SERIES 300 EVIDENCE
F 315 NOTES
TABLE OF CONTENTS
F 315 Note 1 Eyewitness Identification: Importance Of Early Preparation And Total-Case Strategy
F 315 Note 2 Burden Of Proving Identity: No Sua Sponte Duty
F 315 Note 3 Eyewitness Factors: Suggestive ID Procedure
F 315 Note 4 Eyewitness Factors: Due Process Challenge Rejected
F 315 Note 5 Eyewitness Factors Must Be Requested
F 315 Note 6 Eyewitness Testimony Subject To Daubert Rule
F 315 Note 7 Eyewitness Instruction Should Not Explain Factors
F 315 Note 8 Resource For Eyewitness Testimony Material
F 315 Note 9 Does Specific Instruction On Identification Increase The Rate Of Conviction?
F 315 Note 10 Eyewitness Factors: Reference To Psychological Studies During Argument
F 315 Note 11 Department Of Justice Guidelines On Eyewitness Identification Procedures
F 315 Note 12 Failure To Request Expanded Eyewitness Instructions As Ineffective Assistance Of Counsel
F 315 Note 13 Juror Misconceptions Regarding Cross-Racial Identification
F 315 Note 14 Eyewitness Identification: Death Penalty Should Not Be Imposed Where Guilt Is Based Solely On Testimony Of A Single Eyewitness
F 315 Note 15 Eyewitness Expert (McDonald): Exclusion Justified Only When Other Evidence “Substantially Corroborates” The Identification
F 315 Note 16 Improper To Comment On Failure Of Defense To Request A Lineup
F 315 Note 17 Failure To Give CJ 2.91 (Now CC 315) As Reversible Error
F 315 Note 18 New Jersey Supreme Court Issues Major Decision On Eyewitness Identifications
F 315 Note 19 The Manson v. Brathwaite (1977) 432 US 98 Test Needs To Be Revised
F 315 Note 20 Factors Affecting Reliability Of Eyewitness Identification
F 315 Note 21 Eyewitness: Need For “Enhanced” Jury Instructions
Return to Series 300 Table of Contents.
F 315 Note 1 Eyewitness Identification: Importance Of Early Preparation And Total-Case Strategy
“Jurors may accord more weight to eyewitness testimony than to other testimony for the simple reason that an eyewitness generally gives a fuller account of the events that transpired. An eyewitness account typically consists of a rich and detailed description of the events, thus providing material for the mental construction of the events in the minds of the jurors.” (Loftus & Doyle, Eyewitness Testimony—Civil & Criminal (Lexis, 3rd ed. 1997) §1-5, page 5.) Hence, studies suggest that jurors will believe eyewitness testimony even if that testimony is inconsistent or discredited. “Although sometimes attempts to discredit the eyewitness succeed in making the eyewitness less persuasive than one who is unimpeached, generally even discredited eyewitness testimony carries some weight. [Footnote omitted.]” (Id.) “Since people trust their own memories more than they should, they then trust the memories of others. Information provided by an eyewitness, particularly a confident one, is accepted by the juror and integrated into the mental construction of the accident, or crime, or whatever event the witness is testifying about.” (Id. at §1-6, p. 6.) For example, in one case the jurors convicted a criminal defendant based on eyewitness identification even though an FBI laboratory director had testified that DNA testing conclusively proved the defendant could not have been the culprit. (Id. §1-5, p. 5.)
On the other hand, there are many potential weaknesses in eyewitness identification testimony, and there are a number of common misconceptions which jurors hold regarding the reliability of such testimony. “The strategic goal of expert testimony in an eyewitness case is to challenge successfully the jurors’ misplaced confidence in eyewitness testimony. Although much of the specific information in an eyewitness case—the lighting, the initial descriptions, the duration of the encounter—is available through aggressive cross-examination, the general propositions that must be supplied if the jurors are to use that specific information with appropriate caution usually have to be conveyed in some other way. In the eyes of many lawyers, an efficient and persuasive vehicle is the expert witness.” (Loftus & Doyle, Eyewitness Testimony—Civil & Criminal (Lexis, 3rd ed. 1997) ‘11-1, pp. 274-75.)
