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6.3: Chapter 40 - Best Practices and Modern State Court Approaches

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    Chapter 40

    Best Practices and Modern State Court Approaches

    The Supreme Court’s eyewitness identification jurisprudence has remained virtually unchanged for the past 40 years.1 In the next two cases, students will observe how two state courts have dealt with eyewitness identification evidence in light of a plethora of scientific research showing how it can be unreliable.

    Supreme Court of Connecticut

    State of Connecticut v. Brady Guilbert

    Decided Sept. 4, 2012 – 49 A.3d 705

    PALMER, J.

    A jury found the defendant, Brady Guilbert, guilty of capital felony, two counts of murder, and assault in the first degree. The trial court rendered judgments in accordance with the jury verdicts and sentenced the defendant to a term of life imprisonment without the possibility of release, plus twenty years. On appeal, the defendant [] contends that the trial court improperly precluded him from presenting expert testimony on the fallibility of eyewitness identification testimony. The defendant maintains that this court should overrule State v. Kemp, 507 A.2d 1387 (Conn. 1986), and State v. McClendon, 730 A.2d 1107 (Conn. 1999), in which we concluded that the average juror knows about the factors affecting the reliability of eyewitness identification and that expert testimony on the issue is disfavored because it invades the province of the jury to determine what weight to give the evidence. We agree that the time has come to overrule Kemp and McClendon and, further, that testimony by a qualified expert on the fallibility of eyewitness identification is admissible when that testimony would aid the jury in evaluating the state’s identification evidence.

    [The court recounted the facts of the case. Cedric Williams, Terry Ross, and William Robinson were all shot. Robinson survived the shooting and identified the defendant as his shooter but denied the identification at trial. Witnesses Lashon Baldwin, Jackie Gomez, and Scott Lang also identified the defendant. Baldwin and Gomez knew the defendant, but Lang did not. These witnesses identified the defendant after seeing his photograph in a newspaper. The trial court granted the prosecution’s motion to preclude expert witness testimony on eyewitness identification. The defendant was convicted of murder, capital felony, and assault.]


    We [] address the defendant’s claim that the trial court improperly granted the state’s motion to preclude expert testimony on the reliability of eyewitness identifications in reliance on our decisions in Kemp and McClendon. We agree that Kemp and McClendon should be overruled and that expert testimony on eyewitness identification is admissible upon a determination by the trial court that the expert is qualified and the proffered testimony is relevant and will aid the jury. We also conclude, however, that the trial court’s exclusion of the proffered expert testimony in the present case did not substantially affect the verdicts.

    The following undisputed facts and procedural history are relevant to our resolution of this claim. Before trial, defense counsel indicated that he intended to call Charles A. Morgan III as an expert on eyewitness identifications. The state filed a motion to preclude Morgan’s testimony on the ground that the reliability of eyewitness identifications is within the knowledge of the average juror. The trial court then conducted an evidentiary hearing on the state’s motion at which Morgan proffered testimony that he is a medical doctor with “specialty training” in psychiatry and that, for the last seventeen years, he has spent 50 percent of his time researching how stress affects thought processes and memory. In 1997, Morgan published a study showing that, contrary to common belief, memory of traumatic events changes over time. In 2004, he published a study of military personnel who were subject to harsh interrogation techniques during training. The study showed that the subjects’ identification of an interrogator was much more accurate after low stress interrogations than after high stress ones.

    Morgan testified that stress hormones are detrimental to certain aspects of memory. According to his testimony, high levels of stress impair thinking and memory formation. Morgan explained that there are three phases of memory formation—encoding, storage and retrieval—and that stress can disrupt both encoding and storage. When a subject is exposed to information about the remembered event during the storage phase—for example, when, following the event, the subject discusses the observation with someone else or sees a photograph of the person in the newspaper—the subject may incorporate the information into his or her memory and come to believe that the information actually was obtained at an earlier time. This process is known as retrofitting. Furthermore, Morgan testified that the majority of eyewitness identification researchers agree that there is little or no correlation between confidence and accuracy; in other words, an eyewitness’ confidence in the accuracy of an identification is not a reliable indicator of the identification’s true accuracy. Although Morgan observed that, if an eyewitness is familiar with a person, the eyewitness’ identification of that person is likely to be more accurate, he explained that an identification’s accuracy may be adversely affected by such factors as the length of time during which the eyewitness was able to observe the person, lighting, distance, and whether the eyewitness was paying attention.

    Morgan testified that the effect of stress on memory is not a matter of common knowledge. Although Morgan was not aware of any scientific public opinion polls on the question, he testified that it was his opinion that most laypeople do not know about the concept of retrofitting. Morgan also testified that studies have shown that most jurors mistakenly believe that the more confident someone is of an identification, the more likely the identification is to be accurate.

    At the conclusion of the hearing, the trial court granted the state’s motion to preclude Morgan’s testimony. The court seemed to find that Morgan’s theory had not been sufficiently tested, had no known or potential rate of error, lacked consistent standards, and was not generally accepted in the scientific community. The court also appeared to conclude that Morgan’s general opinions about the effects of stress on memory, the lack of a correlation between confidence and accuracy of identifications, and the risk of retrofitting were all inadmissible because these matters generally were within the common knowledge of jurors.

    Although the trial court granted the motion to preclude Morgan’s testimony, the court indicated that it had prepared jury instructions on the reliability of eyewitness identifications and that it would provide a copy of the draft instructions to counsel for their review. Ultimately, the trial court instructed the jury that stress and the receipt of postevent information can reduce the accuracy of an eyewitness identification and that confidence often is not a reliable indicator of accuracy.

