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PRACTICE NOTE: In capital cases it is well recognized that heightened verdict reliability is required at both the guilt and penalty phases of trial. (Beck v. Alabama (1980) 447 US 625, 627-46 [100 SCt 2382; 65 LEd2d 392]; see also Kyles v. Whitley (1995) 514 US 419, 422 [115 SCt 1555; 131 LEd2d 490]; Burger v. Kemp (1987) 483 US 76, 785 [107 SCt 3114; 97 LEd2d 638]; Gilmore v. Taylor (1993) 508 US 333, 342 [113 SCt 2112; 124 LEd2d 306].)

    Moreover, even in non-capital cases lack of reliability may violate the Due Process Clause of the federal constitution. "Reliability is ... a due process concern." (White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848].) Hence, the Due Process clauses of the federal constitution (5th and 14th Amendments) require that criminal convictions be reliable and trustworthy. (See Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431] and two cases cited at fn 22 [due process "cannot tolerate" convictions based on false evidence]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654]; see also FORECITE National™ 309.6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].)

    These principles may be violated if a defense request for special eyewitness identification expert testimony and instruction is refused.

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    31.10.2    Eyewitness Identification: Expert Witnesses

PRACTICE NOTE: The most direct way to refute juror misconceptions regarding eyewitness identification is to present expert testimony on the subject. (See Arnolds, Carroll, Lewis & Seng, Eyewitness Testimony: Strategies And Tactics (West, 1984) p. 15.)

    Under the traditional Frye (Frye v. U.S. (DC 1923) 293 F 1013) test it has been held that eyewitness experts are permissible. (See e.g., People v. McDonald (CA 1984) 37 C3d 351, 366 [208 CR 236]; Weatherred v. State (TX 1998) 975 SW2d 323 [refusal to admit defendant’s expert on photo bias and eyewitness misidentification held to be reversible error]; Currie v. Commonwealth (VA 1999) 515 SE2d 335, 338-339 [under Frye expert testimony limited to factors not within jury's common knowledge such as the mechanical processes of memory and cross racial identification].)

    Expert testimony has also been permitted, with narrow limitations, under the federal Daubert rule. "The narrow circumstances held sufficient to support the introduction of expert testimony have varied but have included such problems as cross-racial identification, identification after a long delay, identification after observation under stress, and [such] psychological phenomena as the feedback factor and unconscious transference." (U.S. v. Harris (4th Cir. 1993) 995 F2d 532, 535.) "Outside of such narrowly constrained circumstances, jurors using common sense and their faculties of observation can judge the credibility of an eyewitness identification, especially since deficiencies or inconsistencies in an eyewitness's testimony can be brought out with skillful cross-examination." (Id.) "...[S]everal circuits have suggested that such evidence warrants a more hospitable reception. (See e.g., U.S. v. Rincon (9th Cir. 1994) 28 F3d 921; U.S. v. Stevens (3rd Cir. 1991) 935 F2d 1380.) There is more expert literature on the subject, more experts pressing to testify, and possibly more skepticism about the reliability of eyewitnesses. [Citation.] It may be that a door once largely shut is now some what ajar." (U.S. v. Brien (1st Cir. 1995) 59 F3d 274, 276-77 [affirming exclusion of expert due to insufficient foundation to establish reliability]; see also U.S. v. Amador-Galvan (9th Cir. 1993) 9 F3d 1414, 1418; U.S. v. Jordan (NY 1996) 924 FSupp 443 [court relied on Daubert to find that the testimony of expert on eyewitness identifications was scientifically based and would be helpful to the jury]; U.S. v. Hines (MA 1999) 55 FSupp2d 62 [court used Daubert framework to allow expert to testify concerning problems with cross-racial identification]; but see U.S. v. Dorsey (4th Cir. 1995) 45 F3d 809 [court applied Daubert test and excluded the testimony of a forensic anthropologist holding that the evidence was not "scientific knowledge" and would not be helpful to the jury].)

    However, the admissibility of expert testimony under the federal test is still unresolved under Kumho Tire Co., Ltd. v. Carmichael (1999) 526 US 137, [119 SCt 1167, 1174-75; 143 LEd2d 238] which held that Daubert (Daubert v. Merrel Dow (1993) 509 US 579 [113 SCt 2786; 125 LEd2d 469]) applies to all expert testimony, not just scientific evidence.

