man in cowboy boots came into the house and raped the oldest girl, who was ten years old at the

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1 Louisiana Judicial College Evidence and Procedure, February 28-March 1, 2013 Eyewitness Identification: An Overview of National Jurisprudence, Expert Testimony and Jury Instructions Susanne Johnson Inman, Judicial Education Program Attorney I. Introduction In June, 1981, three young girls were sleeping alone in a Shreveport, Louisiana home when a man in cowboy boots came into the house and raped the oldest girl, who was ten years old at the time. When police began investigating the rape, the three girls all remembered the attack differently. The nine year old indicated she could not see the attacker s face but described his shoes, which appeared to be cowboy boots. At trial she identified the alleged attacker, Calvin Willis, by his boots. The seven year old testified she was asleep alone and awoke when she heard the victim s cries and the attacker threatening to kill the victim. She identified the voice as that of Calvin Willis, with whom she had spoken once. One police report indicated the ten year old victim did not see her attacker s face. Another report, not introduced at trial, stated the victim identified Calvin Willis, who lived in the neighborhood, as her attacker. The girl s mother testified at trial that neighbors had mentioned Willis s name when discussing who might have committed the crime. The victim testified she was shown photos by the police and told to pick the man without a full beard. She testified that she did not pick anyone from the lineup and that Willis s picture was not part of the array, although police testimony regarding the photographic identification differed. Despite Willis alibi that he was with his wife from midnight forward the evening of the crime, corroboration from his wife, and evidence indicating Willis did not fit the physicality of the attacker, in February of 1982, he was convicted by a jury and sentenced to life in prison without parole. In September of 2003, DNA testing proved Willis innocence and he 1

2 was released from the Louisiana State Penitentiary at Angola. He had served nearly 22 years in prison for a crime he did not commit. 1 Today, it is generally acknowledged that eyewitness misidentification is the leading cause of false convictions in the United States. 2 The most compelling single body of evidence in support of this proposition is the collection of cases in which forensic DNA testing was used to exonerate people who had been convicted by juries and were serving hard time (some on death row). 3 These cases are well documented by the Innocence Project: according to their website, mistaken eyewitness identifications contributed to approximately 76% of the 301 wrongful convictions in the United States overturned by post-conviction DNA evidence. 4 This paper will provide a bird s eye view of many of the issues surrounding eyewitness identification facing courts today. Specifically, we will examine the roots of admissibility of eyewitness identification, briefly discuss the factors that may affect the reliability of eyewitness identification, address the standards for admissibility of expert testimony concerning eyewitness identification, provide a brief overview of the national jurisprudence in this regard, and finally, briefly discuss the use of jury instructions relating to eyewitness identification. II. Standard for Reliability and Factors Contributing to Potential Unreliability of Eyewitness Testimony In Manson v. Brathwaite, 5 the United States Supreme Court addressed the issue as to whether the Due Process Clause of the Fourteenth Amendment compels the exclusion, in a state George Vallas, A Survey of Federal and State Standards for the Admission of Expert Testimony on the Reliability of Eyewitnesses, 39 Am. J. Crim. L. 97, p. 100 ( ); See also, Jennifer Devenport, et al., Eyewitness Identification Evidence: Evaluating Commonsense Evaluations, 3 Psychol., Pub. Pol y & L. 338, 339 (1997) ( [M]istaken identifications appear to be the most frequent source of erroneous convictions. ) 3 Smalarz, Laura & Gary L. Wells, Eyewitness Identification Evidence: Scientific Advances and the New Burden on Trial Judges. Court Review, the Journal of the American Judges Association, Volume 68, p U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) 2

3 criminal trial, apart from any consideration of reliability, or pretrial identification evidence obtained by a police procedure that was both suggestive and necessary. 6 The court set forth a two-part inquiry to determine the admissibility into evidence of an eyewitness s identification, wherein a court must first decide whether the procedure in question was in fact impermissibly suggestive. If the court does find the procedure impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a very substantial likelihood of irreparable misidentification. 7 In confirming that reliability is the linchpin in determining the admissibility of identification, 8 the Brathwaite Court also noted this reliability determination is to be made from the totality of the circumstances in a particular case. 9 This involves considering the facts of each case and weighing the corruptive influence of the suggestive identification against the opportunity of the witness to view the criminal at the time of the crime, the witness s degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the time of the confrontation and the time between the crime and the confrontation. 10 In State v. Perry, the United States Supreme Court also recently addressed whether the Due Process Clause requires a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circumstances (not arranged by the police). 11 In answering this question in the negative, the Court noted the potential unreliability of a type of 6 Supra, 432 U.S. at 100, 97 S.Ct. at State v. Madison, 109 N.J. 223, 232, 536 A.2d 254, (N.J. 1988) (discussing Brathwaite; internal citations omitted) 8 Supra, 432 U.S. at 114, 97 S.Ct. at Id. 10 State v. Madison, 109 N.J. 223, 240-1, 536 A.2d 254, 262 (N.J. 1988) (citing Manson v. Brathwaite, supra, 432 U.S. at 114, 97 S.Ct. at 2253, citing Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411 (1972)) S.Ct. 716, 728, 181 L.Ed.2d 694, (2012) 3