    We now conclude that Kemp and McClendon are out of step with the widespread judicial recognition that eyewitness identifications are potentially unreliable in a variety of ways unknown to the average juror. This broad based judicial recognition tracks a near perfect scientific consensus. The extensive and comprehensive scientific research, as reflected in hundreds of peer reviewed studies and meta-analyses, convincingly demonstrates the fallibility of eyewitness identification testimony and pinpoints an array of variables that are most likely to lead to a mistaken identification. “[T]he scientific evidence … is both reliable and useful.” “Experimental methods and findings have been tested and retested, subjected to scientific scrutiny through peer-reviewed journals, evaluated through the lens of meta-analyses, and replicated at times in real-world settings…. [C]onsensus exists among the experts … within the … research community.” “[T]he science abundantly demonstrates the many vagaries of memory encoding, storage and retrieval; the malleability of memory; the contaminating effects of extrinsic information; the influence of police interview techniques and identification procedures; and the many other factors that bear on the reliability of eyewitness identifications.”

    Courts across the country now accept that (1) there is at best a weak correlation between a witness’ confidence in his or her identification and its accuracy, (2) the reliability of an identification can be diminished by a witness’ focus on a weapon, (3) high stress at the time of observation may render a witness less able to retain an accurate perception and memory of the observed events, (4) cross-racial identifications are considerably less accurate than same race identifications, (5) a person’s memory diminishes rapidly over a period of hours rather than days or weeks, (6) identifications are likely to be less reliable in the absence of a double-blind, sequential identification procedure, (7) witnesses are prone to develop unwarranted confidence in their identifications if they are privy to postevent or postidentification information about the event or the identification, and (8) the accuracy of an eyewitness identification may be undermined by unconscious transference, which occurs when a person seen in one context is confused with a person seen in another. This list is not exhaustive; courts have permitted expert testimony on other factors deemed to affect the accuracy of eyewitness identification testimony.

    Although these findings are widely accepted by scientists, they are largely unfamiliar to the average person, and, in fact, many of the findings are counterintuitive. For example, people often believe that the more confident an eyewitness is in an identification, the more likely the identification is to be accurate. Similarly, the average person is likely to believe that eyewitnesses held at gunpoint or otherwise placed in fear are likely to have been acutely observant and therefore more accurate in their identifications. Most people also tend to think that cross-racial identifications are no less likely to be accurate than same race identifications. Yet none of these beliefs is true. Indeed, laypersons commonly are unaware of the effect of the other aforementioned factors, including the rate at which memory fades, the influence of postevent or postidentification information, the phenomenon of unconscious transference, and the risks inherent in the use by police of identification procedures that are not double-blind and sequential. Moreover, although there is little if any correlation between confidence and accuracy, an eyewitness’ confidence “is the most powerful single determinant of whether … observers … will believe that the eyewitness made an accurate identification ….”

    As a result of this strong scientific consensus, federal and state courts around the country have recognized that the methods traditionally employed for alerting juries to the fallibility of eyewitness identifications—cross-examination, closing argument and generalized jury instructions on the subject—frequently are not adequate to inform them of the factors affecting the reliability of such identifications.

    Cross-examination, the most common method, often is not as effective as expert testimony at identifying the weaknesses of eyewitness identification testimony because cross-examination is far better at exposing lies than at countering sincere but mistaken beliefs. An eyewitness who expresses confidence in the accuracy of his or her identification may of course believe sincerely that the identification is accurate. Furthermore, although cross-examination may expose the existence of factors that undermine the accuracy of eyewitness identifications, it cannot effectively educate the jury about the import of these factors. “Thus, while skillful cross-examination may succeed in exposing obvious inconsistencies in an [eyewitness’] account, because nothing is obvious about the psychology of eyewitness identification and most people’s intuitions on the subject of identification are wrong … some circumstances undoubtedly call for more than mere cross-examination of the eyewitness.”

    Defense counsel’s closing argument to the jury that an eyewitness identification is unreliable also is an inadequate substitute for expert testimony. In the absence of evidentiary support, such an argument is likely to be viewed as little more than partisan rhetoric. This is especially true if the argument relates to a factor that is counterintuitive.

    Finally, research has revealed that jury instructions that direct jurors in broad terms to exercise caution in evaluating eyewitness identifications are less effective than expert testimony in apprising the jury of the potential unreliability of eyewitness identification testimony. “[Generalized] instructions given at the end of what might be a long and fatiguing trial, and buried in an overall charge by the court, are unlikely to have much effect on the minds of [the jurors]…. [Moreover], instructions may come too late to alter [a juror’s] opinion of a witness whose testimony might have been heard days before. [Perhaps most important], even the best cautionary instructions tend to touch only generally on the empirical evidence. The judge may explain that certain factors are known to influence perception and memory … but will not explain how this occurs or to what extent.”

    An expert should not be permitted to give an opinion about the credibility or accuracy of the eyewitness testimony itself; that determination is solely within the province of the jury. Rather, the expert should be permitted to testify only about factors that generally have an adverse effect on the reliability of eyewitness identifications and are relevant to the specific eyewitness identification at issue.

    We depart from Kemp and McClendon mindful of recent studies confirming what courts have long suspected, namely, that mistaken eyewitness identification testimony is by far the leading cause of wrongful convictions. A highly effective safeguard against this serious and well documented risk is the admission of expert testimony on the reliability of eyewitness identification.

    Of course, a trial court retains broad discretion in ruling on the qualifications of expert witnesses and determining whether their opinions are relevant. We also wish to reiterate that a trial court retains the discretion to decide whether, under the specific facts and circumstances presented, focused and informative jury instructions on the fallibility of eyewitness identification evidence … would alone be adequate to aid the jury in evaluating the eyewitness identification at issue. We emphasize, however, that any such instructions should reflect the findings and conclusions of the relevant scientific literature pertaining to the particular variable or variables at issue in the case; broad, generalized instructions on eyewitness identifications … do not suffice.

    [Applying the law to the defendant’s claim, the court held that the “the trial court did not abuse its discretion in precluding [the expert] from testifying on the reliability of the identification testimony” with respect to Baldwin and Gomez because those witnesses knew the defendant. The court “conclude[d] that, with respect to Lang, Morgan’s proposed testimony on the effect of stress on memory, the risk of retrofitting based on postevent information, and the relationship, or lack thereof, between confidence and accuracy, was relevant and would have been helpful to the jury. The trial court therefore abused its discretion in precluding [] expert testimony insofar as it pertained to Lang’s identification of the defendant.”]

