People v. Theus-Roberts , 2015 Colo. App. LEXIS 444 ( 2015 )

JUDGE BERGER

specially concurring.

nesses. 41 The Colorado - Supreme Court consistently has held that it is not error for a trial court to refuse to give special credibility or reliability instructions with respect to eyewitness identifications when the jury is properly instructed generally on the credibility of wit-See People v. Fuller, 791 P.2d 702, 707 (Colo., 1990); People v. Lopez, 182 Colo. 152, 511 P.2d 889 (1973). We are bound by these supreme court decisions. For these reasons, I. join the court's opinion in full. However, I write separately to express my concerns about the use, under certain circumstances, of eyewitness identification evidence against criminal defendants.

L.

142 Eyewitness identifications of perpetrators of criminal offenses always have been and presumably always will be a fundamental part of our criminal justice system. By its very nature, eyewitness identification testimony is compelling and many convictions depend entirely or primarily on eyewitness identifications. "[There is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says 'That's the one'" Watkins v. Sowders, 449 U.S. 341, 352, 101 S.Ct. 654, 66 L.Ed.2d 549 (1981) (Brennan, J., dissenting) (quoting Elizabeth Loftus, Eyewztness Testimony 19 (1979)).

43 Yet, the available science instructs us that, at least under certam cireumstances, eyevmtness identifications can be grievously wrong¹ As a justice of the United States Supreme Court recently recognized, "(tlhe empirical evidence demonstrates that eyewitness misidentification is the single greatest cause of wrongful convictions in this country." Perry v. New Hampshire, 565 U.S. -, -, 132 S.Ct. 716, 738, 181 L.Ed.2d 694 (2012) (Sotomayor, J., dissenting) (internal quotation marks omitted). "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." Id. at 788-89 (footnotes omitted); see also Amy D. Trenary, Comment, State v, Henderson: A Model for Admitting Eyewitness Identification Testimony, 84 U. Colo, L.Rev. 1257 (Fall 2013).

{44 DNA exoneration statistics compiled by the Innocence Project indicate that seventy-five percent of wrongful conviction cases involved false eyewitness identifications,. State v. Romero, 191 N.J. 59, 922 A.2d 693, Equally troubling are statistics 702 (2007). that show that thirty-six percent of misiden-tifications involved multiple witnesses identifying the same wrong person. State v. Henderson, 208 N.J. 208, 27 A.3d 872, 886 (2011); see generally Trenary, 84 U. Colo. L.Rev. at 1257.² Cross-racial identifications are particularly problematic because studies suggest that "eyewitnesses are superior at identifying persons of their own race and have difficulty identifying members of another race.". Romero, 922 A.2d at 698 (internal quotation marks omitted); gee also Jules Epstein, The Great Engine that Couldn't Science, Mistaken Identifications, and the Lim-dts of Cross-Examination, 36 Stetson L.Rev. 727, 760 (Spring 2007) ("The United States Supreme Court has acknowledged that race 'counts' in making accurate identifications." (citing Manson v. Brathwaite, 482 U.S. 98, 115, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977))).

{45 The United States Supreme Court recently considered the issue of eyewitness identification 'evidence 'when it decided whether the federal constitution requires a court to sereen for reliability all eyewitness identifications rather than just those identifications that are procured through suggestive law enforcement techniques or procedures. Perry, 566 U.S. -, 132 S.Ct. 716, While answering that question in the negative, the Court: recognized. the need for procedural mechanisms to test the reliability of eyewitness identifications, stating:

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 postin-dictment 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.,

Id. at -, 132 S.Ct. at 721 (emphasm added).

[ 46 Thus, in holding that "[the fallibility of eyewitness evidence" does not "alone render its introduction at the defendant's trial fundamentally unfair," Perry took "account of [existing] safeguards built into our adversary system that caution juries against placing undue weight on eyewitness testimony of questionable reliability." Id. at --, 182 S.Ct at 728. Such safeguards included "[elyewitness-specific jury instructions [that] warn the jury to take care in appraising identification evidence." Id. at ---, 132 S.Ct. at 728-29. According to Perry, in 2012, eight federal cireuits (including the Tenth), and seventeen states, including New Jersey, Arizona, Massachusetts, New York, Pennsylvania, Kansas, and Maryland, required, under varying cireumstances, a special jury instruction regarding eyewitness identifications. See id. at 728 n.7 (collecting jury instructions)}³.

