Defense Proposed Eyewitness ID Jury Instruction

PRELIMINARY/CONTEMPORANEOUS INSTRUCTION[1]

You may hear testimony from a witness who has identified the defendant as the person who committed [or participated in] the alleged crime[s]. Where a witness has identified the defendant as the person who committed [or participated in] the alleged crime[s], you should examine the identification with care. As with any witness, you must determine the credibility of the witness, that is, do you believe the witness is being honest? Even if you are convinced that the witness believes his or her identification is correct, you still must consider the possibility that the witness made a mistake in the identification. A witness may honestly believe he or she saw a person, but perceive or remember the event inaccurately. You must decide whether the witness's identification is not only truthful, but accurate.

People have the ability to recognize others they have seen and to accurately identify them at a later time, but research and experience have shown that people sometimes make mistakes in identification. The mind does not work like a video recorder. A person cannot just replay a mental recording to remember what happened. Memory and perception are much more complicated. Generally, memory is most accurate right after the event and begins to fade soon thereafter. Many factors occurring while the witness is observing the event may affect a witness's ability to make an accurate identification. Other factors occurring after observing the event also may affect a witness's memory of that event, and may alter that memory without the witness realizing that his or her memory has been affected. Later in the trial, I will discuss in more detail the factors that you should consider in determining whether a witness's identification is accurate. Ultimately, you must determine whether or not the Commonwealth has proved the charge[s], including the identity of the person who committed [or participated in] the alleged crime[s], beyond a reasonable doubt.

The burden is on the government to prove beyond a reasonable doubt, not only that the offense[s] was/were committed, but also that [name of defendant] is the person who committed it/them. If you are not convinced beyond a reasonable doubt that the defendant is the person who committed [or participated in] the alleged crime[s], you must find the defendant not guilty.[2]

In deciding whether the government has proved beyond a reasonable doubt that [name of defendant] is the person who committed the offense[s], you may consider any evidence relating to the identification of that person.

As with any witness, you must determine the witness’s credibility, that is, do you believe the witness is being honest? Even if you are convinced that the witness believes his or her identification is correct, you must still consider the possibility that the witness made a mistake in the identification. A witness may honestly believe he or she saw a person, but perceive or remember the event inaccurately. You must decide whether the witness’s identification is not only truthful, but accurate.[3]

People have the ability to recognize other people from past experiences and to identify them at a later time, but research has shown that there are risks of making mistaken identifications. That research has focused on the nature of memory and the factors that affect the reliability of eyewitness identifications.[4]

The mind does not work like a video recorder.  A person cannot just replay a mental recording to remember what happened.  Memory and perception are much more complicated.   Remembering something requires three steps.  First, a person sees an event.  Second, the person's mind stores information about the event.  Third, the person recalls stored information.  At each of these stages, a variety of factors may affect -- or even alter -- a person’s memory of what happened and thereby affect the accuracy of a later identification.[5] This can happen without the person being aware of it.[6]

A number of factors may affect the accuracy of an identification of [name of the defendant] by an alleged eyewitness. In evaluating this identification, you should consider the observations and perceptions on which the identification was based, the witness’s ability to make those observations and perceive events, and the circumstances under which the identification was made. Although nothing may appear more convincing than a witness’s identification of a perpetrator, you must critically analyze such testimony. Identifications, even if made in good faith, may be mistaken. Therefore, 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.  In deciding what weight, if any, to give to the identification testimony, you should consider the following factors that are related to the witness, the alleged perpetrator, and the criminal incident itself. 

1. Opportunity to View the Event.[7]  In evaluating the reliability of the identification, you should consider the opportunity the witness had to observe the alleged offender at the time of the event.  For example, how good a look did the witness get of the person and for how long?  How much attention was the witness paying to the person at that time?  How far apart were the witness and the person?  How good were the lighting conditions?  You should evaluate a witness's testimony about his or her opportunity to observe the event with care and should consider the following: 

     a. Characteristics of the Witness.[8]  You should consider the physical and mental characteristics of the witness when the observation was made.  For example, how good was the witness's eyesight?  Was the witness experiencing illness, injury, or fatigue?  Was the witness under a high level of stress?  High levels of stress may reduce a person's ability to make an accurate identification.[9]

     b. Duration.[10]  The amount of time an eyewitness has to observe an event may affect the reliability of an identification. Although there is no minimum time required to make an accurate identification, a brief or fleeting contact is less likely to produce an accurate identification than a more prolonged exposure to the perpetrator. In addition, time estimates given by witnesses may not always be accurate because witnesses tend to think events lasted longer than they actually did.[11]

     c. Weapon Focus.[12]  You should consider whether the witness saw a weapon during the event.  If the event is of short duration, the visible presence of a weapon may distract the witness's attention away from the person's face.  But the longer the event, the more time the witness may have to get used to the presence of a weapon and be able to focus on the person's face.