4 evidence does not alone render its introduction at the defendant s trial fundamentally unfair. 12 The Court pointed to several other safeguards built into the adversary system which caution juries against placing undue weight on eyewitness testimony of questionable reliability. 13 Those factors include the defendant s Sixth Amendment right to confront witnesses, the defendant s right to effective assistance of an attorney (who can expose flaws in testimony during cross-examination), and eyewitness-specific jury instructions, which can warn the jury to take care in appraising identification evidence. 14 The Perry court found given these safeguards in place, and the protections availed of by the defense in Perry s case, the introduction of the eyewitness testimony, without a preliminary assessment of its reliability, did not render Perry s trial fundamentally unfair. 15 It is upon these aforementioned principles many courts have based their tests for the determination of the reliability of eyewitness testimony in certain cases. Much research has been conducted which establishes human memory is far more complex than its previous analogy to a video recording. A witness cannot merely replay a tape to remember what happened. As the Supreme Court of New Jersey noted, eyewitnesses generally act in good faith. Most misidentifications stem from the fact that human memory is malleable. 16 Although the science behind human memory will be discussed in much greater depth elsewhere in this program, it is important to understand the basic factors, both those that 12 Id. 13 Id. 14 Id. at Id. at State v. Henderson, 208 N.J. 208, 234, 27 A.3d 872, 888 (N.J. 8/24/11); see also, Elizabeth Loftus, James M. Doyle and Jennifer E Dysart, Eyewitness Testimony: Civil and Criminal (Matthew & Bender & Company, Inc., 4 th Ed., p. 12 (2007) ( Simply stated, the problem is this: Science shares with legal institutions the goal of discovering the truth about past events. This common search may be hampered, however, by normal and natural processes that occur whenever human beings attempt to acquire, retain, and retrieve information. ) 4

5 are not within the criminal justice system s control ( estimator variables ) and those that are ( system variables ), which may contribute to eyewitness fallibility. The estimator variables factors include own-race bias; stress and weapon focus; exposure duration and retention interval; the lack of correlation between eyewitness confidence and accurate identifications; and problematic post-event information, such as suggestive identification procedures. 17 Own-race bias (the cross-race effect), refers to the fact that individuals have less difficulty identifying and remembering faces of their own race than those of a different, less familiar race. 18 Studies have also shown high levels of stress will have a negative effect on the ability of a witness to make a correct identification, and witnesses to violent crimes (as opposed to non-violent crimes) may be less likely to correctly identify the face of the perpetrator. 19 Similarly, the presence of a weapon during a crime may distract a witness so as to affect the correctness of any later identification. Some studies have also established the commonsense notion the accuracy of identifications has some correlation to the length of time one has to view the perpetrator of a crime. 20 Similarly, it is well known memories deteriorate over time. Studies have shown that longer delays between the crime and the identification procedure lead to both fewer correct identifications and more incorrect identifications Vallas, George, A Survey of Federal and State Standards for the Admission of Expert Testimony on the Reliability of Eyewitnesses, 39 Am. J. Crim. L. 97, 102 ( ) 18 Id., citing John P. Rutledge, They All Look Alive: The Inaccuracy of Cross-Racial Identification, 28 Am. J. Crim. L. 207, 211 (2001). 19 Vallas, Supra, citing Gary L. Wells et al., Eyewitness Evidence: Improving its Probative Value, 7 Psychol. Sci. Pub. Interest 48 (2006) (internal citations omitted), at 53 (noting the effect of stress is especially pronounced in lineups in which the perpetrator is present, implying stress had a larger effect on correct identification rates than misidentification rates). 20 Vallas, supra, at 105, citing Brian L. Cutler & Steven D. Penrod, Mistaken Identification: The Eyewitness, Psychology, and the Law, 104, 105 (1995) 21 Vallas, supra, at 105, citing Cutler & Penrod, supra, note 16, at 106 (noting that, when studies which manipulated retention intervals are grouped into long versus short time delays, there is a relationship between longer delays and both false and correct identifications; but that in a survey of all studies including those that did not manipulate the retention interval there was a statistically significant relationship only with correct identifications). 5

