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F 2.92 n1 Eyewitness Factors: Suggestive ID Procedure.
In addition to the factors listed in CJ 2.92, the jury should be instructed, when appropriate, to consider the suggestiveness of any police conducted identification procedures. Cues in identification procedures or methods of questioning may affect the accuracy of an eye witness identification. (See People v. McDonald (84) 37 C3d 351, 368 [208 CR 236]; see also Grant v. City of Long Beach (9th Cir. 2002) 315 F3d 1081, 1087-88 [photo lineup was unfair and unreliable because photos were not sufficiently similar to each other]; Annotation, Admissibility of evidence of photographic identification as affected by allegedly suggestive identification procedures, 39 ALR3d 1000 and Later Case Service.)
(See FORECITE F 2.92k.)
[Research Note: See FORECITE BIBLIO 2.92]
F 2.92 n2 Eyewitness Factors: “Weapon Focus Effect.”
“Weapon focus effect” can lessen an eyewitnesses’ accuracy. A review of literature on “Weapon Focus Effect” analyzing 175 data sets and 2,027 subjects found that the presence of a weapon impairs a witnesses’ ability to later identify the criminal. (See DeAngelis, APA Monitor (July 1991) (copy of article included in FORECITE Newsletter, October, 1991.) This research could form the basis for admission of evidence and instruction of the jury on “weapon focus effect.” (See People v. Felix (93) 14 CA4th 997, 1009, fn 2 [18 CR2d 113] [evidence that gun was used during robbery “arguably supported” requested instruction on “weapon focus”]; see also generally People v. McDonald (84) 37 C3d 351, 361-69 [208 CR 236]; People v. Palmer (84) 154 CA3d 79, 84-89 [203 CR 474]; People v. Wright (88) 45 C3d 1126, 1141 [248 CR 600].) [See Brief Bank # B-544 for additional briefing.]
[Research Note: See FORECITE BIBLIO 2.92]
F 2.92 n3 Eyewitness Factors: Due Process Challenge Rejected.
In People v. Johnson (92) 3 C4th 1183, 1234-35 [14 CR2d 702], the court rejected the following arguments: that the term “if any” in the factor relating to stress undermines the expert; that the witness certainty factor should have been deleted in light of the expert testimony that witness confidence in identification does not positively correlate with its accuracy; that the court erred in striking the adjective “alleged” before “perpetrator” in the suggestive photo I.D. factor; and that the photo I.D. factor focused on the “fairness” rather than the “suggestiveness” of the photo I.D.
CAVEAT: Counsel should consider whether these issues should be preserved for federal habeas or certiorari. (See generally, FORECITE PG VII.)
[Research Note: See FORECITE BIBLIO 2.92]
F 2.92 n4 Eyewitness Factors: Age Differential.
In People v. Felix (93) 14 CA4th 997 [18 CR2d 113], the court stated that a special instruction on age differential was “arguably supported” by evidence that the victims were younger than the robbers. (Id. at 1009, fn 2.) [Additional briefing on these issues is available to FORECITE subscribers. Ask for Brief Bank # B-544.]
[Research Note: See FORECITE BIBLIO 2.92]
F 2.92 n5 Eyewitness Factors Must Be Requested.
The court is not required to give CJ 2.92 sua sponte. When it would be helpful to the defense, and no alternative pinpoint instruction on this subject is being tendered, counsel must request it. (People v. Sanchez (90) 221 CA3d 74, 76-78 [270 CR 275].)
In addition to CJ 2.92 the defendant may be entitled to a special instruction specifically directing the jury’s attention to other evidence in the record. (People v. Wright (88) 45 C3d 1126, 1141 [248 CR 600].) However, in order to obtain a Wright instruction it must be shown that the additional instruction addresses matters not covered by CJ 2.92. (People v. Frank (90) 51 C3d 718, 739 [274 CR 372].)
See instruction in People v. Palmer (84) 154 CA3d 79, 82, fn 2 [203 CR 474] and court’s comments at p. 89.
RESEARCH NOTES: See Annotation, Eyewitnesses: Necessity of, and prejudicial effect of omitting, cautionary instruction to jury as to reliability of, or factors to be considered in evaluating, eyewitness identification testimony, state cases, 23 ALR4th 1089 and Later Case Service.
[Research Note: See FORECITE BIBLIO 2.92]
F 2.92 n6 Eyewitness Factors: Dog Tracking.
See FORECITE F 2.92c.
[Research Note: See FORECITE BIBLIO 2.92]
F 2.92 n7 Corpus Instruction: Inapplicable To Sentencing Enhancements.
(This entry has been renumbered. See FORECITE F 2.72 n8.)
F 2.92 n8 Eyewitness Factors To Consider: Voice Identification.
(See FORECITE F 2.92d.)
See Annotation, Voice identification: Instructions as to identification of accused by his voice, 70 ALR2d 1019 and Later Case Service.
[Research Note: See FORECITE BIBLIO 2.92]
F 2.92 n9 Eyewitness Testimony Subject To Daubert Rule.
