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31.2 Eyewitness Jury Instruction Strategy

    31.2.1 CAVEAT: Telfaire Instruction On Identification May Increase The Rate Of Conviction
    31.2.2 Laying The Evidentiary Foundation
    31.2.3 Eyewitness Identification: Expert Witnesses
    31.2.4 Expert Witness Instruction As Substitute For Eyewitness Expert Testimony
    31.2.5 Mistaken Identification Defense Does Not Foreclose Other Defenses
    31.2.6 Eyewitness Identification: Judicial Notice
    31.2.7 Eyewitness Identification: Conveying Psychological Principles During Argument
    31.2.8 Shifting The Burden To The Prosecution To Lay The Evidentiary Foundation To Support Its Assumptions About The Eyewitness Testimony
    31.2.9 Reference To The Identification As A "Choice" Of The Witness Rather Than As An "Identification"
    31.2.10 Right To Instruction On Eyewitness Identification As Defense Theory
    31.2.11 Right To Instruction On Eyewitness Factors
    31.2.12.1 Eyewitness Identification Factors: Federal
    31.2.12.2 Eyewitness Identification Factors: States
    31.2.13 Eyewitness Identification: Jury Must Consider All Relevant Factors Together
    31.2.14 "Short Form" Instruction On Eyewitness Factors
    31.2.15 Mistaken Identity: Right To Instruction On Prosecution Burden
    31.2.16 Mistaken Identity Relationship To Presumption Of Innocence
    31.2.17 Improper For Witness To Identify Defendant From Surveillance Photo Unless Witness Previously Knew Defendant Or Defendant’s Appearance Changed

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RATIONALE: It is easy to assume that any instruction on eyewitness identification factors will benefit the defense. However, research suggests that instructions which merely recite factors for the jury to consider may actually increase, rather than reduce, the rate of conviction.

POINTS AND AUTHORITIES: The leading case of U.S. v Telfaire (DC Cir. 1972) 469 F2d 552 is followed in many federal courts and is endorsed by a number of state courts which utilize similar instructions. (Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) 12-6, pp. 335-36; see e.g. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 7.12 [Offering Bribe To Witness] (West, 6th Ed. 1996).)

    However, such eyewitness identification instructions may not actually lower conviction rates. "The particularized identification instruction that has been adopted by several circuits may have little or no effect on the conviction rate or may increase the rate; moreover, general credibility instructions may also increase the conviction rate in cases litigating identity. Although some empirical studies indicate that identification instructions lower conviction rates under controlled conditions, while others studies suggest that identification instructions influence jury deliberation, research has not demonstrated that the instructions reduce the conviction rate most often in close cases. On the contrary, research indicates that the impact of instructions on the conviction rate depends on the text of the instructions. The same instruction may have different effects depending on the evidence, possibly increasing the conviction rate in one case while reducing it in another. No adequate empirical study has been conducted on the types of criminal cases that are prosecuted most often in federal courts and in which identification is most often placed in issue." [Footnotes omitted.] (Criminal Law: Requiring Jury Instructions on Eyewitness Identification Evidence at Federal Criminal Trials, Michael H. Hoffheimer, 80 J.Crim.L & Criminology 585, Fall 1989; see also Hoffheimer, Effect of Particularized Instruction on Evaluation of Eyewitness Identification Evidence, 13 Law & Psychology Review 43 (1989); Green, Judge's Instruction on Eyewitness Testimony: Evaluation and Revision, 18 J. Applied So. Psychology 252, 257-58, 265 (1988).)

    In one study, a substantially lower conviction rate was obtained among mock jurors by modifying the Telfaire instruction. (See Greene, Judge's Instruction on Eyewitness Testimony: Evaluation and Revision, 18 J. Applied Soc. Psychology 252 (1988); Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) § 12-6, pp. 335-36.) The language of this instruction is set forth in the sample below.

    In another study, 238 jurors found a set of instructions drafted from an eyewitness expert's testimony more effective than the Telfaire instruction in helping to understand the eyewitness factors and as more likely to affect their verdicts. (Arnolds, Carroll, Lewis & Seng, Eyewitness Testimony: Strategies And Tactics (West, 1984, 1999 Supp.) § 9.06.)

    The deficiencies of the Telfaire instruction have been recognized by case law. (See State v. Long (UT 1986) 721 P2d 483, 487-92 [Telfaire instruction does not include several factors revealed by recent research].)

