Combating False Identifications

January 10, 2020, by Bruce Blumberg

INSTRUCTING AND INFORMING THE JURY

Dedicated to the late Robert Shomer

I. Personal Experiences

I have had three opportunities in my career as a criminal-defense attorney to utilize the services of an Identification Expert. The first case in which I engaged such an expert occurred in the mid 2000’s. It was a case in which the defendant had been charged with breaking the orbital floor of the victim, whom had apparently not been a part of the brawl, in a brouhaha occurring on the street after a high school party in the Phoenix suburbs. The State had a witness who claimed that he had seen my client “sucker-punch” the victim during or just after the fight had broken up. I had engaged Dawn E. McQuiston, Ph.D, then professor of psychology at Arizona State University, a specialist in the area of perception, memory and eyewitness identification. The defendant was acquitted after a jury trial. I recall very little about it except for the fact that I was too ignorant to request a change to our archaic jury instruct on identification, which was contained in the Arizona Criminal RAJI and based upon “Dessureault.”

The second occasion occurred in October of 2016 in a trial in which my client had been indicted on multiple charges related to a home invasion that occurred at a family’s residence in Phoenix in the middle of the night. Two male perpetrators broke into the home with semi-automatic weapons. At home at the time was the mother and father who were in the bedroom, their adolescent daughter and an infant. While the father was being questioned by one of the perpetrators the mother very astutely grabbed her cellphone and went to pick up her infant child with the cellphone under a blanket. She was able to dial 911 under the blanket. The 911 operator hung-up on her because the operator couldn’t get a response to her questions. When the perpetrators realized that mother had called 911, they left the scene. The father reported to police that he would not be able to identify a suspect. Mother described the suspect as a “white male” in the 911 call but later descriptions from her were of a “Hispanic male.” A “confidential human source” had told a Phoenix Police detective that my client had claimed to have been responsible for this, particular home invasion. The detective subsequently put together three sets of “six-packs” or photo-arrays. One of them included a picture of my client. The detective who conducted the photo line-up with mother, father and daughter was the case agent who failed to record the line-up presentation. Mother picked the defendant out of one of the line-ups; father said someone in one of the line-ups looked familiar; and daughter did not pick out anyone.

Police executed a search warrant at my client’s home, which resulted in police discovering weaponry and ammunition, none of which ultimately had any relationship to the charges. Nevertheless, my client was indicted in a nine-count indictment made up of various “dangerous” offenses which would translate to mandatory imprisonment for many years in Arizona. Our defense was misidentification; and in fact, following a hotly contested period of discovery, including the receipt of certain cellphone records, we believed that we could actually demonstrate who likely committed the offenses.

The third case involves a capital murder charge for which trial began in early June of 2018. Our client is alleged to have belonged (as a “probate”) to a white supremacist “gang” known as the Vinlanders Social Club. The State of Arizona alleges that on October 2, 2009 our client attended a barbeque at the house of a friend where our client had been staying for a few weeks. The barbeque was attended by other skinheads, both male and female including our client’s then girlfriend. The state’s witnesses claim that our client was drunk, became agitated and left the home “shirtless.” Our client has a distinctive tattoo on his stomach of his last name written in cursive. Apparently, while walking through this north phoenix neighborhood he encountered a black man arguing with a white woman. Our client confronted the man and the two men then engaged in a verbal altercation. The couple walked away and our client lagged behind seeming to lose interest. Three women from his party who had been looking for our client discovered him at a Subway located nearby the house. Just before he got into the vehicle the black man yelled to our client something to the effect of why are walking away from “the fight” to which our client responded, “you did!”

The women and our client returned to the house where apparently our client related some version of the events that had transpired. Two of his fellow white supremacists became very enraged and our client’s co-defendant (who pleaded guilty early on and agreed to testify) grabbed his shotgun while they headed for a vehicle. It is disputed who left in the vehicle but the co-defendant claimed that all three left with our client in the front passenger seat. Before long they discovered the couple and carried out a drive-by shooting in which the woman was shot with double-aught buckshot from a shotgun. The shooting scene was noted by a Phoenix Police crime-scene “specialist” to be “very dark.” The deceased and her male companion were likely about 20 feet from the vehicle. The male victim spoke to the police in a recorded conversation a few hours after shooting, on October 3, 2009. He was summoned to Police on October 16 to give another recorded interview (which the detective forgot about until trial) and to meet with a “sketch artist.” On March 4, 2010 he was again called to meet with police at headquarters to view a photo-array of six (6) photos. The interview was conducted by the case agent and was not video recorded. Our client was placed in the 5th slot in the photo-array and the victim picked out #6, a “foil.”

Finally, during the week of August 11, 2011 the victim was arrested for felony shoplifting and criminal trespass. Ironically, although there are about 7,500 inmates in the Maricopa County jail system, the victim was placed in the very same pod as our client. They proceeded to play chess together and the victim said nothing to our client. When it came time for the victim to “roll-out” our client approached him and said that he was the one accused of shooting his girlfriend. The victim told our client to pull up his shirt and he recognized the tattoo on our client’s stomach.

As I told the jury in opening and in closing, the case brought against our client had two parts: 1) was the “drive-by shooting and murder of the female victim, Kelly Jaeger; and 2) was the portion regarding the history of skinheads in Arizona; the conduct of numerous members of the white supremacist group, the Vinlander Social Club (many of whom were snitches in the state’s case) and our client’s alleged relationship to the club. This related to an “assisting a criminal street-gang allegation.” We have discussed the first part of the case where the importance of the eyewitness identification testimony was significant. As our expert witness we called the eminently qualified Deborah Davis, Ph.D. She testified about how difficult it is to accurately identify strangers; the manner in which memory is created through a process of “encoding”; the manner in which it is “stored” and it’s malleability; and the manner in which it is “retrieved”; certainly not recorded like a video.

