SERIES 300 EVIDENCE
F 315.1.1 Eyewitness Identification: General
TABLE OF CONTENTS
F 315.1.1 Inst 1 Eyewitness Identification: No Duty To Decide
F 315.1.1 Inst 2 Eyewitness Factors Not Exclusive; No Undue Emphasis
F 315.1.1 Inst 3 (a-e) Eyewitness Identification Must Be Viewed With Caution
F 315.1.1 Inst 4 Eyewitness Identification: Identification Of Other Culprit Must Be Accurate
F 315.1.1 Inst 5 Eyewitness Identification: Relating Presumption Of Innocence to Defense Theory That Identification Is Inaccurate And/Or Untruthful
F 315.1.1 Inst 6 Eyewitness Identification: Instruction As Sanction For Loss Of Original Photographs
F 315.1.1 Inst 7 Eyewitness Identification: Presence At Scene Not Sufficient To Convict
F 315.1.1 Inst 8 Identification: Alternative Form
F 315.1.1 Inst 9 (a-e) In-Court Identification Must Be Independent Of Out-Of-Court Identification Procedures
F 315.1.1 Inst 10 Eyewitness Identification: How Jury Should Consider The Factors
F 315.1.1 Inst 11 Improper To Define Jurors Duties In Terms Of Deciding The Truth Based Only On Their Common Sense And Experience
F 315.1.1 Inst 12 Reference To The Identification As A “Choice” Of The Eyewitness Rather Than As An “Identification”
Return to Series 300 Table of Contents.
F 315.1.1 Inst 1 Eyewitness Identification: No Duty To Decide
*Modify CC 315, paragraph 1, sentence 2 as follows [added language is underlined; deleted language is stricken]:
As with any other witness, you must decide consider whether an eyewitness gave truthful and accurate testimony.
Points and Authorities
See FORECITE F 100.7 Inst 1.
F 315.1.1 Inst 2 Eyewitness Factors Not Exclusive; No Undue Emphasis
Alternative a [CALCRIM 330, Paragraph 2, Format]:
In evaluating identification testimony, consider all of the factors surrounding that testimony, including the following questions:
Alternative b:
*Modify CC 315, paragraph 2, sentence 1 as follows [added language is underlined; deleted language is stricken]:
Alternative a:
In evaluating identification testimony, consider the following the questions for you to consider include, but are not limited to the following:
Alternative b:
In evaluating identification testimony, consider all of the evidence, including but not limited to, the following questions:
*Add at end of CC 315:
Do not give the listed factors [greater] [undue] weight simply because they are mentioned in this instruction.
Points and Authorities
Factors Not Exclusive—See FORECITE F 105.2 Inst 2.
No Undue Emphasis Of Specific Factors—An instruction which singles out specific testimony or factors for juror consideration is not necessarily improper. (See e.g., CC 315.) However, a cautionary instruction may be appropriate to avoid the danger that such an instruction may give undue emphasis to the enumerated factors. (See e.g., People v. Benson (1990) 52 C3d 754, 805, fn 12; People v. Harris (1989) 47 C3d 1047, 1098, fn 31; cf., Davis v. Erickson (1960) 53 C2d 860, 863-64 [no undue emphasis of supplemental instructions]; U.S. v. Rodgers (6th Cir. 1997) 109 F3d 1138, 1144-45 [recognizing “real danger” that jurors will place undue emphasis on specific testimony that is read back during deliberations]; U.S. v. Harris (7th Cir. 1975) 521 F2d 1089, 1093-94 [judge properly ordered readback of witness’ entire testimony where jury requested readback on a specific point]; State v. Wood (CT 1988) 545 A2d 1026, 1030 [jurors should be cautioned not to give undue emphasis to reproduced or written exhibits]; U.S. v. Johnson (4th Cir. 1975) 54 F2d 1150, 1159, fn 10 [no undue emphasis of pedagogical summaries].)
See also FORECITE CG 5.4.3 [Undue Emphasis Of Specific Evidence].
