SERIES 300 EVIDENCE
F 315.1.3 Eyewitness Identification: Specific Factors
TABLE OF CONTENTS
F 315.1.3 Inst 1 (a-e) Certainty Of Eyewitness Is Not A Reliable Indicator Of Accuracy
F 315.1.3 Inst 2 (a-e) Eyewitness Factors: Cross-Racial Identification Increases Risk Of Mistake
F 315.1.3 Inst 3 (a-c) Eyewitness Factors: “Weapon Focus Effect”
F 315.1.3 Inst 4 (a & b) Eyewitness Factors: Age Differential
F 315.1.3 Inst 5 Eyewitness Failing To Attend Pretrial Lineup
F 315.1.3 Inst 6 Eyewitness Factors: Prior Failure To Identify DefendantC Identification Of Someone Else
F 315.1.3 Inst 7 Factors Not Specified In CC 315
Return to Series 300 Table of Contents.
F 315.1.3 Inst 1 (a-e) Certainty Of Eyewitness Is Not A Reliable Indicator Of Accuracy
Alternative a:
*Delete CC 315, paragraph 2, item 11 re: certainty, as follows:
How certain was the witness when he or she made an identification?
Alternative b:
*Replace CC 315, paragraph 2, item 11 with the following:
The defendant contends that _______________<name of eyewitness> mistakenly identified (him/her) because, among other factors, _______________ <insert factor or factors from defense theory e.g., this was a cross-racial identification; the witness was focused [more] on the culprit’s weapon than (his/her) face, etc.>. The People must prove that _______________ <name of eyewitness> was not mistaken and that the defendant committed the crime. The defendant does not need to prove that _______________ <name of eyewitness> was mistaken or that any mistake was due to _______________ <e.g., cross-racial identification, weapon focus effect, etc.>. If you have a reasonable doubt about whether _______________’s <name of eyewitness>identification was truthful and accurate, you must find the defendant not guilty.
Alternative c:
Among the factors to consider in weighing eyewitness testimony is that there is no proven relationship between a witness’s confidence and the accuracy of the witness’s testimony. An eyewitness’s certainty about his or her choice* of the defendant may have many sources and does not necessarily bear on the correctness of that choice. Whether the prosecution has proven the choice of the witness to be correct, beyond a reasonable doubt, is a matter which you must decide.
* See FORECITE F 315.1.1 Inst 12 [Reference To The Identification As A “Choice” Of The Eyewitness Rather Than As An “Identification” ].
Alternative d:
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 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.]
Alternative e:
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 it is the only evidence that directly supports the claims that the defendant committed the offense charged.
[Source: U.S. v. Burrous (EDNY 1996) 934 FSupp 525, 531-33.]
Points and Authorities
Even though jurors tend to place greater reliance on eyewitnesses who exhibit confidence in their identification, jurors do not generally understand that eyewitness confidence is not a reliable predictor of accuracy. It is often assumed that witness confidence increases accuracy. (See, e.g., Gunning v. State (MD 1997) 701 A2d 374, 382 [right to eyewitness identification instruction predicated, inter alia, on whether there was any equivocation associated with the identification]; see also McDoulett v. State (OK 1984) 685 P2d 978, 980 [defendant’s right to eyewitness identification instruction predicated on whether or not witness was positive]; Thornton v. State (OK 1983) 668 P2d 344, 347 [trial court should consider whether witness is positive in his or her identification when deciding whether to caution the jury regarding eyewitness testimony]; Commonwealth v. Kloiber (PA 1954) 106 A2d 820, 826 [witness positive and unqualified even after cross-examination]; State v. Dyle (TN 1995) 899 SW2d 607, 612 [Tennessee Supreme Court promulgates instruction informing the jury to consider, inter alia, the “degree of certainty expressed by the witness regarding the identification ….“ ].)