These three cases provided me with first-hand experience in both the significant factual and ineffective legal issues surrounding eyewitness identification. As set forth in greater detail below, these issues must be tried to the jury. To that end, I set forth strategies to obtain the best jury instructions on the issue, as well as ensuring that the jury has the evidence before it that it needs to evaluate an identification. In short, I will provide you with strategies for expert testimony and jury instructions.

II.The Legal Context

Only a decade ago, a federal district court, refusing a defense request for expert testimony on identification, stated:

On a daily basis the average juror is personally faced with innumerable questions of memory and cognition, as everyone in their daily lives is called upon to store, encode, and retrieve information he or she has been subjected to. Although the average juror may not understand the scientific basis and labels attached to causes for memory errors, jurors inevitably encounter the frailties of memory as a commonplace matter of course.

United States v. Libby, 461 F. Supp. 2d 3, 12 (D.D.C. 2006). Yet, despite the Libby Court’s laissez faire attitude toward eyewitness identification, it is the single greatest cause of false convictions in the United States. The Innocence Project has noted that “[m]istaken eyewitness identifications contributed to approximately 70% of the more than 350 wrongful convictions in the United States overturned by post-conviction DNA evidence.”

Wrongful convictions based largely on errors in eyewitness identification have plagued American criminal courts for decades. Today, two websites in the United States track such wrongful convictions and their causes: the Innocence Project (www.innocenceproject.org) and the National Registry of Exonerations (www.law.umich.edu/special/exoneration/Pages/about.aspx). These archival studies have uniformly shown that eyewitness error plays a prominent role in leading to wrongful convictions. The early archival studies of factors contributing to wrongful convictions made clear that eyewitness errors were a problem for the justice system, one that the more modern archival studies and the records kept by the Innocence Project and National Registry clearly show has continued, seemingly unabated.

Courts have been more open in recent years to the vagaries of eyewitness identifications. Nonetheless, many still view the issue through the Libby lens, and either limit expert testimony or prevent meaningful jury instruction on the issue. Adequate expert testimony and meaningful jury instructions are vital to remedying this critical issue.

As will become evident, expert testimony and jury instructions are interrelated issues. We will begin with jury instructions.

II.Instructing the Jury On The Eyewitness Identification

A.Historical Perspective

The problems with eyewitness identification have been well known for years. In 1927, Justice Frankfurter wrote in a separate publication: “What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. These instances are recent—not due to the brutalities of ancient criminal procedure.” The Case of Sacco and Vanzetti 30 (1927) (quoted with approval in United States v. Wade, 388 U.S. 218, 228 (1967)).

United States v. Wade. In Wade, the United States Supreme Court accepted the first of a trilogy of cases seeking to address this issue. In United States v. Wade, 388 U.S. 218 (1967), two men robbed a bank in Eustice, Texas, on September 21, 1964. One man remained in a getaway car while the other, wearing two strips of tape on each side of his face, entered the bank and demanded money from the two employees in the bank.

Six months later, an indictment was returned against the defendant, Billy Joe Wade. On April 2, 1965, Wade was arrested, and counsel appointed on April 26, 1965.

Fifteen days later, FBI agents–without advising Wade’s counsel–conducted a line-up which included Wade. Each of the participants in the line-up, which included Wade, wore strips of tape on their faces, and voiced “put the money in the bag,” or words to that effect. Both bank employees identified Wade as the robber seven and a half months earlier. They later identified Wade at trial, and testified about their earlier identification.

The Supreme Court accepted certiorari to determine whether the identification procedures violated Wade’s Sixth Amendment right to counsel. In an opinion by Justice Brennan, the Court held that it did. “[I]n this case it is urged that the assistance of counsel at the lineup was indispensable to protect Wade’s most basic right as a criminal defendant—his right to a fair trial at which the witnesses against him might be meaningfully cross-examined.” Id. at 223-24. The Court noted that a pretrial lineup is not simply part of the investigation process:

The Government characterizes the lineup as a mere preparatory step in the gathering of the prosecution’s evidence, not different—for Sixth Amendment purposes—from various other preparatory steps, such as systematized or scientific analyzing of the accused’s fingerprints, blood sample, clothing, hair, and the like. We think there are differences which preclude such stages being characterized as critical stages at which the accused has the right to the presence of his counsel.

Id. at 227. Most notably, the Court noted that the right to counsel was critical to a defendant’s ability to present expert testimony:

Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary processes of cross-examination of the Government’s expert witnesses and the presentation of the evidence of his own experts.

Id. at 227-28. The Court elaborated:

The pretrial confrontation for purpose of identification may take the form of a lineup, also known as an ‘identification parade’ or ‘showup,’ as in the present case, or presentation of the suspect alone to the witness, as in Stovall v. Denno, supra. It is obvious that risks of suggestion attend either form of confrontation and increase the dangers inhering in eyewitness identification. But as is the case with secret interrogations, there is serious difficulty in depicting what transpires at lineups and other forms of identification confrontations. ‘Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on * * *.’ For the same reasons, the defense can seldom reconstruct the manner and mode of lineup identification for judge or jury at trial. Those participating in a lineup with the accused may often be police officers; in any event, the participants’ names are rarely recorded or divulged at trial. The impediments to an objective observation are increased when the victim is the witness. Lineups are prevalent in rape and robbery prosecutions and present a particular hazard that a victim’s understandable outrage may excite vengeful or spiteful motives. In any event, neither witnesses nor lineup participants are apt to be alert for conditions prejudicial to the suspect.

Id. at 229-30 (footnotes and citations omitted).

Stovall v. Denno. The Supreme Court decided Stovall v. Denno, 388 U.S. 293 (1967), the same day as Wade. In Stovall, an assailant attacked Dr. Paul Behrendt and his wife in their New York home, killing Dr. Behrendt and seriously injuring his wife. The next day, police officers arrested the defendant, Theodore Stovall. He was quickly arraigned and counsel appointed. However, the day after his arrest, officers took Stovall to the hospital room. There, chained to a police officer, the officers asked Mrs. Behrendt if Stovall–the only African-American in the room–whether he was her assailant. She responded in the affirmative.

