FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 4 - CHAPTER 31

[NOTE: Other than copyright information, none of the internal hyperlinks in this document will work as this is only a sample for demonstration purposes only]

RATIONALE: Even though jurors tend to place greater reliance on eyewitnesses who exhibit confidence in their identification, jurors do not generally understand that eyewitness confidence is not a reliable predictor of accuracy.

POINTS AND AUTHORITIES: It is often assumed that witness confidence increases accuracy. (See, e.g., Gunning v. State (MD 1997) 701 A2d 374, 382 [right to eyewitness identification instruction predicated, inter alia, on whether there was any equivocation associated with the identification]; see also McDoulett v. State (OK 1984) 685 P2d 978, 980 [defendant’s right to eyewitness identification instruction predicated on whether or not witness was positive]; Thornton v. State (OK 1983) 668 P2d 344, 347 [trial court should consider whether witness is positive in his or her identification when deciding whether to caution the jury regarding eyewitness testimony]; Commonwealth v. Kloiber (PA 1954) 106 A2d 820, 826 [witness positive and unqualified even after cross-examination]; State v. Dyle (TN 1995) 899 SW2d 607, 612 [Tennessee Supreme Court promulgates instruction informing the jury to consider, inter alia, the "degree of certainty expressed by the witness regarding the identification...."].)

    However, this assumption fails to take into account the fact that the legal system itself, rather than the accuracy of the identification, is often responsible for the confidence of the witness. "As soon as the eyewitness enters the legal system, confidence in accuracy seem to take different paths. Even routine witness preparation and questioning, conducted without [improper] intent, will tend to boost the eyewitness’s certainty, while having no positive impact on the eyewitness’s accuracy." (Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) § 1-3, pp. 3-4; see also Penrod & Cutler, Witness Confidence and Witness Accuracy: Assessing Their Forensic Relation, 1 Psych Pub Pol & L 817 (1995); Cohen, I Could Swear It Was Him Officer, New Scientist 11 (1-18-97) [reporting research by Iowa State University Psychologist Gary Wells and his student, Amy Bradfield] [suggesting that as eyewitness confidence increases, the eyewitness improves his or her account of the witnessing situation: describes a longer event, better lighting, or a full description]; see FORECITE National™ 31.1.10 [Eyewitness Identification Web Site].)

    Accordingly, notwithstanding many court's view that certainty reflects reliability (see Sobel, Eyewitness Identification, (2nd Ed. 1984, West) § 6.8, p. 6-37) "the confidence of an eyewitness is not a reliable predictor of accuracy." (Loftus& Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) § 1-3, p. 3 [footnote omitted; original emphasis]; Arnolds, Carroll, Lewis & Seng, Eyewitness Testimony: Strategies And Tactics (West, 1984) § 2.38; Bothwell et al., Correlation of Eyewitness Accuracy and Confidence: Optimality Hypothesis Revisited, 72 J Applied Psychol 691-95 (1987); Sobel, supra, § 6.8 (9/98) pp. 6-37 ["it is so common for a witness to express confidence in his own opinion that this factor is ... rarely determinative]; Commonwealth v. Santoli (MA 1997) 680 NE2d 1116, 1121 ["there is a significant doubt about whether there is any correlation between a witness's confidence in her identification and the accuracy of her recollection"]; State v. Ramirez (UT 1991) 817 P2d 774, 781 [essentially "rejecting" certainty as a reliability factor]; The People v. Casey 1963 Ireland Reports 33.)  Sign Up Today for access to Juryinstruction.com! Click Here!

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.6].

PRACTICE NOTE: Courts may be reluctant to instruct on this matter because it will be considered a comment on the evidence. However, the instruction is not an end in itself but should be the culmination of a total case strategy which seeks to educate the judge and jury, from the pretrial proceedings to closing argument, regarding crucial misconceptions about eyewitness identification. (See FORECITE National™ 31.1 [Eyewitness Identification Strategy: Early Preparation And Development Of "Total-Case" Strategy].) One goal of such a total case strategy should be to educate the judge so that a special instruction will be accepted. But, even if no instruction is given, the educational process may still accomplish other goals. (See e.g., FORECITE National™ 272.3 [Summation/Closing Argument: Use Of Argument To Explain The Law Or Instructions].)

See Manual On Recurring Problems In Criminal Trials [Identification Testimony: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2h. Identification Testimony: Defendant Entitled To Cautionary Jury Instruction Relative To Identification Testimony].

See also generally, FORECITE National™ 305.9.1 [Identification].

See generally, FORECITE National™ 31.1.9 [Eyewitness Identification: Federal Circuit Model Instructions].

    Among the factors to consider in weighing eyewitness testimony is that there is no proven relationship between a witness’s confidence and the accuracy of the witness’s testimony. An eyewitness’s certainty about his or her choice* of the defendant may have many sources and does not necessarily bear on the correctness of that choice. Whether the prosecution has proven the choice of the witness to be correct, beyond a reasonable doubt, is a matter which you must decide.

* See FORECITE National™ 6.2.16 [Reference To The Identification As A "Choice" Of The Eyewitness Rather Than As An "Identification"].

[Source: FORECITE National™.]

