PRACTICE NOTE: "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.

See Manual On Recurring Problems In Criminal Trials [Identification Testimony: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2h. Identification Testimony: Defendant Entitled To Cautionary Jury Instruction Relative To Identification Testimony].

See also generally, FORECITE National™ 305.9.1 [Identification].

See generally, FORECITE National™ 31.1.9 [Eyewitness Identification: Federal Circuit Model Instructions].

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PRACTICE NOTE: Pretrial motions may have the dual objective of seeking suppression of the eyewitness testimony and discovery of evidence which may be used to discredit the testimony at trial. (See generally Arnolds, Carroll, Lewis & Seng, Eyewitness Testimony: Strategies And Tactics (West, 1984) § 3.11.) Additionally, even if the evidence is not excluded due to suggestive procedures, such procedures may provide the basis for argument and instruction as to the unreliability of the identification. (See FORECITE National™ 31.2.7 [Conveying Psychological Principles During Argument]; see also FORECITE National™ 272.3 [Summation/Closing Argument: Use Of Argument To Explain The Law Or Instructions].)

    Additionally, pretrial motions may provide a strategy for dealing with the problem of how to lay the evidentiary foundation to challenge the instruction.

    See also FORECITE National™ 31.1.1 [Importance Of Early Preparation And Total-Case Strategy].

    See also generally, FORECITE National™ 305.9.1 [Identification].

See Manual On Recurring Problems In Criminal Trials [Identification Testimony: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2h. Identification Testimony: Defendant Entitled To Cautionary Jury Instruction Relative To Identification Testimony].

See generally FORECITE National™ 31.1.9 [Eyewitness Identification: Federal Circuit Model Instructions].

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PRACTICE NOTE: Discovery can be a key component of a total-case eyewitness strategy. (See generally Arnolds, Carroll, Lewis & Seng, Eyewitness Testimony: Strategies And Tactics (West, 1984) § 3.06; Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) § 6-4, p. 118.)

See Manual On Recurring Problems In Criminal Trials [Identification Testimony: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2h. Identification Testimony: Defendant Entitled To Cautionary Jury Instruction Relative To Identification Testimony].

See also generally, FORECITE National™ 305.9.1 [Identification].

See generally FORECITE National™ 31.1.9 [Eyewitness Identification: Federal Circuit Model Instructions].

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PRACTICE NOTE: Before developing a strategy for educating the jury and judge, it is, of course, necessary for the attorney to be "educated" regarding eyewitness identification: "Repeated surveys of defenders, prosecutors and judges indicate that many (as to some aspects, most) lawyers are ignorant of the ramifications of psychological research into the eyewitnessing process. [Footnote omitted.]" (Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) § 1-7, p. 8.) Hence, regardless of whether expert testimony will actually be admitted at trial, an expert and expert source materials should be consulted early on. (See Arnolds, Carroll, Lewis & Seng, Eyewitness Testimony: Strategies And Tactics (West, 1984) § 3.10.)

    "Lawyers must remember that they need a lot of pretrial help from the expert psychologists, and one thing that makes a 'good' witness is the willingness to consult extensively with counsel regarding the intersection of law and science....[P]retrial preparation requires a comprehensive inquiry into not only the expert’s opinions but also the specific experimental basis for the opinions. This is territory that a lawyer is very unlikely to master successfully on his or her own." (Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) § 11-5, p. 279.)

See also Manual On Recurring Problems In Criminal Trials [Identification Testimony: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2h. Identification Testimony: Defendant Entitled To Cautionary Jury Instruction Relative To Identification Testimony].

See also generally, FORECITE National™ 305.5.8 [Expert Testimony/Scientific Evidence].

See also generally, FORECITE National™ 305.9.1 [Identification].

See generally FORECITE National™ 31.1.9 [Eyewitness Identification: Federal Circuit Model Instructions].

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PRACTICE NOTE: Voir dire is especially important in the educational process of the jurors because it is their first contact with the judge, attorneys and defendant. (Arnolds, Carroll, Lewis & Seng, Eyewitness Testimony: Strategies And Tactics (West, 1984) § 4.11 "Educating The Jurors On Aspects Of Eyewitness Testimony.") "Particularly for a lawyer who must attack the jurors’ fate in the reliability of eyewitnesses, it is important to exploit the power of the primacy effect. At the very least, a lawyer who is opposing an eyewitness needs to project an air of confidence, a sense that one need not cringe before a witness just because the witness happened to be on the scene." (Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) § 7-7, p. 171.)

    It may also be useful to broach the subject of psychology and eyewitness identification during voir dire. However, to do so, counsel must have first conducted sufficient preparation to determine the potential for obtaining the admission of psychological testimony or a cautionary instruction regarding the factors to consider as to eyewitness identification. (Ibid.)

See Manual On Recurring Problems In Criminal Trials [Identification Testimony: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2h. Identification Testimony: Defendant Entitled To Cautionary Jury Instruction Relative To Identification Testimony].

See also generally, FORECITE National™ 305.9.1 [Identification].

See generally FORECITE National™ 31.1.9 [Eyewitness Identification: Federal Circuit Model Instructions].

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PRACTICE NOTE: The opening statement may be one of the most critical stages of the trial. (See FORECITE National™ 16.1.1 [Importance Of Opening Statements]; see also Arnolds, Carroll, Lewis & Seng, Eyewitness Testimony: Strategies And Tactics (West, 1984) § 5.01 "Necessity Of Opening Statement.")