Stovall’s death penalty conviction was affirmed by New York’s high court, and Stovall instituted post-conviction proceedings. The Supreme Court accepted certiorari of the Second Circuit’s denial of his post-conviction proceedings.

In another decision by Justice Brennan, the Court held that Wade did not have retroactive application; he could not raise a Sixth Amendment violation for the absence of counsel at the identification procedure. Id. at 301. Nonetheless, the Court proceeded to evaluate the circumstances of Stovall’s identification under a Due Process analysis. “The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup,” the Court noted, “has been widely condemned.” Id. at 302. Nonetheless, adopting a “totality of the circumstances” standard, the Court found the identification to satisfy due process inquiry:

[A] claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it, and the record in the present case reveals that the showing of Stovall to Mrs. Behrendt in an immediate hospital confrontation was imperative.

Id. at 302.

Ironically, the Supreme Court, while finally choosing to address the critical issue of misidentifications, still did not comprehend the extent of the problems, with its focus solely on the process and little emphasis on the likelihood of misidentifications. A “single person” identification process was problematic, but the problems with this identification are far more problematic than that single issue. Among other things:

It was a “single” person identification;
The single person was of a different race than the victim;
The single person was chained to a police officer;
Ms. Behrendt had never met Stovall before; and
Mrs. Behrendt’s first interaction with Stovall was under highly stressful circumstances (to say the least).

This author has attempted to determine the fate of Theodore Stovall. He does not appear on lists of persons executed in the United States, so it does not appear that his death sentence was carried out. There was other evidence linking him to the crime scene, but the key evidence at his trial was this identification. Notably, the Supreme Court overruled its retroactivity portion of Stovall in Griffith v. Kentucky, 479 U.S. 314 (1987).

Neil v. Biggers. In Neil v. Biggers, 409 U.S. 188 (1972), the Supreme Court revisited the due process issue. In that matter, a youth, Archie Biggers, attacked a woman in her kitchen after dark one evening. He dragged her from her home and raped her, the entire incident occurring over the course of 15-30 minutes. The victim generally described her assailant as a young man (16-18 years of age), overweight, with a dark brown complexion. During the course of the investigation, police showed the victim approximately 30-40 individuals.

Seven months later, police arrested Biggers on unrelated charges. Recognizing his relative similarity to the victim’s description, police attempted to do a lineup, but could not locate individuals matching Biggers’ general description. Accordingly, they brought the victim to the police station and did a “show-up”–two detectives walked Biggers past the victim, instructing him to say a few words. The victim identified Biggers as her assailant.

As in Stovall, the case reached the Supreme Court on post-conviction review. Thus–Griffith not yet decided–there was no Sixth Amendment issue. The Court considered only the due process issue. “It is, first of all, apparent that the primary evil to be avoided is a very substantial likelihood of irreparable misidentification.” *Id. *at

198. Further, “[s]uggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous.” Id.

But “suggestiveness,” the Court held, did not require preclusion under Due Process.

We turn, then, to the central question, whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Applying these factors, we disagree with the District Court’s conclusion [granting the post-conviction petition].

Id. at 199-200.

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 show-ups, lineups, or photographic showings. Her record for reliability was thus a good one, as she had previously resisted whatever suggestiveness inheres in a show-up. Weighing all the factors, we find no substantial likelihood of misidentification. The evidence was properly allowed to go to the jury

Id. at 201.

This trilogy of cases remains the bulwark of Supreme Court jurisprudence on eyewitness testimony.

Several lessons emerge from these cases:

Federal constitutional law was more concerned with procedural aspects of identification, rather than the possibility of substantive error;
Only in extremely rare cases would due process result in a finding that an identification was unreliable, and would focus on “suggestiveness” more than actual underlying facts indicating a faulty identification; but
The Court laid the foundation for identification challenges to identification at trial, including expert testimony and properly instructed juries.

The Supreme Court reaffirmed these conclusions in Perry v. New Hampshire, 565 U.S. 228 (2012). There, Nassau, New Hampshire police detained an African-American male, Barion Perry, one night on suspicion of breaking and entering automobiles in the parking lot of an apartment building. One of the vehicle owners told police that her vehicle had been burglarized, and told the officers that the person she saw was “standing in the parking lot,” where the police had detained Perry. When showed a photo lineup a month later, this person was unable to identify Perry.

Justice Ginsburg, writing for the Court, affirmed the New Hampshire courts’ admission of the victim’s identification. Rejecting Perry’s due process challenge to admission of the identification, the Court reiterated that it is not necessarily the reliability of the identification, but improper police conduct, that governs the due process analysis:

We have concluded in other contexts, however, that the potential unreliability of a type of evidence does not alone render its introduction at the defendant’s trial fundamentally unfair. We reach a similar conclusion here: The fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess its creditworthiness.

Id. at 245 (citations omitted; emphasis added).

In our system of justice, fair trial for persons charged with criminal offenses is secured by the Sixth Amendment, which guarantees to defendants the right to counsel, compulsory process to obtain defense witnesses, and the opportunity to cross-examine witnesses for the prosecution. Those safeguards apart, admission of evidence in state trials is ordinarily governed by state law, and the reliability of relevant testimony typically falls within the province of the jury to determine.

Id. at 231-32.

Unfortunately, the Supreme Court missed the opportunity to emphasize the use of expert testimony as one of the “safeguards” to protect against unreliable identifications. Rather, the Court noted that “[i]n appropriate cases, some States also permit defendants to present expert testimony on the hazards of eyewitness identification evidence.” Id. at 247 (citing State v. Clopten, 223 P.3d 1103, 1113 (Utah 2009) (“We expect … that in cases involving eyewitness identification of strangers or near-strangers, trial courts will routinely admit expert testimony [on the dangers of such evidence]”)). The Court did not explore whether the use of expert testimony would be one of the “safeguards” of the Sixth Amendment’s mandate that a defendant “have compulsory process for obtaining witnesses in his favor, and … have the Assistance of Counsel for his defense.” U.S. Const. Amend. VI.

