Perry v. New Hampshire Impact: The Role Of Eyewitness Identification Jury Instructions

Since the Supreme Court left to juries the role of assessing the reliability of eyewitness identification evidence which does not involve "improper law enforcement activity" in Perry v. New Hampshire last week, what steps can counsel take to assist the jury on this issue? One of five "protections" in the criminal justice process noted by the Court includes "jury instructions on the fallibility of eyewitness identification." A review of the model eyewitness identification instructions cited in Perry reveals similar yet varied approaches and that most are based on United States v. Telfaire, 469 F. 2d 552, 558–59 (DC Cir. 1972) (per curiam)

Last week, in Perry v. New Hampshire, 565 U.S. __, 132 S.Ct. 716 (Jan. 11, 2012) (No. 10-8974), the Supreme Court held, in an eight to one ruling, that the Due Process Clause does not require judicial review concerning the reliability of eyewitness identification which was not unduly suggestive as a result of police involvement. Instead, as with other evidence, the jury is assigned the role of determining the reliability of eyewitness evidence. As we noted, counsel will need to use the tools available in the trial process to attack or defend the reliability of eyewitness identification. See Supreme Court Watch: Perry v. New Hampshire And The Jury's Role In Assessing Identification Evidence.

The Court noted five specific "protections" or "safeguards" in the process in which the reliability of eyewitness identification evidence can be tested. These protections include "[1] the presence of counsel at post indictment lineups, [2] vigorous cross-examination, [3] protective rules of evidence, and [4] jury instructions on both the fallibility of eyewitness identification and [5] [jury instructions on] the requirement that guilt be proved beyond a reasonable doubt." Perry, _ U.S. at _. In our adversary process, counsel will ultimately use these tools to convince the jury about the reliability of eyewitness identification evidence.

Today, we review some of the requirements under the fourth and fifth factors identified by the Perry Court.

Model Jury Instructions on the "Fallibility of Eyewitness Identification"

The Court noted that many federal and state courts have identified several factors in jury instructions for the jury in considering eyewitness evidence:

Eyewitness-specific jury instructions, which many federal and state courts have adopted,7 likewise warn the jury to take care in appraising identification evidence. See, e.g., United States v. Telfaire, 469 F. 2d 552, 558–559 (CADC 1972) (per curiam) (D. C. Circuit Model Jury Instructions) (“If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to him for identification, you should scrutinize the identification with great care.”). See also [Kansas v.] Ventris, 556 U. S. [586,] 594 n. [(2009)] (citing jury instructions that informed jurors about the unreliability of uncorroborated jailhouse-informant testimony as a reason to resist a ban on such testimony); Dowling [v. United States], 493 U. S. [342,] 352-353 [(1990)].
Perry, _ U.S. at _.

The Telfaire case cited in Perry is generally considered to be the leading case and has influenced many of the model jury instructions. The Telfaire model jury instruciton highlights four key factors, including: (1) whether “witness had the capacity and an adequate opportunity to observe the offender”; (2) whether “the identification made by the witness subsequent to the offense was the product of his own recollection”; (3) whether the witness made an inconsistent identification; and (4) the credibility of the witness.

Certain factors are typically provided to guide the jury’s consideration on the capacity of the witness to identify the defendant and the certainty of the identification. The Third Circuit model eyewitness instruction is illustrative:

(First), you should ask whether the witness was able to observe and had an adequate opportunity to observe the person who committed the crime charged. Many factors affect whether a witness has an adequate opportunity to observe the person committing the crime; the factors include the length of time during which the witness observed the person, the distance between the witness and the person, the lighting conditions, how closely the witness was paying attention to the person, whether the witness was under stress while observing the person who committed the crime, whether the witness knew the person from some prior experience, whether the witness and the person committing the crime were of different races, and any other factors you regard as important.

See, e.g., Model Crim. Jury Instr. No. 4.15 (3d Cir. 2009).

While many model eyewitness jury instructions use the Telfaire framework, the instructions vary in the details and factors given to the jury. Compare Model Crim. Jury Instr. No. 4.15 (3d Cir. 2009) (longer instruction); Pattern Instr., Kan. 3d, Crim., No. 52.20 (2011) (listing seven possible factors), with Fed. Crim. Jury Instr. No. 3.08 (7th Cir. 1999) (concise); Pattern Crim. Jury Instr. No. 1.29 (5th Cir. 2001) (concise).