    Expert Testimony Required Under Federal Constitutional Right To Present A Defense. "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 the specific information with appropriate caution usually have to be conveyed in some other way." (Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) § 11-1, pp. 274-75.) If the rules of evidence preclude the defendant from laying the evidentiary foundation to support these propositions, then the defendant has been denied his right to present a defense under the federal constitution. (Ibid.; see also FORECITE National™ Chapter 250 [Defenses And Defense Theories: General Issues].)

    To the extent that expert testimony regarding eyewitness identification is a defense theory, it may be argued that the federal constitution should allow such evidence, notwithstanding a local rule of evidence which prohibits it. (See FORECITE National™ 300.1.5 ["Super Due Process" -- Domestic Rules Of Evidence May Not Be Invoked To Preclude A Criminal Defendant From Establishing A Denial Of A Fair Trial].)

    Putting Expert Burden On The Prosecution.  If the court refuses to permit expert testimony, another approach is to challenge the underlying assumptions of the prosecution's theory to the extent they are based on unproven assumptions about eyewitness identification. (See FORECITE National™ 31.2.8 [Shifting The Burden To The Prosecution To Lay The Evidentiary Foundation To Support Its Assumptions About The Eyewitness Testimony].)

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 Manual On Recurring Problems In Criminal Trials [2i. Identification Testimony: Admissibility Of Expert Testimony Relative To Identification Of Accused].

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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    31.10.3    Expert Witness Instruction In Place Of Expert Testimony

RATIONALE: If the court refuses to allow an eyewitness identification expert testify, a fall-back position would be to instruct the jury on the principles about which the expert would have testified.

POINTS AND AUTHORITIES: In U.S. v. Burrous (EDNY 1996) 934 FSupp 525 the trial court refused to allow an expert to testify on eyewitness identification; instead the court determined that a thorough and evenly balanced jury charge that took into account some of the expert's concerns would be the most effective means of guiding the jury in its evaluation of the evidence. (See also U.S. v. Hall (7th Cir. 1999) 165 F3d 1095, 1107 ["...district court properly gave the jury an instruction on the reliability of eyewitness identification to aid the jury in evaluating the eyewitness identification testimony introduced at trial"]; U.S. v. Rincon (9th Cir. 1994) 28 F3d 921, 926-26 [suggesting that the use of cautionary instructions which address many of the factors about which an expert would testify is an alternative way of educating jurors of the problems arising from eyewitness identification]; see also Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 29:23.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.6].

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 Manual On Recurring Problems In Criminal Trials [2i. Identification Testimony: Admissibility Of Expert Testimony Relative To Identification Of Accused].

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].

SAMPLE INSTRUCTION # 1:

    One of the issues in this case is the identification of the defendant as the person who committed the crime. The state has the burden of proving identity beyond a reasonable doubt. Identification testimony is an expression of belief or impression by the witness, and its value may depend upon your consideration of several factors. Some of the factors which you may consider are:

    (1)     The witness' capacity and opportunity to observe the offender. This includes, among other things, the length of time available for observation, the distance from which the witness observed, the lighting, and whether the person who committed the crime was a prior acquaintance of the witness;

    (2)     The degree of certainty expressed by the witness regarding the identification and the circumstances under which it was made, including whether it is the product of the witness' own recollection;

    (3)     The occasions, if any, on which the witness failed to make an identification of the defendant, or made an identification that was inconsistent with the identification at trial; and

    (4)     The occasions, if any, on which the witness made an identification that was consistent with the identification at trial, and the circumstances surrounding such identifications.

[Source: State v. Dyle (TN 1995) 899 SW2d 607, 612.]

    Consider whether:

    (1)     The eyewitness had the capacity and adequate opportunity to observe the offender based upon the length of time for observation as well as the conditions of observation; (2) the identification was the product of the eyewitness's own recollection or was the result of subsequent influence or suggestiveness; (3) the eyewitness has made inconsistent identifications; and (4) the eyewitness was credible.

[Source: Adapted from U.S. v. Rincon (9th Cir. 1994) 28 F3d 921, 925.]

    The government must prove beyond a reasonable doubt that the crime charged in this case was actually committed. But more than that, the government must prove, beyond a reasonable doubt, that the defendant committed the crime. Therefore, the identification of the defendant is a critical part of the government’s case. As with any other witness, you must first decide whether the identification witness is telling the truth as she or he understands it and whether she or he has any motive to lie, but you must do more than that. You must also decide how accurate the identification was - i.e., whether or not the witness was mistaken.

    I want to caution you, first that the kind of identification testimony you heard in this case must be scrutinized carefully. Scientific studies have amply demonstrated the dangers of mistake in human perception and identification.

