In People v. Simpson UNPUBLISHED (Dec. 13, 2018, No. A146962) the defense argued at trial and on appeal that the CALCRIM instruction on eyewitness identification (CC 315) erroneously told the jurors that the “certainty” of an eyewitness about an identification is relevant to determining whether the identification was reliable. Simpson relied on scientific research cited by his eyewitness expert at trial which concludes that certainty does not correlate with accuracy.
Such 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.
Simpson is precisely such a case – the only eyewitness expressed certainty – and, together with the evidentiary record at trial, it would be the perfect vehicle for reconsideration of the issue by the CSC. Presumably Simpson will petition for review in the CSC and perhaps they will chose this case to bring California’s eyewitness jury instruction in line with the latest scientific literature.
Moreover, given passage of Senate Bill No. 923 eyewitness reliability may be on the CSC’s “front burner.”
For sample instructions and further briefing on this issue see F 315.1.3 Eyewitness Identification: Specific Factors.
