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31.3 Miscellaneous Eyewitness Instructions

    31.3.1 Eyewitness Identification: Honest But Mistaken Identification
    31.3.2 Eyewitness Identification: Proof That Defendant Was At The Scene Of The Crime Is Not Sufficient
    31.3.3 Eyewitness Failing To Attend Pre-Trial Lineup
    31.3.4 Eyewitness Identification Instruction Should Not Use The Term "Defendant"
    31.3.5 Failure Of Eyewitness To Identify Defendant Or Identification Of Different Person On Prior Occasion
    31.3.6 Eyewitness Identification Should Be Viewed With Caution
    31.3.7 Eyewitness Identification: Single Or One-Witness Identification
    31.3.8 Whether Corroboration Evidence May Be Considered As To Reliability Of Eyewitness Identification
    31.3.9 Eyewitness Identification: Whether Sequential Lineups Are More Reliable Than Traditional Simultaneous Lineups
    31.3.10 Eyewitness Identification: Whether Double-Blind Lineups Are Fairer Than Traditional Simultaneous Lineups
    31.3.11 Eyewitness Identification: Admissibility Of Nonidentification Evidence
    31.3.12 Eyewitness Identification: Hearsay Testimony Regarding Pretrial Identification

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RATIONALE: Because the focus of witness evaluation instructions is typically on the honesty or veracity of the witness, there is a danger in an eyewitness identification case that the jury will evaluate the eyewitness with such a focus. However, in most eyewitness cases, the proper focus should not be upon the honesty of the witness but whether the identification was mistaken.

POINTS AND AUTHORITIES: In most identification cases, veracity of a particular witness is not at issue. Rather, the question is whether the witness is mistaken -- however honest or truthful that mistake may be.

    "An appropriate identification charge should focus the jury’s attention on the need for weighing the accuracy and reliability of the evidence on that issue, not just on whether the witness was truthful, but whether or not he or she was mistaken." (Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 4:50 [General Instructions-Justification –Commentary] (West, 1999); see also Commonwealth v. Santoli (MA 1997) 680 NE2d 1116; People v. Knowell (NY 1983) 464 NYS2d 525, 528; Commonwealth v. Pressley (MA 1983) 457 NE2d 1119, 1121 [fairness to a defendant compels the trial court to give an instruction on the possibility of an honest but mistaken identification]; Commonwealth v. Rodriguez (MA 1979) 391 NE2d 889, 893 [instructions placed undue emphasis on credibility and failed to refer to the issue of mistaken identification]; People v. Jones (NY 1985) 485 NYS2d 561, 562.)

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].

    It is the defendant's theory of the case that ________[name of eyewitness] was honestly mistaken in choosing the defendant as the person who committed the crime. Therefore, it is not your duty to decide whether or not _______[name of eyewitness] intentionally testified falsely. Instead, it is your duty to decide whether or not there is any reasonable doubt as to the accuracy of the choice* made by __[name of eyewitness]__.

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

[Source: FORECITE National™.]

    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 also prove beyond a reasonable doubt, that the defendant, ________, committed that crime. Therefore, the identification of (D) by (W) as [brief description of the details of the identification] is a necessary (important) part of the government's case. As with any other witness, you must first decide whether (W) is telling the truth as he understands it. But you must do more than that. You must also decide how accurate the identification was, whether the witness saw what he thought he saw.

[Source: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 35 [Identification Testimony] (1988).]

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RATIONALE: Typically eyewitness identification issues occur in the context of whether or not the defendant was present when the crime was committed. However, even if the evidence is clear that the defendant was present, eyewitness identification may be a crucial issue if there were multiple defendants and the eyewitness gives testimony as to "which defendant did what."

POINTS AND AUTHORITIES: Eyewitness identification may be a crucial issue if there were multiple defendants and the eyewitness gives testimony as to "which defendant did what." In such a case, all of the normal considerations regarding eyewitness identification come into play and the jury should be instructed accordingly. (See FORECITE National™ 31.2.10 [Right To Instruction On Eyewitness Identification As Defense Theory]; see also FORECITE National™ 31.2.11 [Right To Instruction On Eyewitness Factors]; Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) § 4-10, p. 89 [potential for "unconscious transference" when there are identification issues regarding multiple perpetrators]; see also Commonwealth v. Cordle (MA 1989) 537 NE2d 130, 135 [when the judge informed the jury that the identification of the defendant as being at the scene of the crime was "one of the most important issues" in the case, and then failed to instruct the jury that mere opportunity to commit the crime was not enough, the jury may have been under the impression that, as long as the jurors believed beyond a reasonable doubt that the defendant was present that morning, they could convict her].)