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 5.4.3 [Undue Emphasis Of Specific Evidence]
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 315.1.1 Inst 3 (a-e) Eyewitness Identification Must Be Viewed With Caution
*Add to CC 315:
Alternative a:
You must view eyewitness testimony with caution and evaluate it carefully.
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 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.
Alternative c:
You should view identification testimony with caution if the witness’s opportunity for positive identification was not good, if his testimony was qualified, if his positive statements were weakened by cross-examination or by his failure to identify defendant on one or more prior occasions, or if the accuracy of his testimony was doubtful. Caution is in order whenever you perceive weaknesses of any kind in the identification evidence.
[Source: State v. Lewis (RI 1975) 341 A2d 744, 748.]
Alternative d:
Eyewitness identifications are to be scrutinized with extreme care. The possibility of human error or mistake and the probable likeness or similarity of objects and persons are circumstances to consider in weighing testimony as to identity. Carefully consider the factors that bear upon the accuracy of the witness’s testimony, such as: < relevant factors>
[See Oklahoma Uniform Criminal Jury Instructions- Criminal, OUJI-CR 9-19 [Evidence- Eyewitness Identification] & 1 (Oklahoma Center for Criminal Justice, 2nd ed. 1996); see also Maryland Criminal Pattern Jury Instructions, MPJI-Cr 3:30 [Identification Of Defendant] para. 2 (Micpel, 1999).]
Alternative e:
If your verdict as to the guilt of the defendant is to depend wholly or substantially on the correctness of the identification, you should bear in mind that there have been a number of instances where responsible witnesses, whose honesty was not in question and whose opportunities for observation had been adequate, made positive identifications on a parade [line up] or otherwise which identifications were subsequently proved to be erroneous; and accordingly you should be specially cautious before accepting such evidence of identification as correct; but that if, after careful examination of such evidence in the light of all the circumstances, and with due regard to all the other evidence in the case, you feel satisfied beyond a reasonable doubt of the correctness of the identification you are at liberty to act upon it.
[Source: The People v. Casey 1963 Ireland Reports 33, 39.]
Points & Authorities
The language in Alternative a, above, was included in the eyewitness identification instruction given in People v. Johnson (1992) 3 C4th 1183, 1230 , fn 12 which the court held to have correctly instructed the jury. (Johnson, 3 C4th at 1234.)
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]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.92g.
F 315.1.1 Inst 4 Eyewitness Identification: Identification Of Other Culprit Must Be Accurate
*Modify CC 315, paragraph 2, item14, as follows [added language is underlined]:
[Was the witness able to accurately identify other participants in the crime?]
Points and Authorities
Identification of other participants in the crime does not suggest reliability unless the identification of others was accurate. (See generally Manson v. Brathwaite (1977) 432 US 98 [53 LEd2d 140; 97 SCt 2243]; U.S. v. Wade (1967) 388 US 218 [18 LEd2d 1149; 87 SCt 1926]; People v. McDonald (1984) 37 C3d 351.)
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]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 315.1.1 Inst 5 Eyewitness Identification: Relating Presumption Of Innocence To Defense Theory That Identification Is Inaccurate And/Or Untruthful
*Replace CC 315, last paragraph with the following:
The prosecution has the burden of proving beyond a reasonable doubt that the identification testimony of witness __________ was truthful and accurate. Any juror who has a reasonable doubt as to the truthfulness and/or accuracy of such testimony must vote to acquit.
Points and Authorities
Honest But Mistaken Identification—See FORECITE F 315.1.2 Inst 1.
Danger Of Relating Presumption Of Innocence To Defense Theory—See FORECITE F 315.1.2 Inst 2.
Individual Juror Determination—See FORECITE F 100.7 Inst 2.
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 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
FORECITE CG 5.11 [Eyewitness Identification]
FORECITE CG 7.8 [Right To Individual Juror Determination]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 315.1.1 Inst 6 Eyewitness Identification: Instruction As Sanction For Loss Of Original Photographs
*Add to CC 315:
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
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction When Prosecution Loses Evidence – Criminal defendants are constitutionally assured “a meaningful opportunity to present a complete defense.” (California v. Trombetta (1984) 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 (1993) 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 People v. Conrad (2006) 145 CA4th 1175, 1185-86.)