Two 9th Circuit cases have held that expert testimony regarding the reliability of eyewitness identification must be evaluated under the new Daubert rule. (Daubert v. Merrell Dow (93) 509 US 579 [125 LEd2d 469; 113 S.Ct. 2786].) (See U.S. v. Amador-Galvan (9th Cir. 1993) 9 F3d 1414, 1418; U.S. v. Rincon (9th Cir. 1993) 11 F3d 922, 922; see also Kumho Tire Co., Ltd. v. Carmichael (99) 526 US 137 [143 LEd2d 238; 119 SCt 1167] [Daubert applies to all expert testimony, not just scientific opinion].) However, in California, the Supreme Court has held that the Kelly-Frye standard rather than Daubert is the applicable test. (People v. Leahy (94) 8 C4th 587, 612 [34 CR2d 663].)
PRACTICE NOTE: Given the fact that the California Supreme Court has expressly rejected the Daubert Rule (see People v. Leahy (94) 8 C4th 587 [34 CR2d 663]), and Daubert is not a constitutional rule, that rule should not be applicable in California.
[Research Note: See FORECITE BIBLIO 2.92]
F 2.92 n10 Applicability Of Eyewitness Instruction When Defendant Present At Crime Scene.
Typically eyewitness identification issues occur in the context of whether or not the defendant was present when the crime was committed. However, even if the evidence establishes that the defendant was present, eyewitness identification may be a crucial issue if there were multiple defendants and the eyewitness gives testimony as to “which defendant did what.” In such a case, all of the normal considerations regarding eyewitness identification come into play and, therefore CJ 2.91 and CJ 2.92, as modified above, should be given. (See also FORECITE F 2.91c.)
[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-635.]
F 2.92 n11 Eye Witness Instruction Should Not Explain Factors.
In People v. Gaglione (94) 26 CA4th 1291, 1301-03 [32 CR2d 169], the court of appeal rejected an argument that two of the CJ 2.92 factors (certainty of identification and stress) should be further explained to the jury. The court of appeal relied on People v. Wright (88) 45 C3d 1126, 1141 [248 CR 600] in holding that an instruction which explained the influence of the various psychological factors would improperly invade the domain of the jury.
F 2.92 n12 Resource For Eyewitness Testimony Material.
(See Loftus and Doyle, Eyewitness Testimony (2d ed.) § 12.01, p. 356.)
F 2.92 n13 Does Specific Instruction On Identification Increase The Rate Of Conviction?
The leading case of U.S. v Telfaire (DC Cir. 1972) 469 F2d 552 is followed in many federal courts and is endorsed by a number of state courts which utilize similar instructions. (Loftus and Doyle Eyewitness Testimony (2d ed.), § 12.05, p. 363.) [CJ 2.92 is a “Telfaire-type” factor instruction.]
However, there is research on the usefulness of the Telfaire instruction, which confirms the suspicion of many lawyers, that juries which are given the Telfaire instruction convict at a higher rate than juries which are not given the instruction. (See Loftus and Doyle, § 12.06 at p. 365.) The researcher who conducted this study noted a substantially lower conviction rate among the mock jurors by modifying the Telfaire instruction to provide as follows:
“One of the major issues in this case is the identification of the defendant as the person accused of committing a crime. The prosecution has the burden of proving beyond a reasonable doubt, not only that a crime was committed, but that the defendant was the person who committed it.
Identification testimony is an expression of belief by an eyewitness about a person who may have committed a crime. You should keep in mind that identifying a person who committed a crime may be very different from recognizing a friend you see repeatedly. In evaluating the testimony of any eyewitness, you should consider two sets of factors: first, factors present when the incident occurred; second, the factors affecting the later identification.
Factors present when the incident occurred are:
a) how much time was available for observation;
b) how well the scene was lit; and
c) how far the eyewitness was from the incident.
You should also consider how well the eyewitness could see and hear at the time. For example, if a witness is afraid or distracted, his or her capacity to perceive and remember is reduced.
A second set of factors affects later identification. You should consider how much time has passed between the incident and the identification. For example, identification errors increase as time passes. You should also consider the circumstances surrounding the identification. For example, an identification made from a fair lineup of similar individuals is more reliable than other forms of identification such as viewing a suspect alone. You should also consider how certain the eyewitness was in making an identification. Certainty may or may not mean that the identification is accurate.
If, after considering all of these factors, you have a reasonable doubt about the accuracy of the eyewitness’ identification of the defendant as the person who may have committed a crime, then you must find the defendant not guilty.” (Loftus and Doyle, Eyewitness Testimony (2d ed.) § 12.06 at p. 366.)
F 2.92 n14 Eyewitness Factors: Reference To Psychological Studies During Argument.
The question of whether, and to what extent, counsel may discuss or refer to psychological studies which challenge the reliability of eyewitness identification during closing argument has not been directly resolved. However, there are a number of cases which generally discuss the right of counsel to read from court opinions, books, newspapers and magazine articles or to judicially notice matters that are drawn from common experience, history or literature. (See FORECITE PG VI(C)(12) [reference to outside sources during argument].)