47 Accordingly, while I recognize that w are bound by the supreme court's prior decisions on this issue, I believe it is important to note how much time has elapsed since the supreme court last visited this subject. The 'supreme court's earlier cases do not analyze in depth the scientific, judicial, and scholarly work that casts doubt on the reliability of certain eyewitness identifications because much of this body of work did not exist at the time the court addressed this issue.

II.

{48 Given the significant empirical evidence that now exists on the unreliability of some eyewitness identifications, I question whether a general credibility of witnesses instruction is up to the task when applied to at least certain types of eyewitness identification evidence. See COLJI-Crim. E:05 (2014); see also State v. Mann, 274 Kan. 670, 56 P.3d 212, 222 (2002) ("The reliability of the identification and eredibility of an eyewitness are not the same thing."). In the vast majority of false eyewitness identifications, the problem is not the mendacity of the witnesses; most of the time the witnesses are acting in good faith and genuinely believe, or even are certain, that they have identified the perpetrator of the crime.⁴ Yet they are wrong a troubling percentage of the time.

{49 The accuracy, or inaccuracy, of eyewitness identification testimony rests more upon the workings of the human brain than the typical factors that are addressed in the general credibility instruction. Much of this is not intuitive (and some of it actually is counterintuitive). See, eg., Commonwealth v. Gomes, 22 N.E.3d 897, 909, 470 Mass. 352 (2015). Most persons, and virtually all lay jurors, have no knowledge or experience in this area. As the Connecticut Supreme Court has stated: "[ While science has firmly established the inherent unreliability of human perception and memory, ... this reality is outside the jury's common knowledge and often contradicts jurors' commonsense understandings." State v. Guilbert, 306 Conn. 218, 49 A.3d 705, 723 n.22 (2012) (internal quotation marks omitted).

I 50 Coupled with the law in Colorado that trial courts possess wide discretion to exclude expert testimony regarding the reliability of eyewitness identifications in general, see, e.g., People v. Kemp, 885 P.2d 260, 262-63 (Colo. App. 1994), the failure to tell jurors what scientists have taught us regarding the potential unreliability of some eyewitness identification evidence may result in wrongful convictions that could have been prevented if jurors were informed of the fallible nature of this type of evidence. Cf. State v. Clopten, 228 P.3d 1103, 1113 (Utah 2009) ("We expect ... that in cases involving eyewitness identification of strangers or near-strangers, trial courts will routinely admit expert testimony [on the dangers of such evidence].").⁵

1 51 Because much of the relevant scientific data and judicial thinking has been accumulated after the Colorado Supreme Court last addressed this issue, reconsideration of the issue seems timely and appropriate.⁶ Accordingly, while I join the court's opinion in full, I believe that it is important to recognize the potential issues raised in some criminal cases by the admission of eyewitness identification evidence unaccompanied by any sort of cautlonary instruction.

1 . A bill addressing some of the problems with eyewitness identifications is currently being considered by the General Assembly, "Concerning Statewide Policies and Procedures for Law Enforcement Agencies that Conduct Eyewitness Identifications," S. 15-058, 70th Gen. Assemb., 1st Reg. Sess. (Colo. 2015). The summary of the bill states: "The bill requires all Colorado law enforcement agencies ... to adopt, on or before July 1, 2016, written policies and procedures ... relating to eyewitness identifications." Id. The proposed statute includes the legislative declaration that "To}ver the past forty years, a large body of peer-reviewed scientific research and practice has demonstrated that simple systematic changes in the administration of eyewitness identification procedures by all law enforcement agencies can greatly improve the accuracy of those identifications." Id.

The bill does not address whether a special jury instruction should be given when eyewitness identification testimony is a substannal part of the evidence in a criminal case.

2 . These statistics are based upon a population that, by definition, consists of those wrongfully convicted. As a result, the statistics do not' provide any information about the percentage of total convictions affected by potentially unreliable eyewitness identifications.