     d. Distance.[13] A person is easier to identify when close by. The greater the distance between an eyewitness and a perpetrator, the higher the risk of a mistaken identification. In addition, a witness’s estimate of how far he or she was from the perpetrator may not always be accurate because people tend to have difficulty estimating distances.

     e. Lighting.[14] Inadequate lighting can reduce the reliability of an identification. You should consider the lighting conditions present at the time of the alleged crime in this case.

     f. Disguise/Changed Appearance.[15] The perpetrator’s use of a disguise can affect a witness’s ability both to remember and identify the perpetrator. Disguises like hats, sunglasses, or masks can reduce the accuracy of an identification. Similarly, if facial features are altered between the time of the event and a later identification procedure, the accuracy of the identification may decrease.   

     g. Intoxication.[16] The influence of alcohol can affect the reliability of an identification. An identification made by a witness under the influence of a high level of alcohol at the time of the incident tends to be more unreliable than an identification by a witness who drank a small amount of alcohol.

In addition to a witness’s opportunity to view the alleged perpetrator, you should also consider the following factors:

2.  Cross-racial identification.[17] If the witness and the person identified appear to be of different races (or ethnicities), you should consider that people may have greater difficulty in accurately identifying someone of a different race (or ethnicity) than someone of their own race (or ethnicity).

3. Passage of time.[18]  You should consider how much time passed between the event observed and the identification. Generally, memory is most accurate immediately after the event and begins to fade soon thereafter.

4. Exposure to outside information[19].  You should consider that the accuracy of identification testimony may be affected by information that the witness received between the event and the identification, or received after the identification.   Such information may include identifications made by other witnesses, physical descriptions given by other witnesses, photographs or media accounts, or any other information that may affect the independence or accuracy of a witness's identification.   Exposure to such information before or after the witness makes an identification not only may affect the accuracy of an identification, but also may inflate the witness's certainty in the identification and the witness's memory about the quality of his or her opportunity to view the event. [20] The witness may not realize that his or her memory has been affected by this information.

An identification made after suggestive conduct by the police or others should be scrutinized with great care. Suggestive conduct may include anything that a person says or does prior to, during, or after an identification procedure that might influence the witness to identify a particular individual.  Suggestive conduct need not be intentional, and the person doing the "suggesting" may not realize that he or she is doing anything suggestive. [21]

5. Expressed certainty.[22]  You should consider that a witness’s statement of how certain he/she is in an identification, standing alone, is generally not a reliable indicator of the accuracy of the identification, especially where the witness did not describe that level of certainty when the witness first made the identification.

6. Identification procedures.

[a. If there was evidence of a photographic array or a lineup] An identification may occur through an identification procedure conducted by police, which involves showing the witness a (set of photographs) (lineup of individuals).

Where a witness identified the defendant from a (set of photographs) (lineup), you should consider all of the factors I have already described about a witness’s perception and memory.

You also should consider whether anything about the defendant’s (photograph) (physical appearance in the lineup) made the defendant stand out from the others. A suspect should not stand out from other members of the lineup. The reason is simple: an array of look-alike faces forces witnesses to examine their memory. In addition, a lineup in which the defendant stands out may inflate a witness’s confidence in the identification because the selection process seemed so easy to the witness. You should consider that an identification made by picking a defendant out of a group of similar individuals is generally less suggestive than one that results from the presentation of a defendant alone to a witness.][23]

It is, of course, for you to determine whether the composition of the lineup had any effect on the reliability of the identification.[24]

You should consider whether the person (showing the photographs) (presenting the lineup) knew who was the suspect and could have, even inadvertently, influenced the identification, and whether anything was said to the witness that may have influenced the identification.

