CSC: Certainty About Identification Instruction (CC 315) Does Not Violate Due Process but Should No Longer be Given Absent Request by the Defense
July 1st, 2021

People v. Lemcke (2021) 11 Cal.5th 644 held that — while a modified version of the witness certainty factor in the instruction is advisable — that alone does not establish a due process violation in light of the record as a whole. Accordingly, even though it affirmed the judgement the Court recommended that the CALCRIM committee should evaluate whether or how CALCRIM No. 315 might be modified to avoid juror confusion:

Although the language in CALCRIM No. 315 does not state that a certain identification is more likely to be accurate, the instruction does nothing to disabuse jurors of the common misconception that such a correlation exists. Indeed, merely directing the jury to consider a witness’s level of certainty, without any further caveats, effectively operates to reinforce that misconception. (See Mitchell, supra, 275 P.3d at pp. 912-913 [language “encourages jurors to give more weight to identifications by a certain witness” and “prompts the jury to conclude that an eyewitness identification is more reliable when the witness expresses greater certainty”].) That raises particular concerns in a case like this one, where the conviction was based almost entirely on the testimony of a single witness who expressed certainty in her identification and had no prior relationship with the defendant. (See McDonald, supra, 37 Cal.3d at p. 363 [” ‘Centuries of experience in the administration of criminal justice have shown that convictions based solely on testimony that identifies a defendant previously unknown to the witness is highly suspect’ “]; Sánchez, supra, 63 Cal.4th at p. 462 [“[a]ny reexamination of our previous holdings [regarding the witness certainty instruction] . . . should await a case involving only certain identifications”].)

          (People v. Lemcke , supra, 11 Cal.5th at ____ [pp. 34-35].)

Until the instruction is modified, trial courts should omit the certainty factor from CALCRIM No. 315, unless the defendant requests otherwise. “Trial courts, however, retain discretion to include the factor when the defendant requests that it do so.” (Id at ___ [pp. 40].)

Tags: , ,