    Of course, this does not mean that the identification in this case in incorrect. I merely tell you this so that you understand the importance of carefully evaluating the evidence there.

    One of the reasons for this is that when a witness testifies in court that the defendant was the one who committed the offense, what he or she is really saying is that the defendant is the person he or she remembers seeing commit the offense.

    The word ‘remember’ and ‘seeing’ call into question factors which bear on the ability of a person to recall and the opportunity of a person to see. If you walk into a bank and see your next door neighbor fleeing with a gun and sack, what you recall later is that you saw a person whom you recognized to be you next door neighbor. When the person is a total stranger, you do not have that kind of ‘anchor’ or rely upon and so a subsequent identification depends on you ability to accurately recall the exact features of the individual.

    In this case, a witness testified that she did not know the defendant before the crime took place and, therefore, you must carefully weigh the following factors which bear on the ability of the witness to see and accurately recall the events:

    1.     You should consider whether this witness had a good opportunity to see the person - how close or far away - and the length of time the witness had to observe the person who she claims is the defendant. You should also consider whether the witness’s attention was focused on the weapon that was pointed at her or on the face of the perpetrator. The better the opportunity to observe and the longer the period observation, the more accurate the identification is likely to be. Conversely a brief encounter - a matter of seconds or minutes - tends to increase the likelihood of misidentification.

    2.     Consider whether the incident in which the individual participated was significant or unusual to the witness at the time it occurred.

    3.     Consider how much time has passed between the crime and first identification by the witness.

    4.     Consider whether a witness has given descriptions that are inconsistent with or which differ from the actual physical appearance of the person allegedly identified and also whether the witness gave different descriptions at different times. Similarly, you should consider whether the witness has given descriptions that are consistent with the actual appearance of the person allegedly identified and also whether the witness gave the same description at different times.

    5.     Consider that an identification made by picking the defendant out of a group of similar individuals, or a group of photographs of similar individuals, is generally more reliable than one which results from presentation of the defendant alone to the witness or among a group of persons with significantly different appearances. It is also more reliable than an identification made in the courtroom where a witness expects to see the accused in the courtroom.

    Even if the law enforcement officers follow the most correct photographic identification procedures and show the witness the pictures of a number of similar individuals without indicating whom they suspect, there is some danger that the witness may make an incorrect identification, even if he or she is sure of his or her identification.

    If there is an initial misidentification, then you must answer the question whether thereafter the witness retained in their memory the image of the photograph rather than the image of the person actually seen, since under those circumstances the trustworthiness of subsequent identifications is reduced.

    Even if a witness is positive of his or her identification, this does not relieve you of the duty to carefully consider his or her identification testimony, especially if you find the only evidence that directly supports the claims that the defendant committed the offense charged.

    On the other hand, it is not essential that the witness him or herself be free from doubt as to the correctness of his or her identification of the defendant, provided you are satisfied that the government has met its burden of proving beyond a reasonable doubt that the defendant is guilty of the charges contained in the information. If after examining the testimony of this witness and all the circumstances under which she identified the defendant and all of the other evidence in the case, you have a reasonable doubt as to whether the defendant committed the offense charged, you should return a verdict of not guilty on both counts.

[See United States v. Burrous (EDNY 1996) 934 FSupp 525, 531-33.]

    In deciding the weight, if any, to be given eyewitness identification testimony, consider the believability of the eyewitness as well as other factors which bear upon the accuracy of the identification, including, but not limited to, the following:

    [The opportunity of the witness to observe the alleged crime and the perpetrator of the crime;]

    [The stress which the witness felt at the time of the observation;]

    [The ability of the witness, following the observation, to provide a description of the perpetrator of the act;]

    [The extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness or by other witnesses;]

    [Whether the defendant is a different race [of a different ethic origin] than the witness;]

    [The capacity of the witness to make an identification;]

    [The ability of the witness to identify other alleged perpetrators of the crime;]

    [Whether or not the witness was able to identify the alleged perpetrator in a photographic or physical lineup;]

    [How much time elapsed between the alleged crime and the identification;]

    [Prior contacts, if any, between the witness and the alleged perpetrator;]    

    [Whether the identification is in fact the product of the witness's own recollection;]

    [__________________________;] and

    Any other evidence relating to the ability of the witness to make an identification.

[Cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.92 [Factors To Consider In Proving Identity By Eyewitness Testimony] (West, 6th Ed. 1996).]