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 generally, FORECITE National™ 305.9.1 [Identification].

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

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

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    See FORECITE National™ 31.10.2 [Eyewitness Identification: Expert Witnesses].

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    See FORECITE National™  31.10.3 [Expert Witness Instruction In Place Of Expert Testimony].

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PRACTICE NOTE: A mistaken identification defense does not foreclose instruction on other inconsistent defenses. (See e.g., People v. Fuqua (MI 1985) 379 NW2d 396, 399 [right to instruction on both mistaken identification and self defense].)

    See also FORECITE National™ 250.2.5 [Right To Instruction On Inconsistent Defenses].

    See also FORECITE National™ 265.3.6 [Right To Lesser Included Offense Even If Inconsistent With Defendant’s Testimony].

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PRACTICE NOTE: It has been suggested that many principles of psychology are proper matters for of judicial notice. (Loftus, & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) § 12-7, pp. 337-38.) "When that fact is seen in the context of the demonstrable dangers of jurors’ over-reliance on eyewitnesses and the expense and trouble involved in using expert testimony as an alternative corrective device, a forceful instruction, containing actual psychological information, is not only permissible, but desirable. [Footnote omitted.]" (Ibid.)

    See also FORECITE National™ 31.2.4 [Expert Witness Instruction In Place Of Expert 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 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: Another approach is to attempt to argue general principles of psychology in closing argument to the jury. (See generally FORECITE National™ 272.3 [Summation/Closing Argument: Use Of Argument To Explain The Law Or Instructions]; but see People v. Alvarez (CO 1975) 530 P2d 506, 507 [defense counsel properly precluded from reading from book on reliability of eyewitness identification]; People v. Farmer (CA 1989) 47 C3d 888, 921-922 [254 CR 508] [765 P2d 940] [counsel properly precluded from reading Loftus article].)

    However, explicit lecturing of the jury on general principles of psychology may be both impermissible and ineffective. (Loftus, & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) § 13-27, p. 377.) "...[T]he ability to produce an argument that fully utilizes what psychologists have taught is dependent on absorbing those teachings long before the trial begins and on employing those teachings during discovery, examination, and the battles over jury instructions." (Ibid.)

    Nevertheless, if expert testimony has been excluded, the argument may still focus on the rule that "the jurors are entitled, and indeed are obligated, to draw upon their common sense and experience in the affairs of life." (Arnolds, Carroll, Lewis & Seng, Eyewitness Testimony: Strategies And Tactics (West, 1984) § 10.31 [The Illusion Of Science As Expertise]; see also FORECITE National™ 276.5 [Jury Reliance On Common Sense].)

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: Another approach is to attempt to place the burden on the prosecution to prove the psychological assumptions upon which its theory of the case is predicated. For example, if the eyewitness is confident or certain, the defense could move to exclude such evidence and limit prosecution argument designed to invite the jurors to infer that the eyewitness is accurate because of the certainty or confidence of the witness absent an evidentiary foundation demonstrates the truth of this assumption. That is, the argument that confidence demonstrates accuracy effectively assumes a proposition that is not only subject to dispute but has been soundly reputed by the psychological community. Loftus & Doyle provide a sample motion. (See Loftus & Doyle, Eyewitness Testimony - Civil & Criminal [Defendant's Motion In Limine Eyewitness Confidence] (Lexis, 3rd ed. 1997) § 11-37, pp. 323-24.)

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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    See FORECITE National™ 6.2.16 [Reference To The Identification As A "Choice" Of The Eyewitness Rather Than As An "Identification"].

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RATIONALE: Special instruction may be appropriate to assure the jury fully understands and considers the defendant's defense theory of mistaken identification.

