SAMPLE INSTRUCTION:

    No class of testimony is more uncertain and less to be relied upon than that as to identity. You must consider the circumstances stated by each witness and the opportunities they had for a safe conclusion with respect to identity.

AUTHORITY:

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RELATED NCJIC MATERIALS:

SAMPLE INSTRUCTION # 1:

    You are instructed that eyewitness identification testimony should be received with caution and scrutinized carefully.

AUTHORITIES:

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

SAMPLE INSTRUCTION # 2:

    The testimony of an eyewitness should be considered with caution, for three reasons. First, experience has taught that jurors place great emphasis on eyewitness testimony. Second, that testimony often is unreliable, whether because the witness was under stress at the time of the events, events happened very quickly, the witness was in a poor position to observe, the identity of the person was unfairly suggested to the witness later, the witness has had her memory fade, or merely because of the quality of the human mind that causes us to fill in gaps and later remember those inferences as fact. And third, a mistaken identification can result directly in the conviction of an innocent person. For all of these reasons, you should exercise care in considering eyewitness testimony even if you believe the witness was trying hard to tell the truth.

    In weighing eyewitness testimony, you should consider therefore the opportunity the eyewitness had to see clearly, which means thinking about the suddenness or surprise of the events observed, lighting, obstructions to view, and distractions. You should also consider any suggestions by persons whom the witness might have thought in a better position to know the offender's identity that may have unfairly or even unknowingly affected the eyewitness' belief. You should consider the fact that it is more difficult for many members of one racial group to identify accurately members of another race, and review your own experience and common sense in that regard. You should also consider any bias for or against this defendant in particular, and all of the other factors that you consider in weighing the testimony of any witness. Keep always in mind that the level of an eyewitness' confidence in his or her testimony may be unrelated to the accuracy of that eyewitness' testimony.

    While it may be proper for you to convict on the basis of the testimony of a single eyewitness, you should always ask first whether the eyewitness' testimony is confirmed by other, independent evidence, and ordinarily you should require that corroboration. If you conclude that the eyewitness' version is unreliable for any reason, you must find ____________ not guilty unless the other independent, confirming evidence removes all reasonable doubt of his guilt.

AUTHORITIES:

SAMPLE INSTRUCTION # 3:

    The testimony of an eyewitness must be considered with caution, for two reasons. First, experience has taught that jurors place great emphasis on eyewitness testimony; and second, such testimony is often unreliable, whether because the eyewitness is biased, has an incentive to fabricate, had a poor opportunity to perceive the events at the time, suffered natural memory lapses, or because of the tendency of the human mind to draw inferences that are later remembered as fact. For these reasons, you should exercise caution in considering eyewitness testimony even if you believe the eyewitness was trying diligently to tell the truth.

    In weighing eyewitness testimony, you should consider the opportunity the eyewitness had to perceive accurately, including such factors as lighting conditions, obstructions, distractions, and the elements of suddenness or surprise attending the events that the eyewitness described. You should also consider any improper suggestions later brought to bear on the eyewitness' recollection, any bias the eyewitness may have for or against the defendant, any mental impairment of the eyewitness, and any other factors which you may deem important. Keep always in mind that the level of an eyewitness' confidence in his or her testimony may be unrelated to the accuracy of that eyewitness' testimony.

    While it may be proper for you to convict on the basis of the testimony of a single eyewitness, you should always consider whether the eyewitness' testimony is corroborated by other evidence. If you conclude that the eyewitness is unreliable, you should require some corroboration of his or her testimony before you accept that testimony.

AUTHORITIES:

RELATED SHELLOW MATERIALS:

RELATED NCJIC MATERIALS:

SAMPLE INSTRUCTION # 1:

    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 ____________ by the tellers as one of the robbers is a necessary part of the government's case. As with any other witness, you must first decide whether a given witness identifying ____________ is telling the truth as she understands it. But you must do more than that. You must also decide how accurate the identification was, whether the witness saw what she thought she saw. You should consider:

    The testimony that the witness did not know the defendant before the crime took place.

    Whether the witness had a good opportunity to see the person.

    Whether the witness seemed as though she was paying careful attention to what was going on.    

    That, at an earlier time, the witness identified someone else, and later changed her mind.

    Whether the witness seemed certain at the time of the first identification and again when she testified here in court.

AUTHORITIES:

SAMPLE INSTRUCTION # 2:

    The testimony of an eyewitness should be considered with caution, for three reasons. First, experience has taught that jurors place great emphasis on eyewitness testimony. Second, that testimony often is unreliable, whether because the witness was under stress at the time of the events, events happened very quickly, the witness was in a poor position to observe, the identity of the person was unfairly suggested to the witness later, the witness has had her memory fade, or merely because of the quality of the human mind that causes us to fill in gaps and later remember those inferences as fact. And third, a mistaken identification can result directly in the conviction of an innocent person. For all of these reasons, you should exercise care in considering eyewitness testimony even if you believe the witness was trying hard to tell the truth.