Triggering Requirement

The threshold question is when an eyewtness identification instruction is required? Generally, the model Ninth Circuit jury instruction discourages the use of an eyewitness identification instruction. The jury instruction committee "believes that the general witness credibility instruction is sufficient." However, if the trial court concludes an eyewitness identification instruction is warranted, a model instruction has been drafted. See Model Crim. Jury Instr. No. 4.11 (9th Cir. 2010).

For most courts, identification must be an issue in the case or the defendant may request an eyewitness identification instructions. Compare United States v. Anderson, 739 F.2d 1254, 1258 (7th Cir. 1984) (“In cases where witness identification is an issue, the trial judge must, at the defendant's request, instruct the jury about eyewitness identification testimony.”); a href="http://federalevidence.com/pdf/JuryInst/3d.Eyewitness.4.15.pdf">Model Crim. Jury Instr. No. 4.15 (3d Cir. 2009) ("This instruction should be given in any case in which eyewitness identification of the defendant is an issue."); 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."), with United States v. Johnson, 848 F.2d 904, 906 (8th Cir. 1988) (“Nothing suggests that the officer's testimony was unreliable. The district court's general witness credibility instruction was thus sufficient”).

Some cases have suggested that the failure to give an identity instruction where one has not been requested may be cured by the general credibility and beyond a reasonable doubt instructions. See United States v. Martinez, 763 F.2d1297, 1304 (11th Cir. 1985) ("We do not find any error, much less plain error, since the court's jury instructions concerning reasonable doubt and credibility of witnesses adequately covered the matter of identification.") (footnote omitted). The fifth "protections" noted by the Perry Court included jury instructions on "the requirement that guilt be proved beyond a reasonable doubt." Perry, _ U.S. at _.

Witness Credibility

The eyewitness jury instructions generally advise that the witness making the identification should be evaluated like other witnesses. See, e.g., United States v. Holley, 502 F. 2d 273, 277–278 (4th Cir. 1974) (Appendix: Model Special Instructions On Identification) (“Finally, you must consider the credibility of each identification witness in the same way as any other witness, consider whether he is truthful, and consider whether he had the capacity and opportunity to make a reliable observation on the matter covered in his testimony.”); Model Instructions from the Vt. Crim. Jury Instr. Comm. Nos. CR5–601 (2003) (“you must weigh the testimony of each identification witness in the same way that you would weigh the testimony of any witness”).

Beyond A Reasonable Doubt Standard

As noted, the fifth "safeguard" concerning eyewitness identification evidence includes jury instructions on "the requirement that guilt be proved beyond a reasonable doubt." Perry, _ U.S. at _. Most of the eyewitness jury instructions underscore the government’s burden to prove the case beyond a reasonable doubt. See, e.g., Model Special Instructions On Identification ) (“you, the jury, must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may convict him”); see also United States v. Anderson, 739 F.2d 1254, 1258 n.5 (7th Cir. 1984) (“Both the Telfaire instruction and the instruction given in this case stress that the government has the burden of proving beyond a reasonable doubt that the defendant is the person who committed the crime.”); Barber v. United States, 412 F.2d 775, 777 & n.1 (5th Cir. 1969) ("You must be satisfied beyond a reasonable doubt of the identification of the defendant before you may convict him. If the circumstances of the identification are not convincing beyond a reasonable doubt, you must find the defendant not guilty"); Model Crim. Jury Instr. for the District Courts No. 4.08 (8th Cir. 2011) ("The Government has the burden of proving identity beyond a reasonable doubt.").

Role Of Argument

Whenever guidance jury instructions are given, the role of argument becomes an issue. For example, the Tenth Circuit has noted, “The Committee believes that elaboration on the specific circumstances surrounding an identification is best left to argument at trial.” Crim. Pattern Jury Instr. No. 1.29 (10th Cir. 2011); see also United States v. Anderson, 739 F.2d 1254, 1258 (7th Cir. 1984) (“Counsel may develop the relevant details through cross-examination and argument.”) (footnote omitted).

Perry Footnote 7 Table

In footnote seven of the Perry opinion, the 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 the cited instructions below.

CourtJury Instruction Notes

Federal Eyewitness Jury Instructions

Third CircuitModel 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 CircuitUnited 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 CircuitPattern 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 CircuitPattern 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."
California1 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)"
Georgia2 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."
UtahUtah 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."
VermontModel 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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Visit the Federal Jury Instruction Resource Page, which contains a library of a variety of federal and state jury instructions.

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