6 Research has also shown a host of post-event information may affect the accuracy of eyewitness identification, which includes mugshot-induced bias (where research suggests identifications made after viewing a photo array are probably not independent recollections of the suspect, but are rather based, at least in part, on having previously seen the suspect in a mugshot), 22 suggestive instructions to witnesses, and suggestive lineup procedures. It has also been stated that, while different from the aforementioned factors, witness confidence can have an effect on eyewitness testimony as well. [T]he correlation between eyewitness confidence and accuracy is at best a weak relationship and is contingent on any number of situational factors, some of which can be manipulated, even unintentionally, by police or other witnesses. 23 Moreover, highly confident eyewitnesses are only slightly more likely to make an accurate identification than eyewitnesses who are more uncertain. 24 Several commentators have also opined that because jurors are unable to properly evaluate credibility, they are insensitive to the malleability of human memory, and seem to give more credit to eyewitness testimony than to other major forms of evidence. 25 Those factors which can be within the state s control, the system variables, will be discussed in greater detail in another portion of this program, but deserve a brief mention as part of the foundation of these discussions. Specifically, the system variables include the administration of 22 Vallas, supra, note 17, at 106, citing Cutler & Penrod, supra, at Neil Vidmar, James E. Coleman, and Theresa A Newman Rethinking Reliance on Eyewitness Confidence, 94 Judicature 16 ( ), citing Saul M. Kassin, et al., On the General Acceptance of Eyewitness Testimony Research, 56 Am. Psych. 405, (2001) (reporting 87 % of scientists surveyed believed it was proper to offer expert testimony at trial that an eyewitness s confidence is not a good predictor.... of accuracy. 24 Vallas, supra, citing Jennifer L. Overbeck, Note, Beyond Admissibility: A Practical Look at the Use of Eyewitness Expert Testimony in Federal Courts, 80 N.Y.U. L. Rev. 1895, (2005) 25 Vallas, supra, at See also, Watkins v. Sowders, 449 U.S. 341, 352, 101 S. Ct. 654, 66 L.Ed.2d 549 (1981) (Brennan, J., dissenting ( [Eyewitness] testimony is likely to be believed by jurors, especially when it is offered with a high level of confidence, even though the accuracy of an eyewitness and the confidence of that witness may not be related to one another at all. All the evidence points rather strikingly to the conclusion that there is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, That s the one! ). 6

7 the lineup (double blind administrators do not know who the actual suspect is, and blind administrators are aware of that information but shield themselves from knowing where the suspect is located in the lineup or photo array); pre-identification instructions (without proper instructions, it is believed witnesses may misidentify innocent subjects who look more like the perpetrator than other lineup members); lineup construction (mistaken identifications are more likely to occur when a suspect stands out from other members of a lineup; lineups should include a minimum number of fillers, and lineups should not feature more than one suspect); avoiding feedback and recording confidence (when police signal to eyewitnesses they correctly identified a subject, which can reduce doubt, create a false sense of confidence in a witness, and distort memory); multiple viewings (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), simultaneous lineups (presenting all suspects at the same time, allowing for side by side comparisons) v. sequential lineups (viewing the suspects one at a time), composites (research showing composite sketches produce poor results because people perceive and remember faces holistically and not at the level of individual facial features ), and showups (single-person lineups which have been found to be suggestive and do not lend themselves to being performed blind or double-blind). 26 III. Admissibility of Expert Testimony Regarding Eyewitness Identification While there may be some hope for expert testimony to alleviate the dangers posed by inaccurate eyewitness testimony, courts around the country have been mixed in admitting expert testimony on eyewitness identification. The standards for admissibility of expert testimony in 26 For a complete discussion of all of these variables, see State v. Henderson, 208 N.J. 208, , 27 A.3d 872, (N.J. 2011). 7