However, this assumption fails to take into account the fact that the legal system itself, rather than the accuracy of the identification, is often responsible for the confidence of the witness. “As soon as the eyewitness enters the legal system, confidence in accuracy seem to take different paths. Even routine witness preparation and questioning, conducted without [improper] intent, will tend to boost the eyewitness’s certainty, while having no positive impact on the eyewitness’s accuracy.“ (Loftus & Doyle, Eyewitness Testimony—Civil & Criminal (Lexis, 3rd ed. 1997) §1-3, pp. 3-4; see also Penrod & Cutler, Witness Confidence and Witness Accuracy: Assessing Their Forensic Relation, 1 Psych Pub Pol & L 817 (1995); Cohen, I Could Swear It Was Him Officer, New Scientist 11 (1-18-97) [reporting research by Iowa State University Psychologist Gary Wells and his student, Amy Bradfield] [suggesting that as eyewitness confidence increases, the eyewitness improves his or her account of the witnessing situation: describes a longer event, better lighting, or a full description]; see also Gary Wells Web site: http://www.psychology.iastate.edu/faculty/gwells/homepage.aspx.)
Accordingly, notwithstanding many court’s view that certainty reflects reliability (see Sobel, Eyewitness Identification, (2nd Ed. 1984, West) §6.8, p. 6-37) “the confidence of an eyewitness is not a reliable predictor of accuracy.“ (Loftus& Doyle, Eyewitness Testimony—Civil & Criminal (Lexis, 3rd ed. 1997) §1-3, p. 3 [footnote omitted; original emphasis]; Arnolds, Carroll, Lewis & Seng, Eyewitness Testimony: Strategies And Tactics (West, 1984) §2.38; Bothwell et al., Correlation of Eyewitness Accuracy and Confidence: Optimality Hypothesis Revisited, 72 J Applied Psychol 691-95 (1987); Sobel, supra, §6.8 (9/98) pp. 6-37 [A it is so common for a witness to express confidence in his own opinion that this factor is … rarely determinative]; Commonwealth v. Santoli (MA 1997) 680 NE2d 1116, 1121 [“there is a significant doubt about whether there is any correlation between a witness’s confidence in her identification and the accuracy of her recollection“ ]; State v. Ramirez (UT 1991) 817 P2d 774, 781 [essentially “rejecting“ certainty as a reliability factor]; The People v. Casey 1963 Ireland Reports 33.)
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.
PRACTICE NOTE: Courts may be reluctant to instruct on this matter because it will be considered a comment on the evidence. However, the instruction is not an end in itself but should be the culmination of a total case strategy which seeks to educate the judge and jury, from the pretrial proceedings to closing argument, regarding crucial misconceptions about eyewitness identification. (See FORECITE F 315 Note 1 [Eyewitness Identification: Importance Of Early Preparation And Total-Case Strategy].) One goal of such a total case strategy should be to educate the judge so that a special instruction will be accepted. But, even if no instruction is given, the educational process may still accomplish other goals. (See e.g., FORECITE F 200.5 Inst 2.)
F 315.1.3 Inst 2 (a-e) Eyewitness Factors: Cross-Racial Identification Increases Risk Of Mistake
*Add to CC 315.12:
Alternative a:
The defendant contends that _______________ <name of eyewitness> mistakenly identified (him/her) because, among other factors, _______________ <insert factor or factors from defense theory e.g., this was a cross-racial identification; the witness was focused [more] on the culprit’s weapon than (his/her) face, etc.>. The People must prove that _______________ <name of eyewitness> was not mistaken and that the defendant committed the crime. The defendant does not need to prove that _______________ <name of eyewitness> was mistaken or that any mistake was due to _______________ <e.g., cross-racial identification, weapon focus effect, etc.>. If you have a reasonable doubt about whether _______________’s <name of eyewitness> identification was truthful and accurate, you must find the defendant not guilty.
Alternative b:
Cross-racial identification increases the risk of mistaken identification.