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.)
See also FORECITE F 2.014 n2 and n3.
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 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
FORECITE CG 5.11 [Eyewitness Identification]
FORECITE CG 6.8 [Prosecution Misconduct: Lost Or Destroyed Evidence]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.92j.
F 315.1.1 Inst 7 Eyewitness Identification: Presence At Scene Not Sufficient To Convict
*Add at end of CC 315:
Even if the evidence establishes that the defendant was present at the scene, the burden is still on the prosecution to prove that the defendant is the person who committed the crime with which (he/she) is charged.
Points and Authorities
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 CC 315, as modified above, should be given. (See generally, People v. Wright (1988) 45 C3d 1126, 1149.)
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 5.11 [Eyewitness Identification]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.91b.
F 315.1.1 Inst 8 Identification: Alternative Form
Alternative Instruction:
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’s 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’s 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.
*But see FORECITE F 315 Inst 2.
Points and Authorities
The above instruction was promulgated by the Tennessee Supreme Court in State v. Dyle (Tenn 1995) 899 SW2d 607.
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]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.92e.
F 315.1.1 Inst 9 (a-e) In-Court Identification Must Be Independent Of Out-Of-Court Identification Procedures
*Add to CC 315:
Alternative a:
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.
Alternative b:
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).]
Alternative c:
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.]
Alternative d:
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’s identification of the Defendant.
[Source: 11th Circuit Pattern Jury Instructions (2003) SI 3, & 3.]
Alternative e:
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 (1967) 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 (1984) 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. (See People v. McDonald (1984) 37 C3d 351, 368; see also Annotation, Admissibility of Evidence of Photographic Identification as Affected by Allegedly Suggestive Identification Procedures, 39 ALR3d 1000.) A 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’s 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, 78% 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.)
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]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.92k.
F 315.1.1 Inst 10 Eyewitness Identification: How Jury Should Consider The Factors
*Replace CC 315, paragraph 1, with:
Many factors can affect the accuracy of eyewitness identification. In evaluating the weight, if any, 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 also 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 CC 315:
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 (1994) 7 C4th 1075, 1109-10, fn 8 which the California Supreme Court held was improperly refused by the trial court. (Fudge, 7 C4th at 1110.)
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 5.4.3 [Undue Emphasis Of Specific Evidence]
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.
CALJIC NOTE: See FORECITE F 2.92h.
F 315.1.1 Inst 11 Improper To Define Jurors Duties In Terms Of Deciding The Truth Based Only On Their Common Sense And Experience
*Modify CC 315, paragraph 1, as follows [added language is underlined; deleted language is stricken]:
You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. Each of you alone must evaluate the credibility or believability of the witnesses. This means that you must use your common sense and experience to evaluate the truthfulness and accuracy of a witness in light of all the relevant factors and the other evidence.
Points and Authorities
See FORECITE F 105.1 Inst 2.
F 315.1.1 Inst 12 Reference To The Identification As A “Choice” Of The Eyewitness Rather Than As An “Identification”
*Modify CC 315 as follows:
[Change “identification“ to “choice“ throughout the instruction.]
Points and Authorities
Use of the term “identification” is an improper comment on the evidence because it implies that the selection is accurate. (See Loftus & Doyle, Eyewitness Testimony—Civil & Criminal (Lexis, 3rd ed. 1997) §8-12, p. 196.) Such a comment should not be included in jury instructions because it unfairly favors the prosecution. (See Wardius v. Oregon (1973) 412 US 470, 475 [93 SCt 2208; 37 LEd2d 82]; see also FORECITE F 100.1 Inst 5.)
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 6.5 [Instructions Must Be Balanced Between Defense and Prosecution]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
STRATEGY NOTE—Even if this instruction request is denied, counsel should still pay close attention to the language used regarding the eyewitness identification process. Counsel should always be careful to use words like opinion or belief in discussing eyewitness identification. (Loftus & Doyle, Eyewitness Testimony—Civil & Criminal (Lexis, 3rd ed. 1997) §8-12, p. 196.) Furthermore, counsel should always refer to the identification as a “choice” of the witness rather than an “identification.” (Ibid.)
