State of Iowa v. Tony E. Doolin ( 2020 )

IN THE SUPREME COURT OF IOWA
No. 17–1715
Filed April 24, 2020
STATE OF IOWA,
Appellee,
vs.
TONY EUGENE DOOLIN,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Black Hawk County, Joel A.
Dalrymple, Judge.
Defendant seeks further review of court of appeals decision declining
relief on claims his trial counsel was ineffective for failing to object to the
victim’s first-time, in-court identification. DECISION OF COURT OF
APPEALS VACATED IN PART AND AFFIRMED IN PART; DISTRICT
COURT JUDGMENT AFFIRMED.
Mark C. Smith, State Appellate Defender (until withdrawal), and
Maria Ruhtenberg, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant
Attorney General, Brian Williams, County Attorney, and Brad Walz,
Assistant County Attorney, for appellee.
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WATERMAN, Justice.
In this appeal, we must decide whether the defendant’s trial counsel
provided ineffective representation by failing to object to the crime victim’s
first-time, in-court identification of the defendant. Responding to a report
of a fight involving an armed man, police arrested the defendant at the
scene minutes later with his handgun. The victim gave a statement hours
later that a man jumped in his car and threatened him at gunpoint before
fleeing when officers arrived. The victim gave no detailed description and
was never asked to identify his assailant that night, or through a photo
array or lineup any time before trial. Two years later, the victim at trial
identified the defendant seated at counsel table. Defense counsel
vigorously cross-examined the victim regarding his first-time, in-court
identification and during closing urged the jury to disregard his testimony
as unreliable. The jury returned a guilty verdict on charges of felony
assault, intimidation, and possession of a firearm.
The defendant appealed, challenging the sufficiency of the evidence
and arguing his trial counsel was ineffective for failing to object to his
first-time, in-court identification and also for failing to request the Iowa
State Bar Association Instruction No. 200.45 on eyewitness identification.
We transferred the case to the court of appeals, which affirmed the
convictions but preserved his ineffective-assistance claims for
postconviction proceedings, concluding the record is inadequate to decide
those claims on direct appeal. We granted the defendant’s application for
further review.
We find the record is adequate to decide Doolin’s claim that his trial
counsel was ineffective for failing to object to his first-time, in-court
identification, and we reject that claim on the merits. Our precedent
permits first-time, in-court identifications, and most other courts have
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rejected due process challenges to first-time, in-court identifications. We
elect to let the court of appeals decision stand on the remaining issues,
and we affirm the district court judgment and sentence.
I. Background Facts and Proceedings.
At 1:17 a.m. on August 15, 2015, Waterloo police officers responded
to a report of a disturbance involving a man with a handgun at Flirts
Gentlemen’s Club. The caller described the offender as an African-
American male wearing a black hat and black bandana. Officer Ryan
Muhlenbruch arrived first at the scene and observed a man matching that
description heading from Flirts to the adjacent parking lot. The suspect
ducked behind a GMC Yukon, and Officer Muhlenbruch heard the sound
of a heavy metallic object hitting the ground. The suspect was detained
and identified as Tony Doolin. Police found a loaded Glock .40 caliber
handgun underneath the Yukon and a black hat and bandana nearby.
Doolin admitted he owned the handgun and showed the officers his
permit to carry it. Doolin claimed that a male in a white hooded sweatshirt
had pulled a gun on him so he pulled his in self-defense.
Officer Muhlenbruch observed that Doolin smelled like alcohol, slurred his
speech, and had watery bloodshot eyes. Based on his nightly experience
with intoxicated people, Officer Muhlenbruch determined Doolin was
under the influence of alcohol. Doolin refused to perform any field sobriety
test or submit to a preliminary breath test. Doolin was arrested and taken
to the Black Hawk County jail.
At 2:30 a.m., Officer Ryan Jacobson arrived at Flirts to obtain
security camera video. Dalibor Brkovic approached him to report that a
man had pointed a gun at him in his vehicle earlier that morning. Brkovic
said he drove to Flirts in a BMW x5 with two friends. The group planned
to meet other friends at Flirts, including Zuhdija Menkovic and a part
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owner in Flirts. Brkovic was on the phone with Menkovic as he
approached Flirts, and Brkovic asked him to come outside to meet him.
As Menkovic walked outside, he noticed a crowd of people, including a
man with a handgun. Brkovic parked, and his friends exited the vehicle.
Menkovic watched the man holding the handgun run by him and get into
the BMW’s open passenger seat. This man offered Brkovic $100 for a
getaway ride. Brkovic refused. The man pulled a gun, chambered a round,
and stuck the end of the barrel into Brkovic’s chest, telling the driver he
did not have a choice.
Menkovic stood by the driver’s door and saw his friend held at
gunpoint. Several people gathered near the passenger door and talked to
the assailant, presumably trying to dissuade him from shooting Brkovic,
who had shut off the engine and pretended that he had thrown his keys to
Menkovic. The man turned to Brkovic and said, “Drive.” When told that
Brkovic could not start the BMW without the key, the man called him a
profane name, exited, and started running as police cars reached the
parking lot. Brkovic estimated that the man held the gun to his chest for
about twenty seconds.
After the man ran off, Brkovic went inside of Flirts for about an hour
before he approached Officer Jacobson to report what happened. The
police told him that they had arrested an individual in the west parking
lot. Brkovic then went back into Flirts with his friends. The police
contacted Brkovic around a half hour later asking him to go to the
Waterloo Police Department to give a statement. Brkovic had gone to
Perkins for breakfast, ordered, and refused to go to the station to give a
statement until he finished his meal. Brkovic ultimately gave a statement
at the station at around 4:30 a.m., just over three hours after he was held
at gunpoint.
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During that interview, Brkovic told the officer that he did not
remember what the man was wearing because he was more focused on the
pistol. Although officers had Doolin in custody at that time, they never
arranged a line up or photo array to see if Brkovic could identify Doolin as
his assailant. Brkovic left the station without providing much of a
description of the man who had held him at gunpoint.
On September 29, Doolin was charged with intimidation with a
dangerous weapon in violation of Iowa Code section 708.6 (2015), assault
while participating in a felony in violation of Iowa Code section 708.3, and
carrying weapons in violation of Iowa Code section 724.4. The case
proceeded to a jury trial on August 22, 2017, two years after the incident.
Brkovic testified, and during his direct examination, he identified Doolin
for the first time as the man who threatened him in his BMW.