8 general are found in Frye v. United States 27 and Daubert v. Merrell-Dow Pharmaceuticals. 28 In Frye, the Court considered the admissibility of expert scientific testimony on the use of lie detectors (a systolic blood pressure deception test ) 29. In rejecting its admissibility, the court noted: Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a wellrecognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the 30 particular field in which it belongs. The Frye court ultimately found the lie detector test had not yet gained the scientific recognition among physiological and psychological authorities that would justify courts admitting expert testimony concerning it. This general acceptance test is used in some form by some courts, as will be discussed below, as their standard in testing for the admission of expert testimony on eyewitness identification. As the Federal Rules of Evidence (Rule 702) superseded the adoption of the Frye test (as noted by the Court in Daubert), 31 the Court found opportunity to create a new test for the admission of expert testimony, and in 1993, as this reader is well aware, issued Daubert. The court stated: Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset.... whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or F (D.C. App. 1923) U.S. 579 (1993) 29 Frye, supra, note Id. at Daubert, supra at 587 (1993) 8

9 methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts at issue. 32 In so doing, the Daubert Court also pointed to several factors a court must consider, which include whether the theory can be (and has been) tested; whether the theory or technique has been subjected to peer review or publication; and the court should consider the known or potential rate of error. 33 Finally, the Daubert Court noted the general acceptance theory, as set forth in Frye, can be an important factor in ruling certain evidence admissible. 34 As one author has pointed out, and research by this author verifies, in the area of admissibility of expert testimony on eyewitness identification, approximately thirty-one states employ some version of the Daubert standard, and fourteen states and the District of Columbia continue to apply some version of Frye. 35 Four states (Georgia, Utah, Wisconsin, and Virginia) appear to have created their own unique tests for admission of expert testimony and do not use Frye or Daubert. 36 A few states employ a per se exclusion and do not admit expert testimony in this regard under any circumstances. Because a discussion of each jurisdiction is not appropriate for the length of this article, we will highlight and discuss sample jurisdictions which have chosen to address this issue quite differently from each other. In Missouri, the Supreme Court considered the admissibility of expert testimony on eyewitness identification in a matter of cross-racial identification in State v. Lawhorn. 37 Noting expert testimony is admissible if it is clear that the subject of such testimony is one upon which the jurors, for want of experience or knowledge, would otherwise be incapable of drawing a 32 Daubert, supra, 509 U.S. 579, 593-4, 113 S.Ct. 2786, Id. at 594 and Id. 35 Vallas, supra, note, at Id. 37 State v. Lawhorn, 762 S.W.2d 820 (Mo. 1988), overruled on other grounds, as recognized by Carlyle v. Mo. Dept t. of Corr., 184 S.W.3d 76, 79 (Mo. C.t App. 2005) 9

10 proper conclusion from the facts in evidence, the court ultimately found expert testimony concerning the existence of other race effect was inadmissible. 38 Specifically, the court found such matters within the general realm of common experience of members of a jury and can be evaluated without an expert s assistance. 39 In so ruling, the Missouri Supreme Court relied upon recent jurisprudence at the time from Massachusetts: [O]ne may fairly contend that the jury would be aided by expert testimony. But [expert testimony on eyewitness identification],.... deals with general principles, such as the fact that memories fade over time, that people under severe stress do not acquire information as well as alert persons under stress, and that people tend unconsciously to resolve apparent inconsistencies between their memories and after acquired facts. Obviously, there are aspects of these general principles on which experts might make some contribution in particular cases. However, juries are not without a general understanding of these principles and,....they see the possible application of these principles in concrete circumstances. The jury [must] have the opportunity to assess the witnesses credibility on the 40 basis of what is presented at trial and not solely on general principles. The Lawhorn court concluded the trial court did not abuse its discretion in refusing to permit the expert s testimony, as the defendant was adequately protected through his ample opportunity to cross-examine the eyewitness and to challenge his reliability. Although State v. Lawhorn was subsequently overruled on other grounds, its principles regarding the exclusion of expert testimony on eyewitness identification, insofar as it relates to the credibility of witnesses and therefore invades on the province of the jury, were affirmed recently by a Missouri appellate court in State v. Ware Id. At Id., citing State v. Kemp, 199 Conn. 473, 507 A.2d 1387, 1389 (1986) 40 Id., citing Commonwealth v. Francis, 390 Mass. 89, 453 N.E.2d 1204, 1210 (1983) S.W.3d 512 (Mo.App. 2010) (holding all trial safeguards were available to defendant during trial; specifically, the victim was thoroughly cross-examined concerning her identification of Defendant as the man who committed the robbery). See also, State v. Davis, 32 S.W.3d 603, (Mo.App.2000) (affirming the exclusion of expert testimony on interrogation techniques, false confessions and coercive persuasion); State v. Biezer, 947 S.W.2d 540, (Mo.App.1997) (affirming the exclusion of expert testimony offered to challenge a police officer's interview techniques); State v. Edwards, 918 S.W.2d 841, (Mo.App.1996) (affirming the exclusion of expert testimony that a child sex-abuse victim did not know the difference between truth and fantasy); State v. 10

