When identification testimony plays a role in the trial, a criminal defense attorney should urge the court to instruct the jury on the weaknesses of such testimony. Many jurisdictions use a weak standard jury instruction that merely repeats these factors for assessing the reliability of the identification:

• The opportunity of the witness to view the perpetrator at the time of the crime.
• The witness’s degree of attention.
• The accuracy of the witness’s prior description of the perpetrator.
• The level of certainty demonstrated at the confrontation
• The time between the crime and the confrontation.

See Mistaken identification is common. However, there is a trend toward warning a jury in stronger and more specific terms of identification testimony’s weaknesses. A proposed instruction should focus on factors peculiar to the case, such as the inaccuracy of cross-racial identification if the witness is of a different race than the defendant.

Basic jury instruction on identification

This instruction is based on the Third Circuit Court of Appeals’ Model Jury Instructions, Instruction 4.15, available at www.ca3.uscourts.gov. In the second question the jury is asked to consider whether the witness is positive in the identification. If the witness did express certainty, your criminal attorney may want to exclude this language on the argument that this factor is not always a valid indicator of the accuracy of recollection.

GENERAL CHARGE

One of the (most important) issues in this case is whether (name of defendant) is the same person who committed the crime(s) charged in (Count(s) ___ of) the indictment. The government, as I have explained, has the burden of proving every element, including identity, beyond a reasonable doubt. Although it is not essential that a witness testifying about the identification (himself) (herself) be free from doubt as to the accuracy or correctness of the identification, you must be satisfied beyond a reasonable doubt based on all the evidence in the case that (name of defendant) is the person who committed the crime(s) charged. If you are not convinced beyond a reasonable doubt that (name of defendant) is the person who committed the crime(s) charged in (Count(s) ___ of) the indictment, you must find (name of defendant) not guilty. Identification testimony is, in essence, the expression of an opinion or belief by the witness. The value of the identification depends on the witness’s opportunity to observe the person who committed the crime at the time of the offense and the witness’s ability to make a reliable identification at a later time based on those observations. You must decide whether you believe the witness’s testimony and whether you find beyond a reasonable doubt that the identification is correct. You should evaluate the testimony of a witness who makes an identification in the same manner as you would any other witness. In addition, as you evaluate a witness’s identification testimony you should consider the following questions as well as any other questions you believe are important (include only those called for by the facts of the case): (First), you should ask whether the witness was able to observe and had an adequate opportunity to observe the person who committed the crime charged. Many factors affect whether a witness has an adequate opportunity to observe the person committing the crime; the factors include the length of time during which the witness observed the person, the distance between the witness and the person, the lighting conditions, how closely the witness was paying attention to the person, whether the witness was under stress while observing the person who committed the crime, whether the witness knew the person from some prior experience, whether the witness and the person committing the crime were of different races, and any other factors you regard as important. (Second), you should ask whether the witness is positive in the identification and whether the witness’s testimony remained positive and unqualified after cross-examination. If the witness’s identification testimony is positive and unqualified, you should ask whether the witness’s certainty is well-founded. (Third), you should ask whether the witness’s identification of (name of defendant) after the crime was committed was the product of the witness’s own recollection. You may take into account both the strength of the later identification and the circumstances under which that identification was made. You may wish to consider how much time passed between the crime and the witness’s later identification of the defendant. You may also consider (whether the witness gave a description of the person who committed the crime) (how the witness’s description of the person who committed the crime compares to the defendant). (You may also consider whether the witness was able to identify other participants in the crime.) If the identification was made under circumstances that may have influenced the witness, you should examine that identification with great care. Some circumstances which may influence a witness’s identification are whether the witness was presented with more than one person or just (name of defendant); whether the witness made the identification while exposed to the suggestive influences of others; and whether the witness identified (name of defendant) in conditions that created the impression that (he) (she) was involved in the crime. [(Fourth), you should ask whether the witness failed to identify (name of defendant) at any time, identified someone other than (name of defendant) as the person who committed the crime, or changed his or her mind about the identification at any time.] [The court should also give the following admonition if the witness’s opportunity to observe was impaired or if the witness’s identification is not positive, was shaken on cross-examination, or was weakened by a prior failure to identify the defendant or by a prior inconsistent identification: You should receive the identification testimony with caution and scrutinize it with care.] If after examining all of the evidence, you have a reasonable doubt as to whether (name of defendant) is the individual who committed the crime(s) charged, you must find (name of defendant) not guilty.

Instruction based on cross racial identification

This instruction is based on the New Jersey Model Jury Charge (Criminal) “In-court and out-of-court identifications” (1999). [Add to the list of factors the jury may consider:] The fact that an identifying witness is not of the same race as the perpetrator and/or defendant, and whether that fact might have had an impact on the accuracy of the witness’s original perception, and/or the accuracy of the subsequent identification. You should consider that in ordinary human experience, people may have greater difficulty in accurately identifying members of a different race.

Instruction based on inadequate instructions during line-up

In this case, the state has presented evidence that an eyewitness identified the defendant in connection with the crime charged. That identification was the result of an identification procedure in which the individual conducting the procedure either indicated to the witness that a suspect was present in the procedure or failed to warn the witness that the perpetrator may or may not be in the procedure. Studies have shown that indicating to a witness that a suspect is present in an identification procedure or failing to warn the witness that the perpetrator may or may not be in the procedure increases the likelihood that the witness will select one of the individuals in the procedure, even when the perpetrator is not present. Thus, such behavior on the part of the procedure administrator tends to increase the probability of a misidentification. This information is not intended to direct you to give more or less weight to the eyewitness identification evidence offered by the state. It is your duty to determine whether that evidence is to be believed. You may, however, take into account the results of the studies, as just explained to you, in making that determination.