Proposed Eyewitness Identification Legislation Emphasizes Need for Cautionary Instruction Regarding Eyewitness Testimony
June 20th, 2018

The CALCRIM 315 on eyewitness identification does not admonish the jury to consider eyewitness testimony with care or caution.


Proposed legislation in California (Senate Bill No. 923) would provide statutory recognition of how pretrial identification procedures can contribute to inaccurate identifications and wrongful conviction of the innocent:


“This bill would require all law enforcement agencies and prosecutorial entities to adopt regulations for conducting photo lineups and live lineups with eyewitnesses, as those terms would be defined by the bill, to ensure reliable and accurate suspect identifications…. By imposing a higher level of service on local law enforcement and prosecutorial entities, the bill would impose a state-mandated local program.”


The bill explains the need for such a state-mandated program because, inter alia, “[e]yewitness misidentification is the leading contributor to wrongful convictions proven with DNA evidence nationally. In California, eyewitness misidentification played a role in every DNA-based exoneration in the state.” Furthermore, the legislature recognized that even though the California Commission on the Fair Administration of Justice issued recommendations for law enforcement to adopt evidence-based eyewitness identification practices in 2008 “there is currently no uniform statewide use of best practices. Without consistent policies throughout the state, justice will vary by jurisdiction.”

Accordingly, at least until state-mandated protections are put into practice, the declarations of SB No. 923 emphasize the advisability of cautioning the jury regarding eyewitness identification testimony notwithstanding the failure of CC 315 to do so.

The following sample instruction addresses this concern:

You must view eyewitness testimony with caution and evaluate it carefully.

The above language 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.)


For other sample cautionary instructions see F 315.1.1 Inst 3 (a-e) Eyewitness Identification Must Be Viewed With Caution

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