11 Quite on the other end of the spectrum are New Jersey 42 and Connecticut. In State v. Guilbert, 43 the Connecticut Supreme Court found that expert testimony on eyewitness identification is admissible upon a determination by the trial court that the expert is qualified and the proffered testimony is relevant and will aid the jury. In so finding, the court overruled prior jurisprudence to the contrary. 44 The Guilbert court found persuasive recent studies confirming what courts have long suspected, that the dangers of misidentification are well known and have been widely recognized by many courts. 45 The court stated: Donnell, 862 S.W.2d 445, 450 (Mo.App.1993) (affirming the exclusion of expert testimony on the reliability of cross-racial identification and psychological factors affecting eyewitness identification) abrogated on other grounds by State v. Williams, 936 S.W.2d 828, (Mo.App.1996). 42 In State v. Henderson, 208 N.J. 208, 27 A.3d 872 (N.J. 2011), the Supreme Court of New Jersey recently found, in light of new research on this topic, its previous standard for assessing the admissibility of eyewitness identification evidence did not fully meet its goals. As a result, the court created a new standard for admissibility and instructed its Criminal Practice Committee and the Committee on Model Criminal Jury Charges to draft proposed revisions to their instructions to incorporate many of the variables affecting eyewitness identification. However, this paper will not address this seminal opinion, as Chief Justice Stuart Rabner, author of Henderson, will be joining the Evidence and Procedure program elsewhere to discuss the case specifically Conn. 218, 49 A.3d 705, 715 (Conn. 2012) 44 The court overruled State v. Kemp, 199 Conn. 473, 507 A.2d 1387 (1986) and State v. McClendon, 248 Conn. 572, 730 A.2d 1107 (1999). 45 Guilbert, supra, note 38, at The Guilbert court also set forth an extensive list of those courts who have found said research convincing: 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 [internal quotation marks omitted] ); 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 [internal quotation marks omitted] ); 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. [Internal quotation marks omitted.] ); 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 [internal quotation marks omitted] ); United States v. Feliciano, United States District Court, Docket No. CR PHX DGC, 2009 WL (D.Ariz. November 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, , 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. [Citations omitted.] ), 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, , 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 A.3d 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 11

12 [W]e conclude that the reliability of eyewitness identifications frequently is not a matter within the knowledge of an average juror and that the admission of expert testimony on the issue does not invade the province of the jury to determine what weight to give the evidence. Many of the factors affecting the reliability of eyewitness identifications are either unknown to the average juror or contrary to common assumptions, and expert testimony is an effective way to educate jurors about the risks of misidentification. 46 Furthermore, the court specifically found competent expert testimony, based upon the numerous scientifically valid studies (cited at great length), generally satisfies its admissibility standard: [W]e also conclude that.... competent expert testimony predicated on those studies' findings satisfies the threshold admissibility requirement of State v. Porter, supra, 241 Conn. 57, 698 A.2d 739, that such testimony must be based on scientific knowledge rooted in the methods and procedures of science ; (internal quotation marks omitted) id., at 64, 698 A.2d 739; at least with respect to the following propositions: (1) there is at best a weak correlation between a witness' confidence in his or her identification and the identification's accuracy; (2) the reliability of an identification can be diminished by a witness' focus on a weapon; (3) high stress at the time of observation may render a witness less able to retain an accurate perception and memory of the observed events; (4) cross-racial identifications are considerably less accurate than identifications involving the same race; (5) memory diminishes most rapidly in the hours immediately following an event and less dramatically in the days and weeks thereafter; (6) an identification may be less reliable in the absence of a double-blind, sequential identification procedure; (7) witnesses may develop unwarranted confidence in their identifications if they are privy to postevent or postidentification information about the event or the identification; and (8) the accuracy of an eyewitness identification may be undermined by unconscious transference, which occurs when a person seen in one context is confused with a person seen in another. 47 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... [Citation omitted; internal quotation marks omitted.] ); 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... [Internal quotation marks omitted.] ); 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 ). 46 Guilbert, supra, note 38, at Guilbert, supra, note 38, at