    If your verdict as to the guilt of the defendant is to depend wholly or substantially on the correctness of the identification, you should bear in mind that there have been a number of instances where responsible witnesses, whose honesty was not in question and whose opportunities for observation had been adequate, made positive identifications on a parade or otherwise which identifications were subsequently proved to be erroneous; and accordingly you should be specially cautious before accepting such evidence of identification as correct; but that if, after careful examination of such evidence in the light of all the circumstances, and with due regard to all the other evidence in the case, you feel satisfied beyond a reasonable doubt of the correctness of the identification you are at liberty to act upon it.

[Source: The People v. Casey 1963 Ireland Reports 33, 39.]

    Even if a witness is positive of his or her identification, this does not relieve you of the duty to carefully consider his or her identification testimony, especially if you find it is the only evidence that directly supports the claims that the defendant committed the offense charged.

[Source: U.S. v. Burrous (EDNY 1996) 934 FSupp 525, 531-33.]

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 4 - CHAPTER 31

[NOTE: Other than copyright information, none of the internal hyperlinks in this document will work as this is only a sample for demonstration purposes only]

RATIONALE: Jurors may not be familiar with the psychological fact that it is more difficult for people of one race to identify people of a different race.

POINTS AND AUTHORITIES: Research has shown that a majority of people do not believe that it is more difficult for people of one race to identify people of a different race. (Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) § 1-6, p. 7.) However, scientific data is to the contrary: "It is well established that there exists a comparative difficulty in recognizing individual members of a race different than one’s own." (Id. at § 4-9, p. 86; see also State v. Cromedy (NJ 1999) 727 A2d 457, 467-68; People v. Palmer (CA 1984) 154 CA3d 79, 85-89 [203 CR 474]; People v. West (CA 1983) 139 CA3d 606 [189 CR 36, 37-38]; State v. Long (UT 1986) 721 P2d 483, 495.)

    Hence, a cautionary instruction regarding cross-racial identification should be given when appropriate.  For example, a New Jersey five-year study of the need for a cross-racial jury instruction was conducted by a group comprised of an appellate judge, trial judges, prosecutors and defense lawyers, social scientists and ordinary citizens. The task force considered professional literature in the area of cross-racial identification and came to the almost unanimous conclusion (the sole dissenter was a county prosecutor) that "a problem exists respecting cross-racial identifications and that ... corrective action [should be taken]."   (See e.g., New Jersey Supreme Court Task Force on Minority Concerns Final Report, 131 N.J.L.J. 1145 (June, 1992); see also State v. Cromedy (NJ 1999) 727 A2d 457, 465; CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.92, [Factors To Consider In Proving Identity By Eyewitness Testimony] first ¶ and cross-racial factor. (West, 6th Ed. 1996).)  Sign Up Today for access to Juryinstruction.com! Click Here!

    But see FORECITE National™ 31.4.7 [Cross-Ethnic Identification]. 

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.6].

ARTICLE AVAILABLE:  To read the relevant portion of the New Jersey Supreme Court Task Force on Minority Concerns Final Report, click here. [Article Bank # A-87.]

See Manual On Recurring Problems In Criminal Trials [Identification Testimony: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2h. Identification Testimony: Defendant Entitled To Cautionary Jury Instruction Relative To Identification Testimony].

See also generally, FORECITE National™ 305.9.1 [Identification].

See generally, FORECITE National™ 31.1.9 [Eyewitness Identification: Federal Circuit Model Instructions].

    You know that the identifying witness is of a different race than the defendant. When a witness, who is a member of one race, identifies a defendant who is a member of another race, we say that there has been a cross-racial identification. You may consider, if you think it is appropriate to do so, whether the cross-racial nature of the identification has affected the accuracy of the witness' original perception and/or the accuracy of the subsequent identification[s].

[Source: State v. Cromedy (NJ 1999) 727 A2d 457, 466.]

    In evaluating the reliability of the identification choice, consider whether the defendant is a different race [of a different ethnic origin] than the witness.

[Source: FORECITE National™.]

    In this case, the identifying witness is of a different race than the defendant. In the experience of many, it is more difficult to identify members of a different race than members of one’s own. Psychological studies support this impression. In addition, laboratory studies reveal that even people with no prejudice against other races and substantial contact with persons of other races still experience difficulty in accurately identifying members of a different race. Quite often people do not recognize this difficulty in themselves. You should consider these facts in evaluating the witness’s testimony, but you must also consider whether there are other factors present in this case that overcome any such difficulty of identification.

[Source: Johnson, Cross-Racial Identification Errors in Criminal Cases, 69 Cornell L.Rev. 934, 976, fn18 (June 1984).]

CAVEAT: An instruction such as the above, may be viewed as a radical step in many jurisdictions. (See, e.g., Johnson, Cross-Racial Identification Errors in Criminal Cases, supra, p. 976, fn. 9.) Hence, such an instruction should normally be submitted as a supplement to expert testimony rather than a substitute for it. (See Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) § 12-8(a), p. 341.) On the other hand, there are an increasing number of jurisdictions which recognize the important role of such an instruction. (See e.g., New Jersey Supreme Court Task Force on Minority Concerns Final Report, 131 N.J.L.J. 1145 (June, 1992).)

ARTICLE AVAILABLE:  To read the New Jersey Supreme Court Task Force on Minority Concerns Final Report, 131 N.J.L.J. 1145 (June, 1992) click here.  [Article Bank # A-87.]

    See also FORECITE National™ 31.4.1 [The Misconception That Witness Confidence Increases Reliability].