Identifying the Culprit: Assessing Eyewitness Identification (2014)

National Academies Press: OpenBook

Chapter: 3 The Legal Framework for Assessment of Eyewitness Identification Evidence

Visit NAP.edu/10766 to get more information about this book, to buy it in print, or to download it as a free PDF.

Suggested Citation:"3 The Legal Framework for Assessment of Eyewitness Identification Evidence." National Research Council. 2014. Identifying the Culprit: Assessing Eyewitness Identification. Washington, DC: The National Academies Press. doi: 10.17226/18891.

The admissibility of eyewitness testimony at a criminal trial may be challenged on the basis of procedures used by law enforcement officials in obtaining the eyewitness identification. The U.S. Supreme Court, in its 1977 ruling in Manson v. Brathwaite, set out the modern test under the Due Process Clause of the U.S. Constitution that regulates the fairness and the reliability of eyewitness identification evidence. 1 The Court also specified five reliability factors, discussed below, that a judge must consider when deciding whether to exclude the identification evidence at trial. 2

Although the constitutional standards for assessing eyewitness testimony have remained unchanged in the decades since the Manson v. Brathwaite decision, a body of research has shed light on the extent to which each of the five reliability factors supports a reliable eyewitness identification. Research has cast doubt, for instance, on the belief that the apparent certainty displayed in the courtroom by an eyewitness is an indicator of an accurate identification, and has found that a number of factors may enhance the certainty of the eyewitness.

Recently, state courts and lower federal courts have taken the lead in developing standards relating to the admissibility of expert evidence, jury instructions, and judicial notice of scientific evidence. Some states have adopted more stringent standards for regulating eyewitness identification evidence than the U.S. Constitution requires, either by legislative statutes or by state court decisions, and have modified or entirely supplanted the Man-

1 Manson v. Brathwaite, 432 U.S. 98, 113–114 (1977).

2 Manson v. Brathwaite at 114.

son v. Brathwaite test to take account of advances in the growing body of scientific research. This chapter describes the changes in the legal standards for eyewitness identification and explores the relationship between the state of the scientific research and the law regulating procedures and evidence.

EYEWITNESS EVIDENCE AND DUE PROCESS UNDER THE U.S. CONSTITUTION

Beginning with rulings in 1967, the U.S. Supreme Court set out a standard under the Due Process Clause of the Fourteenth Amendment for reviewing eyewitness identification evidence. 3 In Manson v. Brathwaite, the Court emphasized that “reliability is the linchpin in determining the admissibility of identification testimony.” 4 First, the Court instructed judges to examine whether the identification procedures were unnecessarily suggestive. Second, to assess whether an identification is reliable, judges were instructed to examine the following five factors: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the identification procedure. 5 The five factors were drawn from earlier judicial rulings and not from scientific research. 6

Eyewitness identification evidence continues to be litigated primarily under the flexible two-part Manson v. Brathwaite Due Process test. 7 It is

3 In Stovall v. Denno, 388 U.S. 293, 302 (1967), the U.S. Supreme Court first set out a due process rule asking whether identification procedures used were “so unnecessarily suggestive and conducive to irreparable mistaken identification.” The Court elaborated that rule in decisions such as Simmons v. U.S., 390 U.S. 377, 384 (1968) and Foster v. California, 394 U.S. 440, 442 (1969), and then adopted an approach setting out “reliability” considerations in Neil v. Biggers, 409 U.S. 188 (1972). For a description of the development of this doctrine, see, e.g., B. L. Garrett, “Eyewitnesses and Exclusion,” Vanderbilt Law Review 65(2): 451, 463–467 (2012).

4 Brathwaite, 423 U.S. at 114.

6 Id. at 114. Justice Thurgood Marshall dissented, noting studies indicated that unnecessarily suggestive eyewitness identifications had resulted in “repeated miscarriages of justice resulting from juries’ willingness to credit inaccurate eyewitness testimony.” 432 U.S. at 125–27 (Marshall, J., dissenting).