F 2.92 n15 Department Of Justice Guidelines On Eyewitness Identification Procedures.
The Dept. of Justice has published a guide for law enforcement officers to use in refining their investigative practices dealing with eyewitness evidence. The guide does not impose mandatory requirements on police agencies, but it may prove useful in challenging the eyewitness procedures utilized in a particular case. The guide is entitled, “Eye Witness Evidence: A Guide for Law Enforcement” by the National Institute of Justice. It is available on the internet at: www.ojp.usdoj.gov/nij/pubs.aspx and is also available to FORECITE subscribers. See Article Bank # A-77.
F 2.92 n16 Failure To Request Expanded Eyewitness Instructions As Ineffective Assistance Of Counsel.
[See Brief Bank # B-868 for briefing on this issue.]
F 2.92 n17 Juror Misconceptions Regarding Cross-Racial Identification.
“‘The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.’” (People v. McDonald (84) 37 C3d 351, 363 [208 CR 236], citing U.S. v. Wade (67) 388 US 218, 228 [18 LEd2d 1149; 87 SCt 1926].) “Stress and cross-racial factors can affect the accuracy of identification.” (Rose v. Superior Court (2000) 81 CA4th 564, 573 [96 CR2d 843]; see also McDonald, 37 C3d at 362; People v. Cardenas(82) 31 C3d 897, 908 [184 CR 165].)
However, jurors may not be familiar with the psychological fact that it is more difficult for people of one race to identify people of a different race. Research has shown that a majority of people do not believe that it is more difficult for people of one race to identify people of a different race. (Loftus & Doyle, Eyewitness Testimony – Civil & Criminal (Lexis, 3rd ed. 1997) § 1-6, p. 7.) Scientific data is to the contrary: “It is well established that there exists a comparative difficulty in recognizing individual members of a race different than one’s own.” (Id. at § 4-9, p. 86; see also State v. Cromedy (NJ 1999) 727 A2d 457, 467-68; People v. Palmer (84) 154 CA3d 79, 85-89 [203 CR 474]; People v. West (83) 139 CA3d 606 [189 CR 36, 37-38]; State v. Long (UT 1986) 721 P2d 483, 495.)
RESEARCH NOTES: New Jersey Supreme Court Task Force on Minority Concerns Final Report, 131 N.J.L.J. 1145 (June, 1992). Five-year study of the need for a cross-racial and cross-ethnic jury instruction was conducted by a group comprised of an appellate judge, trial judges, prosecutors and defense lawyers, social scientists and ordinary citizens. The task force considered professional literature in the area of cross-racial identification and came to the almost unanimous conclusion (the sole dissenter was a county prosecutor) that “a problem exists respecting cross-racial identifications and that … corrective action [should be taken].” (State v. Cromedy (NJ 1999) 727 A2d 457, 465.) [See Article Bank # A-87 for a copy of the relevant portion of the New Jersey Supreme Court Task Force on Minority Concerns Final Report.]
F 2.92 n18 Eyewitness Identification: Death Penalty Should Not Be Imposed Where Guilt Is Based Solely On Testimony Of A Single Eyewitness.
The 14-member Illinois Commission on Capital Punishment, appointed by Republican Governor George Ryan, released its list of 85 recommendations on April 15, 2002. The suggested changes resulted from the nation’s most thorough review of the death penalty. The reforms aim to protect innocent inmates from execution and to insure improved fairness for defendants facing capital charges. Among the 85 recommended reforms, the Commission called for:
– Videotaping of all interrogations of capital suspects conducted in a police facility.
– Reducing the number of crimes eligible for a death sentence from 20 to five (multiple murder, murder of a police officer or firefighter, murder of an officer or inmate of a correctional institution, murder committed to obstruct the justice system, or torture murder).
– Forbidding capital punishment in cases where the conviction is based solely on the testimony of a single eyewitness.
– Barring capital punishment in cases where the defendant is mentally retarded.
– Establishing a state-wide commission — comprised of the Attorney General, three prosecutors, and a retired judge
– to confirm a local state’s attorney’s decision to seek the death penalty.
– Intensifying the scrutiny of testimony provided by in-custody informants during a pre-trial hearing to determine the reliability of the testimony before it is used in a capital trial.
– Requiring a trial judge to concur with a jury’s determination that a death sentence is appropriate; or, if not, sentence the defendant to natural life.
F 2.92 n19 Eyewitness Expert (Mc Donald): Exclusion Justified Only When Other Evidence “Substantially Corroborates” The Identification.
In People v. Jones (2003) 30 C4th 1084, 1111-12, the Supreme Court rejected the prosecution’s argument that an eyewitness expert may be excluded under People v. McDonald (1984) 37 C3d 351 anytime the “eyewitness identification [is] corroborated by other independent evidence of the crime….” (People v. Sanders (1995) 11 C4th 475, 509.) In Jones the court clarified this language from Sanders as follows:
“But this language from Sanders cannot be viewed as limiting the holding of [McDonald] to cases in which, apart from the eyewitness identification, there is no other evidence whatever linking defendant to the crime: Exclusion of the expert testimony is justified only if there is other evidence that substantially corroborates the eyewitness identification and gives it independent reliability.” (Jones, 30 C4th at 1112.)