    Notes, Comments, and Questions

    The Supreme Court of Connecticut focused on how a defendant might educate a jury about the unreliability of eyewitness identification, ameliorating the negative consequences of unreliable evidence. Students who have taken Evidence may recognize similarities between this kind of testimony and other forms of hotly-disputed expert testimony. For example, testimony about “battered woman syndrome” and “rape trauma syndrome” may be helpful to the jury in some cases. For example, a woman who kills her abusive boyfriend may wish to offer syndrome evidence in support of a self-defense theory. But such testimony is valuable only to the extent it is based on sound scientific research. Also, when such testimony is admissible, courts normally are careful to limit its scope. For example, in a rape case, the defense might argue that the alleged victim’s behavior is not consistent with that of a “real” rape victim (if, for example, she voluntarily spent time with the defendant after the alleged rape). A prosecution expert might help the jury understand that somewhat counterintuitive behavior is actually within the range of normal behavior observed among victims. The expert normally may not, however, speculate about whether any particular complaining witness was or was not raped.

    In our next case, the Supreme Court of New Jersey addressed how to avoid unreliable identifications in the first place.

    Supreme Court of New Jersey

    State of New Jersey v. Larry R. Henderson

    Decided Aug. 24, 2011 – 27 A.3d 872

    Chief Justice RABNER delivered the opinion of the Court.

    I. Introduction

    In the thirty-four years since the United States Supreme Court announced a test for the admission of eyewitness identification evidence, which New Jersey adopted soon after, a vast body of scientific research about human memory has emerged. That body of work casts doubt on some commonly held views relating to memory. It also calls into question the vitality of the current legal framework for analyzing the reliability of eyewitness identifications.

    II. Facts and Procedural History

    [Rodney Harper was murdered, and his friend James Womble was held at gunpoint. Womble identified the defendant from a photo array. Following a Wade hearing, the trial court allowed admission of the identification. “At the close of trial on July 20, 2004, the court relied on the existing model jury charge on eyewitness identification.” The defendant was convicted and appealed. The Appellate Division reversed and remanded, finding the identification procedure “impermissibly suggestive.” The Supreme Court of New Jersey appointed a Special Master,2 who heard testimony from seven expert witnesses and viewed 360 exhibits, including more than 200 “published scientific studies on human memory and eyewitness identification.”]

    III. Proof of Misidentifications

    Nationwide, “more than seventy-five percent of convictions overturned due to DNA evidence involved eyewitness misidentification.” In half of the cases, eyewitness testimony was not corroborated by confessions, forensic science, or informants. Thirty-six percent of the defendants convicted were misidentified by more than one eyewitness. “[I]t has been estimated that approximately 7,500 of every 1.5 million annual convictions for serious offenses may be based on misidentifications.”

    But DNA exonerations are rare. To determine whether statistics from such cases reflect system-wide flaws, police departments have allowed social scientists to analyze case files and observe and record data from real-world identification procedures.

    Four such studies—two from Sacramento, California and two from London, England—produced data from thousands of actual eyewitness identifications. For the larger London study, 39% of eyewitnesses identified the suspect, 20% identified a filler, and 41% made no identification. Thus, about one-third of eyewitnesses who made an identification (20 of 59) in real police investigations wrongly selected an innocent filler. The results were comparable for the Valentine study. Across both Sacramento studies, 51% of eyewitnesses identified the suspect, 16% identified a filler, and 33% identified no one. In other words, nearly 24% of those who made an identification (16 of 67) mistakenly identified an innocent filler.

    Although the studies revealed alarming rates at which witnesses chose innocent fillers out of police lineups, the data cannot identify how many of the suspects actually selected were the real culprits. Researchers have conducted field experiments to try to answer that more elusive question: how often are innocent suspects wrongly identified?

    Three experiments targeted unassuming convenience store clerks and one focused on bank tellers. Each study unfolded with different variations of the following approach: a customer walked into a store and tried to buy a can of soda with a $10 traveler’s check; he produced two pieces of identification and chatted with the clerk; and the encounter lasted about three minutes. Two to twenty-four hours later, a different person entered the same store and asked the same clerk to identify the man with the traveler’s check; the clerk was told that the suspect might not be among the six photos presented; and no details of the investigation were given. Only after making a choice was the clerk told that he or she had participated in an experiment.

    Across the four experiments, researchers gathered data from more than 500 identifications. Dr. Penrod testified that on average, 42% of clerks made correct identifications, 41% identified photographs of innocent fillers, and 17% chose to identify no one. Those numbers, like the results from the Sacramento and London studies, reveal high levels of misidentifications.

    In two of the studies, researchers showed some clerks target-absent arrays—lineups that purposely excluded the perpetrator and contained only fillers. In those experiments, Dr. Penrod testified that 64% of eyewitnesses made no identification, but 36% picked a foil. Those field experiments suggest that when the true perpetrator is not in the lineup, eyewitnesses may nonetheless select an innocent suspect more than one-third of the time.

    Without persuasive extrinsic evidence, one cannot know for certain which identifications are accurate and which are false—which are the product of reliable memories and which are distorted by one of a number of factors.

    We presume that jurors are able to detect liars from truth tellers.3 But as scholars have cautioned, most eyewitnesses think they are telling the truth even when their testimony is inaccurate, and “[b]ecause the eyewitness is testifying honestly (i.e., sincerely), he or she will not display the demeanor of the dishonest or biased witness.” Instead, some mistaken eyewitnesses, at least by the time they testify at trial, exude supreme confidence in their identifications.

    IV. Current Legal Framework

    [The court reviewed Supreme Court jurisprudence on the admissibility of eyewitness identification evidence, including United States v. Wade and Manson v. Brathwaite. This material is covered in Chapters 38 and 39.]

    V. Scope of Scientific Research

    Virtually all of the scientific evidence considered on remand emerged after Manson. In fact, the earliest study the State submitted is from 1981, and only a handful of the more than 200 scientific articles in the record pre-date 1970.

