SERIES 300 EVIDENCE
F 315.1.2 Eyewitness Identification: Honest Mistake
TABLE OF CONTENTS
F 315.1.2 Inst 1 Eyewitness Identification: Honest Mistake Pinpoint Instructions
F 315.1.2 Inst 2 Eyewitness Identification: Honest Mistake [CC 3400 Pinpoint Format]
F 315.1.2 Inst 3 (a-c) Additional Honest Mistake Instructions
Return to Series 300 Table of Contents.
F 315.1.2 Inst 1 Eyewitness Identification: Honest Mistake
*Add at end of CC 315, paragraph 1 [CC 105/CACI 107 Format]:
People often honestly forget things or make mistakes about what they remember. Therefore, crime victims sometimes make honest mistakes in their identification of the person alleged to have committed the crime. [This is so even if the crime victim is certain about the identification.]
[For additional honest mistake instructions see FORECITE F 315.1.2 Inst 3.]
Points and Authorities
Propriety Of Honest Mistake Instruction.—Instructing the jurors regarding honest mistakes in remembering past events is appropriate. (See CC 226, paragraph 3.)
Certainty Doesn’t Correlate With Reliability—See 315.1.3 Inst 1.
Right To Defense Theory Instruction—See FORECITE F 315.1.2 Inst 2 and Inst 3.
“Often” vs. “Sometimes”—CALCRIM 105 uses “sometimes” while CACI 107 and 5003 use “often.” Often is the more accurate plain English translation. (See FORECITE F 105.4 Inst 1.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 5.11 [Eyewitness Identification]
FORECITE CG 5.12 [Factors To Consider Not Exclusive]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 315.1.2 Inst 2 Eyewitness Identification: Honest Mistake [CC 3400 Pinpoint Format]
Alternative a [CALCRIM 3400 Format]:
The prosecution must prove that the defendant is the person who _______________ <description of alleged crime e.g., committed the alleged robbery>. The defendant contends (he/she) did not commit the alleged _______________ <description of alleged crime e.g., committed the alleged robbery> and that _______________ <name of eyewitness> mistakenly identified (him/her) as the culprit. The people must prove that the identification of the defendant was accurate and truthful. The defendant does not need to prove that the identification was mistaken. If you have a reasonable doubt whether _______________ <name of eyewitness> accurately and truthfully identified the defendant as the culprit, you must find (him/her) not guilty.
Alternative b:
The burden is on the prosecution to prove beyond a reasonable doubt that the defendant is the person who committed the crime with which [he] [she] is charged. Hence, the prosecution must prove beyond a reasonable doubt that the defendant was accurately identified.
If, after considering the circumstances of the identification [and any other evidence in this case], you have a reasonable doubt about whether defendant was correctly identified, you must give the defendant the benefit of that doubt and find [him] [her] not guilty.
[See U.S. v. Hodges (7th Cir. 1975) 515 F2d 650, 652; see also California Jury Instructions—Criminal, CALJIC 2.91 [Burden Of Proving Identity Based Solely On Eyewitnesses] (West, 6th Ed. 1996).]
Points and Authorities
Right To Pinpoint Instruction On Defense Theory—“A defendant is entitled, on request, to a nonargumentative instruction that direct attention to the defense theory of the case and relates it to the state’s burden of proof.” (CC 220, Related Issues; see also CC 1150, Bench Notes [“If necessary for the jury’s understanding of the case, the court must instruct sua sponte on a defense theory in evidence …” ]; People v. Gurule (2002) 28 C4th 557, 660 [“criminal defendant has the right to instructions that pinpoint the theory of the defense case” ]; U.S. v. Pierre (9th Cir. 2001) 254 F3d 872 [right to defense theory instruction relating defense to burden of proof].) “What is pinpointed … is the specific evidence on which the theory of the defense ‘focuses’ which is related to reasonable doubt. [Internal citations and quote marks omitted.]” (CC 220, Related Issues.)
Such an instruction may “‘direct attention to evidence from … which a reasonable doubt could be engendered.’ [Citation].” (People v. Hall (1980) 28 C3d 143, 159; People v. Simon (1995) 9 C4th 493, 500-01 [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; People v. Sears (1970) 2 C3d 180, 190.)