F 2.92 n20 Improper To Comment On Failure Of Defense To Request A Lineup.
In eyewitness identification cases an accused may request a pretrial lineup. (See Evans v. Superior Court (74) 11 C3d 617, 626.) However, contrary to People v. Lewis (2004) 117 CA4th 246, defense counsel’s failure to request a lineup under Evans does not reasonably permit an inference that the police procedures were accurate or reliable or that the defendant was satisfied with the identification process. This is so because counsel may have reasonably concluded that an Evans lineup would itself be unreliable due to the taint of the suggestive police procedures. It is well established that once a witness has made an identification as a result of suggestive procedures any subsequent identification may also be tainted. (See FORECITE 2.92k; see also FORECITE 2.92 n1.)
F 2.92a Eyewitness Failing To Attend Pretrial Lineup
*To be added at end of CJ 2.92:
You should also consider the failure of the eyewitness to attend the pretrial lineup despite being requested to attend. You should view the witnesses’ testimony as to eyewitness identification with caution, as it may be less reliable than if [he] [she] had attended the aforesaid lineup.
Points and Authorities
In People v. Fernandez (90) 219 CA3d 1379, 1384 [269 CR 116], the court addressed the question of the appropriate sanction to be applied when certain witnesses fail to attend a court-ordered lineup which has been requested by the defendant. The court utilized People v. Zamora (80) 28 C3d 88, 99 [167 CR 573], to conclude that suppression of the in-court identification “is too harsh.” (Fernandez at 1385.)
However, it is appropriate to give an instruction similar to the one set forth above. (Fernandez at 1385.)
Improper or inadequate instruction upon witness credibility implicates the defendant’s state (Art. I § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
F 2.92b Factors Not Specified in CALJIC 2.92
* Modify CJ 2.92 to include the following:
1. The length of time the witness saw the perpetrator;
2. The positions and distances between the witness and the perpetrator at various times;
3. The lighting conditions;
4. The presence or absence of any circumstances that might focus or distract the witness’ attention;
5. Fairness of the photographic lineup;
6. Whether a perpetrator was familiar to the witness;
7. Whether a perpetrator was unfamiliar to the witness;
8. Testimony of an expert regarding acquisition, retention or retrieval of information presented to the senses of a witness; and/or
9. Whether the witness’ memory was or was not affected by the intervening time and events.
10. At time of arrest, defendant was not dressed in clothing matching the description of the perpetrator.
Points and Authorities
People v. Johnson (92) 3 C4th 1183, 1230-34 [14 CR2d 702] provides authority for instruction upon several factors not specifically enumerated in CJ 2.92. The court concluded that the instruction given in Johnson “met the requirements set forth in [Wright]; [and] it focused the jury’s attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors supported by the evidence, without improperly invading the domain of either jury or expert witness.” (Johnson 3 C4th at 1234.) Hence the first nine factors above, which the Johnson instruction added to CJ 2.92 (Johnson 3 C4th at 1230, fn 12), should be added upon request. (See also, People v. Fudge (94) 7 C4th 1075, 1110 [31 CR2d 321] [error to refuse defendant’s special instruction relating to eyewitness expert testimony].) As to the tenth factor above, see Dey v. Scully(E.D.N.Y. 1997) 952 FSupp 957.
State v. Dyle (Tenn 1995) 899 SW2d 607 which promulgated an instruction specifying the following as some of the factors which the jury may consider: “(1) The witness’ capacity and opportunity to observe the offender. This includes, among other things, the length of time available for observation, the distance from which the witness observed, the lighting, and whether the person who committed the crime was a prior acquaintance of the witness; (2) The degree of certainty expressed by the witness regarding the identification and the circumstances under which it was made, including whether it is the product of the witness’ own recollection; (3) The occasions, if any, on which the witness failed to make an identification of the defendant, or made an identification that was inconsistent with the identification at trial; and (4) The occasions, if any, on which the witness made an identification that was consistent with the identification at trial, and the circumstances surrounding such identification.”)
Improper or inadequate instruction upon witness credibility implicates the defendant’s state (Art. I § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
CALCRIM INSTRUCTION ON THIS POINT: See CALCRIM 315 [Eyewitness Identification].
(See also FORECITE F 2.92i.)
NOTES
Deletion of the Term “Alleged.” Johnson’s conclusion that deletion of the word “alleged” before the term “perpetrator” was in part founded upon defense counsel’s statement that there was no need for the word “alleged.” Hence, even though deletion of “alleged” from the instruction may not “lighten the prosecution’s burden of proof” (Johnson 3 C4th at 1233), Johnson does not hold that the term should be deleted in a case where defense counsel specifically objects to such deletion.
F 2.92c
Identification: Dog Tracking
*Modify CJ 2.92 as follows:
You have heard evidence in this case regarding the use of a dog in the apprehension and identification of the alleged perpetrator of the offense charged herein.