    The opening statement may be a good time to counter the assumed credibility of an eyewitness. For example, since an eyewitness usually comes across as sincere, certain, and sympathetic, it may be useful to admit this during the opening statement. (Empirical studies demonstrate that "stealing the thunder" of an opponent is an effective strategy. (See Williams, Bourgeois and Croyle, The Effects of Stealing Thunder in Criminal Trials, 17 Law and Human Behavior 597 (1993).) 

    At the same time, the opening statement can be used to begin to educate the jury regarding the possibility of mistaken identification. Thus, if the prosecution emphasizes the eyewitness in their opening statement, the defense could respond with the following:

    "You will hear from an eyewitness in this case. She will identify Mr. Doe. She will be sympathetic; she will be sincere; she will be absolutely certain. However, the evidence will show you that she’s wrong. Not that she’s a liar; that she’s wrong; that the circumstances of the crime and the difficulties of the identification process make it impossible to share her opinion beyond a reasonable doubt...." (Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) § 8-1, p. 182.)

    The opening statement is also an appropriate time to familiarize the jury with the theory of the defense. (See U.S. v. Dinitz (1976) 424 US 600, 612-13 [96 SCt 1075; 47 LEd2d 267] [concurring opinion of Burger, C.J.].) In an eyewitness case, familiarizing the jury with the theory of the case is extremely important due to the jury’s likely unfamiliarity with the factors which may impact the reliability of an identification. "An early statement of the theory affects the way in which the jurors organize the information they later receive from the witness stand. Questions designed to elicit the facts relevant to [a] psychological phenomenon...may elicit those facts but still be futile if the jurors, who have not been warned in advance, are inattentive to the witnesses." (Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) § 8.1, p. 183.) In short, the opening statement provides an opportunity to avoid the risk that the jurors will not understand the defense theory simply from the witness examination.

    Loftus suggests three ways to convey eyewitness psychology in the opening statement. (Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) § 8-12, p. 196.) First, the opening statement should be structured to present eyewitness identification as a three-stage process of perception, retention and retrieval. Thus, the "story" format of the opening statement can be organized in a way that describes eyewitness identification not as a "Polaroid Camera" but as a chain of choices and decisions that is only as strong as its weakest link.

    Second, counsel should pay close attention to language. Counsel should always be careful to use words like opinion or belief in discussing eyewitness identification. Furthermore, counsel should always refer to the identification as a "choice" of the witness rather than an "identification."

    Third, counsel opposing an eyewitness should communicate the impression that counsel is confident the eyewitness is wrong but that the witness should not be blamed for being wrong. "The simple appearance of confidence can have a strong impact on jurors who are used to thinking of eyewitness cases as cut-and-dried. The question "Why isn’t this lawyer cringing?" is a good one to plant in the jury’s mind." (Id. at p. 197.)

See Manual On Recurring Problems In Criminal Trials [Identification Testimony: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2h. Identification Testimony: Defendant Entitled To Cautionary Jury Instruction Relative To Identification Testimony].

See also generally, FORECITE National™ 305.9.1 [Identification].

See generally FORECITE National™ 31.1.9 [Eyewitness Identification: Federal Circuit Model Instructions].

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PRACTICE NOTE: There are, of course, many strategies and tactics regarding cross examination which should be considered in every case and especially in eyewitness identification cases. However, cross-examination is particularly important in laying the ground work to attack general misconceptions about eyewitness testimony. (See generally, Arnolds, Carroll, Lewis & Seng, Eyewitness Testimony: Strategies And Tactics (West, 1984) Chapter 7, "Cross Examination"; Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) § 10-26, pages 269-70.)

See Manual On Recurring Problems In Criminal Trials [Identification Testimony: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2h. Identification Testimony: Defendant Entitled To Cautionary Jury Instruction Relative To Identification Testimony].

See also generally, FORECITE National™ 305.9.1 [Identification].

See generally FORECITE National™ 31.1.9 [Eyewitness Identification: Federal Circuit Model Instructions].

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PRACTICE NOTE: See generally Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) Chapter 13, § 27; Arnolds, Carroll, Lewis & Seng, Eyewitness Testimony: Strategies And Tactics (West, 1984) Chapter 10, "Summations."

    See FORECITE National™ 31.2.7 [Conveying Psychological Principles During Argument].

See Manual On Recurring Problems In Criminal Trials [Identification Testimony: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2h. Identification Testimony: Defendant Entitled To Cautionary Jury Instruction Relative To Identification Testimony].

See also generally, FORECITE National™ 305.9.1 [Identification].

See generally FORECITE National™ 31.1.9 [Eyewitness Identification: Federal Circuit Model Instructions].

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    31.1.9  Eyewitness Identification:  Federal Circuit Model Instructions And Notes

See 5th Circuit Pattern Jury Instructions - Criminal 1.29.

See also 6th Circuit Pattern Jury Instructions - Criminal 7.11.

See also 7th Circuit Federal Jury Instructions - Criminal 3.08.

See also 8th Circuit Model Jury Instructions - Criminal 4.08.

See also 9th Circuit Model Jury Instructions - Criminal 4.14.

See also 11th Circuit Pattern Jury Instructions - Criminal SI 3.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 35.

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    31.1.10    Eyewitness Identification Web Site

PRACTICE NOTE:  For more information on eyewitness memory issues and research conducted by Iowa State University Psychologist Gary Wells, go to his web site at:

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PRACTICE NOTE:  The Dept. 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" by the National Institute of Justice. It is available on the internet at: www.ojp.usdoj.gov/nij/pubs.htm