[The Metropolitan Police Department (MPD) is required to follow certain procedures when administering identifications. In this case, MPD was required, but failed, to:

[i. Instruct the witness prior to the identification procedure that the perpetrator may or may not be present in the identification procedure.]

[ii. Assure the witness that the Department will continue to investigate the offense regardless of whether the witness makes an identification or not.]

[iii. Conduct the identification procedure individually and privately.]

[iv. Indicate to the witness by words, sounds or actions, directly or indirectly, whether the witness has identified “the right” person or “the wrong” person.]

[v. Conduct the identification procedure using a blind or modified-blind method. When an identification procedure is administered “blind,” the administrator does not know which photograph is of the suspect and which photographs are of fillers. When an identification procedure is administered “modified-blind” the investigator is unable to discern during the identification procedure which photograph the witness is viewing.]

[any other violation of MPD General Order 304.07]

You may consider MPD’s failure to adhere to its own policies in your consideration of the reliability of the identification.

[b.] You have heard that the police showed the witness a number of photographs. The police have photographs of people from a variety of sources, including the Registry of Motor Vehicles. You should not make any negative inference from the fact that the police had a photograph of the defendant.

[c. If there was evidence of a showup] In this case, the witness identified the defendant during a “showup,” that is, the defendant was the [only] person shown to the witness at that time. Even though such a procedure is suggestive in nature, it is sometimes necessary for the police to conduct a “showup” or one-on-one identification procedure.  Although the benefits of a fresh memory may balance the risk of undue suggestion, showups conducted a longer time after an event present a heightened risk of misidentification.  Also, police officers must instruct witnesses that the person they are about to view may or may not be the person who committed the crime and that they should not feel compelled to make an identification.  In determining whether the identification is reliable or the result of an unduly suggestive procedure, you should consider how much time elapsed after the witness last saw the perpetrator, whether the appropriate instructions were given to the witness, and all other circumstances surrounding the showup.

[d. If multiple viewings] You should consider whether the witness viewed the defendant in multiple identification procedures or events. When a witness views the same person in more than one identification procedure or event, it may be difficult to know whether a later identification comes from the witness’s memory of the original event, or from the witness’s observation of the person at an earlier identification procedure or event.

7. Failure to identify or inconsistent identification.  You should consider whether a witness ever failed to identify the defendant, or made an identification that was inconsistent with the identification that the witness made at the trial.[25]  Research has shown that a non-identification of a suspect, or an identification of a known innocent filler, may be evidence of the suspect’s innocence. 

Based upon any identification[s] by the witness[es] and all additional evidence you have heard, you must be satisfied that the government has met its burden of proving beyond a reasonable doubt that [name of defendant] is the person who committed this offense before you may convict him/her. If the evidence concerning the identification of the defendant is not convincing beyond a reasonable doubt, you must find [name of defendant] not guilty.

[1] The preliminary instruction is adopted from the Massachusetts instruction.

[2] This paragraph is adopted from the Massachusetts instruction.

[3] This paragraph is adopted from the Massachusetts instruction.

[4] This paragraph is adopted from the Massachusetts instruction.

[5] NAS Report at 15 (“Human vision does not capture a perfect, error-free “trace” of a witnessed event… The recognition of one person by another—a seemingly commonplace and unremarkable everyday occurrence—involves complex processes that are limited by noise and subject to many extraneous influences.”); NAS Report at 59-60 (“Like vision, memory is also beset by noise. Encoding, storage, and remembering are not passive, static processes that record, retain, and divulge their contents in an informational vacuum, unaffected by outside influences. The contents cannot be treated as a veridical permanent record, like photographs stored in a safe. On the contrary, the fidelity of our memories for real events may be compromised by many factors at all stages of processing, from encoding through storage, to the final stages of retrieval. Without awareness, we regularly encode events in a biased manner and subsequently forget, reconstruct, update, and distort the things we believe to be true.”); NAS Report at 119 (“As this report indicates, however, the malleable nature of human visual perception, memory, and confidence; the imperfect ability to recognize individuals; and policies governing law enforcement procedures can result in mistaken identifications with significant consequences.”); Benn v. United States (Benn II), 978 A.2d 1257, 1267 n.26. (“most potential jurors believe that a person’s memory functions like a camera, capable of retrieving a captured image on demand,” memory in fact “is influenced by a variety of factors[.]”); See Commonwealth v. Gomes, 470 Mass. 352, 369 (2015); Supreme Judicial Court Study Group on Eyewitness Evidence: Report and Recommendations to the Justices 15 (July 25, 2013), available at http://www.mass.gov/courts/docs/sjc/docs/ eyewitness-evidence-report-2013.pdf [http://perma.cc/WY4M-YNZN] (Study Group Report), quoting Report of the Special Master, State vs. Henderson, N.J. Supreme Ct., No. A-8-08, at 9 (June 10, 2010) (Special Master's Report) ("The central precept is that memory does not function like a videotape, accurately and thoroughly capturing and reproducing a person, scene or event. . . . Memory is, rather[,] a constructive, dynamic and selective process"); State v. Henderson, 208 N.J. 208, 245 (2011); State v. Lawson, 352 Or. 724, 771 (2012) (Appendix).