By using the total-case approach, counsel is most likely to obtain the necessary evidence and lay the necessary groundwork for special eyewitness jury instructions. (See generally Arnolds, Carroll, Lewis & Seng, Eyewitness Testimony: Strategies And Tactics (West, 1984) Chapter 3 “Pretrial Considerations.” ) “Litigators who desire a special eyewitness instruction are less likely to get it if they simply wait for the end of the case and then request it. The best means for persuading a trial judge to warn the jurors about the fragility of the eyewitness process is to wage a case-long campaign of education. Pretrial motions, offers of expert testimony, and the cross-examination process should all have as their subsidiary goal the acceptance of a request for an eyewitness instruction.” (Loftus & Doyle, Eyewitness Testimony—Civil & Criminal (Lexis, 3rd ed. 1997) §12-2(a), p. 330 [footnotes omitted].)
In sum, an early and concerted strategy to highlight the weaknesses of the testimony and to “educate” the jurors and judge regarding the true nature of eyewitness identification testimony may be the best way to approach an eyewitness identification case.
F 315 Note 2 Burden Of Proving Identity: No Sua Sponte Duty
In People v. Alcala (1992) 4 C4th 742, 803, the Supreme Court held that the trial court had no sua sponte duty to give eyewitness identification instructions and that the general instructions on credibility and burden of proof are sufficient.
However, it should be noted that in Alcala and People v. Blair (1979) 25 C3d 640, 662-63 upon which Alcala relies, “there was substantial corroborating evidence … connecting the defendant to the crime, apart from the eyewitness testimony.” In Alcala, the court relied, in part, upon the existence of this corroborating evidence in reaching its conclusion that the identity and eyewitness instructions need not be given sua sponte. Hence, this may provide a basis for arguing for a sua sponte duty in identification cases which do not include “substantial corroborating evidence.”
[Research Note: See FORECITE BIBLIO 2.92]
CALJIC NOTE: See FORECITE F 2.91 n1.
F 315 Note 3 Eyewitness Factors: Suggestive ID Procedure
In addition to the factors listed in CC 315, the jury should be instructed, when appropriate, to consider the suggestiveness of any police-conducted identification procedures. Cues in identification procedures or methods of questioning may affect the accuracy of an eye witness identification. (See People v. McDonald (1984) 37 C3d 351, 368; see also Grant v. City of Long Beach (9th Cir. 2002) 315 F3d 1081, 1087-88 [photo lineup was unfair and unreliable because photos were not sufficiently similar to each other]; Annotation, Admissibility of evidence of photographic identification as affected by allegedly suggestive identification procedures, 39 ALR3d 1000 and Later Case Service.)
(See FORECITE F 315.1.1 Inst 10.)
[Research Note: See FORECITE BIBLIO 2.92]
CALJIC NOTE: See FORECITE F 2.92 n1.
F 315 Note 4 Eyewitness Factors: Due Process Challenge Rejected
In People v. Johnson (1992) 3 C4th 1183, 1234-35, the court rejected the following arguments: that the term “if any” in the factor relating to stress undermines the expert; that the witness certainty factor should have been deleted in light of the expert testimony that witness confidence in identification does not positively correlate with its accuracy; that the court erred in striking the adjective “alleged” before “perpetrator” in the suggestive photo I.D. factor; and that the photo I.D. factor focused on the “fairness” rather than the “suggestiveness” of the photo I.D.
CAVEAT: Counsel should consider whether these issues should be preserved for federal habeas or certiorari. (See generally, FORECITE PG VII.)
[Research Note: See FORECITE BIBLIO 2.92]
CALJIC NOTE: See FORECITE F 2.92 n3.