7 Due process is the most important constitutional right that arises in challenges to eyewitness identification, but rights under the Fourth and Sixth Amendments also may be implicated. The Fourth Amendment protects individuals “against unreasonable searches and seizures,” and the probable cause typically required to seize and arrest a suspect may arise from an eyewitness identification. U.S. Const. Amend. IV. The few lower courts to address the question are divided on whether probable cause is needed to place individuals in a live lineup procedure. Biehunik v. Felicetta, 441 F.2d 228, 230 (2d Cir. 1971); but see, e.g., Wise v. Murphy, 275 A.2d 205, 212–15 (D.C. 1971); State v. Hall, 461 A.2d 1155 (N.J. 1983). In contrast,

important to note, however, that the vast majority of criminal cases are settled through plea bargaining. The role that evidence type and strength play in plea bargaining is complex and necessarily difficult to study. Because eyewitness identification evidence may never be tested at trial, it is doubly important for lawyers and judges to understand the credibility of the proffered evidence. 8

In the most recent U.S. Supreme Court ruling addressing a challenge to an eyewitness identification (Perry v. New Hampshire), 9 the Court ruled that a due process analysis was not triggered. In that case, while the police were obtaining a description of the suspect, the eyewitness looked out of the apartment window and recognized the suspect standing outside. The police had not intended to conduct an identification procedure. In those circumstances, the Court ruled that the Due Process Clause does not require a preliminary judicial review of the reliability of an eyewitness identification. 10

probable cause is not required to place a person’s photograph in an array, since doing so does not involve a seizure. However, courts may also rule that an illegal stop or seizure renders a subsequent identification inadmissible, absent an “independent” source for the courtroom identification. U.S. v. Crews, 445 U.S. 463, 473 (1980).
In addition, the Sixth Amendment provides that, in all criminal prosecutions, the accused has the right “to have the assistance of counsel for his defense.” In United States v. Wade, the Supreme Court held that, once indicted, a person has a right to have a lawyer present at a lineup, reasoning that the right to counsel applies at all “critical” stages of the criminal process. 388 U.S. 218, 235–37 (1967). However, the Court subsequently held that a photo array procedure, of the type now most commonly used by police agencies, does not implicate the Wade right to counsel. U.S. v. Ash, 413 U.S. 300, 321 (1973).

8 As the current report demonstrates, a comparative consideration of evidence value is particularly important in the case of eyewitness identification evidence. Similar consideration should be given when other adjudication mechanisms are used (e.g., bench trials).

9 Perry v. New Hampshire, 132 S. Ct. 716, 718 (2012). In that case, the eyewitness happened to look out her window and see the suspect standing at the crime scene where the police had told him to wait. The Court held that the Due Process Clause did not regulate such a situation, since the police did not intend to conduct an identification procedure. Id. at 729. The Court indicated that the reliability of the evidence could be addressed by federal and state evidentiary standards, and added: “In appropriate cases, some States also permit defendants to present expert testimony on the hazards of eyewitness identification evidence.” Id.

10 Justice Sotomayor dissented, arguing, “Our due process concern … arises not from the act of suggestion, but rather from the corrosive effects of suggestion on the reliability of the resulting identification,” and the manner in which “[a]t trial, an eyewitness’ artificially inflated confidence in an identification’s accuracy complicates the jury’s task of assessing witness credibility and reliability.” Perry, 132 S. Ct. at 731–32 (Sotomayor, J., dissenting). Justice Sotomayor also emphasized: “A vast body of scientific literature has reinforced every concern our precedents articulated nearly a half-century ago.” Id. at 738.

STATE LAW REGULATION OF EYEWITNESS EVIDENCE

State Supreme Court Standards

Several state supreme courts have altered or supplemented the federal Manson v. Brathwaite due process rule to focus more on the effects of suggestion, to emphasize certain factors in specific circumstances, 11 or to focus on showup identifications in particular. 12 New Jersey and Oregon have now supplemented the Manson v. Brathwaite test with separate state law standards regulating eyewitness identification evidence.