Q. . . . What happened when you pulled into the
parking spot? A. When I pulled into the parking spot my
passenger got out of the vehicle. The next thing I know I had
someone sit in my passenger seat that I had never seen in my
life before. He asked me for a ride. And I denied. I said I was
going inside of Flirts.
Q. I want to back up a little bit. Do you recognize that
person today? A. I do.
Q. Can you point out that person or describe what that
person is wearing? A. Dress shirt (indicating).
Q. And is that person sitting in front of you? A. Yes,
he is.
Q. And do you recognize that person as the person who
got in the front seat of your BMW on August 15th, 2015? A. I
do.
MR. WALZ: Your Honor, may the record reflect that the
witness has identified the defendant, Tony Doolin?
THE COURT: To be clear, dress shirt with a jacket or no
jacket?
THE WITNESS: No jacket.
THE COURT: All right. Any objection, counsel?
MR. HOFFEY: No, Your Honor.
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Doolin’s trial counsel did not object to Brkovic’s first-time, in-court
identification but cross-examined him.
Q. At any point over the last two-plus years has any
law enforcement officer shown you a series of photographs
asking you to identify the suspect that pointed the gun to your
chest? A. No.
Q. Is that a no? A. That is a no.
Q. You’re telling this jury after two-plus years that
Mr. Doolin is in fact that man. Is that correct? A. That is
correct.
Q. Can you tell this jury why you are so certain of that?
A. Because I definitely remember his face.
Q. But you didn’t tell the officer that. Did you? A. Tell
the officer what?
Q. Any descriptive characteristics about the suspect’s
face. A. I was in shock the whole time.
....
Q. And you were still in shock at 4:30 in the morning
when you were talking to the officer? A. Yes, I was.
Q. And because you claim you were in shock, you really
couldn’t give the officer any descriptive characteristics of the
person that put the gun in your chest. A. That’s correct.
Defense counsel noted Brkovic had not provided a detailed
description the night of the incident.
Q. And one final question, sir. In front of this jury you
pointed to Mr. Doolin and said that he’s the guy; correct?
A. Yes.
Q. Would you agree with me, sir, that that is a one-man
lineup? A. What do you mean one-man lineup?
Q. You don’t have anyone to compare Mr. Doolin to, do
you? A. I don’t need anybody to compare it.
Q. Okay. Is that because Mr. Doolin wouldn’t be here
unless he was, in fact, the person? Is that what you believe?
A. No, I believe I remember his face because he had a gun on
my chest.
Q. Okay. But you didn’t tell the police that back when
it happened. Fair enough? A. He didn’t show me a picture.
I didn’t get to see him then.
Q. And you didn’t give any specific descriptions, did
you? A. All I remember is his face and the gun.
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Q. Okay. And you didn’t describe his face in any detail,
did you? A. I just remember his face visually.
Menkovic also testified at trial but declined to identify Doolin as the
man he saw holding a gun on Brkovic.
Q. . . . When you saw the guy holding the gun at
[Brkovic] in the chest area, were you able to get a good look at
him? A. I mean, I got a good look at the guy when I walked
out, I got a good look at the guy in the car, so I did get a good
look at him. If you want me to say that that’s the guy, I can’t
recollect.
Q. And that’s what I was going to ask you. From your
vantage point and your view are you able to specifically
identify the defendant? A. I -- I can’t say that was the guy.
Defense counsel asked Menkovic if he could provide any details of
the assailant.
Q. Any sort of clothing description, physical
description, anything of that nature? A. Honestly, no. Like I
said, even that day I didn’t -- I didn’t remember the color of
the gun. And I saw it as I walked out. Like it was the first
thing that I saw, you know, and I just -- I couldn’t remember
the color of it. It’s just not something -- I don’t know.
Q. Okay. But it’s your testimony before the members
of this jury that you can’t tell this jury that Tony Doolin was
the individual holding the gun out in front of Flirts? A. I can’t.
Q. And you can’t tell the members of this jury that Tony
Doolin was the man in your friend’s car when he had a gun at
his chest? A. I can’t.
Q. And you were right there. A. I was right there. I --
I just . . . I thought maybe when we came here if I saw the
person it would put a picture in my head. I just, I can’t.
Shawn Nolan, a security guard at Flirts, had told the doorman to
call the police after witnessing the fight at the entrance and seeing a man
with a handgun. When he was called to testify, Nolan identified Doolin in
court as the man with the gun.
Q. And when you described earlier the person with the
gun, you mentioned -- you said Mr. Doolin. Do you recognize
that person in the courtroom today? A. Yes.
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Q. Can you describe where he’s seated and what he’s
wearing? A. He is wearing the black and gray shirt with the
short haircut.
Q. And is that the person you saw with a gun in front
of Flirts on the 15th day of August 2015? A. Yes.
Q. Did you see anyone else with a gun that early
morning? A. I did not until we watched the video, and there
was a guy that was standing behind me when I was breaking
[up] the fight [who] had pulled out a gun that I didn’t see at
that time.
Later, on cross-examination, Nolan gave more information about the other
individual in the video.
Q. The other individual you saw with a gun, how would
you describe him? A. He was a taller black man, I believe he
was bald, and I remember he was wearing a white sweatshirt,
but I didn’t see him very often throughout that night.
Q. When you say a white sweatshirt, is that a white
hoodie or not a hoodie? A. I believe it was a hoodie.
On redirect, Nolan stated that the person in the hoodie could not be easily
mistaken for Doolin.
The prosecutor in his closing argument described Brkovic’s
first-time, in-court identification of Doolin as direct evidence. Defense
counsel countered, “[T]here are major red flags. Major. You know, what
happened was what’s known as a one-man lineup. There’s only one man
sitting here. He’s on trial.” Each argued the weight to be given to the
first-time, in-court identification.
The jury returned a verdict finding Doolin guilty on all three counts.
On October 3, Doolin filed a motion for a new trial, alleging the verdict was
contrary to the weight of the evidence. The district court denied the
motion. The district court sentenced Doolin to concurrent, indeterminate
terms of incarceration not to exceed ten years for intimidation with a
dangerous weapon, five years for assault while participating in a felony,
and two years for carrying a weapon.
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Doolin filed this direct appeal, which we transferred to the court of
appeals. The court of appeals affirmed Doolin’s conviction, holding that
there was sufficient evidence for the jury to find that Doolin was carrying
a firearm while under the influence of alcohol and the district court did
not abuse its discretion in denying Doolin’s motion for a new trial. The
court of appeals determined the record was inadequate to decide Doolin’s
ineffective-assistance-of-counsel claims and preserved those claims for
postconviction proceedings. Doolin applied for further review, which we
granted.