    VI. How Memory Works

    Research contained in the record has refuted the notion that memory is like a video recording, and that a witness need only replay the tape to remember what happened. Human memory is far more complex. The parties agree with the Special Master’s finding that memory is a constructive, dynamic, and selective process.

    The process of remembering consists of three stages: acquisition—“the perception of the original event”; retention—“the period of time that passes between the event and the eventual recollection of a particular piece of information”; and retrieval—the “stage during which a person recalls stored information.”

    Science has proven that memory is malleable. The body of eyewitness identification research further reveals that an array of variables can affect and dilute memory and lead to misidentifications.

    Scientific literature divides those variables into two categories: system and estimator variables. System variables are factors like lineup procedures which are within the control of the criminal justice system. Estimator variables are factors related to the witness, the perpetrator, or the event itself—like distance, lighting, or stress—over which the legal system has no control.

    A. System Variables

    We begin with variables within the State’s control.

    1. Blind Administration

    An identification may be unreliable if the lineup procedure is not administered in double-blind or blind fashion. Double-blind administrators do not know who the actual suspect is. Blind administrators are aware of that information but shield themselves from knowing where the suspect is located in the lineup or photo array.

    Research has shown that lineup administrators familiar with the suspect may leak that information “by consciously or unconsciously communicating to witnesses which lineup member is the suspect.” Psychologists refer to that phenomenon as the “expectancy effect”: “the tendency for experimenters to obtain results they expect … because they have helped to shape that response.” In a seminal meta-analysis of 345 studies across eight broad categories of behavioral research, researchers found that “[t]he overall probability that there is no such thing as interpersonal expectancy effects is near zero.”

    We find that the failure to perform blind lineup procedures can increase the likelihood of misidentification.

    2. Pre-identification Instructions

    Identification procedures should begin with instructions to the witness that the suspect may or may not be in the lineup or array and that the witness should not feel compelled to make an identification. There is a broad consensus for that conclusion.

    Without an appropriate warning, witnesses may misidentify innocent suspects who look more like the perpetrator than other lineup members.

    The scientists agree. In two meta-analyses, they found that telling witnesses in advance that the suspect may not be present in the lineup, and that they need not make a choice, led to more reliable identifications in target-absent lineups. In one experiment, 45% more people chose innocent fillers in target-absent lineups when administrators failed to warn that the suspect may not be there.

    The failure to give proper pre-lineup instructions can increase the risk of misidentification.

    3. Lineup Construction

    The way that a live or photo lineup is constructed can also affect the reliability of an identification. Properly constructed lineups test a witness’ memory and decrease the chance that a witness is simply guessing.

    A number of features affect the construction of a fair lineup. First, the Special Master found that “mistaken identifications are more likely to occur when the suspect stands out from other members of a live or photo lineup.” As a result, a suspect should be included in a lineup comprised of look-alikes. The reason is simple: an array of look-alikes forces witnesses to examine their memory. In addition, a biased lineup may inflate a witness’ confidence in the identification because the selection process seemed easy.

    Second, lineups should include a minimum number of fillers. The greater the number of choices, the more likely the procedure will serve as a reliable test of the witness’ ability to distinguish the culprit from an innocent person. As Dr. Wells testified, no magic number exists, but there appears to be general agreement that a minimum of five fillers should be used.

    Third, based on the same reasoning, lineups should not feature more than one suspect. As the Special Master found, “if multiple suspects are in the lineup, the reliability of a positive identification is difficult to assess, for the possibility of ‘lucky’ guesses is magnified.”

    We find that courts should consider whether a lineup is poorly constructed when evaluating the admissibility of an identification. When appropriate, jurors should be told that poorly constructed or biased lineups can affect the reliability of an identification and enhance a witness’ confidence.

    4. Avoiding Feedback and Recording Confidence

    Information received by witnesses both before and after an identification can affect their memory. Confirmatory or post-identification feedback presents the same risks. It occurs when police signal to eyewitnesses that they correctly identified the suspect. That confirmation can reduce doubt and engender a false sense of confidence in a witness. Feedback can also falsely enhance a witness’ recollection of the quality of his or her view of an event.

    There is substantial research about confirmatory feedback. A meta-analysis of twenty studies encompassing 2,400 identifications found that witnesses who received feedback “expressed significantly more … confidence in their decision compared with participants who received no feedback.” The analysis also revealed that “those who receive a simple post-identification confirmation regarding the accuracy of their identification significantly inflate their reports to suggest better witnessing conditions at the time of the crime, stronger memory at the time of the lineup, and sharper memory abilities in general.”

    Confirmatory feedback can distort memory. As a result, to the extent confidence may be relevant in certain circumstances, it must be recorded in the witness’ own words before any possible feedback. To avoid possible distortion, law enforcement officers should make a full record—written or otherwise—of the witness’ statement of confidence once an identification is made. Even then, feedback about the individual selected must be avoided.

    [W]e find that feedback affects the reliability of an identification in that it can distort memory, create a false sense of confidence, and alter a witness’ report of how he or she viewed an event.

    5. Multiple viewings

    Viewing a suspect more than once during an investigation can affect the reliability of the later identification. The problem, as the Special Master found, is that successive views of the same person can make it difficult to know whether the later identification stems from a memory of the original event or a memory of the earlier identification procedure.

    Multiple identification procedures that involve more than one viewing of the same suspect [] can create a risk of “mugshot exposure” and “mugshot commitment.” Mugshot exposure is when a witness initially views a set of photos and makes no identification, but then selects someone—who had been depicted in the earlier photos—at a later identification procedure. A meta-analysis of multiple studies revealed that although 15% of witnesses mistakenly identified an innocent person viewed in a lineup for the first time, that percentage increased to 37% if the witness had seen the innocent person in a prior mugshot.

    Mugshot commitment occurs when a witness identifies a photo that is then included in a later lineup procedure. Studies have shown that once witnesses identify an innocent person from a mugshot, “a significant number” then “reaffirm[ ] their false identification” in a later lineup—even if the actual target is present.