In 2011, the New Jersey Supreme Court issued a unanimous decision in State v. Larry R. Henderson that revised the legal framework for admitting eyewitness identification evidence and directed that revised jury instructions be prepared to help jurors evaluate such evidence. 13 The new framework was based on the record of hearings before a Special Master that considered an extensive review of scientific research regarding eyewitness identifications. 14 The legal framework established by the Henderson opinion relies on pretrial hearings to review eyewitness evidence and more comprehensive jury instructions at trial. 15 To obtain a pretrial hearing, a defendant must show some evidence of suggestiveness related to either estimator or system

11 See State v. Ramirez, 817 P.2d 774, 780–81 (Utah 1991) (altering three of the reliability factors to focus on effects of suggestion); State v. Marquez, 967 A.2d 56, 69–71 (Conn. 2009) (adopting criteria for assessing suggestion); Brodes v. State, 614 S.E.2d 766, 771 & n.8 (Ga. 2005) (rejecting eyewitness certainty jury instruction); State v. Hunt, 69 P.3d 571, 576 (Kan. 2003) (adopting Utah’s five factor “refinement” of the Biggers factors); State v. Cromedy, 727 A.2d 457, 467 (N.J. 1999) (requiring, when applicable, instruction on cross-racial misidentifications).

12 See, e.g., State v. Dubose, 285 Wis.2d 143, 166 (Wis. 2005); Commonwealth v. Johnson, 650 N.E.2d 1257, 1261 (Mass. 1995); People v. Adams, 423 N.E.2d 379, 383–84 (N.Y. 1981).

13 State v. Henderson, 27 A.3d 872 (N.J. 2011). The Henderson opinion described criticisms of the Manson v. Brathwaite test, including that suggestion may itself affect the seeming “reliability” of the identification. Id. at 877–78. For examples of scholarly criticism of the Manson v. Brathwaite test in light of scientific research, see, e.g., G. L. Wells and D. S. Quinlivan, “Suggestive Eyewitness Identification Procedures and the Supreme Court’s Reliability Test in Light of Eyewitness Science: 30 Years Later,” Law and Human Behavior 33(1): 1, 16 (February 2009); T. P. O’Toole and G. Shay, “Manson v. Brathwaite Revisited: Towards a New Rule of Decision for Due Process Challenges to Eyewitness Identification Procedures,” Valparaiso University Law Review 41(1): 109 (2006).

14 See Report of the Special Master at 16–17, State v. Henderson, No. A-8-08 (N.J. June 18, 2011, available at: http://www.judiciary.state.nj.us/pressrel/HENDERSON%20FINAL%20BRIEF%20.PDF%20(00621142.pdf.

15 In the companion case, State v. Chen, 27 A.3d 930, 932 (N.J. 2011), the New Jersey Supreme Court took an approach that departed from that of the U.S. Supreme Court in Perry, ruling that the defendant may be entitled to a hearing in a case in which the eyewitness identified the defendant using social media, not a police-orchestrated identification procedure.

variables that could lead to mistaken identification. 16 At the pretrial hearing, the State must offer proof that the eyewitness identification is reliable. However, the ultimate burden of proving a “very substantial likelihood of irreparable misidentification” is on the defendant. 17

In July 2012, the New Jersey Supreme Court released an expanded set of jury instructions and related rules that govern the use of suggestive identifications. 18 The jury instructions state that “[r]esearch has shown that there are risks of making mistaken identifications” and noted that eyewitness evidence “must be scrutinized carefully.” 19 Human memory involves three stages—encoding, storage, and retrieval. At “each of these stages, memory can be affected by a variety of factors.” 20 The Court identified a set of factors that jurors should consider when deciding whether eyewitness identification evidence is reliable, including estimator variables (e.g., stress, exposure duration, weapon focus, distance, lighting, intoxication, disguises or changed appearance of the perpetrator, time since the incident, and cross-racial effects) and system variables (e.g., lineup composition, fillers, use of multiple viewings, presence of feedback, use of double-blind procedures, and use of showup identifications). The instructions also noted the possible influence of outside opinions, descriptions or identifications by other witnesses, and photographs or media accounts. 21

In 2012, in Oregon v. Lawson, the Oregon Supreme Court established a new procedure for evaluating the admissibility of eyewitness identifications. In a unanimous decision, the Court found “serious questions” about the reliability of eyewitness identification, citing research conducted over the past 30 years. 22 The Court determined that the Manson v. Brathwaite two-step process for weighing eyewitness identification “does not accomplish its goal of ensuring that only sufficiently reliable identifications are admitted into evidence,” because it relies on an eyewitness’ self-reports to determine whether the threshold level of suggestiveness is reached, rendering the identification unreliable. 23 The Court set forth a process that requires the trial court to examine whether investigators used “suggestive”

16 Henderson, 27 A.3d. at 878.

18 New Jersey Criminal Model Jury Instructions, Identification (July 19, 2012), available at: http://www.judiciary.state.nj.us/pressrel/2012/jury_instruction.pdf; New Jersey Court Rule 3:11, Record of an Out-of-Court Identification Procedure (July 19, 2012), available at: http://www.judiciary.state.nj.us/pressrel/2012/new_rule.pdf; New Jersey Court Rule 3:13-3, Discovery and Inspection (July 19, 2012), available at: http://www.judiciary.state.nj.us/pressrel/2012/rev_rule.pdf.