[6] This paragraph is adopted from the Massachusetts instruction.

[7] This paragraph is adopted from the Massachusetts instruction. The Massachusetts instruction cites for support of this paragraph: D. Reisberg, The Science of Perception and Memory:  A Pragmatic Guide for the Justice System 51-52 (2014) (witnesses may not accurately remember details, such as length of time and distance, when describing conditions of initial observation);  Lawson, 352 Or. at 744 (information that witness receives after viewing event may falsely inflate witness's "recollections concerning the quality of [his or her] opportunity to view a perpetrator and an event").

[8] This paragraph is adopted from the Massachusetts instruction.  

[9] NAS Report at 94 (“High levels of stress or fear can affect eyewitness identification. This finding is not surprising, given the known effects of fear and stress on vision and memory… Under conditions of high stress, a witness’ ability to identify key characteristics of an individual’s face (e.g. hair length, hair color, eye color, shape of face, presence of facial hair) may be significantly impaired.”) (internal citations omitted).

[10] This paragraph is adopted from the New Jersey instruction.

[11] NAS Report at 50-51 (Factors “can restrict the visual information accessible” when witness is viewing “an object of any sort (such as a person) or events involving the object (a criminal act).” One of these factors is “viewing time” which “predictably influence[s] the quantity of information… that a viewer gains from a visual scene, and thus the degree to which the perceptual experience can accurately reflect the properties of the external world. At the extreme, short viewing times… simply reduce the number of correlated photons reaching the retina to the point where they scarcely exceed photon noise, and uncertainty is very high.”); see also NAS Report at 69 (“The committee has reviewed much of this research [on vision and memory], and has identified restrictions on what can be seen under specific environmental and behavioral conditions (e.g., as poor illumination, limited viewing duration, viewing angle)[.]”;  State v. Henderson, 208 N.J. 208, 264 (2011) (“studies have shown, and the Special Master found, ‘that witnesses consistently tend to overestimate short durations, particularly where much was going on or the event was particularly stressful.’” (citing Elizabeth F. Loftus et al., Time Went by So Slowly: Overestimation of Event Duration by Males and Females, 1 Applied Cognitive Psychol. 3, 10 (1987)).

[12] Adopted from Massachusetts instruction; see Study Group Report, supra at 130 ("A weapon can

distract the witness and take the witness's attention away from the perpetrator's face, particularly if the weapon is directed at the witness. As a result, if the crime is of short duration, the presence of a visible weapon may reduce the accuracy of an identification. In longer events, this distraction may decrease

as the witness adapts to the presence of the weapon and focuses on other details").

[13] Adopted from New Jersey instruction; see Henderson, 27 A.3d at 906 (“Research has also shown that people have difficulty estimating distances) (citing R.C.L. Lindsay et al., How Variations in Distance Affect Eyewitness Reports and Identification Accuracy, 32 Law & Hum. Behav. 526, 533 (2008); see also NAS Report at 92 (“Research has shown that the physical distance between the witness and the perpetrator is an important estimator variable, as it directly affects the ability of the eyewitness to discern visual details, including features of the perpetrator…”)

[14] Adopted from New Jersey instruction; See also FN 6.