    Thus, both mugshot exposure and mugshot commitment can affect the reliability of the witness’ ultimate identification and create a greater risk of misidentification. As a result, law enforcement officials should attempt to shield witnesses from viewing suspects or fillers more than once.

    6. Simultaneous v. Sequential Lineups

    Lineups are presented either simultaneously or sequentially. Traditional, simultaneous lineups present all suspects at the same time, allowing for side-by-side comparisons. In sequential lineups, eyewitnesses view suspects one at a time. Because the science supporting one procedure over the other remains inconclusive, we are unable to find a preference for either.

    As research in this field continues to develop, a clearer answer may emerge. For now, there is insufficient authoritative evidence accepted by scientific experts for a court to make a finding in favor of either procedure. As a result, we do not limit either one at this time.

    7. Composites

    When a suspect is unknown, eyewitnesses sometimes work with artists who draw composite sketches. Composites can also be prepared with the aid of computer software or non-computerized “tool kits” that contain picture libraries of facial features.

    As the Special Master observed, based on the record, “composites produce poor results.” In one study, college freshmen used computer software to generate composites of students and teachers from their high schools. Different students who had attended the same schools were only able to name 3 of the 500 people depicted in the composites.

    Researchers attribute those results to a mismatch between how composites are made and how memory works. Evidence suggests that people perceive and remember faces “holistically” and not “at the level of individual facial features.” Thus, creating a composite feature-by-feature may not comport with the holistic way that memories for faces “are generally processed, stored, and retrieved.”

    It is not clear, though, what effect the process of making a composite has on a witness’ memory—that is, whether it contaminates or confuses a witness’ memory of what he or she actually saw.

    Without more accepted research, courts cannot make a finding on the effect the process of making a composite has on a witness. We thus do not limit the use of composites in investigations.

    8. Showups

    Showups are essentially single-person lineups: a single suspect is presented to a witness to make an identification. Showups often occur at the scene of a crime soon after its commission. The Special Master noted that they are a “useful—and necessary—technique when used in appropriate circumstances,” but they carry their “own risks of misidentifications.”

    By their nature, showups are suggestive and cannot be performed blind or double-blind. Nonetheless, as the Special Master found, “the risk of misidentification is not heightened if a showup is conducted immediately after the witnessed event, ideally within two hours” because “the benefits of a fresh memory seem to balance the risks of undue suggestion.”

    Thus, the record casts doubt on the reliability of showups conducted more than two hours after an event, which present a heightened risk of misidentification. [L]ineups are a preferred identification procedure because we continue to believe that showups, while sometimes necessary, are inherently suggestive.

    B. Estimator variables

    Unlike system variables, estimator variables are factors beyond the control of the criminal justice system. They can include factors related to the incident, the witness, or the perpetrator. Estimator variables are equally capable of affecting an eyewitness’ ability to perceive and remember an event.

    1. Stress

    Even under the best viewing conditions, high levels of stress can diminish an eyewitness’ ability to recall and make an accurate identification. The Special Master found that “while moderate levels of stress improve cognitive processing and might improve accuracy, an eyewitness under high stress is less likely to make a reliable identification of the perpetrator.” Scientific research affirms that conclusion. A meta-analysis of sixty-three studies showed “considerable support for the hypothesis that high levels of stress negatively impact both accuracy of eyewitness identification as well as accuracy of recall of crime-related details.”

    We find that high levels of stress are likely to affect the reliability of eyewitness identifications. There is no precise measure for what constitutes “high” stress, which must be assessed based on the facts presented in individual cases.

    2. Weapon Focus

    When a visible weapon is used during a crime, it can distract a witness and draw his or her attention away from the culprit. “Weapon focus” can thus impair a witness’ ability to make a reliable identification and describe what the culprit looks like if the crime is of short duration.

    The duration of the crime is also an important consideration. Dr. Steblay concluded that weapon-focus studies speak to real-world “situations in which a witness observes a threatening object … in an event of short duration.” As Dr. Wells testified, the longer the duration, the more time the witness has to adapt to the presence of a weapon and focus on other details.

    Thus, when the interaction is brief, the presence of a visible weapon can affect the reliability of an identification and the accuracy of a witness’ description of the perpetrator.

    3. Duration

    Not surprisingly, the amount of time an eyewitness has to observe an event may affect the reliability of an identification. The Special Master found that “while there is no minimum time required to make an accurate identification, a brief or fleeting contact is less likely to produce an accurate identification than a more prolonged exposure.”

    [S]tudies have shown, and the Special Master found, “that witnesses consistently tend to overestimate short durations, particularly where much was going on or the event was particularly stressful.”

    4. Distance and Lighting

    It is obvious that a person is easier to recognize when close by, and that clarity decreases with distance. We also know that poor lighting makes it harder to see well. Thus, greater distance between a witness and a perpetrator and poor lighting conditions can diminish the reliability of an identification.

    Scientists have refined those common-sense notions with further study. Research has also shown that people have difficulty estimating distances.

    5. Witness Characteristics

    Characteristics like a witness’ age and level of intoxication can affect the reliability of an identification.

    The Special Master found that “the effects of alcohol on identification accuracy show that high levels of alcohol promote false identifications” and that “low alcohol intake produces fewer misidentifications than high alcohol intake.”

    The Special Master also found that “[a] witness’s age … bears on the reliability of an identification.” A meta-analysis has shown that children between the ages of nine and thirteen who view target-absent lineups are more likely to make incorrect identifications than adults. Showups in particular “are significantly more suggestive or leading with children.”

    [T]he data about memory and older witnesses is more nuanced, according to the scientific literature. In addition, there was little other testimony at the hearing on the topic. Based on the record before us, we cannot conclude that a standard jury instruction questioning the reliability of identifications by all older eyewitnesses would be appropriate for use in all cases.