In determining the weight, if any, to be given this testimony, you are instructed to consider the following factors:
1. Whether or not the handler was qualified by training and experience to use the dog.
2. Whether or not the dog was adequately trained in tracking humans.
3. Whether or not the dog has been found reliable in tracking humans.
4. Whether the dog was placed on the track where circumstances have shown the guilty party to have been.
5. Whether or not the trail had become stale or contaminated.
Before you may consider the dog tracking evidence, you must conclude that there is other corroborative evidence which supports the accuracy of the tracking identification.
Points and Authorities
When the defendant has been identified by use of dog tracking evidence, the court must instruct the jury that the identification requires corroboration. The corroboration need not “independently link” the accused to the crime, but it must support the accuracy of the tracking. (People v. Gonzales (90) 218 CA3d 403, 407-14 [267 CR 138]; see also Grant v. City of Long Beach (9th Cir. 2002) 315 F3d 1081, 1086 [recognizing “the importance of dogs in police investigations” but adhering to requirement of reliability as a safeguard against faulty canine identifications; jury had good reason to question the reliability of novice tracking dog’s “identification”].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
F 2.92d Factors to Consider In Proving Identity By Voice Identification
*Modify CJ 2.92 as follows: [added language is capitalized; deleted language is between <<>>]:
<<Eyewitness>> VOICE IDENTIFICATION testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crime[s] charged. YOU MUST VIEW VOICE IDENTIFICATION TESTIMONY WITH CAUTION AND EVALUATE IT CAREFULLY. In determining the weight to be given <<eyewitness>> VOICE identification testimony, you should consider the believability of the <<eye>> witness as well as other factors which bear upon the accuracy of the witness’ ALLEGED identification of the defendant’S VOICE, including, but not limited to, any of the following:
1. [THE STRESS, IF ANY, TO WHICH THE WITNESS WAS SUBJECT AT THE TIME [HE] [SHE] HEARD THE ALLEGED PERPETRATOR;]
2. [THE WITNESS’ CAPACITY TO MAKE A VOICE IDENTIFICATION;]
3. [THE PERIOD OF TIME BETWEEN THE ALLEGED CRIMINAL ACT AND THE VOICE IDENTIFICATION;]
4. [THE LENGTH OF TIME THE WITNESS HEARD THE ALLEGED PERPETRATOR’S VOICE;]
5. [THE POSITIONS AND DISTANCES BETWEEN THE WITNESS AND THE PERPETRATOR AT VARIOUS TIMES;]
6. [THE PRESENCE OF BACKGROUND NOISE OR OTHER LIMITING CONDITIONS;]
7. [THE PRESENCE OR ABSENCE OF ANY CIRCUMSTANCES THAT MIGHT FOCUS OR DISTRACT THE WITNESS’ ATTENTION;]
8. [WHETHER THE ALLEGED PERPETRATOR’S VOICE WAS FAMILIAR OR UNFAMILIAR TO THE WITNESS;]
9. [WHETHER THE WITNESS WAS ABLE TO IDENTIFY THE ALLEGED PERPETRATOR IN A VOICE LINEUP;]
10. [THE FAIRNESS OF THE VOICE IDENTIFICATION LINE-UP;]
11. [THE EXTENT TO WHICH THE WITNESS IS EITHER CERTAIN OR UNCERTAIN OF THE VOICE IDENTIFICATION;]
12. [WHETHER THE WITNESS’ VOICE IDENTIFICATION IS IN FACT THE PRODUCT OF [HIS] [HER] OWN RECOLLECTION;]
13. [TESTIMONY OF AN EXPERT REGARDING ACQUISITION, RETENTION, OR RETRIEVAL OF INFORMATION PRESENTED TO THE SENSES OF A WITNESS;]
14. [WHETHER THE WITNESS’ MEMORY WAS OR WAS NOT AFFECTED BY INTERVENING TIME AND EVENTS;]
15. [ANY OTHER EVIDENCE RELATING TO THE WITNESS’ ABILITY TO MAKE A VOICE IDENTIFICATION;]
Points and Authorities
Generally, the defendant has the right to instructions which relate a defense theory to an element of the charge. When the defense theory is mistaken eyewitness identification, the defendant has a right to instructions in the form of CJ 2.92 which relate the defense theory to the prosecution’s burden of proving identity beyond a reasonable doubt. (See People v. Wright (88) 45 C3d 1126, 1141-43 [248 CR 600].)
These principles should also be applicable when the defense theory is mistaken voice identification. The concerns of mistaken identity by voice are no less crucial than as to eyewitness identification. (See Garcia v. Superior Court (91) 1 CA4th 979, 988 [2 CR2d 707] [right to voice ID lineup subject to same considerations as eyewitness lineup]; see also, People v. Molina (81) 116 CA3d 223, 228 [172 CR 12] [fairness of pretrial voice ID subject to same analysis as eyewitness ID].) Hence, modified versions of CJ 2.91 and CJ 2.92 should be given to pinpoint the defense theory of mistaken voice identification. (See also People v. Clark (92) 3 C4th 41, 137 [10 CR2d 554] [“As with eyewitness identification, some factors pertaining to voice identification might not be widely known or may be counter intuitive”].)
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
RESEARCH NOTES:
See Annotation, Voice identification testimony, 17 ALR5th 851 and Later Case Service.
See Annotation, Admissibility Of Evidence Of Voice Identification Of Defendant As Affected By Allegedly Suggestive Voice Lineup Procedures. 55 ALR5th 423 and Later Case Service.
F 2.92e Identification: Alternative Form
*Modify CJ 2.92 when appropriate as follows:
One of the issues in this case is the identification of the defendant as the person who committed the crime. The state has the burden of proving identity beyond a reasonable doubt. Identification testimony is an expression of belief or impression by the witness, and its value may depend upon your consideration of several factors. Some of the factors which you may consider are:
1. The witness’ capacity and opportunity to observe the offender. This includes, among other things, the length of time available for observation, the distance from which the witness observed, the lighting, and whether the person who committed the crime was a prior acquaintance of the witness;
2. The degree of certainty expressed by the witness regarding the identification and the circumstances under which it was made, including whether it is the product of the witness’ own recollection;
3. The occasions, if any, on which the witness failed to make an identification of the defendant, or made an identification that was inconsistent with the identification at trial; and
4. The occasions, if any, on which the witness made an identification that was consistent with the identification at trial, and the circumstances surrounding such identification.
Again, the state has the burden of proving every element of the crime charged, and this burden specifically includes the identity of the defendant as the person who committed the crime for which he or she is on trial. If after considering the identification testimony in light of all the proof you have a reasonable doubt that the defendant is the person who committed the crime, you must find the defendant not guilty.
Points and Authorities
The above instruction was promulgated by the Tennessee Supreme Court in State v. Dyle (Tenn 1995) 899 SW2d 607.
F 2.92f Eyewitness Factors: Prior Failure To Identify Defendant
*Add to CJ 2.92:
Whether on any occasion before trial the witness failed to identify the defendant or identified someone else as the offender.
Points & Authorities
CJ 2.92 instructs the jury to consider “whether the witness was able to identify the alleged perpetrator in a photograph or physical lineup.” This instruction fails to specifically direct the jury toward consideration of any failure by the witness to identify the defendant prior to trial. The above instruction properly focuses the jury on this factor. (People v. Fudge (94) 7 C4th 1075, 1109-1110 fn 8 [31 CR2d 321].)
Improper or inadequate instruction upon witness credibility implicates the defendant’s state (Art. I § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See FORECITEPG VII(C).]
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
CALCRIM INSTRUCTION ON THIS POINT: See CALCRIM 315 [Eyewitness Identification].
(See also FORECITE F 2.92i.)
F 2.92g Eyewitness Identification Must Be Viewed With Caution
*Modify CJ 2.92 as follows:
You must view eyewitness testimony with caution and evaluate it carefully.
Points & Authorities
The above language was included in the eyewitness identification instruction given in People v. Johnson (92) 3 C4th 1183, 1230 , fn 12 [14 CR2d 702] which the court held to have correctly instructed the jury. (Johnson, 3 C4th at 1234.)
Improper or inadequate instruction upon witness credibility implicates the defendant’s state (Art. I § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See FORECITEPG VII(C).]
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 2.92h
Eyewitness Identification: How Jury Should Consider The Factors
*Alternative to first paragraph of CJ 2.92:
Many factors can affect the accuracy of eyewitness identification. In determining the weight to be given the eyewitness identification testimony in this case, you should first consider the factors I have previously mentioned that may affect the testimony of all witnesses generally. But you should consider other factors that may particularly affect eyewitness identification testimony. Some are known to you from personal experience, while others have been the subject of specific study and proof. Among the more important factors to consider are the following: _____ [insert factors] _____.
* Add at end of CJ 2.92:
I remind you that no single factor determines the reliability of an eyewitness identification. The presence of one or more factors in a particular case may offset the effect of others. In weighing the identification testimony of an eyewitness, you should, therefore, evaluate all the relevant evidence, both positive and negative, that may bear on the accuracy of that testimony.
Points and Authorities
The above language was included in the defendant’s proposed instruction in People v. Fudge (94) 7 C4th 1075, 1109-10, fn 8, [31 CR2d 321] which the California Supreme Court held was improperly refused by the trial court. (Fudge, 7 C4th at 1110.)
Improper or inadequate instruction upon witness credibility implicates the defendant’s state (Art. I § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See FORECITE>PG VII(C).]
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 2.92i
Eyewitness Identification: Consideration Of Whether The Witness Changed
His Or Her Mind About The Identification
*Add to CJ 2.92:
Did the witness ever change his or her mind about the identification?
Points and Authorities
See FORECITE F 2.92f. See also Judicial Council of California Proposed Instruction No. 4.15 [Eyewitness Identification]. [See Brief Bank # B-868 for additional briefing on this issue.]