II. Standard of Review.
“On further review, we can review any or all of the issues raised on
appeal . . . .” Cote v. Derby Ins. Agency, Inc., 908 N.W.2d 861, 864 (Iowa
2018) (quoting Papillon v. Jones, 892 N.W.2d 763, 769 (Iowa 2017)). We
choose to limit our review to Doolin’s claim that his trial counsel was
ineffective for failing to object to his first-time, in-court identification. We
let the court of appeals decision stand as the final decision on the
remaining issues. See id.
Claims of ineffective assistance of counsel are reviewed de novo.
State v. Harrison, 914 N.W.2d 178, 188 (Iowa 2018).
III. Analysis.
Doolin contends that his trial counsel was ineffective for failing to
object to Brkovic’s first-time, in-court identification as a due process
violation under the Iowa and Federal Constitutions. We begin our analysis
with our rubric for deciding ineffective-assistance-of-counsel claims.
The claimant must prove that his trial counsel failed to perform an
essential duty and prejudice resulted. State v. Clay, 824 N.W.2d 488, 495
(Iowa 2012) (describing the two-prong test for ineffective-assistance-of-
counsel claims set out in Strickland v. Washington, 466 U.S. 668, 687, 104
10
S. Ct. 2052, 2064 (1984)). We presume counsel performed competently
unless the claimant proves otherwise by a preponderance of the evidence.
Id. We measure counsel’s performance objectively against the prevailing
professional norms after considering all the circumstances. Id.
“Trial counsel has no duty to raise an issue that lacks merit . . . .”
State v. Ortiz, 905 N.W.2d 174, 184 (Iowa 2017); see also State v. Graves,
668 N.W.2d 860, 881 (Iowa 2003) (“Trial counsel has no duty to raise an
issue that has no merit.”). “We do not expect counsel to anticipate changes
in the law, and counsel will not be found ineffective for a lack of
‘clairvoyance.’ ” Millam v. State, 745 N.W.2d 719, 722 (Iowa 2008). “[I]n
situations where the merit of a particular issue is not clear from Iowa law,
the test ‘is whether a normally competent attorney would have concluded
that the question . . . was not worth raising.’ ” Id. (quoting Graves, 668
N.W.2d at 881). We have suggested, without deciding, that it could be a
breach of duty to fail to urge a position under the state constitution
supported by decisions of other state supreme courts and academic
literature on an issue pending before the United States Supreme Court on
its grant of certiorari. See State v. Vance, 790 N.W.2d 775, 786–90 (Iowa
2010). As we explain below, this case is unlike Vance because the clear
majority rule and Supreme Court precedent strongly support adhering to
our long-standing caselaw allowing in-court identifications. 1
The record must be adequate to resolve an ineffective-assistance-of-
counsel claim on direct appeal. State v. Ary, 877 N.W.2d 686, 704 (Iowa
2016). We find that this record is adequate to decide whether Doolin’s trial
counsel had a duty to object to the victim’s first-time, in-court
1Indeed, on October 21, 2019, the Supreme Court denied a defendant’s petition
for certiorari that sought review of a rejected due process challenge to a first-time,
in-court identification. Garner v. People, 436 P.3d 1107 (Colo.), cert. denied, 140 S. Ct.
448 (2019).
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identification because, under established Iowa law and the clear majority
of other jurisdictions, such an objection would have been meritless.
To establish prejudice, “the claimant must prove by a reasonable
probability that, but for counsel’s failure to perform an essential duty, the
result of the proceeding would have been different.” Id. at 705. This does
not require a showing that counsel’s conduct “more likely than not altered
the outcome in the case,” but rather that “the probability of a different
result is ‘sufficient to undermine [our] confidence in the outcome’ of the
trial.” Id. (alteration in original) (quoting Graves, 668 N.W.2d at 882).
We must decide whether Doolin’s trial counsel provided
constitutionally deficient representation by failing to object to Brkovic’s
first-time, in-court identification as inadmissible under the Due Process
Clause of the Federal or Iowa Constitution. Doolin relies on several outlier
cases from other states, dissents, and inapposite cases challenging
pretrial, police-engineered suggestive identification procedures. Brkovic’s
identification occurred in the presence of the judge, jury, and counsel.
Defense counsel’s cross-examination and closing argument highlighted
the suggestive nature of the in-court identification. We have never held
identifications during trial are unconstitutionally suggestive, and we
decline to do so now. The weight to be given his testimony is for the jury.
We remain with the majority of courts that reject due process challenges
to first-time, in-court identifications.
Under our long-standing precedent, even when a pretrial
identification is tainted by an impermissibly suggestive procedure, “the
same witness may nevertheless identify a defendant at trial if such
identification has an independent origin.” State v. Ash, 244 N.W.2d 812,
814 (Iowa 1976); see also State v. Webb, 516 N.W.2d 824, 829–30 (Iowa
1994); State v. Washington, 257 N.W.2d 890, 894 (Iowa 1977) (en banc);
12
State v. Emery, 230 N.W.2d 521, 524 (Iowa 1975); State v. Canada, 212
N.W.2d 430, 433 (Iowa 1973) (en banc); State v. Masters, 196 N.W.2d 548,
551 (Iowa 1972); State v. Essary, 176 N.W.2d 854, 858 (Iowa 1970).
Brkovic’s in-court identification of Doolin is not tainted by any pretrial
suggestive identification arranged by police, and his identification clearly
has an independent origin—his memory of the face of the man who sat
next to him in his car pointing a gun at his chest. Brkovic’s testimony is
admissible under our precedent. The fact that he did not identify Doolin
before trial or give police a detailed description of his assailant “raises a
question of credibility, not admissibility.” State v. Hinsey, 200 N.W.2d
810, 814 (Iowa 1972).
These cases preceded the development of much academic research
on the fallibility of eyewitness testimony. See State v. Shorter, 893 N.W.2d
65, 81–82 (Iowa 2017) (surveying authorities); State v. Henderson, 27 A.3d
872, 896–910 (N.J. 2011) (same and mandating use of expanded jury
instruction on eyewitness identifications). See generally Gary L. Wells,
Eyewitness Identification Evidence: Science and Reform, 29 Champion 12
(2005) (outlining the new body of literature regarding mistaken eyewitness
identification); John T. Wixted & Gary L. Wells, The Relationship Between
Eyewitness Confidence and Identification Accuracy: A New Synthesis, 18
Psychol. Sci. Pub. Int. 10 (2017) (describing how over thirty years of
research can inform eyewitness-identification accuracy and giving
recommendations for implementing pristine testing conditions to improve
the criminal justice system). Doolin asks us to revisit our precedent in
light of this research.