    See FORECITE National™ 44.4 [Mere Presence or Association Insufficient To Create Duty To Act].

    See FORECITE National™ 64.2 [Accomplice Liability: Mere Presence Insufficient].

    See FORECITE National™ 251.6 [Mere Presence, Knowledge, Association, Etc.].

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

RESEARCH NOTES:

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].

    Even if the evidence establishes that the defendant was present at the scene, the burden is still on the prosecution to prove that the defendant was the person who ________ (e.g., committed the crime; took the money; used the firearm, etc.).

[Source: FORECITE National™.]

    The prosecution has the burden of proving beyond a reasonable doubt, not just that the defendant was present, but that the defendant was [the perpetrator of] [an aider and abettor of] [accomplice to] the crime.

    Unless the prosecution has proven beyond a reasonable doubt the identity of the defendant as the one who committed the crime you must find [him] [her] not guilty.

[Cf. CONNECTICUT SELECTED JURY INSTRUCTIONS - CRIMINAL 2.21, [General Jury Inst.-Identification of Defendant] ¶¶ 1, 2 & 5 (The Commission on Official Legal Publications - Judicial Branch, 3rd ed. 1996).]

CAVEAT: These samples deal only with the prosecution's burden of proof. Further instruction on other identification issues may also be appropriate. (See generally FORECITE National™ 31.3 [Miscellaneous Eyewitness Instructions].)

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RATIONALE: The failure of a witness to attend a court ordered line-up may suggest that the witness cannot accurately identify the culprit from among other similar appearing individuals.

POINTS AND AUTHORITIES: "An identification made by the defendant out of a group of similar individual is generally more reliable than one which results from the presentation of the defendant alone to the witness." (IOWA CRIMINAL JURY INSTRUCTIONS 200.45 [Eyewitness Identification] (Iowa State Bar Association, 1991); see also U.S. v. Telfaire (DC Cir. 1972) 469 F2d 552, 558.) Hence, when an eyewitness fails to attend a court ordered line up, instructing the jury to view the testimony of the witness with caution may be an appropriate solution. (See e.g., People v. Fernandez (CA 1990) 219 CA3d 1379, 1385 [269 CR 116].)

    Moreover, the failure of the witness to attend may reflect a consciousness on the part of the witness that he or she did not see or remember the culprit well enough to make an identification from a group of similar appearing individuals. (See generally FORECITE National™ 34.6.3 [Refusal To Participate In Line Up As Consciousness Of Guilt]; c.f., FORECITE National™ 251.2.1.14 [Alibi: Witness Has No Duty to Reveal Alibi To Police Prior To Trial].)

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

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

    Also consider the failure of the eyewitness to attend the pretrial lineup despite being requested to attend. You should view the witness's eyewitness identification choice* with caution, as it may be less reliable than if [he] [she] had attended the aforesaid lineup.

* See Use Note.

[See People v. Fernandez (CA 1990) 219 CA3d 1379, 1385 [269 CR 116].]

    The court ordered witness ________ (insert witness's name) to attend a line-up to fairly test ________ (insert witness's name) ability to choose the defendant from a group of similarly appearing individuals. The refusal of the witness to participate in such a fair test should cause you to view with caution ________ (insert witness's name)'s in-court choice* of defendant which did not require ________ (insert witness's name) to choose from similarly appearing persons.

* See Use Note.

[Source: FORECITE National™.]

    __________ (insert name of witness or witnesses) testified that [he] [she] [they] failed to attend the pretrial lineup, despite being requested to attend. You should view [his] [her] [their] testimony as to eyewitness identification with caution, as it may be less reliable than if [he] [she] [they] had attended the aforesaid lineup.

[Source: FORECITE National™.]

* See Use Note.