B.Arizona Jurisprudence Regarding Eyewitness Identifications

The seminal Arizona Supreme Court decision regarding eyewitness identification is State v. Dessureault, 104 Ariz. 380, 387, 453 P.2d 951, 958 (1969), decided just two years after the United States Supreme Court’s Wade/Stovall/Biggers trilogy. In Dessureault, someone robbed a local Circle K in the wee hours of the morning of June 20, 1967. The witnesses described the robber as having a beard and moustache.

Acting on an informant’s tip, officers arrested Robert Gary Dessureault for this crime the next day. Police then conducted a lineup. The police placed Dessureault in a lineup with other persons; notably, Dessureault was the only person in the lineup with a beard and moustache. The store clerk identified Dessureault. The clerk subsequently also made an in-court identification.

The Arizona high court found no due process violation with respect to the identification procedure or results. “We are of the opinion that while the lineup was unduly suggestive, it was no more suggestive than an individual show up or a ‘face to face’ confrontation.” Id. at 385. “[W]hile the pretrial identification was unduly suggestive, it was not conducive to irreparable mistaken identification.” Id.

The Court was equally untroubled by the fact that the clerk’s in-court identification seemingly arose from the suggestive lineup. Although the clerk acknowledged the importance of the investigatory lineup in making his in-court lineup, the Court stated that, “[b]ut from this we do not think it necessarily follows that the in-court identification was tainted. This reinforcement of the witness’ original identification, honestly admitted, is inherent in every case and we know of no means by which it can be avoided.” Id. at 384-85.

Nonetheless, the Court agreed that Dessureault was entitled to a jury instruction. However, this is the instruction approved by the *Dessureault *Court:

[I]f requested, the court must instruct the jury that before returning a verdict of guilty it must be satisfied beyond a reasonable doubt that the in-court identification was independent of the previous pretrial identification or if not derived from an independent source, it must find from other evidence in the case that the defendant is the guilty person beyond a reasonable doubt.

Id. at 384. The Court specifically rejected Dessureault’s request for an instruction that “the jurors* must be satisfied beyond a reasonable doubt as to the accuracy of Wilkins’ identification.” *Id\. at 387.

In short, the Arizona Supreme Court did not require an instruction on the inherent issues with eyewitness identification; rather, the Court focused solely on the relationship between the earlier identification and that made in-court.

Nonetheless, in preparation of the Recommended Arizona Criminal Jury Instructions some years later, the drafters penned the following jury instruction on eyewitness identification, relying on factors set forth in Neil v. Biggers:

The State must prove beyond a reasonable doubt that the in-court identification of the defendant at this trial is reliable. In determining whether this in-court identification is reliable you may consider such things as:

the witness’ opportunity to view at the time of the crime;
the witness’ degree of attention at the time of the crime;
the accuracy of any descriptions the witness made prior to the pretrial identification;
the witness’ level of certainty at the time of the pretrial identification;
the time between the crime and the pretrial identification;
any other factor that affects the reliability of the identification. If you determine that the in-court identification of the defendant at this trial is not reliable, then you must not consider that identification.

Arizona Recommended Jury Instructions (Criminal), No. 39.

Notably, in Perry, supra, the United States Supreme Court praised this jury instruction as an example of an appropriate “safeguard” to misidentification. See Perry, 565 U.S. at 247 n. 7.

In State v. Nottingham, 231 Ariz. 21, 289 P.3d 949 (App. 2012), the Arizona Court of Appeals took the laudable step of holding that RAJI No. 39 was required not only when the “undue suggestiveness” of an identification was the product of police conduct, but whenever a pretrial identification may have been made under “suggestive circumstances”:

Accordingly, we conclude Perry has modified Arizona law to the extent our courts had conditioned a defendant’s entitlement to a cautionary identification instruction on a trial court’s formal finding that a pretrial identification procedure was “unduly suggestive.” Instead, Perry suggests that, at minimum, a cautionary jury instruction is required when a defendant has presented evidence that a pretrial identification has been made under suggestive circumstances that might cause the later “eyewitness testimony [to be] of questionable reliability.”

Id. at 26, ¶ 13, 289 P.3d 949, 954 (App. 2012).

Nonetheless, at the time of this writing, RAJI No. 39 remains the presumptive jury instruction for eyewitness identification in Arizona. The focus continues to be on the “suggestiveness” of the identification procedures, rather than the vagaries of identification themselves.

C.New Trends

In his seminal book, “Factfulness: Ten Reasons We’re Wrong About the World–and Why Things Are Better Than You Think,” Dr. Rosling poses the question: “What was the single most important event in the last 100 years in eradicating world hunger?” Of course, most people hypothesize about the development of new agricultural programs or products, or expansion in world aid, or the like. The answer surprises most: “the death of Mao Tse Tung.”

A similar question can be asked with respect to eyewitness identifications. As noted above, courts have been aware of at least the possibility of error for decades. Thus, the question is, what is the single most important factor in modern years regarding identification jurisprudence?

The answer is not some study by such luminaries as Elizabeth Loftus, Ph.D., or the like. Rather, the answer is simply: DNA. Since the discovery and widespread use of DNA, we have for the first time some objective manner of determining exactly how bad eyewitness identification is.

According to the Innocence Project, “eyewitness misidentification is the greatest contributing factor to wrongful convictions proven by DNA testing, playing a role in more than 70% of convictions overturned through DNA testing nationwide.” In her dissent in Perry, Justice Sotomayor stated:

Researchers have found that a staggering 76% of the first 250 convictions overturned due to DNA evidence since 1989 involved eyewitness misidentification. Study after study demonstrates that eyewitness recollections are highly susceptible to distortion by post-event information or social cues; that jurors routinely overestimate the accuracy of eyewitness identifications; [and] that jurors place the greatest weight on eyewitness confidence in assessing identifications even though confidence is a poor gauge of accuracy….