3 . "See Model Crim. Jury Instr, No., 4.15 (CA3 2009); United States v. Holley, 502 F.2d 273, 277-278 (C.A.4 1974); Pattern Crim. Jury Instr, No, 1.29 (CAS 2001); Pattern Crim, Jury Instr. No. 7.11 (CA6 2011); Fed. Crim. Jury Instr. No. 3.08 (CAT 1999); Model Crim. Jury Instr. for the District Courts No. 4.08 (CAS 2011) Model Crim. Jury Instr. No. 4.11 (CA9 2010) Crim. Pattern Jury Instr. No. 1.29 (CA1O 2011); Pattern Fury Instr. (Crim. Cases) Spec. Instr, No. 3 (CA1l 2010); Rev, Ariz. Jury Instr., Crim., No. 39 (3d.ed. 2008); 1 Judicial Council of Cal. Crim. Jury Instr. No. 315 (Summer 2011); Conn, Crim, Jury Instr. 2.6-4 (2007); 2 Ga. Suggested Pattern Jury Instr. (Crim. Cases) No. 1.35.10 (4th ed. 2011); IIL. Pattern Jury Instr., Crim., No. 3.15 (Supp. 2011); Pattern Instr., Kan.3d, Crim., No. 52.20 (2011); 1 Md. Crim. Jury Instr. & Commentary §§ 2.56, 2.57(A), 2.57(B) (3d ed. 2009 and Supp. 2010); Mass. Crim. Model Jury Instr. No. 9.160 (2009); 10 Minn. Jury Instr. Guides, Crim., No. 3.19 (Supp. 2006) NH. Crim. Jury Instr. No. 3.06 (1985); N.Y. Crim. Jury Instr. 'Identification-One Witness' and 'Identification-Witness Plus' (2d ed. 2011); Okla. Uniform Jury Instr., Crim., No. 9-19 (Supp. 2000); 1 Pa. Suggested Standard Crim. Jury Instr. No. 4.07B (24 ed. 2010); Tenn. Pattern Fury Instr., Crim., No. 42.05 (15th ed. 2011); Utah Model Jury Instr. CR404 (2d ed. 2010); Model Instructions from the Vt.Crim. Jury Instr. Comm. Nos. CR5-601, CR5-605 (2003); W. Va. Crim. Jury Instr. No. 5.05 (6th ed. 2003)." Perry v. New Hampshire, 565 U.S. --, -- n.7, 132 S.Ct. 716, 728 n.7, 181 L.E.2d.2d 694 (2012).

4 . Indeed, the certainty of the witnesses' identification is a factor in determining whether the admission of the identification evidence is constitutionally permissible See, eg., People v. Aguirre, 839 P.2d 483, 485 (Colo. App. 1992) ([The factors to be considered in evaluating" whether "(aln out-of-court identification procedure is impermissibly suggestive [because] there is a substantial likelihood of misidentification" include "the witness' level of certainty."). Scientific studies demonstrate, however, that there is little, if any, correlation between the certainty of the witness regarding the identification and its accuracy. See, eg., Commonwealth v. Gomes, 22 N.E.3d 897, 911-12, 470 Mass. 352 (2015).

5 . I do not address whether any need for special reliability jury instructions would be obviated if trial courts were required, under certain circumstances, to admit (if proffered) expert testimony regarding the reliability of eyewitness identifications.

6 . The many nuances of this inquiry include (1) whether special eyewitness identification instructions ever should be given to juries; (2) if they are to be given, what circumstances trigger the requirement for such instructions, for example, whether the instructions would be required only when: (a) the eyewitness identification is the only or the central evidence of guilt, see, eg., United States v. Greene, 591 F.2d 471, 479 (8th Cir. 1979); State v. Long, 721 P.2d 483, 492 (Utah 1986); (b) the witness did not previously know the identified perpetrator, of. State v. Saenz, 271 Kan. 339, 22 P.3d 151, 161 (2001); or (c) there is no independent corroborating evidence of the eyewitness identification, see, eg., People v. Wright, 45 Cal.3d 1126, 248 Cal.Rptr. 600, 755 P.2d 1049, 1059 (1988); and (3) whether any requirement to give such instructions should be applied only prospectively or retroactively as well. Because the focus of this concurrence is merely to point out the advisability of reconsidering the issue, I do not address or attempt to resolve any of these questions here.