[Source: FORECITE National™; see also Dinse, Berger, & Lane, VERMONT JURY INSTRUCTIONS - CIVIL & CRIMINAL 5.45(2) [Instruction: Identification Testimony] ¶ 31 (Lexis, 1993).]

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PRACTICE NOTE: If eyewitness identification instructions use the term "defendant" instead of a neutral term such as "perpetrator" there is danger that the instruction will unfairly suggest to the jury that the court believes the defendant was the perpetrator of the crime. (See e.g., People v. Wright (NY 1995) 627 NYS2d 13, 14.)

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: The failure of an eyewitness to identify the defendant or of the identification of a different person logically may be considered as a factor evaluating the accuracy of the subsequent identification of the defendant.

POINTS AND AUTHORITIES: Typically standard pattern instructions instruct the jury to consider "whether the witness was able to identify the alleged perpetrator in a photograph or physical lineup." (See e.g., CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.92 [Factors To Consider In Proving Identity By Eyewitness Testimony] (West, 6th Ed. 1996).) However, such instructions should also direct the jury toward consideration of any failure by the witness to identify the defendant prior to trial. (See generally McDoulett v. State (OK 1984) 685 P2d 978, 980-81.) The sample instruction below properly focuses the jury on this factor. (People v. Fudge (CA 1994) 7 C4th 1075, 1109-1110, fn 8 [31 CR2d 321].)

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].

SAMPLE INSTRUCTION: [Add To Eyewitness Identification Factors]:

    Whether on any occasion before trial the witness failed to choose* the defendant or chose someone else as the offender.

* See generally, 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: Due to the danger of misidentification and conviction of an innocent person, it may be appropriate to caution the jury regarding eyewitness identification.

POINTS AND AUTHORITIES: Eyewitness identification, by its very nature, raises the potential that an innocent person will be convicted. (See Cutler, B.L., and S.D. Penrod, Mistaken Identification: The Eyewitness, Psychology, and the Law. New York, Cambridge University Press, 1995.) This danger has been recognized by the Department of Justice which has promulgated special guidelines in an effort to curb such injustices.

    Accordingly, it may be appropriate for the jury to be expressly admonished to view such testimony with caution. (See e.g., State v. Long (UT 1986) 721 P2d 483, 488-92; State v. Lewis (RI 1975) 341 A2d 744; The People v. Casey 1963 Ireland Reports 33, 39.)

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].

    You should view identification testimony with caution if the witness's opportunity for positive identification was not good, if his testimony was qualified, if his positive statements were weakened by cross examination or by his failure to identify defendant on one or more prior occasions, or if the accuracy of his testimony was doubtful. Caution is in order whenever you perceive weaknesses of any kind in the identification evidence.

[Source: State v. Lewis (RI 1975) 341 A2d 744, 748.]

    Eyewitness identifications are to be scrutinized with extreme care. The possibility of human error or mistake and the probable likeness or similarity of objects and persons are circumstances to consider in weighing testimony as to identity.  Carefully consider the factors that bear upon the accuracy of the witness's testimony, such as: [relevant factors].

[See OKLAHOMA UNIFORM CRIMINAL JURY INSTRUCTIONS- CRIMINAL, OUJI-CR 9-19 [Evidence- Eyewitness Identification] ¶ 1 (Oklahoma Center for Criminal Justice, 2nd ed. 1996); see also MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 3:30 [Identification Of Defendant] para. 2 (Micpel, 1999).]

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RATIONALE: A one-witness identification presents special problems which may be appropriate to address in an instruction on identification.

POINTS AND AUTHORITIES: The testimony of a single eyewitness is sufficient to take a criminal case to the jury. However, courts have recognized that there is a serious possibility of mistake inherent in uncorroborated identification testimony.  "Centuries of experience in the administration of criminal justice have shown that convictions based solely on testimony that identifies a defendant previously unknown to the witness is highly suspect.  Of all the various kinds of evidence it is the least reliable, especially when unsupported by corroborating evidence."  (Jackson v. Fogg (2nd Cir. 1978) 589 F2d 108, 112.)