Alternative c:
You know that the identifying witness is of a different race than the defendant. When a witness, who is a member of one race, identifies a defendant who is a member of another race, we say that there has been a cross-racial identification. You may consider, if you think it is appropriate to do so, whether the cross-racial nature of the identification has affected the accuracy of the witness’s original perception and/or the accuracy of the subsequent identification[s].
[Source: State v. Cromedy (NJ 1999) 727 A2d 457, 466.]
Alternative d:
In evaluating the reliability of the identification choice, consider whether the culprit was [a different race] [of a different ethnic origin] than the witness.
Alternative e:
In this case, the identifying witness is of a different race than the defendant. In the experience of many, it is more difficult to identify members of a different race than members of one’s own. Psychological studies support this impression. In addition, laboratory studies reveal that even people with no prejudice against other races and substantial contact with persons of other races still experience difficulty in accurately identifying members of a different race. Quite often people do not recognize this difficulty in themselves. You should consider these facts in evaluating the witness’s testimony, but you must also consider whether there are other factors present in this case that overcome any such difficulty of identification.
[Source: Johnson, Cross-Racial Identification Errors in Criminal Cases, 69 Cornell L.Rev. 934, 976, fn18 (June 1984).]
CAVEAT: An instruction on cross-racial identification may be viewed as a radical step in some jurisdictions. (See, e.g., Johnson, Cross-Racial Identification Errors in Criminal Cases, supra, p. 976, fn. 9.) Hence, such an instruction should normally be submitted as a supplement to expert testimony rather than a substitute for it. (See Loftus & Doyle, Eyewitness Testimony—Civil & Criminal (Lexis, 3rd ed. 1997) §12-8(a), p. 341.) On the other hand, there are an increasing number of jurisdictions which recognize the important role of such an instruction. (See e.g., New Jersey Supreme Court Task Force on Minority Concerns Final Report, 131 N.J.L.J. 1145 (June, 1992).)
Points and Authorities
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.) However, 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 (1984) 154 CA3d 79, 85-89; People v. West (1983) 139 CA3d 606; State v. Long (UT 1986) 721 P2d 483, 495.)
Hence, a cautionary instruction regarding cross-racial identification should be given when appropriate. For example, a New Jersey 5-year study of the need for a cross-racial 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].“ (See e.g., New Jersey Supreme Court Task Force on Minority Concerns Final Report, 131 N.J.L.J. 1145 (June, 1992); see also State v. Cromedy (NJ 1999) 727 A2d 457, 465; California Jury Instructions—Criminal, CALJIC 2.92, [Factors To Consider In Proving Identity By Eyewitness Testimony] first & and cross-racial factor. (West, 6th Ed. 1996).)
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.
ARTICLE AVAILABLE: To read the relevant portion of the New Jersey Supreme Court Task Force on Minority Concerns Final Report, see Article Bank # A-87.
F 315.1.3 Inst 3 (a-c) Eyewitness Factors: “Weapon Focus Effect
*Add to CC 315 factors:
Alternative a:
The defendant contends that _______________ <name of eyewitness> mistakenly identified (him/her) because, among other factors, _______________ <insert factor or factors from defense theory e.g., this was a cross-racial identification; the witness was focused [more] on the culprit’s weapon than (his/her) face, etc.>. The People must prove that _______________ <name of eyewitness> was not mistaken and that the defendant committed the crime. The defendant does not need to prove that _______________ <name of eyewitness> was mistaken or that any mistake was due to _______________ <e.g., cross-racial identification, weapon focus effect, etc.>. If you have a reasonable doubt about whether _______________’s <name of eyewitness> identification was truthful and accurate, you must find the defendant not guilty.
Alternative b:
Whether _______________’s attention was diverted from the culprit’s face by the witness’s focus on the [weapon] [gun] which was pointed at (him/her).
Alternative c:
Whether _______________’s ability to focus on the culprit’s face was impaired by the presence of a weapon [which was pointed at _______________ ].