POINTS AND AUTHORITIES: When misidentification is the theory of the defense, both general rules of litigation and the federal constitution are authority for the requirement of specific instruction on eyewitness identification. (See e.g., U.S. v. Hall (7th Cir. 1999) 165 F3d 1095, 1107; U.S. v. Anderson (7th Cir. 1984) 739 F2d 1254, 1258; U.S. v. Mays (8th Cir. 1987) 822 F2d 793, 798; U.S. v. Rincon (9th Cir. 1994) 28 F3d 921, 925; U.S. v. Greene (8th Cir. 1979) 591 F2d 471, 477 [reversible error not to give eyewitness instruction requested by defendant]; State v. Perry (AZ 1977) 567 P2d 786, 793 [instruction on suggestiveness of pretrial identification required when identification is unduly suggestive]; State v. Stow (AZ 1973) 508 P2d 1144, 1146 [instruction concerning in-court identification was required on request where witness had observed defendant in custody on three occasions at preliminary hearing]; People v. Wright (CA 1988) 45 C3d 1126 [248 CR 600]; State v. Cerilli (CT 1992) 610 A2d 1130, 1136 [defendant entitled to specific instruction on identification where his theory of defense was misidentification and there was sufficient evidence of lack of clarity and inconsistencies in identification to raise issue of identity]; State v. Tinsley (CT 1980) 435 A2d 1002 [cautionary instruction on dangers of misidentification should be given if requested by defendant]; State v. Cromedy (NJ 1999) 727 A2d 457; State v. Green (NJ 1998) 712 A2d 224; People v. Terry (NY 1981) 441 NYS2d 573, 577 [failure to instruct on evaluation of identification evidence reversible error where identity was crucial issue]; State v. Brings Plenty (SD 1992) 490 NW2d 261, 267 [instruction on crucial role of eyewitness identification required where identification is sole basis for conviction and there is possibility of misidentification]; State v. Dyle (TN 1995) 899 SW2d 607, 612 [when identification is a material issue, and is requested by counsel, failure to give the instruction is plain error]; State v. Maestas (UT 1999) 984 P2d 376 [failure to request a cautionary eyewitness instruction constituted constitutionally deficient assistance of counsel]; TENNESSEE PATTERN INSTRUCTIONS - CRIMINAL, T.P.I.-Crim 42.05 comment [Identity] (West, 5th ed. 2000).)

    In sum, "[a] court should grant a request for a charge regarding the dangers of misidentification in an appropriate case...." (CONNECTICUT SELECTED JURY INSTRUCTIONS - CRIMINAL 2.21, comment [General Jury Inst.-Identification of Defendant] (The Commission on Official Legal Publications - Judicial Branch, 3rd ed. 1996).)

    See also FORECITE National™ 250.1 [Grounds For Instruction On Defense Theory].

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 generally, FORECITE National™ 305.9.1 [Identification].

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

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RATIONALE: Without an explanatory instruction the jury may not fully and fairly consider the factors relevant to evaluating the accuracy of eyewitness identification.

POINTS AND AUTHORITIES: As one court observed, "where requested by defendant's counsel, we think the court should instruct on the factors the jury should consider in evaluating an identification and caution against automatic acceptance of such evidence. The factors involved would include the opportunity of the witness to see the defendant at the time the crime was committed, the length of time the person committing the crime was in the witness' view, the stress the witness was under at the time, the lapse of time between the crime and the identification, and the effect of the procedures followed by the police as either testing the identification or simply reinforcing the witness' initial determination that the defendant is the one who committed the crime." (State v. Burch (MN 1969) 170 NW2d 543, 553.)

    "There can be no greater miscarriage of justice than conviction of an innocent person as a result of mistaken identification. Mistaken identification probably accounts for more miscarriages of justice than any other single factor -- perhaps more than all factors combined. The jury must examine with great care all the circumstances at the scene of the crime, the distance between the witness and the perpetrator, whether the witness’ view is obstructed or unobstructed, whether the witness had an opportunity to observe and remember the facial features, body size, hair, skin color and clothing of the perpetrator, the amount of time which elapsed during the commission of the crime, how long the witness actually observed the perpetrator, whether the perpetrator had distinct features which would be likely to be remembered and recalled, and the mental and emotional state of the witness." (Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 4:50 [General Instructions - Identification – Commentary] (West, 1999).)