    A one-witness identification case presents special and unique problems because of the fallibility of human sense perception and memory. (Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 4:50, Commentary [General Instructions - Justification – Commentary] p. 194 (West, 1999).) Accordingly, "[i]n a one-witness case, where identification is the main issue, the trial court should give a detailed identification charge, directing the jury to consider in its deliberation the witness' means and opportunity for identification. (Ibid.; see also People v. Sapp (NY1983) 469 NYS2d 803, 804.)

    Hence, a special cautionary instruction may be appropriate. (See e.g., MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 3:30 [Identification Of Defendant] para. 2 (Micpel, 1999).)

    See also Manual On Recurring Problems In Criminal Trials [2d. Identification Testimony: Single-Photograph Identification Or Single-Person Show-Up Is Suspect].

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

RESEARCH NOTES:

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].

SAMPLE INSTRUCTION # 1:

    Centuries of experience in the administration of criminal justice have shown that convictions based solely on testimony that identifies a defendant previously unknown to the witness is highly suspect.  Of all the various kinds of evidence it is the least reliable, especially when unsupported by corroborating evidence. Therefore, you should examine the identification of the defendant with great caution.  

[Source: Jackson v. Fogg (2nd Cir. 1978) 589 F2d 108, 112.]

    Even though the identification of the defendant by a single eyewitness can be sufficient to convict the defendant, you must examine the identification of the defendant with great care.

[Cf. MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 3:30 [Identification Of Defendant] para. 2 (Micpel, 1999).]

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PRACTICE NOTE: There is a split in the circuits regarding whether corroborative evidence of the accused’s guilt may be considered in determining whether the identification is reliable. (See discussion in Abdur Raheem v. Kelly (2nd Cir. 2001) 257 F3d 122 [corroborative evidence may not be considered -- 2nd Cir., 3rd Cir., 5th Cir.; corroborative evidence may be considered -- 4th Cir. and 7th Cir.].)

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RATIONALE:  The jurors should be made aware of factors which affect the reliability or accuracy of the eyewitness testimony.

POINTS AND AUTHORITIES:  Even though traditional simultaneous lineups are constitutionally permissible and widely used, there may be a basis for arguing that a sequential lineup is fairer.  In New York, and many other jurisdictions, simultaneous lineups are the normal lineup procedure. In a simultaneous lineup the viewer sees all persons at the same time. The viewer is then asked if he or she sees anyone that he or she recognizes. In contrast, in the sequential lineup the viewer sees each person separately, one at a time, for as long as desired. The viewer is told that if he or she recognizes any person to make that fact known.  A double-blind lineup is where the administrator of the lineup knows neither the suspect nor the position or order which the suspect will be shown to the viewer (see 53 Ark L Rev 231).  "This prevents the tester from skewing, even unintentionally, the test result. Double blind testing has long been a near universally accepted staple of scientific research."  (In re Wilson (NY Sup. Ct. 2002) 741 NYS2d 831, 834.)

    In In re Thomas (NY 2001) 733 NYS2d 591, 593, the court granted defendant's motion for a sequential, double-blind lineup.  There are "numerous scientific articles which indicate that the sequential lineup is fairer than the simultaneous lineup. The studies indicate that the sequential lineup reduces the chance of misidentification, while having no effect on the rate of correct or accurate identifications (1 Psychology Public Policy and Law  765 (PSYPPL); 75 Minn L Rev 849). In other words, the sequential lineup is better at weeding out inaccurate identification but has no effect on correct identifications. The studies also show that factors which may be suggestive in a simultaneous lineup have less of an effect on the viewer during a sequential lineup."  (In re Thomas (NY 2001) 733 NYS2d 591, 593; but see People v. Aspinall (NY 2003) 756 NYS2d 397 [court refused to order that lineup be conducted in a double blind and sequential manner; such order would improperly invade the province of the prosecutor].)

    "Psychologists speculate that in a simultaneous lineup the viewer subconsciously believes that he or she should select the person that most resembles the perpetrator (7 PSYPPL 36; 53 Ark L Rev 231).  Since the viewer believes that the alleged perpetrator is in the lineup, the viewer will in all likelihood select a person from the lineup based upon the person who most closely depicts the perpetrator rather than from a recollection that the person is in fact the perpetrator. In a sequential lineup, the viewer  performs a "recall oriented function" in that the viewer compares the person being viewed by him or her at the lineup with the person that he or she recalls as being involved in the incident (3 PSYPPL 338). When the viewer of a sequential lineup observes a displayed person there is no other individual with whom the viewer can compare. Thus, any identification made during a sequential lineup is based on a recollection of the incident and not based upon a comparison with other fillers."   (Thomas, 733 NYS2d at 593.)