TABLE OF CONTENTS
F 315.1.1 Inst 1 Eyewitness Identification: No Duty To Decide
F 315.1.1 Inst 2 Eyewitness Factors Not Exclusive; No Undue Emphasis
F 315.1.1 Inst 3 (a-e) Eyewitness Identification Must Be Viewed With Caution
F 315.1.1 Inst 4 Eyewitness Identification: Identification Of Other Culprit Must Be Accurate
F 315.1.1 Inst 5 Eyewitness Identification: Relating Presumption Of Innocence To Defense Theory That Identification Is Inaccurate And/Or Untruthful
F 315.1.1 Inst 6 Eyewitness Identification: Instruction As Sanction For Loss Of Original Photographs
F 315.1.1 Inst 7 Eyewitness Identification: Presence At Scene Not Sufficient To Convict
F 315.1.1 Inst 8 Identification: Alternative Form
F 315.1.1 Inst 9 (a-e) In-Court Identification Must Be Independent Of Out-Of-Court Identification Procedures
F 315.1.1 Inst 10 Eyewitness Identification: How Jury Should Consider The Factors
F 315.1.1 Inst 11 Improper To Define Jurors Duties In Terms Of Deciding The Truth Based Only On Their Common Sense And Experience
F 315.1.1 Inst 12 Reference To The Identification As A “Choice” Of The Eyewitness Rather Than As An “Identification”
Return to Series 300 Table of Contents.
F 315.1.1 Inst 1 Eyewitness Identification: No Duty To Decide
*Modify CC 315, paragraph 1, sentence 2 as follows [added language is underlined; deleted language is stricken]:
As with any other witness, you must decide consider whether an eyewitness gave truthful and accurate testimony.
Points and Authorities
See FORECITE F 100.7 Inst 1.
F 315.1.1 Inst 2 Eyewitness Factors Not Exclusive; No Undue Emphasis
Alternative a [CALCRIM 330, Paragraph 2, Format]:
In evaluating identification testimony, consider all of the factors surrounding that testimony, including the following questions:
Alternative b:
*Modify CC 315, paragraph 2, sentence 1 as follows [added language is underlined; deleted language is stricken]:
Alternative a:
In evaluating identification testimony, consider the following the questions for you to consider include, but are not limited to the following:
Alternative b:
In evaluating identification testimony, consider all of the evidence, including but not limited to, the following questions:
*Add at end of CC 315:
Do not give the listed factors [greater] [undue] weight simply because they are mentioned in this instruction.
Points and Authorities
Factors Not Exclusive—See FORECITE F 105.2 Inst 2.
No Undue Emphasis Of Specific Factors—An instruction which singles out specific testimony or factors for juror consideration is not necessarily improper. (See e.g., CC 315.) However, a cautionary instruction may be appropriate to avoid the danger that such an instruction may give undue emphasis to the enumerated factors. (See e.g., People v. Benson (1990) 52 C3d 754, 805, fn 12; People v. Harris (1989) 47 C3d 1047, 1098, fn 31; cf., Davis v. Erickson (1960) 53 C2d 860, 863-64 [no undue emphasis of supplemental instructions]; U.S. v. Rodgers (6th Cir. 1997) 109 F3d 1138, 1144-45 [recognizing “real danger” that jurors will place undue emphasis on specific testimony that is read back during deliberations]; U.S. v. Harris (7th Cir. 1975) 521 F2d 1089, 1093-94 [judge properly ordered readback of witness’ entire testimony where jury requested readback on a specific point]; State v. Wood (CT 1988) 545 A2d 1026, 1030 [jurors should be cautioned not to give undue emphasis to reproduced or written exhibits]; U.S. v. Johnson (4th Cir. 1975) 54 F2d 1150, 1159, fn 10 [no undue emphasis of pedagogical summaries].)
See also FORECITE CG 5.4.3 [Undue Emphasis Of Specific Evidence].
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 5.4.3 [Undue Emphasis Of Specific Evidence]
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 315.1.1 Inst 3 (a-e) Eyewitness Identification Must Be Viewed With Caution
*Add to CC 315:
Alternative a:
You must view eyewitness testimony with caution and evaluate it carefully.