In State v. Folkerts, we stated, “The seating of a defendant next to
his or her counsel at the deposition of an eyewitness is so clearly
suggestive as to be impermissible.” 703 N.W.2d 761, 765 (Iowa 2005). We
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noted that “[a]ny identification of the defendant made at the deposition is
a pretrial out-of-court identification because neither the judge nor the jury
is present when the parties take the deposition.” Id. With two justices
dissenting, we held the defendant could stay out of the room while the
deponent was questioned about his ability to describe the assailant. 2 Id.
at 765–66. Doolin urges us to extend Folkerts to the trial setting. We
decline to do so. A deposition is not the same as a trial.
Folkerts preceded Perry v. New Hampshire, which held the
safeguards generally available in criminal trials defeat due process
objections to the admissibility of eyewitness identifications untainted by
suggestive, police-arranged procedures. 565 U.S. 228, 232–33 132 S. Ct.
716, 720–21 (2012). In Perry, officers responded to a report that a man
was breaking into cars in a parking lot. Id. at 233, 132 S. Ct. at 721. As
officers interviewed a witness in an apartment overlooking the parking lot,
she pointed out her kitchen window to Barion Perry and identified him as
the perpetrator while he stood next to a police officer. Id. at 233–34, 132
S. Ct. at 721–22. Perry moved to suppress her identification on due
process grounds, arguing she “witnessed what amounted to a one-person
showup in the parking lot, . . . which all but guaranteed that she would
identify him as the culprit.” Id. at 234–35, 132 S. Ct. at 722.
2The Folkerts majority relied on United States v. Brown, 699 F.2d 585, 594 (2d
Cir. 1983). 703 N.W.2d at 765. The appellate court in Brown stated that upon a proper
objection to a proposed first-time, in-court identification, the trial judge “would have been
better advised to direct the government to provide a line-up” before the trial testimony.
699 F.2d at 594. The appellate court acknowledged “[a] defendant does not have a
constitutional right to a line-up” and determined the failure to require a lineup was not
an abuse of discretion nor was the first-time, in-court identification impermissibly
suggestive. Id. at 593–94. Brown was not entitled to a retrial on those grounds. Id. at
594.
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The Supreme Court, Justice Ginsburg writing for an eight-Justice
majority, 3 held that “the Due Process Clause does not require a
preliminary judicial inquiry into the reliability of an eyewitness
identification when that identification was not procured under
unnecessarily suggestive circumstances arranged by law enforcement.”
Id. at 248, 132 S. Ct. at 730. Justice Sotomayor was the lone dissenter.
Id. at 249, 132 S. Ct. at 730 (Sotomayor, dissenting). Doolin relies on this
dissent. The Perry majority acknowledged that “[m]ost eyewitness
identifications involve some element of suggestion. Indeed, all in-court
identifications do.” Id. at 244, 132 S. Ct. at 727 (majority opinion). Yet
the Court determined that “[t]he fallibility of eyewitness evidence does not,
without the taint of improper state conduct, warrant a due process rule
requiring a trial court to screen such evidence for reliability before allowing
the jury to assess its creditworthiness.” Id. at 245, 132 S. Ct. at 728. In
declining to “enlarge the domain of due process,” the Court emphasized
that “the jury, not the judge, traditionally determines the reliability of
evidence.” Id. The Court explained the Due Process Clause was employed
to deter police misconduct, not supplant traditional trial safeguards.
We have not extended pretrial screening for reliability to
cases in which the suggestive circumstances were not
arranged by law enforcement officers. . . . Our decisions . . .
aim to deter police from rigging identification procedures, for
example, at a lineup, showup, or photograph array. 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, . . . vigorous
cross-examination, protective rules of evidence, and jury
instructions on both the fallibility of eyewitness identification
3The Perry Court had the benefit of amici curiae that outlined the social science
research. See, e.g., Brief for Amicus Curiae Am. Psychological Ass’n in Support of
Petitioner, Perry v. New Hampshire, 565 U.S. 228 (2012) (No. 10-8974); Brief of the
Criminal Justice Legal Found. in Support of Respondent, Perry, 565 U.S. 228, 2011 WL
4479078.
15
and the requirement that guilt be proved beyond a reasonable
doubt.
Id. at 232–33, 132 S. Ct. at 720–21. 4
The Perry Court detailed how Perry’s counsel used “the safeguards
generally applicable in criminal trials,” quoting from her opening
statement, cross-examination, and closing argument that highlighted the
unreliability of the witness’s identification. Id. at 247–48, 132 S. Ct. at
729–30. Given those trial safeguards, the Court held “the introduction of
[the eyewitness’s] testimony, without a preliminary judicial assessment of
its reliability, did not render Perry’s trial fundamentally unfair.” Id. at 248,
132 S. Ct. at 730.
We reach the same conclusion here, for the same reasons. We find
Perry persuasive and elect to follow it in applying the due process clause
of the Iowa Constitution to first-time, in-court eyewitness identifications.5
4The Perry Court included among the “protective rules of evidence” Federal Rule
of Evidence 403, which allows the exclusion of eyewitness identifications on grounds that
the resulting unfair prejudice substantially outweighs the probative value. Perry, 565
U.S. at 233, 248, 132 S. Ct. at 721, 729. Iowa Rule of Evidence 5.403 is identical to the
Federal Rule. Compare Fed. R. Evid. 403, with Iowa R. Evid. 5.403. Other courts have
noted that this rule of evidence can be used to exclude unreliable first-time, in-court
identifications. See State v. Hickman, 330 P.3d 551, 568 (Or. 2014) (en banc), modified
on reconsideration, 343 P.3d 634 (Or. 2015) (en banc) (per curiam). In our view, the
availability of Iowa Rule of Evidence 5.403 is another reason we need not constitutionalize
evidentiary challenges to first-time, in-court identifications. See Good v. Iowa Dep’t of
Human Servs., 924 N.W.2d 853, 863 (Iowa 2019) (noting we continue to adhere to the
“time-honored doctrine of constitutional avoidance,” which “instructs us that we should
‘steer clear of “constitutional shoals” when possible’ ” (quoting Nguyen v. State, 878
N.W.2d 744, 751 (Iowa 2016))). Doolin’s trial counsel did not object to Brkovic’s
identification under Iowa rule 5.403, nor does his appellate counsel cite or rely on that
evidentiary rule.
