Federal and State Eyewitness Identification Jury Instructions

Perry v. New Hampshire Footnote 7 Table

In footnote seven of the opinion in Perry v. New Hampshire, _ U.S. _ (Jan. 11, 2012) (No. 10-8974), the Supreme Court listed several federal and state jury instruction examples. For the convenience of our viewers, and to promote further consideration and discussion on this issue after the ruling, we have provided links to each of these instructions below.

For more information on the decision, see Supreme Court Watch: Perry v. New Hampshire And The Jury's Role In Assessing Identification Evidence.

Court Jury Instruction Notes

Federal Eyewitness Jury Instructions

Third Circuit Model Crim. Jury Instr. No. 4.15 (3d Cir. 2009) Based on United States v. Telfaire, 469 F.2d 552, 558-59 (D.C. Cir. 1972) (cited with approval in United States v. Wilford, 493 F.2d 730, 734 n.9 (3d Cir. 1974))
Fourth Circuit United States v. Holley, 502 F. 2d 273, 277–278 (4th Cir. 1974) (Appendix: Model Special Instructions On Identification) Reprinting the United States v. Telfaire, 469 F.2d 552, 558-59 (D.C. Cir. 1972) model instruction.
Fifth Circuit Pattern Crim. Jury Instr. No. 1.29 (5th Cir. 2001) Based in part on a similar instruction in Barber v. United States, 412 F.2d 775, 777 & n.1 (5th Cir. 1969)
Sixth Circuit Pattern Crim. Jury Instr. No. 7.11 (6th Cir. 2011) Adopting the "Telfaire-type instruction" in United States v. Scott, 578 F.2d 1186, 1191 (6th Cir. 1978).
Seventh Circuit Fed. Crim. Jury Instr. No. 3.08 (7th Cir. 1999) "The present instruction is extracted from the recommended instruction in United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972), and incorporates the standard credibility instructions while attempting to eliminate some of the confusion of Telfaire."
Eighth Circuit Model Crim. Jury Instr. for the District Courts No. 4.08 (8th Cir. 2011) "This Circuit has strongly recommended the giving of a Telfaire instruction, if requested, in a case in which the reliability of eyewitness identification of a defendant presents a serious question, although the exact language need not be given, and further, where the government's case rests solely or substantially on questionable eyewitness identification, it is reversible error to refuse to give a Telfaire-type instruction."
Ninth Circuit Model Crim. Jury Instr. No. 4.11 (9th Cir. 2010) 2010 edition recommends that if cautionary Instr. No. 4.11 is given, that the court also provide a general witness credibility instruction, such as Crim. Nos. 1.7 or 3.9.
Tenth Circuit Crim. Pattern Jury Instr. No. 1.29 (10th Cir. 2011) "This instruction takes account of United States v. Telfaire, 469 F.2d 552, 558 (D.C. Cir. 1972)."
Eleventh Circuit Pattern Jury Instr. (Crim. Cases) Spec. Instr. No. 3 (11th Cir. 2010) Listing specific factors for the jury to consider.

State Eyewitness Jury Instructions

Arizona Rev. Ariz. Jury Instr., Crim., No. 39 (3d ed. 2008) "This instruction must be given, upon request, when the Court has concluded that pretrial identification procedures were unduly suggestive, but that the proposed in-court identification has been shown by clear and convincing evidence to be reliable and derived from an independent source."
California 1 Judicial Council of Cal. Crim. Jury Instr. No. 315 (Summer 2011) "The court has no sua sponte duty to give an instruction on eyewitness testimony. An instruction relating eyewitness identification to reasonable doubt, including any relevant 'pinpoint' factors, must be given by the trial court on request '[w]hen an eyewitness identification of the defendant is a key element of the prosecution’s case but is not substantially corroborated by evidence giving it
independent reliability.'" (citations omitted)
Connecticut Conn. Crim. Jury Instr. 2.6– 4 (2007) "While Connecticut courts 'have used the model Telfaire instruction as an aid in determining the adequacy of an instruction on eyewitness identification . . . we have never required that it be given verbatim in order to ensure that the jury is properly guided.'" (citations omitted)"
Georgia 2 Ga. Suggested Pattern Jury Instr. (Crim. Cases) No. 1.35.10 (4th ed. 2011) Listing specific factors for the jury to consider.
Illinois Ill. Pattern Jury Instr., Crim., No. 3.15 (Supp. 2011) "This new instruction simply lists factors well-established by case law. The Committee believes this instruction would serve the interests of justice by offering guidance in an area that contains complexities and pitfalls not readily apparent to some jurors." (citations omitted)
Kansas Pattern Instr., Kan. 3d, Crim., No. 52.20 (2011) "This instruction should be given whenever the trial judge believes there is any serious question about the reliability of eyewitness identification testimony. However, unless there is evidence which causes the trial court to question the reliability of the
eyewitness identification, this instruction should not be given." (citation omitted)
Maryland 1 Md. Crim. Jury Instr. & Commentary §§ 2.56, 2.57(A), 2.57(B) (3d ed. 2009 and Supp. 2010) Listing specific factors for the jury to consider.
Massachusetts Mass. Crim. Model Jury Instr. No. 9.160 (2009) In noting factors for the jury to consider, “'the strength of the identification' is disfavored because it equates
confidence with accuracy."
Minnesota 10 Minn. Jury Instr. Guides, Crim., No. 3.19 (Supp. 2006) "An instruction of this kind is not necessary in every case in which eyewitness testimony is involved. Where the circumstances raise any possible doubt in the court's mind as to the reliability of the identification, serious consideration should be given
to a request for such an instruction." (citation omitted)
New Hampshire N. H. Crim. Jury Instr. No. 3.06 (1985) The “instruction is virtually identical to the Telfaire instruction.”
New York N. Y. Crim. Jury Instr. "Identification -- One Witness" and "Identification --Witness Plus" (2d ed. 2011) People v. Whalen, 59 N.Y.2d 273, 279 (1983) ("New York's trial courts are encouraged to exercise their discretion by giving a more detailed identification charge when appropriate.")
Oklahoma Okla. Uniform Jury Instr., Crim., No. 9–19 (Supp. 2000) "This instruction should be given if an eyewitness identification is a critical element of the prosecution's case and there is a serious question concerning the reliability of the identification."
Pennsylvania 1 Pa. Suggested Standard Crim. Jury Instr. No. 4.07B (2d ed. 2010) An eyewitness "instruction is appropriate where an eyewitness did not have a clear opportunity to view a defendant, equivocated on the identification of the defendant, or had some difficulty making an identification in the past."
Tennessee Tenn. Pattern Jury Instr., Crim., No. 42.05 (15th ed. 2011) "This instruction must be given when identification is a material issue and it is requested by defendant's counsel. Failure to give this instruction under those circumstances is plain error.... Identity is a material issue when the defendant puts it at issue or the eyewitness testimony is uncorroborated by circumstantial evidence."
Utah Utah Model Jury Instr. CR404 (2d ed. 2010) "[T]his instruction should be modified if the identification involves someone other than the defendant, or where it would otherwise be confusing, such as where the defendant is not charged with directly committing the offense, but as a party."
Vermont Model Instructions from the Vt. Crim. Jury Instr. Comm. Nos. CR5–601, CR5–605 (2003) Listing general factors for the jury to consider.
West Virginia Crim. Jury Instr. No. 5.05 (6th ed. 2003) The instruction is based on State v. Watson, 173 W.Va. 553, 615 n.16, 318 S.E.2d 603 (1984) (which is based on State v. Warren, 230 Kan. 385, 635 P.2d 1236 (1981)).

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