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 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.
Alternative c:
You should view identification testimony with caution if the witness’s opportunity for positive identification was not good, if his testimony was qualified, if his positive statements were weakened by cross-examination or by his failure to identify defendant on one or more prior occasions, or if the accuracy of his testimony was doubtful. Caution is in order whenever you perceive weaknesses of any kind in the identification evidence.
[Source: State v. Lewis (RI 1975) 341 A2d 744, 748.]
Alternative d:
Eyewitness identifications are to be scrutinized with extreme care. The possibility of human error or mistake and the probable likeness or similarity of objects and persons are circumstances to consider in weighing testimony as to identity. Carefully consider the factors that bear upon the accuracy of the witness’s testimony, such as: < relevant factors>
[See Oklahoma Uniform Criminal Jury Instructions- Criminal, OUJI-CR 9-19 [Evidence- Eyewitness Identification] & 1 (Oklahoma Center for Criminal Justice, 2nd ed. 1996); see also Maryland Criminal Pattern Jury Instructions, MPJI-Cr 3:30 [Identification Of Defendant] para. 2 (Micpel, 1999).]
Alternative e:
If your verdict as to the guilt of the defendant is to depend wholly or substantially on the correctness of the identification, you should bear in mind that there have been a number of instances where responsible witnesses, whose honesty was not in question and whose opportunities for observation had been adequate, made positive identifications on a parade [line up] or otherwise which identifications were subsequently proved to be erroneous; and accordingly you should be specially cautious before accepting such evidence of identification as correct; but that if, after careful examination of such evidence in the light of all the circumstances, and with due regard to all the other evidence in the case, you feel satisfied beyond a reasonable doubt of the correctness of the identification you are at liberty to act upon it.
[Source: The People v. Casey 1963 Ireland Reports 33, 39.]
Points & Authorities
The language in Alternative a, above, was included in the eyewitness identification instruction given in People v. Johnson (1992) 3 C4th 1183, 1230 , fn 12 which the court held to have correctly instructed the jury. (Johnson, 3 C4th at 1234.)
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]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.92g.
F 315.1.1 Inst 4 Eyewitness Identification: Identification Of Other Culprit Must Be Accurate
*Modify CC 315, paragraph 2, item14, as follows [added language is underlined]:
[Was the witness able to accurately identify other participants in the crime?]
Points and Authorities
Identification of other participants in the crime does not suggest reliability unless the identification of others was accurate. (See generally Manson v. Brathwaite (1977) 432 US 98 [53 LEd2d 140; 97 SCt 2243]; U.S. v. Wade (1967) 388 US 218 [18 LEd2d 1149; 87 SCt 1926]; People v. McDonald (1984) 37 C3d 351.)
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]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 315.1.1 Inst 5 Eyewitness Identification: Relating Presumption Of Innocence To Defense Theory That Identification Is Inaccurate And/Or Untruthful
*Replace CC 315, last paragraph with the following:
The prosecution has the burden of proving beyond a reasonable doubt that the identification testimony of witness __________ was truthful and accurate. Any juror who has a reasonable doubt as to the truthfulness and/or accuracy of such testimony must vote to acquit.
Points and Authorities
Honest But Mistaken Identification—See FORECITE F 315.1.2 Inst 1.
Danger Of Relating Presumption Of Innocence To Defense Theory—See FORECITE F 315.1.2 Inst 2.
Individual Juror Determination—See FORECITE F 100.7 Inst 2.
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 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
FORECITE CG 5.11 [Eyewitness Identification]
FORECITE CG 7.8 [Right To Individual Juror Determination]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 315.1.1 Inst 6 Eyewitness Identification: Instruction As Sanction For Loss Of Original Photographs
*Add to CC 315:
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
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction When Prosecution Loses Evidence – Criminal defendants are constitutionally assured “a meaningful opportunity to present a complete defense.” (California v. Trombetta (1984) 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 (1993) 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 People v. Conrad (2006) 145 CA4th 1175, 1185-86.)
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.)
