The CALCRIM instruction on eyewitness identification does not admonish the jury to consider pretrial identification procedures utilized by the police. It simply tells the jury to consider whether “the witness able to identify the defendant in a photographic or physical lineup?”
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 in the following declaration:
The Legislature finds and declares the following:
(a) Valid eyewitness identifications are an important piece of evidence for solving crimes and securing rightful convictions. Compliance with best practices improves the reliability of the identification, whereas failing to comply with these recommendations increases the risk of a misidentification and also will make even positive identifications more likely to be rejected in court.
(b) Eyewitness 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.
(c) Wrongful convictions involving eyewitness misidentification threaten public safety because, when an innocent person is convicted, the real perpetrator remains undetected and could harm others.
(d) Over the past 30 years, a large body of peer-reviewed research has demonstrated that simple systematic changes in the administration of eyewitness identification procedures by law enforcement agencies can greatly improve the accuracy of identifications. These evidence-based practices include blind or blinded administration of identification; instructing the eyewitness that the perpetrator may or may not be present in the procedure; selecting fillers that match the eyewitness’ description of the perpetrator and do not make the suspect noticeably stand out; eliciting a statement of confidence from the eyewitness, in his or her own words, immediately after an identification is made; and recording the eyewitness identification procedure.
(e) Evidence based procedures have been endorsed by the California Commission on the Fair Administration of Justice, the National Academy of Sciences, the United States Department of Justice and the International Association of Chiefs of Police.
(f) In 2008, the California Commission on the Fair Administration of Justice issued recommendations for law enforcement to adopt evidence-based eyewitness identification practices. While some individual jurisdictions have implemented these procedures, there is currently no uniform statewide use of best practices. Without consistent policies throughout the state, justice will vary by jurisdiction.
In light of this legislative declaration an instruction such as one of the following samples — which go beyond CC 315 — would seem to be appropriate:
In weighing an eyewitness identification made by a witness, consider any pretrial procedures which may have suggested to the witness that the defendant should be chosen.
Unless the identification made in court resulted from the observations or perceptions of the witness during the commission of the crime rather than being the product of an impression gained during the pretrial procedures, the in-court identification must not be given any weight. The ultimate issue of the trustworthiness of an in-court identification is for you to decide.
[Cf. New Jersey Model Jury Charges – Criminal Chap. 1 (II) Other Non-2C Charges: [Identification] & 4 (New Jersey ICLE 4th ed. 1997).]
You should also consider the circumstances of the earlier identification that occurred outside of court. For example, consider how that earlier identification was conducted, and how much time passed after the alleged crime before the identification was made.
[Source: 6th Circuit Pattern Instructions (1991) 7.11, & 3.]
You may also consider the circumstances surrounding the later identification itself including, for example, the manner in which the Defendant was presented to the witness for identification, and the length of time that elapsed between the incident in question and the witness’s identification of the Defendant.
[Source: 11th Circuit Pattern Jury Instructions (2003) SI 3, & 3.]
You should also consider whether the identification made by the witness after the offense was the product of [his] [her] own recollection. You may consider, in that regard, the strength of the identification, and the circumstances under which the identification was made, and the length of time that elapsed between the occurrence of the crime and the next opportunity the witness had to see defendant.
[You may also take into account that an identification made by picking the defendant out of a group of similar individuals is generally more reliable than one which results from the presentation of the defendant alone to the witness.]
If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to [him] [her] for identification, you should scrutinize the identification with great care.
[You may take into account any occasions in which the witness failed to make an identification of defendant, or made an identification that was inconsistent with [his] [her] identification at trial.]
[Source: 8th Circuit Model Instructions (2000) 4.08, & 4-7.]
The following sample points and authorities, from FORECITE 315.1.1 Inst 9 provide further support for such an instruction:
The risk of inaccuracy and error in eyewitness identification evidence has long been recognized. (See e.g., United States v. Wade (1967) 388 US 218, 228-229 [87 SCt 1926, 1932-1933; 18 LEd2d 1149]; People v. Whalen (NY 1983) 59 NY2d 273, 278 [464 NYS2d 454; 451 NE2d 212].) “Of the first 100 wrongful convictions proven by DNA technology, over 80 percent relied to an important extent on sincere, confident, mistaken eyewitnesses.” (“2 Stories of Eyewitness Error,” by James M. Doyle, NACDL Champion (Nov. 2003), p. 24 [citing “Actual Innocence,” by Jim Dwyer, Barry Scheck and Peter Neufeld (Doubleday, 2000)].)
