ill conceived.

The second reason stare decisis does not require that we retain the Kitchens rule is because there are no reliance interests that would justify the retention of that rule in the face of its evident deficiencies. The only conceivable detrimental reliance on Kitchens would occur if the state, in other cases presently on appeal, had opted not to respond to appellants' unpreserved claims of instructional error on the merits and instead argued only that those claims were waived under Kitchens . If there are examples of this sort of reliance, any unfairness may be remedied simply by affording the state an additional opportunity to brief the unpreserved claims on the merits (or to argue that the claims are unreviewable on a ground unrelated to the Kitchens rule).

Third, and most important, we are not bound to retain the Kitchens rule because not only was Kitchens wrongly decided in a such a way as to work a manifest injustice on criminal defendants whose constitutional rights have been violated and who had no intention of waiving those rights, but the rule also does irreparable damage to our broader waiver jurisprudence. As I explained in part I B of this opinion, the concept of waiver is fundamental not only in the context of criminal procedure but in virtually every area of the law. By muddying the concept in Kitchens , and by further confusing the issue in the present case, the majority risks infecting broad swaths of the law that rely on a clear and cogent distinction between waiver and forfeiture. Ultimately, in continuing to add epicycles to Kitchens in an attempt to salvage its flawed implied waiver theory, the majority itself implicitly acknowledges that the case is devoid of any precedential value.

II

THE DEFENDANT'S CLAIM IS UNREVIEWABLE

Applying the foregoing principles to the present case, I would conclude, contrary to the majority, that defense counsel did not implicitly waive the jury instruction claims that the defendant raises on appeal. There is absolutely no indication in the record that defense counsel was aware of the alleged errors but declined to object to them for strategic or other reasons. I agree with the defendant that there is no conceivable reason why, in a case that hinged on a contested eyewitness identification, it would have been beneficial to him not to seek a jury instruction that fully and accurately stated the considerations that might have called the reliability of the eyewitness testimony into doubt. Nor is there any indication, let alone unequivocal evidence, that defense counsel intended to waive the defendant's procedural right to raise such claims on appeal. Accordingly, the state has failed to meet its burden of proving that defense counsel, or the defendant himself, knowingly and voluntarily waived the claims at issue in this appeal.

Although I do not believe that the defendant's unpreserved jury instruction claims were waived or induced, I nevertheless agree with the state that they are unreviewable under Golding . The defendant's claims are that the trial court, in drafting its instructions with respect to eyewitness identification, incorporated certain of the Judicial Branch's standard criminal jury instructions that favored the state but omitted those standard instructions that would have supported a defense of misidentification. It is well established, however, that a trial court's failure to give appropriate eyewitness misidentification instructions “is at most [an instance] of instructional error rather than of constitutional error.” State v. Cerilli , 222 Conn. 556, 567, 610 A.2d 1130 (1992) ; see also State v. Dixon , 318 Conn. 495, 501 n.3, 122 A.3d 542 (2015) (claim regarding instructions on eyewitness identification is not of constitutional magnitude). Accordingly, because Golding review is not available for nonconstitutional claims, I respectfully concur in the judgment.