Validez de contenido de la escala de la conducta disocial en niños

[Renamed and Updated: 8/9/12]

Testimony by a witness as to identity must be received with caution and scrutinized with care. The government’s burden of proof extends to every element of each crime charged, including the burden of proving beyond a reasonable doubt the identity of an alleged perpetrator of an offense. You may consider the following in evaluating the accuracy of an eyewitness identification: [risks of cross-racial identification] [risks of identification under stress] [at best, weak correlation between the witness’s confidence and accuracy of the identification] [the influence of suggestive identification practices].

Comment

The first two sentences of this instruction were approved as “substantively correct” in United States v. Angiulo, 897 F.2d 1169, 1205 (1st Cir. 1990), and in United States v. Kavanagh, 572 F.2d 9, 12 (1st Cir. 1978) (“requested charge would have been appropriate”). They are for “cases where the evidence suggests a possible misidentification.” Kavanagh, 572 F.2d at 10; Wright v. Marshall, 656 F.3d 102, 110 (1st Cir. 2011) (quoting Kavanagh, 572 F.2d at 10). They also apply to voice identifications. Wright, 656 F.3d at 111 (citing Angiulo, 897 F.2d at 1204-05). (Wright noted that there may be a lessened concern when the identifying witness had a pre-existing relationship with the defendant or was familiar with the defendant’s voice.)

Recently the First Circuit approved the use of more detailed instructions on eyewitness identification testimony when there are issues of cross-racial identification, identification under stress, the relevance of witness confidence, and the use of suggestive identification practices by law enforcement. United States v. Jones, 689 F.3d 12, 19-20 (1st Cir. 2012). The court did not say when a more detailed instruction is required, and did not endorse particular language.

The Supreme Court also recently endorsed the use of jury instructions concerning the risks of eyewitness identification in the course of rejecting the argument that due process requires pretrial screening (for reliability) of eyewitness identification in the absence of improper law enforcement activity. See Perry v. New Hampshire, ___ U.S. ___, 132 S. Ct. 716, 721 (2012) (emphasis added):

When no improper law enforcement activity is involved, we hold, it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.

Perry repeated the reference to such instructions later in the opinion: “Eyewitness-specific jury instructions, which many federal and state courts have adopted, likewise warn the jury to take care in appraising identification evidence.” Id. at 728-29. The Court then listed many of the pattern instructions, id. at n.7, and quoted United States v. Telfaire, 469 F.2d 552, 558-59 (D.C. Cir. 1972)

55 (perhaps the foundational case for a cautionary instruction where unfairly suggestive identification procedures were used; interestingly, in Telfaire Judges Bazelon and Leventhal disagreed over whether a cross-racial instruction should be given and the per curiam recommendation of a model instruction did not include it). Except for the Third Circuit, none of the federal patterns deals with cross-racial identification, the weak link between confidence and accurate identification, and the effect of stress. An amicus brief filed in Perry by the American Psychological Association states that empirical studies show that the following factors affect the accuracy of eyewitness identification: passage of time (greater memory decay early on, with the rate of decay lessening over time); witness stress; exposure duration; distance; weapon focus; and cross-race bias. Brief for American Psychological Association as Amicus Curiae Supporting Petitioner, Perry v. New Hampshire, ___ U.S. ___, 132 S. Ct. 716 (2012) (No. 10-8974). Interestingly, the Utah Supreme Court has concluded that jury instructions on the risks of eyewitness identification are ineffective and that expert testimony is often more helpful. State v. Clopten, 223 P.3d 1103, 1110-11 (Utah 2009).