Points and Authorities
“Weapon focus effect“ can lessen an eyewitnesses’s 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.) Hence, when appropriate the jurors should be instructed on “weapon focus effect.“ (See People v. Felix (1993) 14 CA4th 997, 1009, fn 2 [evidence that gun was used during robbery “arguably supported“ requested instruction on “weapon focus“ ]; see also generally People v. McDonald (1984) 37 C3d 351, 361-69; People v. Palmer (1984) 154 CA3d 79, 84-89; People v. Wright (1988) 45 C3d 1126, 1141.)
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.
[Research Note: See FORECITE BIBLIO 2.92]
CALJIC NOTE: See FORECITE F 2.92 n2.
F 315.1.3 Inst 4 (a & b) Eyewitness Factors: Age Differential
*Add to CC 315 factors when appropriate:
Alternative a:
The defendant contends that _______________ <name of eyewitness> mistakenly identified (him/her) because, among other factors, _______________ <insert factor or factors from defense theory e.g., this was a cross-racial identification; the witness was focused [more] on the culprit’s weapon than (his/her) face, etc.>. The People must prove that _______________ <name of eyewitness> was not mistaken and that the defendant committed the crime. The defendant does not need to prove that _______________ <name of eyewitness> was mistaken or that any mistake was due to _______________ <e.g., cross-racial identification, weapon focus effect, etc.>. If you have a reasonable doubt about whether _______________’s <name of eyewitness> identification was truthful and accurate, you must find the defendant not guilty.
Alternative b:
Whether the age differential between the witness and the culprit made the identification less accurate.
Points and Authorities
In People v. Felix (1993) 14 CA4th 997, 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.)
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.
[Research Note: See FORECITE BIBLIO 2.92]
CALJIC NOTE: See FORECITE F 2.92 n4.
F 315.1.3 Inst 5 Eyewitness Failing To Attend Pretrial Lineup
*To be added at end of CC 315:
Also consider the failure of the eyewitness to attend the pretrial lineup despite being requested to attend. You should view the witnesses’s testimony as to eyewitness identification with caution, as it may be less reliable than if (he/she)] had attended the lineup.
Points and Authorities
In People v. Fernandez (1990) 219 CA3d 1379, 1384, 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 (1980) 28 C3d 88, 99, 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.)
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 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
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 2.92a.
F 315.1.3 Inst 6 Eyewitness Factors: Prior Identification Of Someone Else
*Add to CC 315:
Whether on any occasion before trial the witness identified someone else as the offender.
Points & Authorities
CALCRIM 315 instructs the jury to consider whether the witness was “able to identify the defendant in a photographic or physical lineup” and “did the witness ever fail to identify the defendant? “ These instructions fail to specifically direct the jury toward consideration of the witness’ identification of someone other than the defendant as the culprit. The above instruction properly focuses the jury on this factor. (Cf., People v. Fudge (1994) 7 C4th 1075, 1109-1110 fn 8.)
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 2.92f.
F 315.1.3 Inst 7 Factors Not Specified In CC 315
* Modify CC 315 to include the following:
1. The presence or absence of any circumstances that might focus or distract the witness’s attention;
2. Fairness of the photographic lineup;
3. Whether a perpetrator was unfamiliar to the witness;
4. Testimony of an expert regarding acquisition, retention or retrieval of information presented to the senses of a witness; and/or
5. Whether the witness’s memory was or was not affected by the intervening time and events.
6. At time of arrest, defendant was not dressed in clothing matching the description of the perpetrator.
Points and Authorities
People v. Johnson (1992) 3 C4th 1183, 1230-34 provides authority for instruction upon several factors not specifically enumerated in CC 315. The court concluded that the instruction given in Johnson “met the requirements set forth in People v. Wright (1988) 45 C3d 1126, 1141; [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 (1994) 7 C4th 1075, 1110 [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’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.“ )
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.
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.
CALJIC NOTE: See FORECITE F 2.92b.