     "As professor Randolph N. Jonakait, in his article in 25 Loyola of Los Angeles Law Review 673 entitled Symposium: Does evidence matter? The Connections Between Evidence Rules, Social Values and Political Realities, states, the law should not only be concerned with the rules of evidence and the constitution, but should also focus on the accuracy of the information received by the jury. As the professor points out in the field of identification law, the law has focused on rules of evidence and the constitution and not on the accuracy of the identification or how to make a victim's identification more reliable (see generally, id. 679-680). The scientific data in this area date back to at least 1981, 20 years ago. The law has been slow in catching up to the scientific data. A potential defendant should undergo the most accurate identification procedure possible under the circumstances of the case and should not be required to undergo a less fair procedure where there are fairer procedures available merely because the executive branch of government has been slow to keep up with scientific knowledge."  (Thomas, 733 NYS2d at 596.)

    However, in In re Wilson (NY Sup. Ct. 2002) 741 NYS2d 831, 834, the court acknowledged the data supporting the reliability of sequential lineup procedures but refused to order that the lineup be conducted in a sequential manner.  "After the decision in Thomas, Professor Gary Wells, a proponent of sequential lineups and a participant in the preparation of the guidelines of the Department of Justice and the New Jersey Attorney General's office regarding eyewitness evidence expressed the opinion that there is a slight loss in correct identifications that "offsets somewhat the reduction in false identifications" and that researchers have not fully resolved the issue. Other researchers have noted that in cases involving multiple perpetrators or child witnesses sequential lineups may be inferior to simultaneous lineups. Further, the researchers' studies involved viewing photographs or videotapes in controlled experiments. Apparently none tested the viewing of live lineups and none involved a real criminal investigation. Moreover, some researchers ascribe the difference between sequential and simultaneous lineups as due to a witness's employing a stricter criterion when viewing a sequential lineup, and conclude that further study is required before sequential lineups are uniformly recommended as the preferred identification procedure ... Undoubtably, a substantial body of data has recently arisen supporting the reliability of sequential lineup procedures. Indeed, the data is significant enough to have influenced guidelines issued by the United States Department of Justice and the Attorney General of the State of New Jersey. However, this body of evidence is neither unequivocal or complete. Reasonable minds can disagree over appropriate conclusions to be drawn from the studies, the need for more studies, and the additional costs that would result from the adoption of a sequential lineup procedure... "  (In re Wilson (NY Sup. Ct. 2002) 741 NYS2d 831, 834 [double blind is required].)

    Accordingly, when a simultaneous lineup has been utilized, there may be a basis for requesting an instruction informing the jury of the shortcomings of such a lineup as opposed to a sequential lineup which could have been used but wasn’t.

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

    Also consider the failure of the police to grant the defenses request for a sequential, rather than a simultaneous, lineup.  A sequential lineup -- where the individuals are viewed one at a time --  is generally a more reliable identification procedure than a simultaneous lineup where all the individuals are viewed at the same time.

[Source: FORECITE National™.]

    A sequential lineup -- where the individuals are viewed one at a time --  is generally a more reliable identification procedure than a simultaneous lineup where all the individuals are viewed at the same time.  For this reason, the use of a simultaneous lineup rather than a sequential one should make you more cautious about the reliability of the identification choice.*

* See Use Note.

[Source: FORECITE National™.]

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RATIONALE:  The jury should be permitted to consider the reliability of the line-up procedure.  Thus, the fact that the line-up was no "double-blind" and may have been less reliable is an appropriate factor for an eyewitness identification instruction.

POINTS AND AUTHORITIES:  A double-blind lineup is where the administrator of the lineup knows neither the suspect nor the position or order which the suspect will be shown to the viewer (see 53 Ark L Rev 231).  "This prevents the tester from skewing, even unintentionally, the test result. Double blind testing has long been a near universally accepted staple of scientific research."  (In re Wilson (NY Sup. Ct. 2002) 741 NYS2d 831, 834 [double-blind lineup is required].)