Perry, 565 U.S. 263-64 (Sotomayor, J., dissenting) (footnotes omitted); see also 565 U.S. at 252 (majority acknowledging same concern and citing this portion of dissent).

Nonetheless, most States have been satisfied to maintain the typically antiquated jury instructions and rules regarding eyewitness testimony–including Arizona. The exceptions to these rules are bicoastal–New Jersey and Oregon.

1.New Jersey

New Jersey’s revolution culminated in the State’s high court decision in State v. Henderson, 27 A.3d 872 (2011). In Henderson, one Rodney Harper was shot to death in an apartment in Camden in the early morning hours of January 1, 2003.

James Womble was at Harper’s apartment, celebrating the New Year with alcohol and crack cocaine. At approximately 2:00 a.m., two men entered Harper’s apartment, purportedly to collect a death. Womble was familiar with one of the men, but the other was a stranger. The acquaintance, George Clark, shot Harper and left the apartment, but only after threatening Womble to keep quiet.

Ten days later, police confronted Womble. After initially telling inconsistent stories in an effort to stay uninvolved, he came clean with what happened that night.

Police arrested Clark, who then identified Larry Henderson as his accomplice. Police had Clark view a photographic array on January 14, 2003. He picked out Henderson from the array.

Henderson moved to exclude Womble’s identification. The trial court denied the motion. The New Jersey court of appeals reversed, noting that the officers violated guidelines issued by the state attorney general for conducting identifications.

The New Jersey Supreme Court accepted review. It then appointed a Special Master to evaluate scientific and other evidence about eyewitness identifications. The Special Master presided over a hearing that included testimony by seven experts, over 2,000 pages of transcripts, and hundreds of scientific studies. He then issued an exhaustive report.

Which led to the New Jersey Supreme Court’s opinion in Henderson, the current bellwether of all opinions on eyewitness identification.

A copy of the Henderson opinion is attached. I attempt only to summarize this thorough discussion here.

The Court considered the plethora of recent academic literature and studies, including the following:

Four such studies—two from Sacramento, California and two from London, England—produced data from thousands of actual eyewitness identifications. See Bruce W. Behrman & Sherrie L. Davey, Eyewitness Identification in Actual Criminal Cases: An Archival Analysis, 25 Law & Hum. Behav. 475 (2001) (compiling records from fifty-eight live police lineups from area around Sacramento); Bruce W. Behrman & Regina E. Richards, Suspect/Foil Identification in Actual Crimes and in the Laboratory: A Reality Monitoring Analysis, 29 Law & Hum. Behav. 279 (2005) (assessing 461 photo and live lineup records from same area); Tim Valentine et al., Characteristics of Eyewitness Identification that Predict the Outcome of Real Lineups, 17 Applied Cognitive Psychol. 969 (2003) (analyzing 584 lineup records from police stations in and around London); Daniel B. Wright & Anne T. McDaid, Comparing System and Estimator Variables Using Data from Real Line–Ups, 10 Applied Cognitive Psychol. 75 **887 (1996) (evaluating 1,561 records from same area).
For the larger London study, 39% of eyewitnesses identified the suspect, 20% identified a filler, and 41% made no identification. See Wright & McDaid, supra, at 77. Thus, about one-third of eyewitnesses who made an identification (20 of 59) in real police investigations wrongly selected an innocent filler. The results were comparable for the Valentine study. See Valentine, supra, at 974. Across both Sacramento studies, 51% of eyewitnesses identified the suspect, 16% identified a filler, and 33% identified no one. See Behrman & Davey, supra, at 482; Behrman & Richards, supra, at 285. In other words, nearly 24% of those who made an identification (16 of 67) mistakenly identified an innocent filler.

Henderson, 27 A.3d at 886-87.

The Henderson Court specifically noted one of the biggest issues with eyewitness testimony: the witness doesn’t know that she or he is wrong!
We presume that jurors are able to detect liars from truth tellers. But as scholars have cautioned, most eyewitnesses think they are telling the truth even when their testimony is inaccurate, and “[b]ecause the eyewitness is testifying honestly (i.e., sincerely), he or she will not display the demeanor of the dishonest or biased witness.” See Jules Epstein, The Great Engine that Couldn’t: Science, Mistaken Identity, and the Limits of Cross–Examination, 36 Stetson L.Rev. 727, 772 (2007). Instead, some mistaken eyewitnesses, at least by the time they testify at trial, exude supreme confidence in their identifications.

Id. at 889.

Following its extensive review of the science (as well as legal history of identification law), the New Jersey high court identified the following factors that impact eyewitness identification, in two groups: (1) those within the state’s control, and (2) “external” factors.

State-Controlled Factors

(1)Blind Administration

“Double blind,” where the administrators do not know who the suspect is, or “blind,” where they know but shield themselves from this knowledge. Some scholars believe this is the “single most important characteristic” of a good identification procedure, as administrators often intentionally or unintentionally influence a witness’ identification decision.

(2)Pre-Identification Instructions

Identification procedures should begin with instructions to the witness that the suspect may or may not be in the lineup or array and that the witness should not feel compelled to make an identification.

(3)Lineup Construction

The way that a live or photo lineup is constructed can also affect the reliability of an identification. Properly constructed lineups test a witness’ memory and decrease the chance that a witness is simply guessing.

(4)Avoiding Feedback and Recording Confidence

Closely related to “blind administration,” feedback from administrators can increase a witness’ confidence and memory.

(5)Multiple Viewings

Viewing a suspect more than once during an investigation can affect the reliability of the later identification. The problem is that successive views of the same person can make it difficult to know whether the later identification stems from a memory of the original event or a memory of the earlier identification procedure.