13 In State of Oregon v. Samuel Adam Lawson, 48 the Supreme Court of Oregon recently reevaluated its previous case of State v. Classen, 49 which had set forth the test for admissibility of identification evidence in the context of a motion by a defendant to suppress such evidence on the ground it is the product of a suggestive procedure: First, the court must determine whether the process leading to the offered identification was suggestive or needlessly departed from procedures prescribed to avoid such suggestiveness. If so, then the prosecution must satisfy the court that the proffered identification has a source independent of the suggestive confrontation or photographic display, or that other aspects of the identification at the time it was made substantially exclude the risk that it resulted from the 50 suggestive procedure. The Lawson court ultimately found, after a lengthy discussion of the potentially relevant issues that emerge from the scientific research (the system variables and the estimator variables, as discussed previously herein) 51, their previously proscribed test in Classen does not accomplish its goal of ensuring only sufficiently reliable identifications are admitted into evidence. 52 Specifically, the Lawson court held: Not only are the reliability factors listed in Classen opportunity to view the alleged perpetrator, attention to identifying features, timing and completeness of description given after the event, certainty of description and identification by witness, and lapse of time between original observation and the subsequent identification both incomplete and, at times, inconsistent with modern scientific 48 Or. (2012) Or. 221, 590 P.2d 1198 (1979) 50 Lawson, supra, note 43, at slip op. 14, citing Classen, supra (the Classen court further noted five nonexclusive favors for courts to consider in determining whether an identification had been made independent of suggestive procedures: the opportunity that the witness had at the time to get a clear view of the persons involved in the crime and the attention he or she gave to their identifying features, the timing and completeness of the description given by the witness after the event, the certainty expressed by the witness in that description and in making the subsequent identification, and, of course, the lapse of time between the original observation and the subsequent identification. Id.) 51 Lawson, slip op Lawson, slip op

14 findings, but the Classen inquiry itself is somewhat at odds with its own goals and with current Oregon evidence law. 53 Furthermore, the court found because many of the system and estimator variables (as discussed previously) are either unknown to the average juror or contrary to common assumptions, expert testimony is one method by which the parties can educate the trier of fact concerning variables that can affect the reliability of eyewitness identification. 54 The court in Lawson further provided: Expert testimony may also provide an avenue to introduce and explain scientific research or other indicia of reliability not specifically addressed by our opinion in these cases. In that regard, the use of experts may prove vital to ensuring that the law keeps pace with advances in scientific knowledge, thus enabling judges and jurors to evaluate eyewitness identification testimony according to meaningful criteria. Of course, expert testimony must be predicated on scientific research; must meet the threshold admissibility requirements for scientific evidence, see O Key, 321 Or. At (setting out test for the admission of scientific evidence); and must be relevant to a disputed issue in the case, such that the 55 testimony will assist the jury in resolving that issue. It is important to note, however, the court s discussion of the research outlined in Lawson did not serve the purpose of enshrine[ing] those variables in Oregon substantive law. 56 Rather, the court recognizes the probabilistic nature of the research, and finds it important 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 Lawson, slip op. 25 (the court noting as a matter of state evidence law, there is no reason to hinder the analysis of eyewitness reliability with purposeless distinctions between suggestiveness and other sources of reliability.) 54 Lawson, slip op Lawson, slip op Lawson, slip op Id. 14