    "[R]esearch indicates that 'blind' line-up or photo-array administration by someone who is unaware of the identity of the suspect reduces the risk of inadvertent contamination of the witness's memory..." (Loftus & Doyle, Eyewitness Testimony - Civil & Criminal § 4-7(a) [Recommended Identification Procedures] (Lexis, 3rd ed. 2000 Cum. Supp.); see also FORECITE National™ 31.7.8 [Eyewitness Identification: Unconscious Bolstering Or Feedback].)

    Therefore, when a simultaneous lineup has been utilized, there may be a basis for requesting an instruction informing the jury of the shortcomings of such a lineup as opposed to a sequential lineup which could have been used but wasn’t. 

    See generally FORECITE National™ 31.2.10 [Right To Instruction On Eyewitness Identification As Defense Theory].

    See generally FORECITE National™ 31.2.11 [Right To Instruction On Eyewitness Factors].

    See generally FORECITE National™ 31.2.13 [Eyewitness Identification: Jury Must Consider All Relevant Factors Together].

    See generally FORECITE National™ 31.8.2 [In-Court Identification Must Be Independent Of Out-Of-Court Identification Procedures].

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

RESEARCH NOTES:  

ESSAY: Evidence Scholarship Old and New, Roger C. Park, 75 Minn. L. Rev. 849, February, 1991.

ARTICLE: Two Cheers for the Department of Justice's Eyewitness Evidence: A Guide for Law Enforcement, Donald P. Judges, 53 Ark. L. Rev. 231, 2000.

FEATURE: "I'll Never Forget That Face": The Science And Law Of The Double-Blind Sequential Lineup, 26 Champion 28 (2002).

SAMPLE INSTRUCTION # 1:

    Also consider the failure of the police to grant the defenses request for a double blind, rather than a simultaneous, lineup.  A double blind lineup -- where the administrator of the lineup knows neither the suspect nor the position or order which the suspect will be shown to the viewer --  is generally a more reliable identification procedure than a simultaneous lineup where all the individuals are viewed at the same time.

[Source: FORECITE National™.]

    A double blind lineup -- where the administrator of the lineup knows neither the suspect nor the position or order which the suspect will be shown to the viewer --  is generally a more reliable identification procedure than a simultaneous lineup where all the individuals are viewed at the same time.  For this reason, the use of a simultaneous lineup rather than a double blind one should make you more cautious about the reliability of the identification choice.*

* See Use Note.

[Source: FORECITE National™.]

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RATIONALE:  Without a limiting/cautionary instruction the jury may place undue weight on the fact that the witness did not identify anyone in a lineup which did not include the defendant.

POINTS AND AUTHORITIES:   Nonidentification evidence is inherent in most identification cases.  When identifying a defendant from a lineup or photo array, a witness necessarily does not identify the remaining individuals in the lineup or photo array.  "This type of nonidentification is crucial to the accuracy of the witness' identification because, in the typical case, a witness is shown a group of similar looking individuals and asked to pick out only the one who committed the crime. Consequently, the fact that the witness did not pick the other individuals in the lineup becomes as important as the fact that the witness did pick the defendant. Given the crucial role that nonidentification plays with regard to a lineup or photo array where a defendant is positively identified, it follows that the same considerations apply with regard to those lineups or photo arrays where a defendant is not identified. Indeed, it is logical to presume that the more lineups and photo arrays a witness views, the more likely that witness' identification is reliable and is not based upon suggestiveness."  (People v. Tisdel (IL 2002) 775 NE2d 921, 926.)

    That the entire identification process includes both identification and nonidentification evidence has been given tacit approval by the United States Supreme Court. In Neil v. Biggers (1972) 409 US 188 [93 SCt 375; 34 LEd2d 401] the Court held that although a showup procedure was unnecessarily suggestive, there was no substantial likelihood of misidentification requiring evidence of the identification to be excluded. The Court noted various factors weighing in favor of the admission of the identification. Among those factors was that the victim had looked at numerous photographs, lineups and showups in the seven-month time period between the crime and her identification of the defendant as the perpetrator. (Biggers, 409 US at 201.) Specifically, the Court stated that:

    "There was, to be sure, a lapse of seven months between the rape and the confrontation. This would be a seriously negative factor in most cases. Here, however, the testimony is undisputed that the victim made no previous identification at any of the showups, lineups, or photographic showings. Her record for reliability was thus a good one, as she had previously resisted whatever suggestiveness inheres in a showup." (Emphasis added.) (Biggers, 409 US at 201.)