(6)Simultaneous versus Sequential Lineups

Lineups are presented either simultaneously or sequentially. Traditional, simultaneous lineups present all suspects at the same time, allowing for side-by-side comparisons. In sequential lineups, eyewitnesses view suspects one at a time. Evidence suggests that sequential lineups may be more accurate.

(7)Composites

When a suspect is unknown, eyewitnesses sometimes work with artists who draw composite sketches. Composites can also be prepared with the aid of computer software or non-computerized “tool kits” that contain picture libraries of facial features. Composites generally produce poor results.

(8)Show-ups

Show-ups are essentially single-person lineups: a single suspect is presented to a witness to make an identification. Show-ups often occur at the scene of a crime soon after its commission. By their nature, show-ups are suggestive and cannot be performed blind or double-blind. Nonetheless, “the risk of misidentification is not heightened if a show-up is conducted immediately after the witnessed event, ideally within two hours” because “the benefits of a fresh memory seem to balance the risks of undue suggestion.”

External Variables

(1)Stress

Even under the best viewing conditions, high levels of stress can diminish an eyewitness’ ability to recall and make an accurate identification.

(2)Weapon Focus

When a visible weapon is used during a crime, it can distract a witness and draw 905 his or her attention away from the culprit. “Weapon focus” can thus impair a witness’ ability to make a reliable identification and describe what the culprit looks like if the crime is of short duration.

(3)Duration

Not surprisingly, the amount of time an eyewitness has to observe an event may affect the reliability of an identification. There is no measure to determine exactly how long a view is needed to be able to make a reliable identification. Dr. Malpass testified that very brief but good views can produce accurate identifications, and Dr. Wells suggested that the quality of a witness’ memory may have as much to do with the absence of other distractions as with duration.

(4) Distance and Lighting

It is obvious that a person is easier to recognize when close by, and that clarity decreases with distance. We also know that poor lighting makes it harder to see well. Thus, greater distance between a witness and a perpetrator and poor lighting conditions can diminish the reliability of an identification. Research has also shown that people have difficulty estimating distances.

(5)Witness Characteristics.

Characteristics like a witness’ age and level of intoxication can affect the reliability of an identification.

(6)Characteristics of the Perpetrator

Disguises and changes in facial features can affect a witness’ ability to remember and identify a perpetrator.

(7)Memory Decay

Memories fade with time. Memory decay “is irreversible”; memories never improve. As a result, delays between the commission of a crime and the time an identification is made can affect reliability. The more time that passes, the greater the possibility that a witness’ memory of a perpetrator will weaken. However, researchers cannot pinpoint precisely when a person’s recall becomes unreliable.

(8)Race-Bias

“A cross-racial identification occurs when an eyewitness is asked to identify a person of another race.” A witness may have more difficulty making a cross-racial identification.

(9)Private Actors

Whether the witness was exposed to opinions, descriptions, or identifications given by other witnesses, to photographs or newspaper accounts, or to any other information or influence that may have affected the independence of his/her identification. Co-witness feedback may cause a person to form a false memory of details that he or she never actually observed. Private actors can also affect witness confidence.

(10)Speed of Identification

The speed with which a witness makes an identification can be a reliable indicator of accuracy. However, laboratory studies offer mixed results.

The Henderson Court did not prepare its own jury instruction on the issue. However, it instructed the New Jersey Criminal Practice Committee and the Committee on Model Criminal Jury Charges to draft proposed revisions to the current charge on eyewitness identification, incorporating both the internal and external factors addressed above. Henderson, 27 A.3d at 925-26.

2.Oregon

The Oregon Supreme Court followed New Jersey’s Henderson lead in State v. Lawson, 291 P.3d 673, 685 (Ore. 2012). Like Henderson, the Court noted:

The scientific literature generally divides the factors affecting the reliability of eyewitness identifications into two categories: system variables and estimator variables. System variables refer to the circumstances surrounding the identification procedure itself that are generally within the control of those administering the procedure. Estimator variables, by contrast, generally refer to characteristics of the witness, the alleged perpetrator, and the environmental conditions of the event that cannot be manipulated or adjusted by state actors.

Id. at 685. The Court emphasized: “Rather, we believe that it is imperative that law enforcement, the bench, and the bar be informed of the existence of current scientific research and literature regarding the reliability of eyewitness identification because, as an evidentiary matter, the reliability of eyewitness identification is central to a criminal justice system dedicated to the dual principles of accountability and fairness.” Id. It, too, went through the list of factors identified in Henderson.

D. Instructing the Jury

We do not live in either New Jersey nor Oregon. Arizona courts have not yet recognized the need for jury instructions that accurately depict the current state of the science. Nonetheless, it is imperative that we, the practitioner, continue to push the issue.

I submit the following instructions that I offered in two of my eyewitness identification cases:

State v. Gonzalez

1.the witness’ opportunity to view at the time of the crime;

2.the witness’ degree of attention at the time of the crime;

3.the accuracy of any descriptions the witness made prior to the pretrial identification;

4.even under the best viewing conditions, high levels of stress can reduce an eyewitness’s ability to recall and make an accurate identification. Therefore, you should consider a witness’s level of stress and whether that stress, if any, distracted the witness or made it harder for her to identify the perpetrator;

5.the presence of a weapon can distract the witness and take the witness’s attention away from the perpetrator’s face. As a result, the presence of a visible weapon may reduce the reliability of a subsequent identification if the crime is of short duration. In considering this factor, you should take into account the duration of the crime because the longer the event, the more time the witness may have to adapt to the presence of the weapon and focus on other details;

6.the witness’ level of certainty at the time of the pretrial identification; however, when analyzing such testimony, be advised that a witness’s level of confidence, standing alone, may not be an indication of the reliability of the identification;

7.the time between the crime and the pretrial identification;

8.any other factor that affects the reliability of the identification

If you determine that the in-court identification of the defendant at this trial is not reliable, then you must not consider that identification.