A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. (United States v. Wade, supra, 388 US at 228; see also e.g., Dispensa v. Lynaugh (5th Cir. 1988) 847 F2d 211, 220 [standing behind a suspect was suggestive]; Williams v. Armontrout (8th Cir. 1989) 877 F2d 1376 [improper show-up procedure].)
Post-event experiences and information can “dramatically affect” memory of the original event. (Loftus & Doyle, Eyewitness Testimony—Civil & Criminal (Lexis, 3rd ed. 1997) §3-4, p. 54; see also Doyle, “2 Stories Of Eyewitness Error,” by James M. Doyle, NACDL Champion (Nov. 2003), pp. 24-27 [discussing eyewitness testimony as “contaminated trace evidence” ]; People v. McDonald (1984) 37 C3d 351, 368; see also Annotation, Admissibility of Evidence of Photographic Identification as Affected by Allegedly Suggestive Identification Procedures, 39 ALR3d 1000.) Hence, it is crucial to discover any post-event influence, including discussions with the police and pretrial identification procedures, to “learn how the witness came to construct and believe in the current version.” (Loftus & Doyle, Eyewitness Testimony—Civil & Criminal (Lexis, 3rd ed. 1997) §3-4, p. 57; see also Arnolds, Carroll, Lewis & Seng, Eyewitness Testimony: Strategies And Tactics (West, 1984) Chapter 3, “Preliminary Consideration.” )
Pretrial identification procedures can have a dramatic impact on the in-court identification. For example, cues in identification procedures or methods of questioning may affect the accuracy of an eyewitness identification. (See People v. McDonald (1984) 37 C3d 351, 368; see also Annotation, Admissibility of Evidence of Photographic Identification as Affected by Allegedly Suggestive Identification Procedures, 39 ALR3d 1000.) Aside from the selection of distracters to include in a lineup or photo spread, another important consideration is the instructions given to the witness. It is generally agreed that it is a bad idea to explicitly lead a witness to believe that a suspect is in the lineup (“we have a suspect” ). It is far better to suggest that the actual offender might be absent from the lineup (“he may or may not be there” ). (Loftus & Doyle, Eyewitness Testimony—Civil & Criminal (Lexis, 3rd ed. 1997) §4-6, p. 82.)
“… [A]n eyewitness is particularly likely to accept a misleading hint concerning an identification proceeding when the source of the hint is someone whom the eyewitness has some reason to believe is relatively expert concerning the situation. Classically, this situation is created when a police officer who the witness knows has been involved in an extensive investigation suggests that the officer’s favorite candidate is in a lineup.” (Ibid.)
It follows logically that where there has been a lineup or other pretrial identification procedure, the trier of facts should also be permitted to consider the suggestiveness of that procedure, and the extent to which it may have influenced the witness’s present identification, for “it is a matter of common experience that, once a witness has picked out the accused at the lineup, he is not likely to go back on his word later on, so that in practice the issue of identity may … for all practical purposes be determined there and then, before the trial.” (United States v. Wade, supra, 388 US at 229; Loftus & Doyle, Eyewitness Testimony—Civil & Criminal (Lexis, 3rd ed. 1997) §4-5(b), p. 81 [one study concluded that eyewitnesses who publicly stated their choice stayed with that choice, even if incorrect, 78% of the time]; Williams & Hammelmann, Identification Parades, Part 1  Crim.L.Rev. 479, 482.)
“Where a witness testifies at trial regarding an identification of the accused, whether that testimony describes an in-court identification or a pretrial identification procedure, the trier of facts must be permitted to consider whether such testimony is worthy of belief, or whether it is lacking in reliability due to the suggestiveness of that identification procedure or of some other procedure employed prior thereto. To that end, the trier of fact may properly be presented with proof relevant to the suggestiveness of any such procedures. ‘This includes evidence of pre-lineup and post-lineup suggestions as well as all the factors which enter into the determination of fairness of the lineup conduct, the photo identification procedures, and the supporting and negating factors of independent source or reliability.’ ” (Sobel, Eyewitness Identification, (2nd Ed. 1984, West) §9.3, p. 9-13.)