   In People v. Hayes (IL 1990) 564 NE2d 803 the court found error in the admission of witness testimony that the witnesses had viewed pictures of persons other than defendant and had made no identification. The court held that the testimony violated the general rule that a witness may not testify in court as to statements made out of court for the purpose of corroborating his trial testimony concerning the same subject. (Hayes, 564 NE2d at .)   

    In People v. Tisdel (IL 2002) 775 NE2d 921, 926 the court found that the Hayes court erred in limiting "statements of identification" to a witness' actual identification of a defendant and held that evidence that witnesses who identified a defendant failed to identify anyone in lineups or photo arrays in which the defendant was not present is admissible.  

    However, the admissibility of nonidentification evidence should be limited to considerations of relevance.

SAMPLE INSTRUCTION:    

    Nonidentification evidence is relevant only if it demonstrates that the witness did not identify persons who could reasonably be confused with the defendant.  The weight, if any, to be given such evidence is for the jurors to decide.

[See People v. Tisdel (IL 2002) 775 NEd2d 921, 926-28.]

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 VOLUME 4 - CHAPTER 31

PRACTICE NOTE:  Testimony of another's out-of-court identification of the accused "is clearly hearsay." (2 McCormick on Evidence, § 251 (C), p. 119 (5th ed. 1999); see also Wade v. State (GA 1993) 431 SE2d 398.)  However, "most jurisdictions now recognize a hearsay exception for statements by a witness identifying a person."  (4 Jones on Evidence § 26:46, p. 410 (7th ed. 2000); see also FRe 801(d)(1)(C); 2 Wharton's Criminal Evidence § 6:13, p. 136 (15th ed. 1998).)  But every jurisdiction that recognizes the hearsay exception for out-of- court identifications requires that the declarant "must appear, testify and be subject to cross-examination as a witness at the trial at which his prior statement is being offered."  (4 Jones on Evidence, supra at § 26:46, p. 410; see also Annot., 29 ALR4th 104, 123, § 8.) Where the declarant is absent from the trial, "there looms a tremendous question as to the reliability of a third-person-witness, the possible inaccuracies of whose testimony cannot be demonstrated by cross-examination. The cross-examiner cannot show that the declarant did not observe accurately, that his powers of perception were inadequate, that his recollection is imperfect, or indeed that he was not telling the truth. Testimony from the relation of a third person to the event, even where the declarant is known, cannot be subjected to such tests. Obviously such testimony is subject to every conceivable hearsay objection." (Jones v. State (MD 1973) 300 A2d 424, 426-427; see also U.S. v. Owens (1988) 484 US 554, 560 [108 SCt 838; 98 LEd2d 951].)

    "A law enforcement officer may not testify to a pre-trial identification of the accused unless the person who actually made the identification testifies at trial and is subject to cross-examination."  (White v. State (GA 2001) 546 SE2d 514.)  In White, the investigator testified that two persons present at the crime scene "selected" the photograph of White. "Certainly the hearsay aspect of identification cannot be avoided by eliminating words of identification but permitting evidence of demonstrative identification. Should such evasion of the hearsay rule be countenanced, the door would be open to testimony as to pointing of fingers, shaking of heads, grimaces of joy or disgust, all suggestive of the game of Charades. To permit the investigator to testify that the absent witnesses picked White's photograph from a group of photographs is fully as effective as testimony of ... actual spoken identifications."  (White, 546 SE2d at 517 [citing Jones v. State, 300 A.2d at 427 and 2 McCormick on Evidence, supra at § 250, p. 106; Green, Ga. Law of Evidence § 217, p. 408 (4th ed. 1994).)  "Because the two persons who picked White out of a photographic lineup did not testify at the trial, the investigator's testimony thereof was not admissible under the hearsay exception for pre-trial identifications."  (Id.)