Neither the Supreme Court nor the First Circuit has endorsed particular language for a more detailed instruction. See Jones, 689 F.3d at 20 (referring to the instructions used, but complaining that the government had not been helpful in commenting on them and that in the future it might “argue for, and provide supporting information, in favor of different language”). (The instructions that District Judge Young used in Jones are at the end of this comment.) The First Circuit did refer, Jones, 689 F.3d at 20, to the ABA Policy on Cross-Racial Identification, which urges that “trial judges have available model jury instructions that inform juries of all of the factors that may enhance or detract from the reliability of an eyewitness identification, one of which may be the cross-racial nature of the identification.” American Bar Association Policy 104D: Cross-Racial Identification, 37 Sw. U. L. Rev. 917 (2008). The underlying report to the ABA recommended the following model instruction:

In this case, the identifying witness is of a different race than the defendant. You may consider, if you think it is appropriate to do so, whether the fact that the defendant is of a different race than the witness has affected the accuracy of the witness’ original perception or the accuracy of a later identification. You should consider that in ordinary human experience, some people may have greater difficulty in accurately identifying members of a different race that they do in identifying members of their own race. You may also consider whether there are other factors present in this case which overcome any such difficulty of identification. [For example, you may conclude that the witness had sufficient contacts with members of the defendant’s race that [he] [she] would not have greater difficulty in making a reliable identification.]

Id. at 921.

A Third Circuit Pattern instruction addresses some of the Jones issues: In addition, as you evaluate a witness’ 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 had 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’ testimony remained positive and unqualified after cross-examination. If the witness’ identification testimony is positive and unqualified, you should ask whether the witness’ certainty is well-founded.

Third Circuit Pattern Instruction 4.15 (emphasis original). Note that part Second of the Third Circuit Pattern could be interpreted as inconsistent with the social science empirical evidence that shows only a weak relationship, if any, between the witness’s affirmative confidence in the identification and the accuracy of the identification. According to the First Circuit, “the witness’ lack of confidence is certainly a reliable warning sign, while the presence of confidence is probably closer to a neutral factor.” Jones, 689 F.3d at 18.

In United States v. Jones, Judge Young instructed the jury:

You may take into account the strength of the later identification and the circumstances under which the later identification was made. . . . Was the photographic identification procedure conducted afterwards suggestive in any way. For example, an identification made when a witness chooses a photo from a group of photos tends to be more reliable than an identification made from a single photograph. It is not forbidden by the law to identify from a single photograph. But you heard the stipulation about [sic] we don’t treat police officers any different, or at least there’s nothing in the manuals that say treat police officers any different. And I do tell you that it’s generally believed that an identification of a person made from a group of photographs tends to be more reliable than one made from a single photograph.

. . .

You may consider these other things. What was the witness’s state of mind at the time of observation. There are studies that show that if a witness is afraid, distracted, under stress, then the witness’s capacity to perceive what he says the perceives and

57 remember it, that’s reduced. Were the witness, the eyewitness

witness and the person he’s identifying, were they of different races. There are studies that tend to show that when a witness and the person he is identifying are of different races the identification tends to be less reliable than if both persons are of the same race. These studies reveal that even people with no prejudice against other races and people who have substantial contact with persons of other races will experience some difficulty in accurately identifying members of a different race. And quite often people don’t recognize this difficulty in themselves.

Lastly, or last on this list, you can also consider that studies show that the reliability of an identification doesn’t really depend upon how positive the person is. The reliability depends on all the circumstances.

Now, I make mention of studies . . . studies are of groups of people, a statistically significant group of people generally. They’re not the people in this case. No study has been done or could be conducted about the people in this case. And you see that’s what’s left to the jury. It’s up to you decide. I need you to understand the parameters, the strengths and the concerns of eyewitness testimony, but how that applies in this case is left to you under oath as jurors. 762 F. Supp. 2d 270, 278 n.5 (D. Mass. 2010).

In 2012, the New Jersey Supreme Court issued expansive new jury instructions addressing such issues as stress, duration, lighting, distance, weapon focus, cross-racial identification, and police practices. Criminal Jury Charges: Non 2C Charges,

http://www.judiciary.state.nj.us/criminal/juryindx.pdf (last visited Oct. 22, 2012). These instructions were developed in the wake of the New Jersey Supreme Court’s decision in State v. Henderson, 27 A.3d 872 (N.J. 2011), in which the court, following the report of a Special Master who held hearings on the empirical studies of eyewitness reliability, revised its standard for admissibility of eyewitness testimony to reflect that research.