5Doolin does not argue Perry is inconsistent with our earlier due process analysis
in State v. Cox, 781 N.W.2d 757, 769 (Iowa 2010) (holding “Iowa Code section 701.11
violates the due process clause of the Iowa Constitution as applied in this case because
it permits admission of prior bad acts against an individual other than the victim in this
case to demonstrate general propensity”). In our view, the Cox due process analysis for
the admissibility of prior sex offenses is inapposite to the admissibility of eyewitness
identifications.
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Perry asserted the identification amounted to a “one-person showup,” id.
at 234–35, 132 S. Ct. at 722, and Doolin similarly argued that Brkovic’s
first-time, in-court identification amounted to a “one-man lineup.” As we
quoted above, Doolin’s trial counsel used his cross-examination 6 and
closing argument to argue this point and to highlight the suggestive nature
of Brkovic’s first-time, in-court identification. The weight of Brkovic’s
testimony was for the jury, and his testimony, untainted by any improper
pretrial police procedure, was admissible without the trial court
conducting a preliminary assessment of its reliability. See id. at 248, 132
S. Ct. at 730.
The reliability of eyewitness identification can be affected by a
number of variables, including lighting, length of time to observe, hats or
other items obscuring appearance, stress, weapon focus, witness
confidence levels, cross-racial identification, the bystander effect, and
cowitness contamination. In our view, these variables are “grist for the
jury mill.” Manson v. Brathwaite, 432 U.S. 98, 116, 97 S. Ct. 2243, 2254
(1977). “Juries are not so susceptible that they cannot measure
intelligently the weight of identification testimony that has some
questionable feature.” Id.
Doolin’s appellate counsel does not contend trial counsel was
ineffective for failing to offer a defense expert to educate the jury on the
fallibility of eyewitness testimony. Other courts have recognized that
expert testimony may be an appropriate method to address concerns
regarding the reliability of eyewitness identifications. See Commonwealth
v. Walker, 92 A.3d 766, 782–84 (Pa. 2014) (collecting cases). The weight
6Cross-examination has been recognized as “the ‘greatest legal engine ever
invented for the discovery of truth.’ ” California v. Green, 399 U.S. 149, 158, 90 S. Ct.
1930, 1935 (1970) (quoting 5 J. Wigmore Evidence § 1367 (3d ed. 1940)).
17
to be given expert testimony is for the jury. Crow v. Simpson, 871 N.W.2d
98, 107 (Iowa 2015).
Most courts adjudicating due process claims after Perry allow first-
time, in-court identifications. See United States v. Thomas, 849 F.3d 906,
910 (10th Cir. 2017) (“Perry applies not only to pretrial identifications but
also to in-court identifications.”); Lee v. Foster, 750 F.3d 687, 691 (7th Cir.
2014) (determining that a first-time, in-court identification was not
impermissibly suggestive); United States v. Hughes, 562 F. App’x 393, 398
(6th Cir. 2014) (“[T]he Supreme Court has recently made clear that due
process rights of defendants identified in the courtroom under suggestive
circumstances are generally met through the ordinary protections in
trial.”); United States v. Whatley, 719 F.3d 1206, 1216 (11th Cir. 2013)
(“Perry makes clear that, for those defendants who are identified under
suggestive circumstances not arranged by police, the requirements of due
process are satisfied in the ordinary protections of trial. . . . Due process
imposes no requirement of a preliminary examination for an in-court
identification.”); Garner v. People, 436 P.3d 1107, 1120 (Colo. 2019)
(en banc) (“[W]e cannot, consistent with Perry, conclude that in-court
identifications alleged to be suggestive simply because of the ordinary trial
setting must be screened rather than subjected to cross-examination and
argument before the jury.”); Jeter v. Commonwealth, 531 S.W.3d 488, 495
(Ky. 2017) (rejecting a due process challenge to a first-time, in-court
identification because “[a]bsent the ‘taint of improper state action,’ Perry
establishes that the jury and the ordinary rules of trial provided [the
defendant] with all the process due him for contesting [the witness’s]
testimony”); People v. Palmer, No. 345188, 2019 WL 6340936, at *4 (Mich.
Ct. App. Nov. 26, 2019) (per curiam) (relying on Perry and holding that the
trial court properly allowed the witness’s first-time, in-court identification
18
because “there was no evidence of improper law enforcement activity or
state action related to [the witness’s] identification of [the] defendant”);
State v. Ramirez, 409 P.3d 902, 913 (N.M. 2017) (allowing an in-court
identification because Perry clarified that due process concerns regarding
eyewitness identifications target improper police conduct while the trial
setting, including the opportunity for cross-examination, provides
sufficient protection); State v. Berry, No. 18AP-9, 2019 WL 4727585, at *6
(Ohio Ct. App. Sept. 26, 2019) (relying on Perry to hold that “[b]ecause [the
witness’s first-time,] in-court identification was subject to cross-
examination and other trial protections and because there are no
allegations of any impermissibly suggestive pre-trial identification
procedures, [the defendant] fails to show that [the witness’s first-time,] in-
court identification of him as the shooter violated his due process rights”);
State v. Hickman, 330 P.3d 551, 572 (Or. 2014) (en banc) (relying on Perry
and the lack of any improper state action to hold that an in-court
identification did not violate defendant’s due process rights), modified on
reconsideration, 343 P.3d 634 (Or. 2015) (en banc) (per curiam).
The Colorado Supreme Court’s 2019 decision in Garner is
instructive. In that case, a fight broke out between a group of three
brothers and another group including James Garner. Garner, 436 P.3d at
1108. Shots were fired, injuring the three brothers. Id. Garner was
charged as the gunman. Id. During the pretrial investigation, police
showed each brother a photo array that included Garner; none identified
Garner as the shooter, and only one brother identified Garner as present
at the scene of the shooting. Id. Yet during the trial three years later, all
three brothers identified Garner as the shooter. Id. at 1108–09. One
brother stated the shooter’s face was something he would never forget,
19
another was “a hundred percent sure that it was [Garner,]” and the third
brother was positive that Garner was the gunman. Id.
Garner’s trial counsel objected to each first-time, in-court
identification of Garner as the shooter, but the trial court overruled her
objections. Id. Throughout the trial, in her opening statement, and during
closing, Garner’s counsel challenged the reliability of the brothers’
testimony. Id. at 1109–10. Defense counsel vigorously cross-examined
each brother regarding his failure to identify Garner as the shooter in the
pretrial photo array. Id. at 1109. In her closing, she argued, “They can’t
identify James Garner at . . . all [before trial], but when he’s sitting in this
chair, the one with the arrow over it, that’s when they can say they’re
sure.” Id. The jury convicted Garner of first-degree assault on one brother,
second-degree assault on another, and attempted reckless manslaughter
of two of the brothers. Id.