See also FORECITE F 2.014 n2 and n3.
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 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
FORECITE CG 5.11 [Eyewitness Identification]
FORECITE CG 6.8 [Prosecution Misconduct: Lost Or Destroyed Evidence]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.92j.
F 315.1.1 Inst 7 Eyewitness Identification: Presence At Scene Not Sufficient To Convict
*Add at end of CC 315:
Even if the evidence establishes that the defendant was present at the scene, the burden is still on the prosecution to prove that the defendant is the person who committed the crime with which (he/she) is charged.
Points and Authorities
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 CC 315, as modified above, should be given. (See generally, People v. Wright (1988) 45 C3d 1126, 1149.)
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 5.11 [Eyewitness Identification]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.91b.
F 315.1.1 Inst 8 Identification: Alternative Form
Alternative Instruction:
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’s 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’s 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.
*But see FORECITE F 315 Inst 2.
Points and Authorities
The above instruction was promulgated by the Tennessee Supreme Court in State v. Dyle (Tenn 1995) 899 SW2d 607.
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]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.92e.
F 315.1.1 Inst 9 (a-e) In-Court Identification Must Be Independent Of Out-Of-Court Identification Procedures
*Add to CC 315:
Alternative a:
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.
Alternative b:
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).]
Alternative c:
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.]
Alternative d:
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’s identification of the Defendant.
[Source: 11th Circuit Pattern Jury Instructions (2003) SI 3, & 3.]
Alternative e:
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 (1967) 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 (1984) 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. (See People v. McDonald (1984) 37 C3d 351, 368; see also Annotation, Admissibility of Evidence of Photographic Identification as Affected by Allegedly Suggestive Identification Procedures, 39 ALR3d 1000.) A 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’s 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, 78% 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.)
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]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.92k.
F 315.1.1 Inst 10 Eyewitness Identification: How Jury Should Consider The Factors
*Replace CC 315, paragraph 1, with:
Many factors can affect the accuracy of eyewitness identification. In evaluating the weight, if any, 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 also 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 CC 315:
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 (1994) 7 C4th 1075, 1109-10, fn 8 which the California Supreme Court held was improperly refused by the trial court. (Fudge, 7 C4th at 1110.)
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 5.4.3 [Undue Emphasis Of Specific Evidence]
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.
CALJIC NOTE: See FORECITE F 2.92h.
F 315.1.1 Inst 11 Improper To Define Jurors Duties In Terms Of Deciding The Truth Based Only On Their Common Sense And Experience
*Modify CC 315, paragraph 1, as follows [added language is underlined; deleted language is stricken]:
You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. Each of you alone must evaluate the credibility or believability of the witnesses. This means that you must use your common sense and experience to evaluate the truthfulness and accuracy of a witness in light of all the relevant factors and the other evidence.
Points and Authorities
See FORECITE F 105.1 Inst 2.
F 315.1.1 Inst 12 Reference To The Identification As A “Choice” Of The Eyewitness Rather Than As An “Identification”
*Modify CC 315 as follows:
[Change “identification“ to “choice“ throughout the instruction.]
Points and Authorities
Use of the term “identification” is an improper comment on the evidence because it implies that the selection is accurate. (See Loftus & Doyle, Eyewitness Testimony—Civil & Criminal (Lexis, 3rd ed. 1997) §8-12, p. 196.) Such a comment should not be included in jury instructions because it unfairly favors the prosecution. (See Wardius v. Oregon (1973) 412 US 470, 475 [93 SCt 2208; 37 LEd2d 82]; see also FORECITE F 100.1 Inst 5.)
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 6.5 [Instructions Must Be Balanced Between Defense and Prosecution]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
STRATEGY NOTE—Even if this instruction request is denied, counsel should still pay close attention to the language used regarding the eyewitness identification process. Counsel should always be careful to use words like opinion or belief in discussing eyewitness identification. (Loftus & Doyle, Eyewitness Testimony—Civil & Criminal (Lexis, 3rd ed. 1997) §8-12, p. 196.) Furthermore, counsel should always refer to the identification as a “choice” of the witness rather than an “identification.” (Ibid.)