    Hence, it has been held that when requested, the court should instruct on the factors the jury should consider in evaluating an identification and caution against automatic acceptance of such evidence. (See e.g., U.S. v. Rincon (9th Cir. 1994) 28 F3d 921; Manson v. Brathwaite (1977) 432 US 98, 114 [97 SCt 2243; 53 LEd2d 14]; Neil v. Biggers (1972) 409 US 188, 199-200 [93 SCt 375; 34 LEd2d 401]; U.S. v. Hall (7th Cir. 1999) 165 F3d 1095; U.S. v. Anderson (7th Cir. 1984) 739 F2d 1254, 1257-58; State v. Burch (MN 1969) 170 NW2d 543, 553-54 [when requested trial court should instruct on factors in evaluating identification including "the effect of procedures followed by the police as either testing the identification or simply reinforcing the witness’s initial determination that the defendant is the one who committed the crime"]; State v. Cromedy (NJ 1999) 727 A2d 457; People v. Whalen (NY 1983) 451 NE2d 212 [trial courts are encouraged, in appropriate cases, to provide juries with expanded identification instructions that direct the jurors to consider both the truthfulness and the accuracy of eyewitness testimony]; State v. Maestas (UT 1999) 984 P2d 376 [failure to request a cautionary eyewitness instruction constituted constitutionally deficient assistance of counsel]; State v. Long (UT 1986) 721 P2d 483, 492; 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 3.08 [Circumstances Of Identification] (1999); MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 3:30, comment [Identification Of Defendant] (Micpel, 1999).)

    "Because federal circuits have required or encouraged the use of special identification instructions under their supervisory jurisdiction, the case law varies from circuit to circuit. Each circuit court has taken one of three general approaches: 1) encouraging the use of particularized identification instructions designed to alert jurors to specific circumstances that aggravate dangers of misidentification; 2) requiring that instructions adequately articulate the government burden of proving identity; or 3) refusing to require any identification instructions." [Footnotes omitted.] (Criminal Law: Requiring Jury Instructions on Eyewitness Identification Evidence at Federal Criminal Trials, Michael H. Hoffheimer, 80 J.Crim.L & Criminology 585, Fall 1989.)

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

RESEARCH NOTES:

Annotation, Eyewitnesses: Necessity Of, And Prejudicial Effect Of Omitting, Cautionary Instruction To Jury As To Reliability Of, Or Factors To Be Considered In Evaluating, Eyewitness Identification Testimony, State Cases, 23 ALR4th 1089.

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].

    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 for you to 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: See State v. Dyle (TN 1995) 899 SW2d 607, 612.]

    (1)     One of the questions in this case is the identification of the Defendant as the one who committed the crime charged. The prosecution has the burden of proving beyond a reasonable doubt not only that the crime was committed, but that the Defendant was the person who committed it.

    (2)     In considering whether the prosecution has proved beyond a reasonable doubt that the Defendant was the person who committed the offense, you should consider the following:

    (3)     The witness’ opportunity to observe the criminal act and the person or persons committing the, including the length of time available for observation; the amount of time between the aforementioned observation and any subsequent identification; the witness’ state of mind at the time of the offense; whether the witness had occasion to see or know the affecting the witness’s opportunity to observe the person or persons committing the offense.

    (4)     The identification made by the witness after the offense must be the product of his own memory. You may take into consideration any subsequent identification, the circumstances surrounding the identification, the state of mind of the witness at the time, and other circumstances bearing on the reliability of the identification. You may also consider the length of time that elapsed between the occurrence of the crime and the time the witness saw the Defendant as a factor on the reliability of the identification.

    (5)     You may take into account any occasions on which the witness failed to make an identification of Defendant or made an identification that was inconsistent with his identification at trial and all other circumstances which you found affected the identification.

[Source: Neil v Biggers (1972) 409 US 188, 199, 200 [93 SCt 375]; 34 LEd2d 401]; see also State v. Warren (KA 1981) 635 P2d 1236, 1245.]

    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: See 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.     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.

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

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RATIONALE: Without an explanatory instruction the jury may focus on a single factor without considering all the relevant evidence.

POINTS AND AUTHORITIES: The language in the samples below was included in the defendant's proposed instruction in People v. Fudge (CA 1994) 7 C4th 1075, 1109-10, fn 8 [31 CR2d 321] which the California Supreme Court held was improperly refused by the trial court. (Fudge, 7 C4th at 1110.)

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 generally, FORECITE National™ 305.9.1 [Identification].

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

    I remind you that no single factor determines the reliability of an eyewitness identification. The presence of one or more factors in a particular case may offset the effect of others. In weighing the identification testimony of an eyewitness, you must, therefore, evaluate all the relevant evidence, both positive and negative, that may bear on the accuracy of that testimony.