State v. Ricci

1.the witness’ opportunity to view at the time of the crime;

2.the witness’ degree of attention at the time of the crime;

3.the accuracy of any descriptions the witness made prior to the pretrial identification;

7.the time between the crime and the pretrial identification;

8.any other factor that affects the reliability of the identification

If you determine that the in-court identification of the defendant at this trial is not reliable, then you must not consider that identification.

In any proposed instruction, ensure that it includes any and all of the “system variables” and “estimator variables” identified above that might have played a role in the identification.

5.Expert Witnesses

Currently, the use of expert testimony regarding eyewitness identification is frequently being accepted in the courts. As noted above, the sentiments of the Utah Supreme Court are now relatively common: “We expect … that in cases involving eyewitness identification of strangers or near-strangers, trial courts will routinely admit expert testimony [on the dangers of such evidence].” State v. Clopten, 223 P.3d 1103, 1113 (Utah 2009). The Oregon Supreme Court in the seminal case of State v. Lawson, noted above, provided a thorough list of jurisdictions “recognizing the scientific community’s acceptance of the research regarding the reliability of eyewitness identification and the admission of expert testimony based on that research”:

Ferensic v. Birkett, 501 F.3d 469, 482 (6th Cir.2007) (‘expert testimony on eyewitness identifications * * * is now universally recognized as scientifically valid and of aid [to] the trier of fact for admissibility purposes’); United States v. Smithers, 212 F.3d 306, 313 (6th Cir.2000) (noting that ‘the science of eyewitness perception has achieved the level of exactness, methodology and reliability of any psychological research’); United States v. Moore, 786 F.2d 1308, 1312 (5th Cir.1986) (This [c]ourt accepts the modern conclusion that the admission of expert testimony regarding eyewitness identifications is proper. * * * We cannot say [that] such scientific data [are] inadequate or contradictory. The scientific validity of the studies confirming the many weaknesses of eyewitness identification cannot be seriously questioned at this point.’); United States v. Downing, 753 F.2d 1224, 1242 (3d Cir.1985) (noting ‘the proliferation of empirical research demonstrating the pitfalls of eyewitness identification’ and that ‘the consistency of the results of these studies is impressive’); United States v. Feliciano, United States District Court, Docket No. CR–08–0932–01 PHX–DGC [2009 WL 3748588] (D.Ariz. Nov 5, 2009) (‘[t]he degree of acceptance [of the scientific data on the reliability of eyewitness identifications] within the scientific community … is substantial’); People v. McDonald, 37 Cal.3d 351, 364–65, 690 P.2d 709, 208 Cal.Rptr. 236 (1984) (‘[E]mpirical studies of the psychological factors affecting eyewitness identification have proliferated, and reports of their results have appeared at an ever-accelerating pace in the professional literature of the behavioral and social sciences. * * * The consistency of the results of these studies is impressive, and the courts can no longer remain oblivious to their implications for the administration of justice.’), overruled in part on other grounds by People v. Mendoza, 23 Cal.4th 896, 4 P.3d 265, 98 Cal.Rptr.2d 431 (2000); Brodes v. State, 279 Ga. 435, 440–41, 614 S.E.2d 766 (2005) (scientific validity of research studies concerning unreliability of eyewitness identifications is well established); State v. Henderson, 208 N.J. 208, 218, 27 A3d 872 (2011) (noting that, ‘[f]rom social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, [scientific research and studies demonstrate] that the possibility of mistaken identification is real,’ that many studies reveal ‘a troubling lack of reliability in eyewitness identifications,’ and that ‘[t]hat evidence offers convincing proof that the current test for evaluating the trustworthiness of eyewitness identifications should be revised’); People v. LeGrand, 8 N.Y.3d 449, 455, 867 N.E.2d 374, 835 N.Y.S.2d 523 (2007) (‘[E]xpert psychological testimony on eyewitness identification [is] sufficiently reliable to be admitted, and the vast majority of academic commentators have urged its acceptance. * * * [P]sychological research data [are] by now abundant, and the findings based [on the data] concerning cognitive factors that may affect identification are quite uniform and well documented. * * * ’); State v. Copeland, 226 S.W.3d 287, 299 (Tenn.2007) (‘[s]cientifically tested studies, subject to peer review, have identified legitimate areas of concern’ in area of eyewitness identifications); Tillman v. State, 354 S.W.3d 425, 441 (Tex.Crim.App.2011) (‘[E]yewitness identification has continued to be troublesome and controversial as the outside world and modern science have cast doubt on this crucial piece of evidence.* * * [A] vast body of scientific research about human memory has emerged. That body of work casts doubt on some commonly held views relating to memory * * *.’); State v. Clopten, 223 P.3d 1103, 1108 (Utah 2009) (‘empirical research has convincingly established that expert testimony is necessary in many cases to explain the possibility of mistaken eyewitness identification’); State v. Dubose, 285 Wis.2d 143, 162, 699 N.W.2d 582 (2005) (‘[o]ver the last decade, there have been extensive studies on the issue of identification evidence’).

State v. Lawson, 291 P.3d 673, 695 (Ore. 2012).

This has not always been the case. There were two primary rationales given for excluding expert testimony on eyewitness identification:

In general, however, jurors understand that memory can be less than perfect[, and] the credibility of eyewitness testimony is generally not an appropriate subject matter for expert testimony because it influences a critical function of the jury—determining the credibility of witnesses.

United States v. Carter, 410 F.3d 942, 950–51 (7th Cir. 2005). In 1993—well after research showing the fallacy of eyewitness identification was widespread—the Pennsylvania Supreme Court categorically excluded expert testimony on the topic:

Expert opinion may not be allowed to intrude upon the jury’s basic function of deciding credibility. [¶] Spence argues that because the expert was going to attack rather than enhance the credibility of the victim, Ogrod, his testimony was permissible. Whether the expert’s opinion is offered to attack or to enhance, it assumes the same impact—an unwarranted appearance of authority in the subject of credibility which is within the facility of the ordinary juror to assess.