15 Finally, there are a few states which recognize a per se exclusion of expert testimony on eyewitness identification, Louisiana included. In State v. Young, 58 the Louisiana Supreme Court found inadmissible expert testimony on eyewitness misidentification, as it did not meet the standard for admission of expert testimony under Louisiana Code of Evidence article 702 ( [i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. ) 59 The Young court did note, however, some limitations have been placed on this codal provision: [e]xpert testimony, while not limited to matters of science, art or skill, cannot invade the field of common knowledge, experience and education of men. 60 In also stating expert testimony on eyewitness identification has been uniformly barred by this Court on the occasions the issue has been raised, 61 and while the Court recognized the ongoing legal debate over the admissibility of said expert testimony, it declined to overrule its previous decision in State v. Stucke, which had previously found such expert testimony would impart a prejudicial impact such that it would outweigh its probative value. 62 Specifically, the court opined: Unquestionably, eyewitness identifications can be imperfect. However, upon review, the touted advances in the social sciences regarding the validity of eyewitness identifications do not render obsolete the underlying premise for which such evidence was held to be inadmissible in Stucke. There is still a compelling concern that a potentially persuasive expert testifying as to the generalities of the inaccuracies and unreliability of eyewitness observations, that are already within a juror's common knowledge and experience, will greatly influence the jury more than the evidence presented at trial. Higgins, at 33 34, 898 So.2d at 1240; Stucke, 419 So.2d at 945. By merely being labeled as a specialist in eyewitness identifications, an expert has the broad ability to mislead a jury through the education process into believing a certain factor in an So. 3d 1042, (La. 4/5/10) 59 Young, supra, note 53, at 1046 (quoting State v. Higgins, , p. 33 (La. 4/1/05), 898 So. 2d 1219, Young, supra, note 53, at 1047 (quoting State v. Stucke, 419 So. 2d 939 (La. 1982)) 61 Young, supra, note 53, at Young, supra, note 53, at 1050 and

16 eyewitness identification makes that identification less reliable than it truly is. See United States v. Angleton, 269 F.Supp.2d 868, (S.D.Tx.2003); United States v. Lester, 254 F.Supp.2d 602, (E.D.Va.2003). Moreover, expert testimony on eyewitness identifications can be more prejudicial than probative because it focuses on the things that produce error without reference to those factors that improve the accuracy of identifications. The expert testimony presumes a misidentification, in the absence of presenting factors which support the validity of the identification. This fosters a disbelief of eyewitnesses by jurors. This Court has long been reluctant to allow experts to offer opinions on the credibility of another witness for fear of the expert invading what is considered the exclusive province of the jury. Moreover, the concept of promoting battles of experts over whether the testimony of every witness is truthful and reliable is not desirable. These considerations are especially compelling in cases involving eyewitness identifications where any alleged deficiencies could easily be highlighted through effective cross-examination and artfully crafted jury instructions. United States v. Rincon, 28 F.3d 921, 921 (9th Cir.1994); United States v. Harris, 995 F.2d 532, 535 (4th Cir.1993). 63 Another state that has employed the per se exclusion of expert testimony on eyewitness identification is Pennsylvania, wherein the court found: It has long been established that expert testimony is only admissible where formation of an opinion on a subject requires knowledge, information, or skill beyond that possessed by the ordinary juror. Commonwealth v. Seese, 512 Pa. 439, 442, 517 A.2d 920, 921 (1986). Expert opinion cannot be offered to intrude upon the jury's basic function of deciding credibility. Commonwealth v. Spence, 534 Pa. 233, 245, 627 A.2d 1176, 1182 (1993) (testimony of psychologist as to the effects of stress upon people who are called to make identifications *231 was properly excluded); Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988) (error to allow expert witness in the area of rape trauma to explain that such trauma could prevent a victim from making a timely identification of assailant); Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988) (error to allow expert to testify that child sex abuse victims generally lack the ability to fabricate stories of sexual experiences). Here, appellant's expert would have testified generally about the reliability of eyewitness identification. Such testimony would have given an unwarranted appearance of authority as to the subject of credibility, a subject which an ordinary juror can assess. Moreover, appellant was free to and did attack the witnesses' credibility and point out inconsistencies of all the eyewitnesses at trial through cross-examination and in his closing argument. Thus, the trial court properly excluded appellant's proposed expert testimony Young, supra, note 53, at Commonwealth v. Simmons,541 Pa. 211, 231, 662 A.2d 621, (Pa. 1995) 16