On appeal, Garner challenged the first-time, in-court identifications
as a violation of his right to due process under the Federal and Colorado
Constitutions. Id. The court of appeals affirmed his convictions, and the
state supreme court granted certiorari. Id. at 1110. Garner argued the
in-court identifications were the product of impermissibly suggestive
circumstances under the multifactor test for challenging pretrial police-
engineered identifications set forth by the United States Supreme Court in
Neil v. Biggers, 409 U.S. 188, 199–200, 93 S. Ct. 375, 382 (1972). Id. at
1110. The Colorado Supreme Court disagreed and relying on Perry, held,
[W]here an in-court identification is not preceded by an
impermissibly suggestive pretrial identification procedure
arranged by law enforcement, and where nothing beyond the
inherent suggestiveness of the ordinary courtroom setting
made the in-court identification itself constitutionally
suspect, due process does not require the trial court to assess
the identification for reliability under Biggers.
20
Id. at 1120. We agree. Doolin relies on the dissenting opinion, which
would have required judicial screening to likely exclude the brothers’
in-court identifications. See id. at 1125 (Hart, J., dissenting). As noted,
the United States Supreme Court, without dissent, denied Garner’s
petition for certiorari. Garner, 436 P.3d 1107 (Colo.), cert. denied, 140
S. Ct. 448 (2019). The parties and amici for Garner had thoroughly
reviewed the medical and social science on the fallibility of eyewitness
identifications in 121 pages of briefing. 7
Other courts have held that a first-time, in-court eyewitness
identification is admissible without relying on Perry. In Ralston v. State,
the Georgia Supreme Court held a preliminary assessment of the
identification is unnecessary given the safeguards available at trial.
The “totality of the circumstances” test for reliability of Neil v.
Biggers applies to extra-judicial pretrial identification
procedures such as lineups, showups and photographic
displays, not to the in-court procedures used in this case.
Because pretrial identification procedures occur beyond the
immediate supervision of the court, the likelihood of
misidentification in such cases increases, and courts have
required that pretrial identification procedures comport with
certain minimum constitutional requirements in order to
insure fairness. These extra safeguards are not, however,
applicable to Robin Gentle’s in-court identification of
appellants in this case. Rather, her testimony is subject to
the same rules of evidence, witness credibility, and cross-
examination as all testimony in a criminal trial.
309 S.E.2d 135, 136–37 (Ga. 1983) (citation omitted); see also Byrd v.
State, 25 A.3d 761, 767 (Del. 2011) (en banc) (rejecting challenge to first-
time, in-court identification and holding that the inherent suggestiveness
of a trial setting “does not rise to the level of constitutional concern” and
7See Brief of Scholars of Law, Psychology, Neuroscience, and Other Fields as
Amicus Curiae in Support of Petitioner, Garner v. Colorado, 140 S. Ct. 448 (2019)
(No. 19-75), 2019 WL 3854682; Brief of the Nat’l Ass’n of Criminal Def. Lawyers as Amici
Curiae in Support of Petitioner, Garner, 140 S. Ct. 448, 2019 WL 3933781.
21
that “the remedy for any alleged suggestiveness of an in-court
identification is cross-examination and argument”); Jeter v. State, 888
N.E.2d 1257, 1266 (Ind. 2008) (rejecting defendant’s challenge to a
witness’s first-time, in-court identification two and a half years after the
crime and finding the identification was not unduly suggestive and “was a
matter of weight and credibility for the jury to consider”); Galloway v.
State, 122 So. 3d 614, 664 (Miss. 2013) (en banc) (“The trial itself affords
the defendant adequate protection from the general inherent
suggestiveness present at any trial. The defendant receives the full benefit
of a trial by jury, presided over by an impartial judge, with representation
by counsel, and witnesses subject to oath and cross-examination.”); State
v. King, 934 A.2d 556, 560–61 (N.H. 2007) (declining to require a
prescreening and stating “[t]he inherent suggestiveness in the normal trial
procedure employed here does not rise to the level of constitutional
concern”); People v. Morales, 109 N.Y.S.3d 650, 651 (App. Div. 2019) (“In
cases where . . . the defendant is identified in court for the first time, ‘the
defendant is not deprived of a fair trial because the defense counsel is able
to explore weaknesses and suggestiveness of the identification in front of
the jury.’ ” (quoting People v. Medina, 617 N.Y.S.2d 491, 492–93 (App. Div.
1994))); 8 State v. Ramirez, Nos. 16CA95, 16CA96, 2017 WL 7689959, at
8Doolin relies on an older case from New York’s highest court regarding showups,
People v. Adams, 423 N.E.2d 379 (N.Y. 1981), as applying a per se rule of exclusion for
unnecessarily suggestive identification procedures. In People v. Marte, the same court
held that “no similar per se rule applies to an identification in which the police are not
involved.” 912 N.E.2d 37, 38 (N.Y. 2009). In an opinion that aligns with the not-yet-
decided Perry, the Marte court stated,
Ordinarily, where the need to regulate police conduct does not
justify an exclusionary rule, our system relies on juries to assess the
reliability of eyewitnesses, aided by cross-examination, by the arguments
of counsel, and by whatever other evidence supports or contradicts the
witnesses’ testimony.
Id. at 41.
 22
*6–7 (Ohio Ct. App. Feb. 14, 2017) (rejecting defendant’s argument that
first-time, in-court identifications are inherently suggestive and unreliable
and declining to follow the new Connecticut precedent requiring
prescreening); Commonwealth v. Janqdhari, No. 2762EDA2018, 2019 WL
7290508 (Pa. Super. Ct. Dec. 30, 2019) (rejecting defendant’s invitation to
adopt restrictions on first-time, in-court identifications in new Connecticut
and Massachusetts precedent and reiterating that “[t]he fact that [the
witness] could not identify [the defendant] earlier is relevant only to the
weight and credibility of [his or her] testimony” (quoting Commonwealth v.
Zabala, 449 A.2d 583, 587 (Pa. Super. Ct. 1982))); State v. Lewis, 609
S.E.2d 515, 518 (S.C. 2005) (“We conclude, as the majority of courts have,
that Neil v. Biggers does not apply to in-court identifications and that the
remedy for any alleged suggestiveness of an in-court identification is cross-
examination and argument.”).
Doolin urges us to disregard the well-established majority rule and
instead follow the Connecticut Supreme Court’s decision in State v.
