¶1dissenting. I agree that the majority’s position is consistent with past precedent of our Supreme Court. A review of the relevant cases, however, reveals that the argument set forth in this dissent has not been addressed by our Supreme Court. In light of the passage of time since the enactment of General Statutes § 54-84 (b) and the particular con*326siderations set forth in this opinion, I believe that our Supreme Court would be likely to interpret this statute in a manner consistent with the position set forth below. Accordingly, I dissent.
¶2The primary issue in this case is identical to that raised in State v. Burke, 182 Conn. 330, 438 A.2d 93 (1980): “Whether the trial court’s failure to give the ‘no unfavorable inference’ instruction mandated by General Statutes § 54-84 (b) is reversible error even when the defendant’s trial counsel failed to object to its omission from the charge delivered by the trial court.” In Burke, the court found reversible error, but noted that the statute had been in effect for four months, and expressly limited its holding to the precise facts of the case. Id., 332 n.3. Furthermore, the court noted that “[hjad there been any indication that defense counsel had made a strategic decision to sit silently at the close of the charge, and then raise this claim of error if the verdict proved unpalatable . . . we would have refused to review the defendant’s claim.” Id. Following this reasoning and the elaborations below, I would hold that when a defendant fails to object to a court’s omission of a no adverse inference instruction from its charge, the defendant has impliedly ratified the charge, thereby providing the functional equivalent of a request to the court that it omit the no adverse inference instruction from its charge.
¶3Because this issue presented is one of statutory construction,
¶4Our next question is to determine how the defendant has exercised that option. Initially, it must be noted that the “no adverse inference” charge concerns a matter of paramount importance in every defense attorney’s trial strategy. Every defense attorney must ask himself whether it is in his client’s best interests for his client to testify on his own behalf. As part of that decision defense counsel must inevitably consider the impact on the jury if his client does not testify — in short, whether that jury will draw unfavorable inferences from the refusal of his client to testify. The upshot, therefore, is that the very matter covered by the adverse inference instruction will be considered, and considered thoroughly, by the defense counsel when conducting his client’s defense. Of course, the defense attorney may not actually desire that the charge be given, since he may decide that the charge itself only calls greater attention to the defendant’s decision not to testify. He will nevertheless be highly aware of the fact that, if his client refuses to testify, a jury might draw adverse inferences.
¶5This high awareness of the defense attorney on this matter is critical in determining whether a defendant has exercised his option under General Statutes § 54-84 (b) to have the no adverse inference instruction omitted from the charge. The point cannot be overem*328phasized that the trial court’s failure to charge on this subject is not a failure to instruct on some obscure, esoteric, or subtle point of law, but on a matter at the forefront of a defense attorney’s consciousness when preparing his trial strategy. Because of this high awareness, I would conclude that when defense counsel elects by his silence that the instruction be given and then fails to object to its omission from the charge, his failure may reasonably and logically be construed as an intentional exercise of his option under the statute that the instruction not be given.
¶6The pitfalls of a contrary interpretation are obvious. As the law is currently interpreted, a defendant may elect by his silence that the instruction be given, sit silently where the court fails to give it, and, if the outcome is unfavorable, be guaranteed a new trial. Such a result is contrary to our basic theories of jurisprudence; see State v. Burke, supra; and finds no support in the legislative history of General Statutes § 54-84 (b). Furthermore, the majority’s interpretation of General Statutes § 54-84 (b) places a defense counsel in an ethical dilemma between his duty to the court and his duty to his client. If he, as a matter of tactics, intentionally remains silent after the court has omitted the anticipated charge, he promotes his client’s interests by ensuring him an automatic reversal of an unfavorable verdict. By this same conduct, however, he also violates his duty as an attorney not to engage in conduct that is prejudicial to the administration of justice. See Rules of Professional Conduct, Rules 3.1,3.2,3.3, State v. Burke, supra. The temptation to violate the ethical code will be all the greater in this case because the violation would be virtually incapable of discovery. While the court in State v. Burke, supra, stated that it would refuse to review a claim if it appeared that the defendant’s silence was a tactical maneuver designed to foster appellate reversal, it is folly to believe that an *329appellate court could ever make such a determination. An appellate court may only consider those matters contained in the record. Practice Book § 4061 (formerly § 3060D); State v. Sinclair, 197 Conn. 574, 586 n.14, 500 A.2d 539 (1985). It is hardly conceivable that a defense counsel’s motives will be contained in the record.
¶7The majority’s statement that trial counsel assured us in oral argument that his silence was inadvertent and not a trial tactic only highlights the problems of its interpretation. Just as defense counsel should not be put in a position of choosing between his client’s interests and his duty to the court, an appellate court should not be put into the position of determining a defense counsel’s credibility. The point is not whether or not we believe the defense counsel’s assertions in this case, but that we are forced to make this decision at all. A statute should not be interpreted in a manner which gives defense counsel incentive to sidestep the law and makes us decide whether his motives were pure.
¶8Applying this interpretation to the present case, I would hold that the defendant’s failure to object to the court’s omission of the no adverse inference instruction from its charge amounted to a consent to and a ratification of the charge and was the functional equivalent of a request to the court that it not include the no adverse inference instruction in its charge. Accordingly, I dissent and would find no error.
¶9 As the majority makes clear, the defendant has a constitutional right to a no adverse inference instruction only if he asks for it. Since the defendant made no request here, no constitutional right was violated, and our concern is only whether his rights under General Statutes § 54-84 (b) were violated.