17 IV. Jury Instructions As the reader is certainly aware, jury instructions form a crucial means by which principles of law are conveyed to the lay fact finder in order to fulfill their duty of reaching a verdict in a case before them. There is a growing national trend in revising jury instructions to include more plain language and simplify them in order for jurors to better comprehend the subject matter. 65 Specifically, [t]he revising efforts rely primarily on techniques such as using shorter sentences, replacing passive with active voice, simplifying vocabulary and reading difficulty, and eliminating legal jargon. 66 As this article may or may not demonstrate, despite any reader s particular belief in the philosophies discussed herein, eyewitness testimony in general can be technical, which can place challenges on juror decision making. Moreover, it has been stated that because of a fear of poor wording in jury instructions, which can be grounds for appellate reversal, the anxiety that instructions may usurp the role of the jurors extends beyond caution about form to censorship of content : anything that might be construed as a comment on the evidence is embargoed as a result. 67 Regarding testimony in eyewitness cases, some commentators have stated: Eyewitness cases... present us with a particularly difficult situation to balance. On the one hand, there is the determination to preserve the paramount role of the lay fact finder; on the other hand, a growing body of psychological research suggests that when it comes to eyewitness testimony, lay fact finders harbor dangerous misconceptions. In other words, if experimental results are accepted, one of their logical implications is that one of the things we value most about jurors, their common sense, is in this case just wrong. Jurors believe, for example, that there is a strong correlation between an eyewitness s confidence 65 Bornstein, Brian H. & Joseph A. Hamm, Jury Instructions on Witness Identification, citing Robert P. Charrow & Veda R. Charrow, Making Legal Understandable: A Psycholinguistic Study of Jury Instructions, 79 Columbia L. Rev (1979) (other internal citations omitted). Note as well Louisiana, at the direction of former Chief Justice Catherine D. Kimball, has formed a Committee to Study Plain Jury Instructions, which is presently working to format simpler pattern civil jury instructions for use in this state. 66 Id. 67 Elizabeth Loftus, James M. Doyle and Jennifer E Dysart, Eyewitness Testimony: Civil and Criminal (Matthew & Bender & Company, Inc., 4 th Ed., p (2007) (other internal citations omitted) 17

18 and the accuracy of the eyewitness s testimony: psychological research, however, indicates that there is little, if any, relationship between the two. 68 In identification cases, defense counsel can request a cautionary instruction that addresses concerns about identification accuracy, and a well-known instruction derives from United States v. Telfaire. 69 These instructions have been described as follows: The Telfaire instructions direct jurors to consider a limited number of special factors when evaluating eyewitness testimony, such as opportunity to observe the perpetrator, strength of the identification, viewing conditions that may have influenced the identification, and the witness s overall credibility. Importantly, the instructions identify these factors, but they do not explain how they influence eyewitness memory. For example, they direct jurors to consider the witness s opportunity to observe, but they fail to go further and explain that better opportunity to observe is 70 associated with more reliable memory. This author s research showed approximately five states have mandatory jury instructions regarding experts on eyewitness identification (Arkansas, Illinois, New Jersey, New Mexico, and Oklahoma). A complete list of all states and various discussion of each state s jury instructions in this regard (or lack thereof) is attached hereto as Appendix A. Research is ongoing with regard to issues surrounding jury instructions on identification witnesses, where such issues can include how well the jurors understand the instructions, and what effect the instructions have on jurors decisions in eyewitness cases in particular. 71 Some research results are inconsistent and do not demonstrate revisions to the instructions have a profound impact on jurors subjective comprehension of the instructions. 72 However, despite the 68 Id. 69 Bornstein & Hamm, supra, note 60, at 50, citing Telfaire, 469 F.2d 552 (D.C. Cir. 1972) 70 Id., citing Jennifer L. Devenport et al., Effectiveness of Traditional Safeguards Against Erroneous Conviction Arising From Mistaken Eyewitness Identification, in Expert Testimony on the Psychology of Eyewitness Identification 51 at 62 (Brian L. Cutler, ed., 2009) and Tanja R. Benton et al., Has Eyewitness Research Penetrated the American Legal System? A Synthesis of Case History, Juror Knowledge, and Expert Testimony, in The Handbook of Eyewitness Psychology at (Vol. 2) 71 Bornstein & Hamm, supra, note 60, at See, Bornstein & Hamm, supra, note 60, generally, for a thorough discussion of these studies. 18

19 continuing research and its varied results, judges should be sensitive to the vagaries of identification testimony in their efforts to properly instruct juries. 73 V. Conclusion It is impractical to explore the voluminous material already written on these subjects in this particular forum, and this article merely touches the surface of the many issues surrounding eyewitness identification and the psychology with which it is associated. Regardless of one s view of whether this is junk science 74 or emerging scientific research worthy of reevaluation of previous jurisprudence, 75 the issues raised deserve our consideration. Our service in the judiciary compels us to use all the tools at our disposal to ensure fair trials for those accused of crimes, those who are victims of crime, and the citizens who are affected by crime. Ensuring accurate eyewitness identification demands our attention. The discussion has been, and continues to be, ongoing. 73 Id. at State v. Young, 35 So. 3d 1042, (La. 4/5/10) (Knoll, J., additionally concurring) 75 See, State v. Lawson, supra, n