CSC to Consider Whether Eyewitness Certainty Instruction Violates Due Process?
June 3rd, 2019

Studies have persuaded courts in other states to modify their standard jury instruction to remove certainty as a relevant consideration. (See, e.g., Commonwealth v. Santoli (1997) 424 Mass. 837, 846 [“there is significant doubt about whether there is any correlation between a witness’s confidence in her identification and the accuracy of her recollection”]; State v. Mitchell (2012) 294 Kan. 469, 471.)

However, People v. Sánchez (2016) 63 Cal.4th 411, 462 – a case involving “many identifications, some certain, some uncertain” – the CSC concluded that “[a]ny reexamination of our previous holdings {approving instruction on the certainty factor] in light of developments in other jurisdictions should await a case involving only certain identifications.”

That wait ended with the CSC’s granting of review in People v. Lemcke, (Rudd) S250108. (G054241; nonpublished opinion; Orange County Superior Court; 14CF3596:

Petition for review after the Court of Appeal affirmed judgments of conviction of criminal offenses. This case presents the following issue: Does instructing a jury with CALCRIM No. 315 that an eyewitness’s level of certainty can be considered when evaluating the reliability of the identification violate a defendant’s due process rights?

In Lemcke (Rudd) defense counsel brought the “certainty” portion of CC 315 to the trial court’s attention. Rudd’s connection to the charged offenses was not supported by any physical evidence, there were no uncertain identifications, and the case against Rudd consisted entirely of the eyewitness testimony. However, because the Court of Appeal rejected the challenge because it believed it was bound by the decisions in Sánchez and People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232 [CSC rejected a challenge to CJ 2.92, the precursor to CC 315 which advised jurors that on the issue of eyewitness identification they could consider “[t]he extent to which the witness was either certain or uncertain of the identification”].

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