F 315 Note 5 Eyewitness Factors Must Be Requested
The court is not required to give CC 315 sua sponte. When it would be helpful to the defense, and no alternative pinpoint instruction on this subject is being tendered, counsel must request it. (People v. Sanchez (1990) 221 CA3d 74, 76-78.)
In addition to CC 315 the defendant may be entitled to a special instruction specifically directing the jury’s attention to other evidence in the record. (People v. Wright (1988) 45 C3d 1126, 1141.) However, in order to obtain a Wright instruction, it must be shown that the additional instruction addresses matters not covered by CC 315. (People v. Frank (1990) 51 C3d 718, 739.)
See instruction in People v. Palmer (1984) 154 CA3d 79, 82, fn 2 and court’s comments at p. 89.
RESEARCH NOTES: See Annotation, Eyewitnesses: Necessity of, and prejudicial effect of omitting, cautionary instruction to jury as to reliability of, or factors to be considered in evaluating, eyewitness identification testimony, state cases, 23 ALR4th 1089 and Later Case Service.
[Research Note: See FORECITE BIBLIO 2.92]
CALJIC NOTE: See FORECITE F 2.92 n5.
F 315 Note 6 Eyewitness Testimony Subject To Daubert Rule
Two Ninth Circuit cases have held that expert testimony regarding the reliability of eyewitness identification must be evaluated under the new Daubert rule. (Daubert v. Merrell Dow (1993) 509 US 579 [125 LEd2d 469; 113 SCt 2786].) (See U.S. v. Amador-Galvan (9th Cir. 1993) 9 F3d 1414, 1418; U.S. v. Rincon (9th Cir. 1993) 11 F3d 922, 922; see also Kumho Tire Co., Ltd. v. Carmichael (1999) 526 US 137 [143 LEd2d 238; 119 SCt 1167] [Daubert applies to all expert testimony, not just scientific opinion].) However, in California, the Supreme Court has held that the Kelly-Frye standard rather than Daubert is the applicable test. (People v. Leahy (1994) 8 C4th 587, 612.)
PRACTICE NOTE: Given the fact that the California Supreme Court has expressly rejected the Daubert Rule (see People v. Leahy (1994) 8 C4th 587), and Daubert is not a constitutional rule, that rule should not be applicable in California.
[Research Note: See FORECITE BIBLIO 2.92]
CALJIC NOTE: See FORECITE F 2.92 n9.
F 315 Note 7 Eyewitness Instruction Should Not Explain Factors
In People v. Gaglione (1994) 26 CA4th 1291, 1301-03, the court of appeal rejected an argument that two of the CC 315 factors (certainty of identification and stress) should be further explained to the jury. The court of appeal relied on People v. Wright (1988) 45 C3d 1126, 1141 in holding that an instruction which explained the influence of the various psychological factors would improperly invade the domain of the jury.
CALJIC NOTE: See FORECITE F 2.92 n11.
F 315 Note 8 Resource For Eyewitness Testimony Material
(See Loftus and Doyle, Eyewitness Testimony (2d ed.) §12.01, p. 356.)
CALJIC NOTE: See FORECITE F 2.92 n12.
F 315 Note 9 Does Specific Instruction On Identification Increase The Rate Of Conviction?
The leading case of U.S. v Telfaire (DC Cir. 1972) 469 F2d 552 is followed in many federal courts and is endorsed by a number of state courts which utilize similar instructions. (Loftus and Doyle Eyewitness Testimony (2d ed.), §12.05, p. 363.) [CJ 2.92 is a “Telfaire-type” factor instruction.]
However, there is research on the usefulness of the Telfaire instruction, which confirms the suspicion of many lawyers, that juries which are given the Telfaire instruction convict at a higher rate than juries which are not given the instruction. (See Loftus and Doyle, §12.06 at p. 365.) The researcher who conducted this study noted a substantially lower conviction rate among the mock jurors by modifying the Telfaire instruction to provide as follows:
“One of the major issues in this case is the identification of the defendant as the person accused of committing a crime. The prosecution has the burden of proving beyond a reasonable doubt, not only that a crime was committed, but that the defendant was the person who committed it.