This instruction is required by the federal constitutional rights to a fair trial by jury and due process (Fifth, Sixth and Fourteenth Amendments) which require that the defendant be given a “fair opportunity to defend” and which place the burden on the prosecution to prove every element of the charge beyond a reasonable doubt. (See In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368]; Jackson v. Virginia (1979) 443 US 307 [99 SCt 2781; 61 LEd2d 560]; see also Constitutional Grounds 4.5.)
These rights are implicated if the jury improperly believes that the defendant has the burden of proving all or part of a defense theory which negates an element of the charge. (See Carella v. California (1989) 491 US 263, 265-66 [109 SCt 2419; 105 LEd2d 218]; Sandstrom v. Montana (1979) 442 US 510, 521-24 [99 SCt 2450; 61 LEd2d 39].)
The due process, compulsory process, confrontation, and trial by jury clauses of the 5th, 6th and 14th amendments to the federal constitution mandate that “as a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” (Mathews v. United States (1988) 485 US 58, 63 [99 LEd2d 54; 108 SCt 883] [citing Stevenson v. United States (1896) 162 US 313 [40 LEd 980; 16 SCt 839] [refusal of voluntary manslaughter instruction in murder case where self defense was primary defense constituted reversible error]; see also Keeble v. U.S. (1973) 412 US 205, 213 [36 LEd2d 844; 93 SCt 1993]; People v. Gurule (2002) 28 C4th 557, 660 [“criminal defendant has the right to instructions that pinpoint the theory of the defense case” ]; U.S. v. Unruh (9th Cir. 1987) 855 F2d 1363, 1372; Bennett v. Scroggy (6th Cir. 1986) 793 F2d 772, 777-79; U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201-02; see also PG VII(C)(15).) ” … [T]he principle [is] established in American law … that a defendant is entitled to a properly phrased theory of defense instruction if there is some evidence to support that theory … [citations].” (Virgilio v. State (Wyoming) (1992) 834 P2d 1125, 1130; U.S. v. Kenny (9th Cir. 1981) 645 F2d 1323, 1337 [“jury must be instructed as to the defense theory of the case” ]; see also Taylor v. Withrow (6th Cir. 2002) 288 F3d 846, 851 [failure to instruct on self-defense when there is sufficient evidence violates defendant’s fundamental due process rights, even though never explicitly stated by the Supreme Court]; U.S. v. Oreto (1st Cir. 1994) 37 F3d 739, 748.) This is so because “a defendant’s right to submit a defense for which he has an evidentiary foundation is fundamental to a fair trial ….” (Whipple v. Duckworth (7th Cir. 1992) 957 F2d 418, 423 overruled on other grounds in Eaglin v. Welborn (7th Cir. 1995) 57 F3d 496; U.S. v. Douglas (7th Cir. 1987) 818 F3d 1317, 1320-21 [“the failure to include an instruction on the defendant’s theory of the case … would deny the defendant a fair trial. [Citation.]” ]; U.S. v. Hicks (4th Cir. 1984) 748 F2d 854, 857-858; cf., Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [recognizing importance of 6th Amendment right to confrontation].)
Use Of Modified CALCRIM 3400 To Instruct On Subject Not Covered By CALCRIM.—Rule 855(e) also authorizes the modification of an existing CALCRIM to address a matter not specifically addressed by CALCRIM. Hence, the Court Rules anticipate that the CALCRIM instructions may be “substantially modified.” (See also Rule 229(a)(1)(B).) Thus, for example, CALCRIM 3400 [Alibi] may be modified into a pinpoint instruction on a third party guilt defense theory since CALCRIM has no third party guilt instruction.
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
FORECITE CG 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
FORECITE CG 5.11 [Eyewitness Identification]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 315.1.2 Inst 3 (a-c) Additional Honest Mistake Instructions
Alternative a:
The government must prove beyond a reasonable doubt that the crime charged in this case was actually committed. But more than that, the government must prove, beyond a reasonable doubt, that the defendant committed the crime. Therefore, the identification of the defendant is a critical part of the government’s case. As with any other witness, you must first decide whether the identification witness is telling the truth as she or he understands it and whether she or he has any motive to lie, but you must do more than that. You must also decide how accurate the identification was—i.e., whether or not the witness was mistaken.
I want to caution you, first that the kind of identification testimony you heard in this case must be scrutinized carefully. Scientific studies have amply demonstrated the dangers of mistake in human perception and identification.