Commonwealth v. Spence, 627 A.2d 1176, 1182 (Pa. 1993) (citations and quotation omitted).

Arizona courts have not yet adopted a cohesive position on the issue. In State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (1983), the Arizona Supreme Court reversed a death penalty conviction, finding that, under the facts of the particular case, the trial court had erred in precluding the testimony of Dr. Loftus. However, the Court cautioned:

In reaching this conclusion, we do not intend to “open the gates” to a flood of expert evidence on the subject. We reach the conclusion that Dr. Loftus should have been permitted to testify on the peculiar facts of this case and have no quarrel with the result reached in the vast majority of cases which we have cited above. The rule in Arizona will continue to be that in the usual case we will support the trial court’s discretionary ruling on admissibility of expert testimony on eyewitness identification. Nor do we invite opinion testimony in even the most extraordinary case on the likelihood that a particular witness is correct or mistaken in identification or that eyewitness identification in general has a certain percentage of accuracy or inaccuracy.

Id. at 297, 660 P.2d at 1224. Thus, in State v. Poland, 144 Ariz. 388, 698 P.2d 183 (1985), aff’d, 476 U.S. 147 (1986), the Arizona high court affirmed the exclusion of such evidence, noting that “[t]here was nothing that the witness would testify to that was not within the common experience of the jurors.” Id. at 399, 698 P.2d at 194.

In State v. Forde, 233 Ariz. 543, 315 P.3d 1200 (2014), the Supreme Court upheld significant restrictions on the eyewitness expert, Dr. Geoffrey Loftus (Dr. Elizabeth Loftus’ son), holding that the trial court properly precluded him from commenting on the facts of the particular case, even through the presentation of hypotheticals. Id. at 562, ¶¶ 67-68, 315 P.3d at 1219.

The Cross-Examination Trap. Courts have also found other excuses for limiting or precluding this expert testimony. Most notably is the proposition that the availability of cross-examination and jury instructions can substitute for expert testimony:

“[R]equirements of corroboration, cross-examination, and jury instructions have often been proposed as alternative remedies to expert testimony on eyewitness reliability.” Christopher M. Walters, Comment, Admission of Expert Testimony on Eyewitness Identification, 73 Calif.L.Rev. 1402, 1403 (1985)). Even the District of Columbia Circuit, in its seminal decision in Benn v. United States, stated:

In making that determination, a trial judge must consider whether expert testimony is the only means, or a particularly effective way, to address and correct common juror misconceptions about the reliability of the eyewitness identifications in the case. Thus, as we have previously recognized, there are certain cases where cross-examination may suffice to test the reliability of the identification made by an eyewitness.

Benn v. United States, 978 A.2d 1257, 1279–80 (D.C. 2009).

Of course, cross-examination is rarely an effective means of testing identification testimony, as the witness is generally unaware of why her or his testimony may be inaccurate.

Further, to the extent that a trial court relies on jury instruction as a ground for precluding or limiting an expert’s testimony, this only reinforces the need for a proper jury instruction, rather than an outdated, scientifically incorrect instruction such as RAJI 39.

Sample Expert Testimony

One of the best experts on eyewitness identification ever was Robert Shomer, Ph.D. Dr. Shomer has, unfortunately, passed away. However, to view Dr. Shomer in action, I have attached a link to my direct examination of Dr. Shomer in the “home invasion” case. https://youtu.be/iUZ28Mkv6E8.

Conclusion

I leave you with the following strategy tips and concerns at every trial where eyewitness identification is an issue:

Tip No. 1: Do not rely on RAJI No. 39 (or any similar instruction from your jurisdiction). Offer a jury instruction that includes every factor, both System Variables and Estimator Variables.

Tip No. 2: Retain an expert. If you are appointed or Knapp counsel, do not hesitate to ask for funds for such an expert. Jacobson v. Anderson, 203 Ariz. 543, 57 P.3d 733 (App. 2002).

Tip. No. 3: Ensure that your expert will not run afoul of the Daubert requirements of Rule of Evidence 702.

Tip. No. 4: Be prepared to defend an assertion by the State that cross-examination and jury instructions are adequate ways of bringing issues of eyewitness identification to the jury.

Tip No 5: Make full use of your expert! Do not simply use her or him to testify. Use either an affidavit or testimony from your expert to support your proposed jury instruction.

1 Robert W. Shomer was an esteemed psychologist licensed in the State of California, who was an expert in the field in Eyewitness Perception, Memory and Identification. He graduated from U.C.L.A. with honors with a B.A. in psychology and received his Ph.D. in psychology from U.C.L.A. in 1966. Upon receiving his Doctorate, he was offered several faculty appointments, including positions at Harvard, Yale, Dartmouth, Johns Hopkins, and the University of Texas. He accepted a position at Harvard University and was appointed to the faculty with concurrent appointments in the Departments of Psychology, Social Relations, and General Education. He served as an Assistant Professor on the faculty at Harvard University for five years. Bob taught at various other colleges and universities; engaged in research; and qualified and testified as an expert witness in memory, perception, and eyewitness identification on innumerable occasions in many jurisdictions.

2 As noted above, Arizona RAJI No. 39 continues to include “witness certainty” as a factor to be considered in evaluating an identification, even though there is no scientific basis for this conclusion. In State v. Barlow, 1 CA-CR 15-0541, 2016 WL 4525042 (App. Aug. 30, 2016), the Court of Appeals upheld this portion of RAJI No. 39, even over objections that “scientific evidence has shown that eyewitness’s confidence does not correlate to whether the offense occurred or not….” Id. at ¶ 20.

3 Kansas and Louisiana still appear to adhere to the per se inadmissibility of such evidence. See State v. Gaines, 926 P.2d 641 (Kan. 1996); State v. Young, 35 So.3d 1042 (La.2010).

4 The Court followed the lead of what is perceived to be the leading Ninth Circuit decision on the issue at the time, United States v. Amaral, 488 F.2d 1148 (9th Cir. 1973).