Identification testimony is an expression of belief by an eyewitness about a person who may have committed a crime. You should keep in mind that identifying a person who committed a crime may be very different from recognizing a friend you see repeatedly. In evaluating the testimony of any eyewitness, you should consider two sets of factors: first, factors present when the incident occurred; second, the factors affecting the later identification.
Factors present when the incident occurred are:
a) how much time was available for observation;
b) how well the scene was lit; and
c) how far the eyewitness was from the incident.
You should also consider how well the eyewitness could see and hear at the time. For example, if a witness is afraid or distracted, his or her capacity to perceive and remember is reduced.
A second set of factors affects later identification. You should consider how much time has passed between the incident and the identification. For example, identification errors increase as time passes. You should also consider the circumstances surrounding the identification. For example, an identification made from a fair lineup of similar individuals is more reliable than other forms of identification such as viewing a suspect alone. You should also consider how certain the eyewitness was in making an identification. Certainty may or may not mean that the identification is accurate.
If, after considering all of these factors, you have a reasonable doubt about the accuracy of the eyewitness’s identification of the defendant as the person who may have committed a crime, then you must find the defendant not guilty.” (Loftus and Doyle, Eyewitness Testimony (2d ed.) §12.06 at p. 366.)
CALJIC NOTE: See FORECITE F 2.92 n13.
F 315 Note 10 Eyewitness Factors: Reference To Psychological Studies During Argument
The question of whether, and to what extent, counsel may discuss or refer to psychological studies which challenge the reliability of eyewitness identification during closing argument has not been directly resolved. However, there are a number of cases which generally discuss the right of counsel to read from court opinions, books, newspapers and magazine articles or to judicially notice matters that are drawn from common experience, history or literature. (See FORECITE PG VI(C)(12) [reference to outside sources during argument].)
CALJIC NOTE: See FORECITE F 2.92 n14.
F 315 Note 11 Department Of Justice Guidelines On Eyewitness Identification Procedures
The Deptartment of Justice has published a guide for law enforcement officers to use in refining their investigative practices dealing with eyewitness evidence. The guide does not impose mandatory requirements on police agencies, but it may prove useful in challenging the eyewitness procedures utilized in a particular case. The guide is entitled, “Eye Witness Evidence: A Guide for Law Enforcement” and it is published by the National Institute of Justice. It is available on the Internet at: www.ojp.usdoj.gov/nij/pubs.aspx and is also available to FORECITE subscribers, see Article Bank # A-77.
CALJIC NOTE: See FORECITE
F 315 Note 12 Failure To Request Expanded Eyewitness Instructions As Ineffective Assistance Of Counsel
[See Brief Bank # B-868for biefing on this issue.]
CALJIC NOTE: See FORECITE F 2.92 n16.
F 315 Note 13 Juror Misconceptions Regarding Cross-Racial Identification
” ‘The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.’ ” (People v. McDonald (1984) 37 C3d 351, 363, citing U.S. v. Wade (1967) 388 US 218, 228 [18 LEd2d 1149; 87 SCt 1926].) “Stress and cross-racial factors can affect the accuracy of identification.” (Rose v. Superior Court (2000) 81 CA4th 564, 573; see also McDonald, 37 C3d at 362; People v. Cardenas (1982) 31 C3d 897, 908.)
However, 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.) 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.)
RESEARCH NOTES: New Jersey Supreme Court Task Force on Minority Concerns Final Report, 131 N.J.L.J. 1145 (June, 1992). Five-year study of the need for a cross-racial and cross-ethnic 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].” (State v. Cromedy (NJ 1999) 727 A2d 457, 465.) [See Article Bank # A-87for a copy of the relevant portion of the New Jersey Supreme Court Task Force on Minority Concerns Final Report.]
CALJIC NOTE: See FORECITE F 2.92 n17.