F 2.92j
Eyewitness Identification:
Instruction As Sanction For Loss Of Original Photographs
*Add to CJ 2.92:
You have heard evidence that ___________(name of witness) failed to identify the defendant in a photo lineup. The prosecution has [lost] [destroyed] the original photos from the photo lineup, and, therefore, you have not been able to see them. Because the prosecution is responsible for the loss of this evidence, it would be unfair for you to speculate that the original photos favored the prosecution. Therefore, you must assume that the photograph of the defendant in the lineup was an accurate likeness of [him] [her] and that ___________(name of witness) failed to identify [him] [her] because she did not recognize [him] [her].
Points and Authorities
Criminal defendants are constitutionally assured “a meaningful opportunity to present a complete defense.” (California v. Trombetta (84) 467 US 479, 485 [81 LEd2d 413; 104 SCt 2528].) The guarantee arises from either the Confrontation Clause or the Due Process Clause. (See U.S. v. Lopez-Alvarez (9th Cir. 1992) 970 F2d 583, 588; see also generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [recognizing importance of 6th Amendment right to confrontation].) The guarantee applies to criminal defendants in state court. (See Trombetta, 467 US at 485.) It may be violated when a defendant is prevented from presenting evidence important to his defense. (See e.g., id. at 488-89 [failure to preserve breath samples that might have provided grounds for impeachment]; Lopez-Alvarez, 970 F2d at 588 [limitation on cross-examination of prosecution witness about hearsay statements that could have cast doubt on his credibility]; see also Gilmore v. Taylor (93) 508 US 333 [124 LEd2d 306; 113 SCt 2112] and cases cited therein.)
However, especially when the prosecution has not acted in bad faith, “courts enjoy a large measure of discretion in determining the appropriate sanction that should be imposed because of the destruction of discoverable records and evidence. `[N]ot every suppression of evidence requires dismissal of charges … The remedies to be applied need be only those required to assure the defendant a fair trial.’ ” (People v. Zamora (1980) 28 C3d 88, 99; see also F 2.014 n2 & n3.)
Thus, when the prosecution has lost or destroyed the original photo lineup, it is appropriate to instruct the jurors to preclude any prosecutorial suggestion “that [the witness] failed to identify defendant from the lost photograph because it was a poor likeness, and that it would be unfair for the jury to draw any such conclusion.” (People v. Yeoman (2003) 31 C4th 93, 126.)
F 2.92k
In-Court Identification Must Be Independent
Of Out-Of-Court Identification Procedures
*Add to CJ 2.92:
SAMPLE INSTRUCTION # 1:
In weighing an eyewitness identification made by a witness, consider any pretrial procedures which may have suggested to the witness that the defendant should be chosen.
SAMPLE INSTRUCTION # 2:
Unless the identification made in court resulted from the observations or perceptions of the witness during the commission of the crime rather than being the product of an impression gained during the pretrial procedures, the in-court identification must not be given any weight. The ultimate issue of the trustworthiness of an in-court identification is for you to decide.
[Cf. New Jersey Model Jury Charges – Criminal Chap. 1 (II) Other Non-2C Charges: [Identification] ¶ 4 (New Jersey ICLE 4th ed. 1997).]
SAMPLE INSTRUCTION # 3:
You should also consider the circumstances of the earlier identification that occurred outside of court. For example, consider how that earlier identification was conducted, and how much time passed after the alleged crime before the identification was made.
[Source: 6th Circuit Pattern Instructions (1991) 7.11, ¶ 3.]
SAMPLE INSTRUCTION # 4:
You may also consider the circumstances surrounding the later identification itself including, for example, the manner in which the Defendant was presented to the witness for identification, and the length of time that elapsed between the incident in question and the witness’ identification of the Defendant.
[Source: 11th Circuit Pattern Jury Instructions (2003) SI 3, ¶ 3.]
SAMPLE INSTRUCTION # 5:
You should also consider whether the identification made by the witness after the offense was the product of [his] [her] own recollection. You may consider, in that regard, the strength of the identification, and the circumstances under which the identification was made, and the length of time that elapsed between the occurrence of the crime and the next opportunity the witness had to see defendant.
[You may also take into account that an identification made by picking the defendant out of a group of similar individuals is generally more reliable than one which results from the presentation of the defendant alone to the witness.]
If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to [him] [her] for identification, you should scrutinize the identification with great care.
[You may take into account any occasions in which the witness failed to make an identification of defendant, or made an identification that was inconsistent with [his] [her] identification at trial.]
[Source: 8th Circuit Model Instructions (2000) 4.08, ¶ 4-7.]
Points and Authorities
The risk of inaccuracy and error in eyewitness identification evidence has long been recognized. (See e.g., United States v. Wade (67) 388 US 218, 228-229 [87 SCt 1926, 1932-1933; 18 LEd2d 1149]; People v. Whalen (NY 1983) 59 NY2d 273, 278 [464 NYS2d 454; 451 NE2d 212].) “Of the first 100 wrongful convictions proven by DNA technology, over 80 percent relied to an important extent on sincere, confident, mistaken eyewitnesses.” (“2 Stories Of Eyewitness Error,” by James M. Doyle, NACDL Champion (Nov. 2003), p. 24 [citing “Actual Innocence,” by Jim Dwyer, Barry Scheck and Peter Neufeld (Doubleday, 2000)].)