19 See New Jersey Criminal Model Jury Instructions, Identification, supra at 2.

22 State v. Lawson, 352 Ore. 724 (Or. 2012).

23 Id. at 746–748.

identification procedures and whether other factors, such as estimator variables, may have affected the reliability of the identification. 24 The Court ruled that “intermediate remedies,” including the use of expert testimony, should be available even if the trial judge concludes that the identification is admissible. The Court also briefly noted that judges might use “case-specific jury instructions.” 25

Other states continue to explore possible changes to the judicial review of eyewitness identification evidence. In 2013, the Massachusetts Supreme Judicial Court Study Group on Eyewitness Identification offered guidance on the adjudication of eyewitness identification evidence. 26 The report adopted Lawson’s approach of taking judicial notice of “certain scientifically-established facts about eyewitness identification.” 27 The report recommended that trial judges conduct pretrial hearings to determine whether suggestive identification procedures were used, and if so, whether these procedures impaired the reliability of identification evidence. Pretrial hearings would consider the effects of both estimator variables (relating to viewing at the crime scene) and system variables (relating to the lineup or showup procedures) on the identification. The report also recommended that the state adopt a set of recommended practices for conducting identification procedures, create new model jury instructions on eyewitness identifications, and set limitations on the admissibility of certainty statements and in-court identifications. 28

State Statutes Regulating Identification Procedures

Judicial rulings regulating admissibility of eyewitness evidence in the courtroom do not specify the identification procedures to be used by law enforcement officials. However, 14 states have adopted legislation regarding eyewitness identification procedures. Of the 14, 11 states (Connecticut, Illinois, Maryland, North Carolina, Ohio, Texas, Virginia, West Virginia, Wisconsin, Utah, and Vermont) have enacted statutes directly requiring that

24 Id. at 747–748, 755–756.

25 Id. at 759, 763.

26 See Massachusetts Supreme Judicial Court Study Group on Eyewitness Evidence, Report and Recommendations to the Justices (2013).

28 Id. at 28. In the courtroom, the eyewitness can easily see where the defendant is sitting. Thus, in-court identifications do not reliably test an eyewitness’ memory. Nevertheless, courts have shown great tolerance of in-court identifications, deeming them based on “independent” memory, and even following suggestive out-of-court procedures. Garrett, Eyewitnesses and Exclusion, supra. For example, the New York Court of Appeals ruled that “[e]xcluding evidence of a suggestive showup does not deprive the prosecutor of reliable evidence of guilt. The witness would still be permitted to identify the defendant in court if that identification is based on an independent source.” People v. Adams, 423 N.E.2d 379, 384 (N.Y. 1981).

law enforcement officials adopt written procedures for eyewitness identifications and regulating the particular procedures to be used. 29 Three more states (Georgia, Nevada, and Rhode Island) have passed statutes recommending further study, tasking a group with developing best practices, or requiring some form of written policy. 30

State statutes typically assert that a trial judge may consider the failure to follow the prescribed procedures as a factor in assessing admissibility and informing the jury. The statutes rarely require that a trial judge exclude such identification evidence from consideration by the jury. However, some of the more detailed statutes, such as those in Ohio, North Carolina, and West Virginia, require that law enforcement officials use particular practices (e.g., eyewitness instructions, a blind administrator). Other statutes require adherence to model policies or guidelines. Utah requires that lineup procedures be recorded. Some jurisdictions and departments also have voluntarily adopted guidelines or policies regulating eyewitness identifications. 31 Several state courts have issued rulings regulating lineup practices (e.g., New Jersey’s Supreme Court has required documentation of identification procedures). 32

AIDING JURORS IN ASSESSMENT OF EYEWITNESS TESTIMONY

Expert Witness Testimony Regarding Eyewitness Identification

The standards for assessing the admissibility of testimony by expert witnesses have undergone great changes in the past two decades. Before 1993, the Frye test allowed scientific expert testimony in federal courts if it met the standard of “general acceptance” in the relevant scientific community. 33 In 1993, the Supreme Court, in Daubert v. Merrell Dow

29 See Conn. Gen. Stat. § 54-1p (West 2012); 725 Ill. Comp. Stat. § 5/107A-5 (West 2003); Md. Code Ann., Pub. Safety § 3-506 (West 2007); N.C. Gen. Stat. § 15A-284.52 (West 2007); Ohio Rev. Code Ann. § 2933.83 (West 2010); Tex. Code Crim. Proc. Ann. art. 38.20 (West 2011); Utah Code Ann. §77-8-4 (West 1980); Va. Code Ann. §19.2-390.02 (West 2005); Va Code Ann. § 9.1-102.54; 13 V.S.A. § 5581; W. Va. Code Ann. § 62-1E-1 (West 2013); Wis. Stat. § 175.50 (West 2005).

30 GA. H.R. 352, 149th Gen. Assem., Reg. Sess. (April 20, 2007); Nev. Rev. Stat. § 171.1237 (West 2011); R.I. Gen. Laws § 12-1-16 (West 2012); 2010 Leg. Reg. Sess. (Vt. 2010).

31 See, e.g., John J. Farmer, Jr., Attorney General of the State of New Jersey, “Letter to All County Prosecutors: Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures” (April 18, 2001), available at: http://www.state.nj.us/lps/dcj/agguide/photoid.pdf; CALEA Standards for Law Enforcement Agencies: 42.2.11 Lineups, available at: http://www.calea.org/content/standards-titles; International Association of Chiefs of Police, Model Policy: Eyewitness Identification (2010).

32 State v. Delgado, 188 N.J. 48, 63–64, 902 A.2d 888 (2006).

33 Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923).

Pharmaceuticals, Inc., 34 ruled that, under Federal Rule of Evidence 702, a “trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” 35 Judges determine reliability by assessing the scientific foundation of the expert’s testimony prior to trial, so that “evidentiary reliability will be based upon scientific validity.” 36 Many states have adopted Daubert, and many of those that have not formally adopted Daubert have revised their Frye test to adopt much of the Daubert standard. In turn, Federal Rule of Evidence 702 has been revised to incorporate the holding in Daubert. 37 Federal and state courts remain divided on whether expert testimony on eyewitness identifications is admissible under Daubert or Frye, and on the proper exercise of trial court discretion when deciding whether to admit such expert testimony. Appellate rulings emphasize that a trial judge should use discretion when deciding whether proffered expert evidence satisfies the Daubert or Frye standards. An increasing number of rulings emphasize the value of presenting expert testimony regarding eyewitness identification. Some courts have held that it can be an abuse of discretion for a trial judge to bar the defense from admitting such testimony. 38 Detailed descriptions of the relevant scientific research findings accompany such decisions. 39 There are also many federal and state courts that continue to follow the traditional approach, emphasizing that credibility of eyewitnesses is a matter within the “province of the jury” and insisting that information regarding valid scientific research in this area will not assist the jury in its task. 40

34 509 U.S. 579 (1993).

36 Id. at 590 n.9.

37 Fed. R. Evid. 702. Rule 702 now provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

38 See, e.g., Tillman v. State, 354 S.W.3d 425, 441 (Tex. Crim. App. 2011); People v. Le-Grand, 835 N.Y.S.2d 523, 524 (2007); State v. Clopten, 223 P.3d 1103, 1117 (Utah 2009); U.S. v. Smithers, 212 F.3d 306, 311–14 (6th Cir. 2000).

39 See, e.g., State v. Copeland, 226 S.W.3d 287, 299–300 (Tenn. 2007); Tillman, 354 S.W.3d at 441; Clopten, 223 P.3d at 1108.

40 For scholarly examination of this case law, see, e.g., “The Province of the Jurist: Judicial Resistance to Expert Testimony on Eyewitnesses as Institutional Rivalry,” Harvard Law Review 126(8): 2381 (2013); R. Simmons, “Conquering the Province of the Jury: Expert Testimony and the Professionalization of Fact-Finding,” University of Cincinnati Law Review 74: 1013 (2006); G. Vallas, “A Survey of Federal and State Standards for the Admission of Expert Testimony on the Reliability of Eyewitnesses,” American Journal of Criminal Law 39(1): 97 (2011).

The trend is toward greater acceptance of expert testimony regarding the factors that may affect eyewitness identification. In a 2012 decision, the Connecticut Supreme Court disavowed earlier rulings restricting expert testimony and stated that such rulings are now “out of step with the widespread judicial recognition that eyewitness identifications are potentially unreliable in a variety of ways unknown to the average juror.” 41 Similarly, the Pennsylvania Supreme Court recently held that expert testimony on eyewitness identifications was no longer per se inadmissible, emphasizing that “courts in 44 states and the District of Columbia have permitted such testimony at the discretion of the trial judge,” and that “all federal circuits that have considered the issue, with the possible exception of the 11th Circuit, have embraced this approach.” 42 As the Seventh Circuit Court of Appeals recently explained:

It will not do to reply that jurors know from their daily lives that memory is fallible. The question that social science can address is how fallible, and thus how deeply any given identification should be discounted. That jurors have beliefs about this does not make expert evidence irrelevant; to the contrary, it may make such evidence vital, for if jurors’ beliefs are mistaken then they may reach incorrect conclusions. Expert evidence can help jurors evaluate whether their beliefs about the reliability of eyewitness testimony are correct. 43

Courts also have allowed expert witnesses to testify about particular issues concerning eyewitness identifications, such as cross-race effects, stress, weapons focus, suggestive lineup procedures, and the like. 44 Rarely have experts conducted eyewitness identification research related to the specific case before the court. However, in one such case, in which an experiment

41 State v. Guilbert, 306 Conn. 218, 234 (Conn. 2012). Prior to that decision, the Connecticut Supreme Court had long ruled that “the reliability of eyewitness identification is within the knowledge of jurors and expert testimony generally would not assist them in determining the question” (State v. Kemp, supra 199 Conn. at 473, 477), and that factors affecting eyewitness memory are “nothing outside the common experience of mankind” (State v. McClendon, supra 248 Conn. at 572, 586).

42 Com. v. Walker, 2014 WL 2208139 *13 (Pa. 2014) (collecting authorities).

43 U.S. v. Bartless, 567 F.3d 901, 906 (7th Cir. 2009). Other federal courts have found it a proper exercise of discretion to exclude expert testimony on eyewitness identifications. See, e.g., United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir. 1999). Most federal courts treat the subject as one of considerable trial discretion; see, e.g., United States v. Rodriguez-Berrios, 573 F.3d 55, 71–72 (1st Cir. 2006). For a survey of federal decisions, see Lauren Tallent, Note, Through the Lens of Federal Evidence Rule 403: An Examination of Eyewitness Identification Expert Testimony Admissibility in the Federal Circuit Courts, Washington & Lee Law Review 68 (2): 765 (2011); see also Walker, 2014 2208139 *13.

44 See, e.g., Loftus, Doyle & Dysart at § 14-8[a]-[b] p. 408 n. 41–42, 410, n. 53 (5th Edition, 2013) (collecting cases).

was conducted with the actual photo array used in the case, the federal courts found expert testimony admissible where it was directed not only to general research, but also by the question of whether suggestive procedures affected the identification in that case. 45

Expert witnesses who explain the complications of eyewitness identification can be expensive. Most criminal defendants are indigent and cannot afford such assistance. 46 In Ake v. Oklahoma, the Supreme Court held that an indigent defendant has a constitutional due process right to assistance by an expert witness only if that expert assistance is so crucial to the defense (or such a “significant factor”) that its denial would deprive the defendant of a fundamentally fair trial. 47 In federal courts, funding for expert witnesses is available, and requests by indigent defendants are common. 48 In state courts, such assistance is uncommon, especially in state courts that rarely find denial of expert assistance on eyewitness matters to be a due process violation.

Expert testimony on eyewitness memory and identifications has many advantages over jury instructions as a method to explain relevant scientific framework evidence to the jury: (1) Expert witnesses can explain scientific research in a more flexible manner, by presenting only the relevant research to the jury; (2) Expert witnesses are familiar with the research and can describe it in detail; (3) Expert witnesses can convey the state of the research at the time of the trial; (4) Expert witnesses can be cross-examined by the other side; and (5) Expert witnesses can more clearly describe the limitations of the research. The benefits of expert testimony are offset somewhat by the expense. However, conflicting testimony by opposing experts may lead to confusion among the jurors. Nonetheless, trial judges have discretion to determine whether the potential benefits of expert testimony outweigh the cost.

Jury Instructions Regarding Eyewitness Identification

Some courts restricting expert testimony have found jury instructions regarding the fallible nature of eyewitness identifications to be an acceptable substitute for expert testimony. 49 At the conclusion of a criminal trial,

45 Newsome v. McCabe, 319 F.3d 301 (7th Cir. 2003).

46 See, e.g., Bureau of Justice Statistics, “Indigent Defense,” available at: http://www.bjs.gov/index.cfm?ty=pbdetail&iid=995.

47 470 U.S. 68, 82–83 (1985). Even if an indigent defendant receives funding to retain an expert, the judge may ultimately decide that the expert testimony is not admissible at trial.

48 18 U.S.C. § 3006A(e)(1).

49 See, e.g., U.S. v. Jones, 689 F.3d 12, 20 (1st Cir. 2012) (“The judge was fully entitled to conclude that this general information could be more reliably and efficiently conveyed by instructions rather than through dueling experts.”).

the trial judge can instruct jurors on the factors that may result in an erroneous identification while also offering instructions on the legal principles jurors must apply when assessing the factual record. Such instructions may be given when the witness testifies. Judges tend to rely on model or pattern instructions, because any departure from these standard instructions may be a ground for appellate reversal.

The New Jersey Supreme Court viewed jury instructions as preferable to expert testimony. 50 The New Jersey instructions adopted, following the Henderson decision, are by far the most detailed set of jury instructions regarding eyewitness identification evidence. Traditionally, instructions regarding eyewitness identifications have been brief and remind the jurors to consider the following: (1) the credibility of an eyewitness is like that of any other witness and (2) any eyewitness identification is part of the prosecutor’s burden of proof in a criminal case. 51 Many state courts have held that, although general jury instructions regarding credibility and the burden of proof are appropriate, more specific instructions on eyewitness identifications are considered an inappropriate judicial comment on the evidence. 52 Following the U.S. Supreme Court’s decision in Manson v. Brathwaite, some state courts supplemented their jury instructions by including the five reliability factors named by the Supreme Court. 53

In 1972, in U.S. v. Telfaire, the D.C. Circuit Court of Appeals adopted a set of influential model jury instructions to be used in appropriate federal cases involving eyewitness identifications. 54 The instructions emphasized the following:

You must consider the credibility of each identification witness in the same way as any other witness, consider whether he is truthful, and consider

50 The New Jersey Supreme Court indicated: “Jury charges offer a number of advantages: they are focused and concise, authoritative (in that juries hear them from the trial judge, not a witness called by one side), and cost-free; they avoid possible confusion to jurors created by dueling experts; and they eliminate the risk of an expert invading the jury’s role or opining on an eyewitness’ credibility.” Henderson, 27 A.3d at 925.

51 New Jersey courts used such instructions a decade before Henderson. See, e.g., State v. Robinson, 165 N.J. 32, 46–47 (N.J. 2000). Some states have also approved instructions informing the jury that there may be an “independent source” for an in-court identification. See, e.g., State v. Cannon, 713 P.2d 273, 281 (Ariz. 1985).

52 Brodes v. State, 279 Ga. 435, 439 & n.6 (Ga. 2005) (surveying state case law).

53 State v. Tatum, 219 Conn. 721 (1991).

54 U.S. v. Telfaire, 469 F.2d 552, 558 (D.C. Cir. 1972). Some federal courts follow that approach, while others adopt a “flexible approach.” See, e.g., United States v. Luis, 835 F.2d 37, 41 (2d Cir. 1987). Some more recent federal model instructions include added detail, reflecting variables such as stress and cross-race identifications. See, e.g., Third Circuit Model Criminal Jury Instructions, 4.15 (Jan. 2014), available at: http://www.ca3.uscourts.gov/sites/ca3/files/2013%20Chapter%204%20final%20revised.pdf.