Of course, this does not mean that the identification in this case in incorrect. I merely tell you this so that you understand the importance of carefully evaluating the evidence there.
One of the reasons for this is that when a witness testifies in court that the defendant was the one who committed the offense, what he or she is really saying is that the defendant is the person he or she remembers seeing commit the offense.
The word ‘remember’ and ‘seeing’ call into question factors which bear on the ability of a person to recall and the opportunity of a person to see. If you walk into a bank and see your next door neighbor fleeing with a gun and sack, what you recall later is that you saw a person whom you recognized to be you next door neighbor. When the person is a total stranger, you do not have that kind of ‘anchor’ or rely upon and so a subsequent identification depends on your ability to accurately recall the exact features of the individual.
In this case, a witness testified that she did not know the defendant before the crime took place and, therefore, you must carefully weigh the following factors which bear on the ability of the witness to see and accurately recall the events:
1. Consider whether this witness had a good opportunity to see the person—how close or far away—and the length of time the witness had to observe the person who she claims is the defendant. You should also consider whether the witness’s attention was focused on the weapon that was pointed at her or on the face of the perpetrator. The better the opportunity to observe and the longer the period observation, the more accurate the identification is likely to be. Conversely a brief encounter—a matter of seconds or minutes—tends to increase the likelihood of misidentification.
2. Consider whether the incident in which the individual participated was significant or unusual to the witness at the time it occurred.
3. Consider how much time has passed between the crime and first identification by the witness.
4. Consider whether a witness has given descriptions that are inconsistent with or which differ from the actual physical appearance of the person allegedly identified and also whether the witness gave different descriptions at different times. Similarly, you should consider whether the witness has given descriptions that are consistent with the actual appearance of the person allegedly identified and also whether the witness gave the same description at different times.
5. Consider that an identification made by picking the defendant out of a group of similar individuals, or a group of photographs of similar individuals, is generally more reliable than one which results from presentation of the defendant alone to the witness or among a group of persons with significantly different appearances. It is also more reliable than an identification made in the courtroom where a witness expects to see the accused in the courtroom.
Even if the law enforcement officers follow the most correct photographic identification procedures and show the witness the pictures of a number of similar individuals without indicating whom they suspect, there is some danger that the witness may make an incorrect identification, even if he or she is sure of his or her identification.
If there is an initial misidentification, then you must answer the question whether thereafter the witness retained in his or her memory the image of the photograph rather than the image of the person actually seen, since under those circumstances the trustworthiness of subsequent identifications is reduced.
Even if a witness is positive of his or her identification, this does not relieve you of the duty to carefully consider his or her identification testimony, especially if you find the only evidence that directly supports the claims that the defendant committed the offense charged.
On the other hand, it is not essential that the witness him or herself be free from doubt as to the correctness of his or her identification of the defendant, provided you are satisfied that the government has met its burden of proving beyond a reasonable doubt that the defendant is guilty of the charges contained in the information. If, after examining the testimony of this witness and all the circumstances under which she identified the defendant and all of the other evidence in the case, you have a reasonable doubt as to whether the defendant committed the offense charged, you should return a verdict of not guilty on both counts.
[Source: See United States v. Burrous (EDNY 1996) 934 FSupp 525, 531-33.]
Alternative b:
The government must prove, beyond a reasonable doubt, that the crime charged in this case was actually committed. But more than that, the government must also prove beyond a reasonable doubt, that the defendant, ________, committed that crime. Therefore, the identification of (D) by (W) as [brief description of the details of the identification] is a necessary (important) part of the government’s case. As with any other witness, you must first decide whether (W) is telling the truth as he understands it. But you must do more than that. You must also decide how accurate the identification was, whether the witness saw what he thought he saw.
[Source: Federal Judicial Center, Pattern Criminal Jury Instruction 35 [Identification Testimony] (1988).]
Alternative c:
Consider the possibility that an identification witness made an honest but mistaken identification.
[See Commonwealth v. Delrio (MA 1986) 497 NE2d 1097, 1102; see also Hrones & Homans, Massachusetts Jury Instructions—Criminal No. 2-11, comment [Evidence] (Lexis, 2nd ed. 2000).]
Points and Authorities
See FORECITE F 315.1.2 Inst 1 and Inst 2.