F 315 Note 14 Eyewitness Identification: Death Penalty Should Not Be Imposed Where Guilt Is Based Solely On Testimony Of A Single Eyewitness
See FORECITE F 766.2 Inst 2.
F 315 Note 15 Eyewitness Expert (McDonald): Exclusion Justified Only When Other Evidence “Substantially Corroborates” The Identification
In People v. Jones (2003) 30 C4th 1084, 1111-12 the Supreme Court rejected the prosecution’s argument that an eyewitness expert may be excluded under People v. McDonald (1984) 37 C3d 351 anytime the “eyewitness identification [is] corroborated by other independent evidence of the crime ….” (People v. Sanders (1995) 11 C4th 475, 509.) In Jones the court clarified this language from Sanders as follows:
“But this language from Sanders cannot be viewed as limiting the holding of [McDonald] to cases in which, apart from the eyewitness identification, there is no other evidence whatever linking defendant to the crime: Exclusion of the expert testimony is justified only if there is other evidence that substantially corroborates the eyewitness identification and gives it independent reliability.” (Jones, 30 C4th at 1112.)
CALJIC NOTE: See FORECITE F 2.92 n19.
F 315 Note 16 Improper To Comment On Failure Of Defense To Request A Lineup
In eyewitness identification cases an accused may request a pretrial lineup. (See Evans v. Superior Court (1974) 11 C3d 617, 626.) However, contrary to People v. Lewis (2004) 117 CA4th 246, defense counsel’s failure to request a lineup under Evans does not reasonably permit an inference that the police procedures were accurate or reliable or that the defendant was satisfied with the identification process. This is so because counsel may have reasonably concluded that an Evans lineup would itself be unreliable due to the taint of the suggestive police procedures. It is well established that once a witness has made an identification as a result of suggestive procedures, any subsequent identification may also be tainted. (See FORECITE 315.1.1 Inst 10; see also FORECITE F 315 Note 3.)
CALJIC NOTE: See FORECITE F 2.92 n20.
F 315 Note 17 Failure To Give CJ 2.91 (Now CC 315) As Reversible Error
See Brief Bank # B-959for briefing on this issue.
CALJIC NOTE: See FORECITE F 2.91 n3.
F 315 Note 18 New Jersey Supreme Court Issues Major Decision On Eyewitness Identifications
State v. Henderson (NJ 2011) 208 N.J. 208, 218, 27 A3d 872, found “convincing proof” that the current test for evaluating the trustworthiness of eyewitness identifications is unreliable. “Study after study revealed a troubling lack of reliability in eyewitness identifications. From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real. Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country.” (Ibid.)
Henderson challenged the eye witness identification on the ground that the officers unduly influenced the choice of Henderson’s photo. The trial judge ruled against Henderson, but the intermediate appellate court reversed the conviction based on the suggestive lineup procedure which violated the attorney general’s eye witness guidelines which required that the officer conducting the photo lineup not know which of the photos is the suspect. The New Jersey Supreme Court granted certification and granted applications by the Innocence Project and the Association of Criminal Defense Lawyers of New Jersey to appear as amici curiae. The amici argued, among other things, that the state’s court-created procedures for determining the admissibility of eyewitness identification testimony, which were based on the test articulated by the United States Supreme Court in Manson v. Brathwaite (1977) 432 US 98 [53 LEd2d 140; 97 SCt 2243], were outdated and problematic in light of more recent scientific research. In response, the state Supreme Court appointed a Special Master to evaluate the scientific and other evidence about eyewitness identification. The Special Master held a 10-day hearing, at which seven experts testified and 200 scientific articles were admitted into evidence, and issued an extensive report. The Innocence Project called witnesses in addition to those called by the parties.
In an opinion that is a compendium of the scientific research about eyewitness identification and the role of various factors that contribute to the misidentification of suspects, the Supreme Court concluded that “the science abundantly demonstrates the many vagaries of memory encoding, storage, and retrieval; the malleability of memory; the contaminating effects of extrinsic information; the influence of police interview techniques and identification procedures; and the many other factors that bear on the reliability of eyewitness identifications.” (State v. Henderson, 208 N.J. at 283 [internal quotations marks omitted].)