    In weighing eyewitness testimony, you should consider therefore the opportunity the eyewitness had to see clearly, which means thinking about the suddenness or surprise of the events observed, lighting, obstructions to view, and distractions. You should also consider any suggestions by persons whom the witness might have thought in a better position to know the offender's identity that may have unfairly or even unknowingly affected the eyewitness' belief. You should consider the fact that it is more difficult for many members of one racial group to identify accurately members of another race, and review your own experience and common sense in that regard. You should also consider any bias for or against this defendant in particular, and all of the other factors that you consider in weighing the testimony of any witness. Keep always in mind that the level of an eyewitness' confidence in his or her testimony may be unrelated to the accuracy of that eyewitness' testimony.

    While it may be proper for you to convict on the basis of the testimony of a single eyewitness, you should always ask first whether the eyewitness' testimony is confirmed by other, independent evidence, and ordinarily you should require that corroboration. If you conclude that the eyewitness' version is unreliable for any reason, you must find ____________ not guilty unless the other independent, confirming evidence removes all reasonable doubt of his guilt.

AUTHORITIES:

SAMPLE INSTRUCTION # 3:

    The testimony of an eyewitness must be considered with caution, for two reasons. First, experience has taught that jurors place great emphasis on eyewitness testimony; and second, such testimony is often unreliable, whether because the eyewitness is biased, has an incentive to fabricate, had a poor opportunity to perceive the events at the time, suffered natural memory lapses, or because of the tendency of the human mind to draw inferences that are later remembered as fact. For these reasons, you should exercise caution in considering eyewitness testimony even if you believe the eyewitness was trying diligently to tell the truth.

    In weighing eyewitness testimony, you should consider the opportunity the eyewitness had to perceive accurately, including such factors as lighting conditions, obstructions, distractions, and the elements of suddenness or surprise attending the events that the eyewitness described. You should also consider any improper suggestions later brought to bear on the eyewitness' recollection, any bias the eyewitness may have for or against the defendant, any mental impairment of the eyewitness, and any other factors which you may deem important. Keep always in mind that the level of an eyewitness' confidence in his or her testimony may be unrelated to the accuracy of that eyewitness' testimony.

    While it may be proper for you to convict on the basis of the testimony of a single eyewitness, you should always consider whether the eyewitness' testimony is corroborated by other evidence. If you conclude that the eyewitness is unreliable, you should require some corroboration of his or her testimony before you accept that testimony.

AUTHORITIES:

RELATED SHELLOW MATERIALS:

RELATED NCJIC MATERIALS:

SAMPLE INSTRUCTION # 1:

    You are instructed that eyewitness identification testimony is an expression of a belief or impression by the witness. [If there is a high degree of precision and certainty in his expression, which is consistent with any prior statements and unshaken on cross-examination, the statement of the witness may be regarded as a statement of fact. Thus, where the circumstances surrounding the criminal act gave limited opportunity for observation or utilization of other sensory perception, the statement of identity should be considered as only an expression of opinion.]

    The expression of an opinion as to identification by an eye-witness should be received with caution and scrutinized with care. The burden of proof on the prosecution extends to every element of the crime charged, including the burden of proving beyond a reasonable doubt the identity of a defendant as the perpetrator of a crime for which he stands charged.

AUTHORITY:

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

SAMPLE INSTRUCTION # 2:

    You are instructed that eyewitness identification testimony is an expression of a belief or impression by the witness. If there is a high degree of precision and certainty in his expression, which is consistent with any prior statements and unshaken on cross-examination, the statement of the witness may be regarded as a statement of fact. If certainty is lacking, the expression is deemed to possess an evidentiary quality of inferior rank. Thus, where the circumstances gave limited opportunity for observation or utilization of other sensory perception, or where uncertainty is expressed by the witness himself, or exposed by a past history of the witness' statements, or demonstrated by cross-examination, the statement of identity should be considered as only an expression of opinion.

    The expression of an opinion as to identification by an eyewitness should be received with caution and scrutinized with care.

AUTHORITIES:

RELATED SHELLOW MATERIALS:

RELATED NCJIC MATERIALS:

SAMPLE INSTRUCTION:

AUTHORITY:

RELATED SHELLOW MATERIALS:

RELATED NCJIC MATERIALS:

THE SHELLOW COLLECTION

SAMPLE INSTRUCTION:

AUTHORITIES:

RELATED SHELLOW MATERIALS:

RELATED NCJIC MATERIALS:

SAMPLE INSTRUCTION # 1:

    A stipulation that a witness could identify a defendant is only binding upon a defendant who stipulates. It is not binding upon any other defendant.

SAMPLE INSTRUCTION # 2:

    A stipulation that a witness could identify someone is binding only on the defendants who entered into the stipulation. It is not evidence against any other defendant and cannot be considered as such.

RELATED SHELLOW MATERIALS:

RELATED NCJIC MATERIALS: