Understanding the new eyewitness I.D. jury instruction

Issue March 2015 By Peter Elikann

Juries have traditionally placed a great deal of faith in eyewitness identifications. They generally find it exceptionally credible when a witness takes the stands, points to the defendant and says something to the effect of: "Look, it was absolutely, definitely, positively him. Don't you be telling me I didn't see what I saw."

Yet almost every one of a plethora of recent studies by the relevant scientific community have shown that despite these sorts of loud declarations of unconditional certainty, the eyewitness might still very well be mistaken.

For example, in recent years, DNA has exonerated innocent citizens languishing in prison whose conviction may have rested solely on an adamant identification by an eyewitness. In fact, 76 percent of the first 250 convictions overturned because of DNA evidence since 1989 involved eyewitness misidentification. Eyewitness misidentification is the single greatest cause of wrongful convictions in the United States.

This only confirms the consistent reliability of what research going back into the late 1800s has shown. For example, a 1932 groundbreaking book by Yale law professor Edwin Borchard examined 65 wrongful convictions and determined that eyewitness misidentification was the chief cause to blame.

In order to better protect accused citizens and better maintain the integrity of the system, the Massachusetts Supreme Judicial Court recently upgraded its jury instruction to assist jurors to better assess the reliability of eyewitnesses.

In Commonwealth v. Gomes, 470 Mass. 352 (2015), the SJC, in a unanimous decision authored by Chief Justice Ralph D. Gants, did not, in fact, overturn the conviction of the defendant who was convicted of slashing the face of a man as he sat in a car in Pittsfield. It reasoned, in part, that the judge did not abuse his discretion in refusing to give a jury instruction proposed by the defense because the defense did not present an expert witness, scholarly articles or treatises to substantiate the concepts outlined in the proposed instruction.

Nevertheless, the SJC did insist that a variation of the proposed jury instruction requested by the defense should be adopted from here on in. It is the first update of the eyewitness I.D. jury instruction in Massachusetts since 1979. The court's viewpoint was further bolstered by a recent report from its own SJC Study Group on Eyewitness Identification, which concluded, "The scientific studies have produced a consensus among experts about the ... variables that have been shown to affect the reliability of eyewitness identification."

The court concluded that juries should be instructed on five increasingly accepted scientific principles regarding eyewitness identification and human memory, most importantly that (1) human memory does not operate like a video recording that a person can replay to recall what happened; (2) a witness's level of confidence in an identification may not indicate its accuracy; (3) high levels of stress can reduce the likelihood of making an accurate identification; (4) information from other witnesses or outside sources can affect the reliability of an identification and inflate an eyewitness's confidence in the identification; and (5) viewing the same person in multiple identification procedures may increase the risk of misidentification.

It cited a dissent from U.S. Supreme Court Justice Sonia Sotomayer in the recent case of Perry v. New Hampshire, which said: "Study after study demonstrates that eyewitness recollections are highly susceptible to distortion by postevent information or social cues; that jurors routinely overestimate the accuracy of eyewitness identifications; that jurors place the greatest weight on eyewitness confidence in assessing identifications even though confidence is a poor gauge of accuracy; and that suggestiveness can stem from sources beyond police-orchestrated procedures."

It is fair to say that misidentifications cannot solely blame system failures such as poorly conducted lineups and photo arrays. Many factors outside the criminal justice system can also come into play, such as lighting, distance, racial perceptions and the stress and trauma momentarily experienced by the eyewitness.

Most concerning is that the more vociferous the eyewitness is in the confidence of his or her unquestionable certainty, the more weight the jury gives to that identification. Yet the court concluded that "such confidence correlates only weakly with accuracy. Therefore, it is necessary to inform the jury that an eyewitness's expressed certainty in an identification, standing alone, may not indicate the accuracy of an identification."

The SJC expressed the belief that, since there is a "near consensus" that jurors give more weight to an eyewitness's certainty than is warranted by the research into its accuracy, it would be remiss in not informing the jury to, at the very least, consider this.

The provisional jury instruction goes into immediate use, but the SJC will solicit public comments prior to finalizing an authoritative version. Yet it did acknowledge that, even then, any eyewitness identification instruction may never reach its final form and may perpetually be a work in progress, since, as the research into this science evolves, it will continually be subject to further revision.    

Peter Elikann is a criminal defense attorney and vice chair of the MBA's Criminal Justice Section Council. He also serves as a member of the MBA's Executive Management Board.