    6. Characteristics of Perpetrator

    Disguises and changes in facial features can affect a witness’ ability to remember and identify a perpetrator. The Special Master found that “[d]isguises (e.g., hats, sunglasses, masks) are confounding to witnesses and reduce the accuracy of identifications.”

    Disguises as simple as hats have been shown to reduce identification accuracy. If facial features are altered between the time of the event and the identification procedure—if, for example, the culprit grows a beard—the accuracy of an identification may decrease.

    7. Memory Decay

    Memories fade with time. And as the Special Master observed, memory decay “is irreversible”; memories never improve. As a result, delays between the commission of a crime and the time an identification is made can affect reliability.

    8. Race-Bias

    “A cross-racial identification occurs when an eyewitness is asked to identify a person of another race.” A meta-analysis [] involving thirty-nine studies and nearly 5,000 identifications, confirmed the Court’s prior finding. Cross-racial recognition continues to be a factor that can affect the reliability of an identification.

    9. Private Actors

    Studies show that witness memories can be altered when co-eyewitnesses share information about what they observed. Those studies bolster the broader finding “that post-identification feedback does not have to be presented by the experimenter or an authoritative figure (e.g., police officer) in order to affect a witness’ subsequent crime-related judgments.” Feedback and suggestiveness can come from co-witnesses and others not connected to the State.

    Co-witness feedback may cause a person to form a false memory of details that he or she never actually observed. One of the experiments evaluated the effect of the nature of the witnesses’ relationships with one another and compared co-witnesses who were strangers, friends, and couples. The study found that “witnesses who were previously acquainted with their co-witness (as a friend or romantic partner) were significantly more likely to incorporate information obtained solely from their co-witness into their own accounts.” Private actors can also affect witness confidence.

    To uncover relevant information about possible feedback from co-witnesses and other sources, we direct that police officers ask witnesses, as part of the identification process, questions designed to elicit (a) whether the witness has spoken with anyone about the identification and, if so, (b) what was discussed. That information should be recorded and disclosed to defendants.

    Based on the record, we find that non-State actors like co-witnesses and other sources of information can affect the independent nature and reliability of identification evidence and inflate witness confidence—in the same way that law enforcement feedback can. As a result, law enforcement officers should instruct witnesses not to discuss the identification process with fellow witnesses or obtain information from other sources.

    10. Speed of Identification

    The Special Master also noted that the speed with which a witness makes an identification can be a reliable indicator of accuracy. Laboratory studies offer mixed results. Because of the lack of consensus in the scientific community, we make no finding on this issue.

    C. Juror Understanding

    Some of the findings described above are intuitive. Everyone knows, for instance, that bad lighting conditions make it more difficult to perceive the details of a person’s face. Some findings are less obvious. Although many may believe that witnesses to a highly stressful, threatening event will “never forget a face” because of their intense focus at the time, the research suggests that is not necessarily so.

    Neither juror surveys nor mock-jury studies can offer definitive proof of what jurors know or believe about memory. But they reveal generally that people do not intuitively understand all of the relevant scientific findings. As a result, there is a need to promote greater juror understanding of those issues.

    D. Consensus Among Experts

    The Special Master found broad consensus within the scientific community on the relevant scientific issues. Primarily, he found support in a 2001 survey of sixty-four experts, mostly cognitive and social psychologists. Ninety percent or more of the experts found research on the following topics reliable: suggestive wording; lineup instruction bias; confidence malleability; mugshot bias; post-event information; child suggestivity; alcohol intoxication; and own-race bias. Seventy to 87% found the following research reliable: weapon focus; the accuracy-confidence relationship; memory decay; exposure time; sequential presentation; showups; description-matched foils; child-witness accuracy; and lineup fairness.

    VII. Responses to Scientific Studies

    Beyond the scientific community, law enforcement and reform agencies across the nation have taken note of the scientific findings. In turn, they have formed task forces and recommended or implemented new procedures to improve the reliability of eyewitness identifications.

    IX. Legal Conclusions
    A. Scientific Evidence

    [The court concludes that the scientific evidence “is both reliable and useful.”]

    B. The Manson[] Test Needs to Be Revised

    To protect due process concerns, the Manson Court’s two-part test rested on three assumptions: (1) that it would adequately measure the reliability of eyewitness testimony; (2) that the test’s focus on suggestive police procedure would deter improper practices; and (3) that jurors would recognize and discount untrustworthy eyewitness testimony. We conclude [] that [those assumptions] are not [valid].

    The hearing revealed that Manson[] does not adequately meet its stated goals: it does not provide a sufficient measure for reliability, it does not deter, and it overstates the jury’s innate ability to evaluate eyewitness testimony. As a result of those concerns, we now revise the State’s framework for evaluating eyewitness identification evidence.

    C. Revised Framework

    Remedying the problems with the current Manson[] test requires an approach that addresses its shortcomings: one that allows judges to consider all relevant factors that affect reliability in deciding whether an identification is admissible; that is not heavily weighted by factors that can be corrupted by suggestiveness; that promotes deterrence in a meaningful way; and that focuses on helping jurors both understand and evaluate the effects that various factors have on memory—because we recognize that most identifications will be admitted in evidence.

    Two principal changes to the current system are needed to accomplish that: first, the revised framework should allow all relevant system and estimator variables to be explored and weighed at pretrial hearings when there is some actual evidence of suggestiveness; and second, courts should develop and use enhanced jury charges to help jurors evaluate eyewitness identification evidence.

    The new framework also needs to be flexible enough to serve twin aims: to guarantee fair trials to defendants, who must have the tools necessary to defend themselves, and to protect the State’s interest in presenting critical evidence at trial. With that in mind, we first outline the revised approach for evaluating identification evidence and then explain its details and the reasoning behind it.

    First, to obtain a pretrial hearing, a defendant has the initial burden of showing some evidence of suggestiveness that could lead to a mistaken identification. That evidence, in general, must be tied to a system—and not an estimator—variable.

    Second, the State must then offer proof to show that the proffered eyewitness identification is reliable—accounting for system and estimator variables—subject to the following: the court can end the hearing at any time if it finds from the testimony that defendant’s threshold allegation of suggestiveness is groundless.