[Source: Adapted from People v. Fudge (CA 1994) 7 C4th 1075, 1109-10, fn 8 [31 CR2d 321].]

    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.

[Source: U.S. v. Burrous (EDNY 1996) 934 FSupp 525, 531-33.]

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RATIONALE: Even if specific circumstances are omitted, the instruction should still inform the jury as to relevant considerations.

POINTS AND AUTHORITIES: It has been held that a specific instruction on witness identification must be given when identification is an issue. (See U.S. v. Anderson (7th Cir. 1984) 739 F2d 1254, 1257-58; see also 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 3.08 [Circumstances Of Identification], Committee comment (1999).) However, in such cases, it has been suggested that a listing of specific circumstances surrounding the identification is "best left to argument." (Ibid.)

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 generally, FORECITE National™ 305.9.1 [Identification].

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

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RATIONALE: Unless the prosecution’s burden to prove the defendant guilty beyond a reasonable doubt is specifically related to eyewitness identification, there may be a danger that the jurors will believe that the fact of an eyewitness identification essentially removes the issue of identity from the case.

POINTS AND AUTHORITIES: See generally U.S. v. Hodges (7th Cir. 1975) 515 F2d 650, 652; see also State v. Warren (KS 1981) 635 P2d 1236, 1243; United States v. Kwong, 69 F3d 663 (2nd Cir. 1995), cert. denied, 116 SCt 1343 (1996); see also Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 7-20, p. 7-83.].

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

PRACTICE NOTE: "Lawyers and psychologists who are apprehensive about jurors’ tendencies to overestimate eyewitness accuracy...take little comfort from this sort of instruction. From their prospective instructions that do not direct the jurors’ attention to specific vulnerabilities in the eyewitness process and correct whatever misconceptions the jurors may hold are close to useless." (Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) § 12-4, p. 333.)

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].

    The prosecution must prove beyond a reasonable doubt not only that the offense was committed but also that the defendant is the person who committed it. If, after considering all the circumstances, you have a reasonable doubt that the offense was committed or that the defendant committed it you must give [him] [her] the benefit of that doubt and return a verdict of not guilty.

[See Salley v. U.S. (DC 1965) 353 F2d 897, 898; see also SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 2-7-1 [Mistaken Identity] (State Bar of South Dakota, 1996).]

   If, after considering the circumstances of the identification [and any other evidence in this case], you have a reasonable doubt whether defendant was correctly identified, you must give the defendant the benefit of that doubt and find [him] [her] not guilty.

[See U.S. v. Hodges (7th Cir. 1975) 515 F2d 650, 652; see also CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.91 [Burden Of Proving Identity Based Solely On Eyewitnesses] (West, 6th Ed. 1996).]

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    31.2.16    Mistaken Identity Relationship To Presumption Of Innocence

    See FORECITE National™ 31.2.15 [Mistaken Identity: Right To Instruction On Prosecution Burden].

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

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 VOLUME 4 - CHAPTER 31

PRACTICE NOTE: Identification by a witness of the defendant from a surveillance photo normally invades the province of the jury and should not be allowed. (See U.S. v. La Pierre (9th Cir. 1993) 998 F2d 1460, 1465.) Such identification may only be allowed if the witness knew the defendant and there was evidence that the defendant had changed his appearance prior to trial. (Ibid.; see e.g., U.S. v. Ellis (4th Cir. 1997) 121 F3d 908, 925 [lay witness may give opinion concerning identity of person depicted in surveillance photograph if there is some basis for concluding that witness is more likely to correctly identify defendant from photograph than is jury]; see also U.S. v. Robinson (4th Cir. 1986) 804 F2d 280, 282 [same]; U.S. v. Lucas (8th Cir. 1990) 898 F2d 606, 610 [witness was familiar with his appearance at time of photograph and defendant had facial hair in photographs, but not at time of trial]; State v. King (AZ 1994) 883 P2d 1024, 1036 [defendant had changed his appearance since crimes occurred]; People v. Mixon (CA 1982) 129 CA3d 118, 131-32 [180 CR 772] [identification testimony of defendant which was based on viewing surveillance photographs taken during commission of crime was admissible to assist jury where surveillance photographs did not clearly depict defendant, defendant had changed his appearance before trial, and officers' previously-acquired familiarity with defendant's features aided 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 also generally, FORECITE National™ 305.9.1 [Identification].

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