Dickson, which held that “first time in-court identifications, like in-court
identifications that are tainted by an unduly suggestive out-of-court
identification, implicate due process protections and must be prescreened
by the trial court.” 141 A.3d 810, 824 (Conn. 2016). The Dickson court
stated,
[W]e are hard-pressed to imagine how there could be a more
suggestive identification procedure than placing a witness on
the stand in open court, confronting the witness with the
person who the state has accused of committing the crime,
and then asking the witness if he can identify the person who
committed the crime. If this procedure is not suggestive, then
no procedure is suggestive.
Id. at 822–23 (footnote omitted). The Dickson court created a multistep
process that took five pages to describe and now governs how Connecticut
23
courts must prescreen first-time, in-court identifications. Id. at 835–40.
While acknowledging “a number of courts have concluded otherwise,” id.
at 827 & n.14, the Dickson court concluded “that this is an issue for which
the arc of logic trumps the weight of authority,” id. at 827.
Three justices disagreed, with two citing Perry to conclude that first-
time, in-court identifications
pass[ed] constitutional scrutiny . . . as long as the defendant
is afforded the traditional protections of our adversary system,
such as confrontation, the attendant right to cross-examine
state witnesses, closing argument, jury instructions, the
presumption of innocence, and the government’s burden to
prove guilt beyond a reasonable doubt.”
Id. at 845 (Zarella, J., concurring in the judgment); see also id. at 865
(Robinson, J., concurring) (concluding the majority’s constitutional
analysis was unnecessary given the court’s determination that the
admission of the eyewitness testimony was harmless error).
In Commonwealth v. Crayton, the Supreme Judicial Court of
Massachusetts overturned its precedent and held first-time, in-court
identifications are admissible “only where there is ‘good reason’ ” such as
the victim already knew the defendant. 21 N.E.3d 157, 169 (Mass. 2014).
The Crayton court adopted the new rule under its common law authority
without deciding whether the state constitution’s due process clause
required that result. Id. at 169 n.16.
We view Crayton and Dickson as outliers, and the Dickson screening
criteria for judges as unduly complex and restrictive. Many Iowa criminal
jury trials involve first-time, in-court eyewitness identifications.
Excluding such testimony would effectively deny justice to some victims.
Doolin also relies on State v. Dubose, which involved a challenge to
an out-of-court showup procedure. 699 N.W.2d 582 (Wis. 2005),
overruled by State v. Roberson, 935 N.W.2d 813, 816 (Wis. 2019). There,
24
relying on social science research, the Wisconsin Supreme Court
overruled its long-standing precedent to adopt a new test for the
admissibility of showup identifications it found “inherently suggestive”
and, therefore, inadmissible “unless, based on the totality of the
circumstances, the procedure was necessary.” Id. at 594. A first-time,
in-court identification differs from a showup. In any event, the Wisconsin
Supreme Court has recently overruled Dubose. See State v. Roberson,
935 N.W.2d 813, 816 (Wis. 2019).
The Roberson court soundly rejected Dubose and critiqued its
departure from at least twenty-six years of precedent and its reliance on
social science research. The Roberson court recognized that “social
science research cannot be used to define the meaning of a constitutional
provision,” elaborating,
As Justice Scalia explained, the judiciary is not in a
good position to judge social values or social science. When
social science is disputed, the institutional parameters of the
judiciary are amplified. It is the legislature that is structured
to assess the merits of competing policies and ever-changing
social science assertions.
It is no surprise that, with mounds of research
available, the State in the dispute now before us has identified
social science that supports its position. E.g., John Wixted &
Gary Wells, The Relationship Between Eyewitness Confidence
and Identification Accuracy: A New Synthesis, 18 Psychol. Sci.
in the Pub. Int. 10 (2017).
Furthermore, categorical rules of exclusion, based on
social science, are the antithesis of justice because “one of the
major tenets in the administration of justice” is “the
presentation of reliable, relevant evidence at trial.”
Id. at 820–21 (quoting Dubose, 699 N.W.2d at 607 (Roggensack, J.,
dissenting)).
The Roberson court further observed that “[a] state court does not
have the power to write into its state constitution additional protection
that is not supported by its text or historical meaning.” Id. at 824. The
25
Roberson court noted Dubose “crafted a rule of constitutional law, largely
based on social science reports that it found persuasive” and “created the
capacity to prevent identifications of perpetrators of crimes when under
the totality of the circumstances surrounding the identifications, they were
reliable.” Id. at 825. Wisconsin law provides no support for Doolin today.
We elect to adhere to our precedent and remain with the majority
rule allowing first-time, in-court identifications. That rule reflects “the
profound respect that our system of justice holds for the role of juries in
the adjudicative process.” Hickman, 330 P.3d at 564. “The jury may be
an imperfect vehicle for assessing eyewitness evidence, but it is the vehicle
for resolving guilt or innocence found in the Constitution. We can have
little confidence that a judge-made substitute will do better.” Lawrence
Rosenthal, Eyewitness Identification and the Problematics of Blackstonian
Reform of the Criminal Law, 110 J. Crim. L. & Criminology 181, 243 (2020).
We determine that Doolin’s trial counsel did not provide constitutionally
deficient representation for failing to object to Brkovic’s trial testimony.
Such an objection would have been meritless.
IV. Disposition.
For these reasons, we vacate the court of appeals decision on
Doolin’s due process claim for his first-time, in-court identification, affirm
the court of appeals decision on the remaining issues, and affirm the
district court judgment and sentence.
DECISION OF COURT OF APPEALS VACATED IN PART AND
AFFIRMED IN PART; DISTRICT COURT JUDGMENT AFFIRMED.
All justices concur except Appel, J., who dissents, and
McDonald, J., who takes no part.
26
#17–1715, State v. Doolin
APPEL, Justice (dissenting).
“[T]here is almost nothing more convincing [to a jury] 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, 661 (1981) (Brennan, J., dissenting) (quoting Elizabeth F. Loftus,
Eyewitness Testimony 19 (1979) (emphasis added)). Yet, retrospective
study of wrongful convictions uncovered through DNA analysis
demonstrates that erroneous identifications are the leading cause of
wrongful conviction. This presents the law with a profound problem that
challenges the very integrity of our criminal justice system: the most
convincing testimony is often highly unreliable.
Why is such convincing eyewitness testimony so often wrong? Any
court system concerned about fundamental fairness in criminal justice
should want to explore the issue thoroughly, understand the science
behind eyewitness identification in depth, and fashion its doctrine to
mitigate the risks of the gross injustice that arises from wrongful
convictions.