    Third, the ultimate burden remains on the defendant to prove a very substantial likelihood of irreparable misidentification. To do so, a defendant can cross-examine eyewitnesses and police officials and present witnesses and other relevant evidence linked to system and estimator variables.

    Fourth, if after weighing the evidence presented a court finds from the totality of the circumstances that defendant has demonstrated a very substantial likelihood of irreparable misidentification, the court should suppress the identification evidence. If the evidence is admitted, the court should provide appropriate, tailored jury instructions, as discussed further below.

    To evaluate whether there is evidence of suggestiveness to trigger a hearing, courts should consider the following non-exhaustive list of system variables:

    1. Blind Administration. Was the lineup procedure performed double-blind? If double-blind testing was impractical, did the police use a technique like the “envelope method” to ensure that the administrator had no knowledge of where the suspect appeared in the photo array or lineup?

    2. Pre-identification Instructions. Did the administrator provide neutral, pre-identification instructions warning that the suspect may not be present in the lineup and that the witness should not feel compelled to make an identification?

    3. Lineup Construction. Did the array or lineup contain only one suspect embedded among at least five innocent fillers? Did the suspect stand out from other members of the lineup?

    4. Feedback. Did the witness receive any information or feedback, about the suspect or the crime, before, during, or after the identification procedure?

    5. Recording Confidence. Did the administrator record the witness’ statement of confidence immediately after the identification, before the possibility of any confirmatory feedback?

    6. Multiple Viewings. Did the witness view the suspect more than once as part of multiple identification procedures? Did police use the same fillers more than once?

    7. Showups. Did the police perform a showup more than two hours after an event? Did the police warn the witness that the suspect may not be the perpetrator and that the witness should not feel compelled to make an identification?

    8. Private Actors. Did law enforcement elicit from the eyewitness whether he or she had spoken with anyone about the identification and, if so, what was discussed?

    9. Other Identifications Made. Did the eyewitness initially make no choice or choose a different suspect or filler?

    If some actual proof of suggestiveness remains, courts should consider the above system variables as well as the following non-exhaustive list of estimator variables to evaluate the overall reliability of an identification and determine its admissibility:

    1. Stress. Did the event involve a high level of stress?

    2. Weapon focus. Was a visible weapon used during a crime of short duration?

    3. Duration. How much time did the witness have to observe the event?

    4. Distance and Lighting. How close were the witness and perpetrator? What were the lighting conditions at the time?

    5. Witness Characteristics. Was the witness under the influence of alcohol or drugs? Was age a relevant factor under the circumstances of the case?

    6. Characteristics of Perpetrator. Was the culprit wearing a disguise? Did the suspect have different facial features at the time of the identification?

    7. Memory decay. How much time elapsed between the crime and the identification?

    8. Race-bias. Does the case involve a cross-racial identification?

    Some of the above estimator variables overlap with the five reliability factors outlined in Neil v. Biggers which we nonetheless repeat:

    9. Opportunity to view the criminal at the time of the crime.

    10. Degree of attention.

    11. Accuracy of prior description of the criminal.

    12. Level of certainty demonstrated at the confrontation.

    Did the witness express high confidence at the time of the identification before receiving any feedback or other information?

    13. The time between the crime and the confrontation.

    The above factors are not exclusive. Nor are they intended to be frozen in time. We recognize that scientific research relating to the reliability of eyewitness evidence is dynamic; the field is very different today than it was in 1977, and it will likely be quite different thirty years from now. By providing the above lists, we do not intend to hamstring police departments or limit them from improving practices. Likewise, we do not limit trial courts from reviewing evolving, substantial, and generally accepted scientific research. But to the extent the police undertake new practices, or courts either consider variables differently or entertain new ones, they must rely on reliable scientific evidence that is generally accepted by experts in the community.

    XI. Application

    [Under the facts of this case, the court remanded “for an expanded hearing consistent with the principles outlined in this decision.”]

    Notes, Comments, and Questions

    Connecticut and New Jersey are two examples of states that have endeavored to incorporate evidence-based recommendations into eyewitness identification practices. In 2009, The New York State Justice Task Force was created to “eradicate the systemic and individual harms caused by wrongful convictions, and to promote public safety by examining the causes of wrongful convictions and recommending reforms to safeguard against any such convictions in the future.” In 2011, the task force made the following recommendations:

    New York State Justice Task Force
    Recommendations for Improving Eyewitness Identifications

    I. Instructions to the Witness

    Preliminary instructions given to a witness by the administrator of an identification procedure before the procedure begins, should include the following:

    a. Instructing the witness orally or in writing about the details of the identification procedure (including that they will be asked about their confidence in the identification if any identification is made).

    b. Advising the witness that the person who committed the crime may or may not be in the photo array or lineup.

    c. Advising the witness that individuals may not appear exactly as they did on the day of the incident because features such as hair are subject to change.

    d. Advising the witness as follows:

    i. If an array or lineup is conducted double-blind, the administrator shall inform the witness that he does not know who the suspect is; and

    ii. If the array or lineup is not conducted double-blind, the administrator shall inform the witness that he should not assume that the administrator knows who the perpetrator is.

    e. Advising the witness that he or she should not feel compelled [or obligated] to make an identification.

    After the identification procedure is completed, the administrator of the identification procedure should:

    f. Instruct the witness not to discuss what was said, seen or done during the identification procedure with other witnesses involved in the case.

    II. Witness Confidence Statements

    a. In every case in which an identification is made, the administrator should elicit a statement of the witness’ confidence in the identification, by asking a question to the effect of, “in your own words, how sure are you?” Witnesses should not be asked to rate their confidence in any identification on a numerical scale.

    b. All witnesses should be instructed in advance that they will be asked about their confidence in any identification made.

    c. Witness confidence statements should be documented before any feedback on the identification is given to the witness by the administrator or others.