[15] Adopted from New Jersey instruction; See also Lawson, 352 Or. at 775 (Appendix) ("[S]tudies confirm that the use of a disguise negatively affects later identification accuracy.  In addition to accoutrements like masks and sunglasses, studies show that hats, hoods, and other items that conceal a perpetrator’s hair or hairline also impair a witness’s ability to make an accurate identification"); Henderson, 27 A.3d at 907 ("Disguises and changes in facial features can affect a witness'[s] ability to remember and identify a perpetrator"); State v. Clopten, 223 P.3d 1103, 1108 (Utah 2009) ("[A]ccuracy is significantly affected by factors such as the amount of time the culprit was in view, lighting conditions, use of a disguise, distinctiveness of the culprit's appearance, and the presence of a weapon or other distractions"); Wells & Olson, Eyewitness Testimony, 54 Ann. Rev. Psychol. 277, 281 (2003) (Wells & Olson) ("Simple disguises, even those as minor as covering the hair, result in significant impairment of eyewitness identification").  See also Cutler, A Sample of Witness, Crime, and Perpetrator Characteristics Affecting Eyewitness Identification Accuracy, 4 Cardozo Pub. L. Pol'y & Ethics J. 327, 332 (2006) ("In data from over 1300 eyewitnesses, the percentage of correct judgments on identification tests was lower among eyewitnesses who viewed perpetrators wearing hats [44%] than among eyewitnesses who viewed perpetrators whose hair and hairlines were visible [57%]").

[16] Adopted from New Jersey instruction.

[17]Adopted from Massachusetts instruction; see NAS Report at 96 (“Own-race bias occurs in both visual discrimination and memory tasks, in laboratory and field studies, and across a range of races, ethnicities, and ages. Recent analyses revealed that cross-racial (mis) identification was present in 42 percent of the cases in which an erroneous eyewitness identification was made. …. [T]he existence of own-race bias is generally accepted”).

[18] Adopted from Massachusetts instruction; see NAS Report at 15 (“"For eyewitness identification to take place, perceived information must be encoded in memory, stored, and subsequently retrieved.  As time passes, memories become less stable").

[19] Adopted from Massachusetts instruction. See Gomes, 470 Mass. at 373-374; Study Group Report, supra at 21-22; Special Master’s Report, supra at 30-31 ("An extensive body of studies demonstrates that the memories of witnesses for events and faces, and witnesses' confidence in their memories, are highly malleable and can readily be altered by information received by witnesses both before and after an identification procedure"); Lawson, 352 Or. at 786 (Appendix) ("The way in which eyewitnesses are questioned or converse about an event can alter their memory of the event").

[20] NAS Report at 92 (“efforts to maintain objectivity and eliminate potentially informative communication will help ensure that eyewitness reports are not contaminated by knowledge or opinions held by others.”)

[21] NAS Report at 91-92 (“Law enforcement’s maintenance of neutral pre-identification communications—relative to the identification of a suspect—is seen as vital to ensuring that the eyewitness is not subjected to conscious or unconscious verbal or behavioral cues that could influence the eyewitness’ identification.”); NAS Report at 92 (“Furthermore, some types of law enforcement communication with a witness, after the witness has made an identification… can increase confidence in the identification, regardless of whether the identification is correct.”)

[22] Adopted from Massachusetts instruction; see NAS Report at 108 (“Evidence indicates that self-reported confidence at the time of trial is not a reliable predictor of eyewitness accuracy. The relationship between the witness’ stated confidence and accuracy of identifications may be greater at the moment of initial identification than at the time of trial. However, the strength of the confidence-accuracy relationship varies, as it depends on complex interactions among such factors as environmental conditions, persons involved, individual emotional states, and more. Expressions of confidence in the courtroom often deviate substantially from a witness’ initial confidence judgment, and confidence levels reported long after the initial identification can be inflated by factors other than the memory of the suspect.”)

[23] Adopted from Massachusetts instruction; see  NAS Report at 92 (“use of ‘blinded’ or ‘double-blind’ lineup identification procedures is an effective strategy for reducing the likelihood that a witness will be exposed to cues from interactions with law enforcement (such as feedback) that could influence identifications or confidence in those identifications.”); see Study Group Report, supra at 140, quoting Wells & Quinlivan, supra at 6 ("From the perspective of psychological science, a procedure is suggestive if it induces pressure on the eyewitness to make a lineup identification [a suggestion by commission], fails to relieve pressures on the witness to make a lineup selection [a suggestion by omission], cues the witness as

to which person is the suspect, or cues the witness that the identification response was correct or incorrect").

[24] Adopted from the Massachusetts and New Jersey instructions.

[25] Adopted from Massachusetts instruction.