In sum, the opinion is a comprehensive and valuable resource for researching sources of error in eyewitness identifications.
F 315 Note 19 The Manson v. Brathwaite (1977) 432 US 98 Test NeedsTo Be Revised
On the strength of the evidence before it, State v. Henderson (NJ 2011) 208 N.J. 208, 27 A3d 872 determined that the factors supporting admissibility of an identification articulated in Manson v. Brathwaite (1977) 432 US 98 [53 LEd2d 140; 97 SCt 2243], are no longer valid in light of subsequent research findings. (Id. at 286.) Those factors, as stated in Manson, “include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” (Id., 432 U.S. at 114.) “But three of those factors – the opportunity to view the crime, the witness’ degree of attention, and the level of certainty at the time of the identification – rely on self-reporting by eyewitnesses; and research has shown that those reports can be skewed by the suggestive procedures themselves and thus may not be reliable. Self-reporting by eyewitnesses is an essential part of any investigation, but when reports are tainted by a suggestive process, they become poor measures in a balancing test designed to bar unreliable evidence.” (State v. Henderson, 208 N.J. at 286.)
F 315 Note 20 Factors Affecting Reliability Of Eyewitness Identification
After an exhaustive evaluation of the latest scientific studies and literature. State v. Henderson (NJ 2011) 208 N.J. 208, 27 A3d 872 concluded that the factors which affect the reliability of eyewitness identification include the following:
System Variables: whether the procedure was performed blind or double-blind, or with some other safeguard to ensure that the administrator had no knowledge of where the suspect appeared in the lineup; whether neutral pre-identification instructions were given to the witness; how well the lineup was constructed (presenting an adequate number of filler photos or individuals, choosing photos/participants that fit the witness’s description, sequential administration of photos); whether the witness received any feedback about the suspect before, during or after the identification; contemporaneous recording of the witness’s reactions when viewing the lineup ; whether the witness’s confidence in the identification was reported immediately and before the possibility of any confirmatory feedback; avoiding confirmatory feedback after an identification; avoiding multiple viewings of the same suspect in successive lineups; whether the witness had spoken with anyone outside of law enforcement about the identification, and what was discussed; and whether the witness initially chose someone other than the suspect in the lineup. [If a one-person showup is at issue, the court should determine whether it was performed more than two hours after the event, since research has shown that the accuracy of identifications drops off significantly after that time.]
Estimator Variables: whether the event involved a high level of stress; whether a visible weapon was used during a crime of short duration; how much time the witness had to observe the event; the distance and lighting conditions; relevant characteristics of the witness that would affect his or her ability to see or recall the event (including age and intoxication); relevant characteristics of the perpetrator that might impede an accurate identification (e.g., hat, sunglasses, facial hair); memory decay; cross-racial identification; exposure to suggestion by private actors such as other witnesses; the time between the event and the lineup; and the speed with which the witness makes an identification from a lineup.
The court evaluated the effect of each of those factors on the accuracy of identifications, citing literature and expert testimony from the hearing. The court also evaluated evidence from studies measuring jurors’ understanding of the science of memory and the psychology of eyewitness identification. The studies concluded that jurors often hold beliefs that run counter to the reality reflected in the research.
F 315 Note 21 Eyewitness: Need For “Enhanced” Jury Instructions
State v. Henderson (NJ 2011) 208 N.J. 208, 27 A3d 872 concluded that when eyewitness identification testimony is admitted at trial, enhanced instructions should be given to juries – both after trial and also at the time of the witness’s testimony, if appropriate – about the various factors that may affect the reliability of an identification in the particular case.
The court did not propose specific instructions in its opinion, but invited the parties and amici to submit proposed instructions to the state’s model jury instruction committee.