    III. Documentation of Identification Procedures

    Documentation of identification procedures should include:

    a. Documentation of all lineups with a color photograph of the lineup as the witness viewed it and preservation of all photo arrays viewed by a witness.

    b. Documentation of the logistics of the identification procedure, including date, time, location and people present in the viewing room with the witness and/or the lineup room with the suspect, including anyone who escorted the witness to and/or from the procedure.

    c. Documentation of any speech, movement or clothing change the lineup members are asked to perform.

    d. Verbatim documentation of all statements and physical reactions made by a witness during an identification procedure.

    e. Ensuring that the witness sign and date the written results of the identification procedure, including a photograph of the live lineup if one is available.

    IV. Photo Arrays

    a. Photo arrays should be conducted double-blind whenever practicable.

    b. If a photo array is conducted with a non-blind administrator, the procedure should be conducted blinded (as defined herein), whenever practicable.

    c. Photo array administrators must ensure that the photos in the photo array do not contain any writing, stray markings or information about the suspect such as information concerning previous arrests.

    d. At least five fillers should be used in each photo array, in addition to the suspect. There should be only one suspect per array.

    e. Fillers should be similar in appearance to the suspect in the array. Similarities should include gender, clothing, facial hair, race, age, height, extraordinary physical features or other distinctive characteristics. Fillers should not be known to the witness.

    f. If there is more than one suspect, photo array administrators should avoid reusing fillers when showing an array with a new suspect to the same witness.

    g. The position of the suspect should be moved or a new photo array (with new fillers) should be created each time an array is shown to a different witness.

    V. Live Lineups

    a. Lineups may be conducted double-blind and if not, should be conducted in accordance with the procedures outlined by the NYS Identification Procedure Guidelines mentioned above, which include instructions on how to remain neutral and stand out of the witness’ line of sight while the witness is viewing the lineup, and which when coupled with appropriate preliminary instructions are intended to create a neutral environment free of inadvertent cues.

    b. There should be five fillers in addition to the suspect, where practicable, but in no case fewer than four fillers. There should be only one suspect per lineup.

    c. Fillers should be similar in appearance to the suspect in the lineup. Similarities should include gender, clothing, facial hair, race, age, height, extraordinary physical features or other distinctive characteristics. Fillers should not be known to the witness.

    d. If there is more than one suspect, the lineup administrator should avoid reusing fillers when showing a lineup with a new suspect to the same witness.

    e. The position of the suspect should be moved each time the lineup is shown to a different witness, assuming the suspect and/or defense counsel agree.

    f. If an action is taken or words are spoken by one member of the lineup, all other members of the lineup must take the same action or speak the same words.

    g. All members of the lineup should be seated, if necessary, to eliminate any extreme variations in height.

    h. Fillers from a photo array previously viewed by the witness should not be used as fillers in the lineup.

    i. In those jurisdictions that regularly use live lineup procedures, consideration should be given to running lineups after the first witness makes an identification from the photo array. Where practicable, additional witnesses can view only the lineup and not the photo array.

    * * *

    In her student note, “The Dangers of Eyewitness Identification: A Call for Greater State Involvement to Ensure Fundamental Fairness,” 54 B.C. L. Rev. 1415 (2013), Dana Walsh articulates the connection between scientific research on identification and due process of law. She argues that because the Supreme Court has focused on the reliability of eyewitness identifications outside the context of scientific research, state courts should “grant greater protections under their own constitutions in the field of eyewitness identification.”

    “The right to due process must include an established framework to ensure fundamental fairness. The rules should create a system where only evidence that comports with due process is admitted at trial. The great unreliability of eyewitness identifications, in addition to their great influence on a criminal proceeding, suggest that a defendant’s right to a fundamentally fair proceeding is violated by the admission of unreliable eyewitness testimony at trial. Accurate eyewitness identifications are, however, beneficial crime-fighting and prosecutorial tools. By focusing on reliability, the Court has attempted to find a balance between admitting identifications and preserving due process rights. If reliability is the linchpin of the analysis, then only reliable identifications should be admissible….”

    “Substantial amounts of research indicate that eyewitness identifications have serious flaws. In 1995, a judge on the Massachusetts Supreme Judicial Court wrote that scientific studies conducted since 1977 have confirmed that eyewitness identifications are often ‘hopelessly unreliable.’ The malleability and vulnerability of human memory highlight the dangers involved with eyewitness identification. Because of these risks, identifications should be scrutinized closely to avoid miscarriages of justice. The Court in Perry, however, largely ignored the data by barely addressing it and by maintaining the Biggers factors. Such a result seems incompatible under jurisprudence that deems due process a fundamental right.”

    In addition to rulings based on state constitutional law, courts can regulate the admission of identification evidence under ordinary evidence law. State evidence codes contain provisions similar (or identical) to Federal Rule of Evidence 403, which gives judges discretion to exclude relevant evidence that poses a significant risk of “unfair prejudice.”

    * * *

    For further information on the problems associated with eyewitness identification evidence (along with other testimony dependent on accurate memory), students should read work by Professor Elizabeth Loftus, a member of the psychology faculty and the law faculty at the University of California-Irvine (along with various collaborators). See, e.g., Steven J. Frenda et al., “False Memories of Fabricated Political Events,” 49 J. Experimental Soc. Psych. 280 (2013) (showing ease with which false memories can be implanted in unwitting subjects); Deborah Davis & Elizabeth F. Loftus, “Remembering Disputed Sexual Encounters: A New Frontier for Witness Memory Research,” 105 J. Crim. L. & Criminology 811 (2015); Charles A. Morgan et al., “Misinformation Can Influence Memory for Recently Experienced, Highly Stressful Events,” 36 Int’l J. L. & Psych. 11 (2013) (examining false memories among participants in military POW interrogation training program). A 2015 lecture delivered by Professor Loftus at Harvard University, titled “The Memory Factory,” is available online.

    Consider the practices described in this chapter. Which seem easy to implement? Which seem difficult to implement?

    In our next and final chapter, we will consider a few criminal procedure issues that do not fit neatly into any of the categories around which prior chapters of this book have been organized.