A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. (United States v. Wade, supra, 388 US at 228; see also e.g., Dispensa v. Lynaugh (5th Cir. 1988) 847 F2d 211, 220 [standing behind a suspect was suggestive]; Williams v. Armontrout (8th Cir. 1989) 877 F2d 1376 [improper show-up procedure].)
Post-event experiences and information can “dramatically affect” memory of the original event. (Loftus & Doyle, Eyewitness Testimony – Civil & Criminal (Lexis, 3rd ed. 1997) § 3-4, p. 54; see also Doyle, “2 Stories Of Eyewitness Error,” by James M. Doyle, NACDL Champion (Nov. 2003), pp. 24-27 [discussing eyewitness testimony as “contaminated trace evidence”]; People v. McDonald (84) 37 C3d 351, 368; see also Annotation, Admissibility of Evidence of Photographic Identification as Affected by Allegedly Suggestive Identification Procedures, 39 ALR3d 1000.) Hence, it is crucial to discover any post-event influence, including discussions with the police and pretrial identification procedures, to “learn how the witness came to construct and believe in the current version.” (Loftus & Doyle, Eyewitness Testimony – Civil & Criminal (Lexis, 3rd ed. 1997) § 3-4, p. 57; see also Arnolds, Carroll, Lewis & Seng, Eyewitness Testimony: Strategies And Tactics (West, 1984) Chapter 3, “Preliminary Consideration.”)
Pretrial identification procedures can have a dramatic impact on the in-court identification. For example, cues in identification procedures or methods of questioning may affect the accuracy of an eyewitness identification. (SeePeople v. McDonald (84) 37 C3d 351, 368; see also Annotation, Admissibility of Evidence of Photographic Identification as Affected by Allegedly Suggestive Identification Procedures, 39 ALR3d 1000.) “Aside from the selection of distracters to include in a lineup or photo spread, another important consideration is the instructions given to the witness. It is generally agreed that it is a bad idea to explicitly lead a witness to believe that a suspect is in the lineup (“We have a suspect.”) It is far better to suggest that the actual offender might be absent from the lineup (“He may or may not be there.”)” (Loftus & Doyle, Eyewitness Testimony – Civil & Criminal (Lexis, 3rd ed. 1997) § 4-6, p. 82.)
“…[A]n eyewitness is particularly likely to accept a misleading hint concerning an identification proceeding when the source of the hint is someone whom the eyewitness has some reason to believe is relatively expert concerning the situation. Classically, this situation is created when a police officer who the witness knows has been involved in an extensive investigation suggests that the officer’s favorite candidate is in a lineup.” (Ibid.)
It follows logically that where there has been a lineup or other pretrial identification procedure, the trier of facts should also be permitted to consider the suggestiveness of that procedure, and the extent to which it may have influenced the witness’ present identification, for “it is a matter of common experience that, once a witness has picked out the accused at the lineup, he is not likely to go back on his word later on, so that in practice the issue of identity may … for all practical purposes be determined there and then, before the trial.” (United States v. Wade, supra, 388 US at 229; Loftus & Doyle, Eyewitness Testimony – Civil & Criminal (Lexis, 3rd ed. 1997) § 4-5(b), p. 81 [one study concluded that eyewitnesses who publicly stated their choice stayed with that choice, even if incorrect, seventy-eight percent of the time]; Williams & Hammelmann, Identification Parades, Part 1 [1963] Crim.L.Rev. 479, 482.)
“Where a witness testifies at trial regarding an identification of the accused, whether that testimony describes an in-court identification or a pretrial identification procedure, the trier of facts must be permitted to consider whether such testimony is worthy of belief, or whether it is lacking in reliability due to the suggestiveness of that identification procedure or of some other procedure employed prior thereto. To that end, the trier of fact may properly be presented with proof relevant to the suggestiveness of any such procedures. `This includes evidence of pre-lineup and post-lineup suggestions as well as all the factors which enter into the determination of fairness of the lineup conduct, the photo identification procedures, and the supporting and negating factors of independent source or reliability.’” (Sobel, Eyewitness Identification, (2nd Ed. 1984, West) § 9.3, p. 9-13.)
F 2.92l Eyewitness Identification: Certainty Does Not Mean Accuracy.
*Add to CJ 2.92:
When a witness makes an out-of-court identification, he is more likely to repeat the identification in court and to do so with a greater level of certainty (whether or not the original identification was accurate). This is so because the witness will now remember the accused from the prior lineup, and his identification has been ‘validated’ by the fact the person whom he identified has been formally accused by the government and is on trial.
Also, when a witness is asked to make a one-person show-up (identification of the accused) in the court room, the situation is highly suggestive.
Points and Authorities
People v. Ward (2005) 36 C4th 186 [assuming CJ instruction on certainty was erroneous].