Among other things, the science of eyewitness identification reveals
the following: that eyewitness identification is at best a questionable
enterprise, that the ability to identify an assailant threatening a person
with a handgun is dramatically impaired, that memory dramatically
declines two hours after an incident, that memory never improves over
time, and that one person showups are inherently highly suggestive and
unreliable.
None of this science is canvassed in the majority opinion. It is
simply ignored in favor of fawning admiration for the demonstrably flawed
cases of the United States Supreme Court and rejection of a body of law
27
developing in state courts that incorporates eyewitness science into its
constitutional jurisprudence.
Because the approach of the majority unnecessarily increases the
risks of wrongful convictions, does not address what we know about the
science of eyewitness testimony, is inconsistent with extant Iowa caselaw
on due process, and allows convictions based on eyewitness identifications
that science tells us are likely to be substantially unreliable, I respectfully
dissent.
I. Introduction.
My analysis begins with a review of the science of eyewitness
identification. In short: it is extremely troubling. Cumulatively, the now
very large body of research demonstrates major problems associated with
eyewitness identification. No conscientious court can consider due
process questions arising from eyewitness identification without a
thorough knowledge and grasp of this now very large body of work.
Next, I review the cases of the United States Supreme Court.
Alarmingly, the United States Supreme Court cases are far out of sync
with developing science on eyewitnesses and are not persuasive for a court
that wants its doctrine to match objective reality. Specifically, I note that
the traditional framework established in Neil v. Biggers, 409 U.S. 188, 93
S. Ct. 375 (1972), is fundamentally flawed. I then review how the decision
in Perry v. New Hampshire, 565 U.S. 228, 132 S. Ct. 716 (2012), is
analytically unsound and inconsistent with current eyewitness science.
Both of these wobbly precedents should not be followed under article I,
section 8 of the Iowa Constitution.
Next, I turn to cases in a number of jurisdictions that forthrightly
incorporate eyewitness science into their caselaw. These cases
demonstrate that if the science is applied within a due process framework,
28
in-court eyewitness identifications, particularly those obtained by
showup-type identifications that occur after the passage of time, are prime
candidates for exclusion as inadmissible evidence.
Finally, I consider the particular issues raised in this case. First, I
discuss whether it was ineffective assistance for counsel to fail to seek
exclusion of Brkovic’s identification through a one person, in-court
showup two years after the fact. I also discuss whether Doolin received
ineffective assistance of counsel when his lawyer failed to seek suppression
of the in-court identification and failed to seek an instruction on the use
of eyewitness identification.
II. The Historical Evolution of the Science of Eyewitness
Identification.
A. Introduction. Recent cases reviewing the due process
framework for evaluation of the reliability and subsequent admissibility of
eyewitness testimony that was developed in the late 1960s and 1970s fall
into two distinct camps. One body of caselaw canvasses the contours of
several decades of eyewitness science. See, e.g., Young v. State, 374 P.3d
395, 417–26 (Alaska 2016); State v. Guilbert, 49 A.3d 705, 720–25 (Conn.
2012); Brodes v. State, 614 S.E.2d 766, 770–71 (Ga. 2005); State v.
Cabagbag, 277 P.3d 1027, 1034–39 (Haw. 2012); Commonwealth v.
Gomes, 22 N.E.3d 897, 907–17 (Mass. 2015); State v. Henderson, 27 A.3d
872, 896–913 (N.J. 2011); State v. Lawson, 291 P.3d 673, 685–88 (Or.
2012) (en banc); State v. Long, 721 P.2d 483, 488–91 (Utah 1986). Without
fail, each state court that has engaged in a review of eyewitness science in
the past two decades or so has come to the conclusion that the prior due
process framework is inconsistent with consensus science and must be
revised.
29
On the other hand, a number of the courts that have been asked to
consider changes in the due process framework for eyewitness
identification developed fifty years ago by the United States Supreme Court
precedents have decided to simply stand pat. In most of those cases, these
courts simply declined to examine the consensus eyewitness science. See,
e.g., Small v. State, 211 A.3d 236, 250–55 (Md. 2019); State v. Washington,
189 A.3d 43, 55–58 (R.I. 2018); State v. Doap Deng Chuol, 849 N.W.2d 255,
261–62 (S.D. 2014).
The later path of failing to consider three decades of development in
eyewitness science is unacceptable. The law cannot allow historic seat-of-
the-pants judgments later proven to be misleading or inaccurate to remain
immutable when consensus science shows those judgments to be so
problematic that criminal convictions become unreliable.
As Justice Sutherland noted long ago, the criminal justice system
has two goals: convicting the guilty and protecting the innocent. Berger v.
United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935). A claim that
social science demonstrates that the law is no longer advancing these twin
goals must be taken seriously. While differing judgments about the
implications of science are not only expected but even desirable in a federal
legal system, what is not acceptable is willful blindness to the
developments of science. When reputable scientists declare that “there
are more convictions than there are accurate identifications” it is time to
sit up and pay attention. Brian L. Cutler & Steven D. Penrod, Mistaken
Identification: The Eyewitness, Psychology and the Law 186 (1995)
[hereinafter Cutler & Penrod, Mistaken ID] (citing Gary L. Wells et al.,
Accuracy, Confidence, and Juror Perceptions in Eyewitness Identification,
64 J. Applied Psychol. 440, 440–48 (1979)). Plainly, a review of the science
is a prerequisite for any meaningful evaluation of a challenge to the fifty-
30
year-old traditional due process framework for the evaluation of
eyewitness testimony.
B. Historical Commentary on Eyewitness Testimony. The
notion that an eyewitness identification may be unreliable is not new. As
one skeptical judge noted more than 150 years ago, “I would sooner trust
the smallest slip of paper for truth, than the strongest and most retentive
memory ever bestowed on mortal man.” Miller v. Cotten, 5 Ga. 341, 349
(1848). Many years later, then Professor Felix Frankfurter, in his classic
volume on the trial of Sacco and Vanzetti, exclaimed,
What is the worth of identification testimony even when
uncontradicted? The identification of strangers is proverbially
untrustworthy. The hazards of such testimony are
established by a formidable number of instances in the
records of English and American trials. These instances are
recent—not due to the brutalities of ancient criminal
procedure.
United States v. Wade, 388 U.S. 218, 228, 87 S. Ct. 1926, 1933 (1967)
(quoting Felix Frankfurter, The Case of Sacco and Vanzetti 30 (1927)).
In the 20th century, there was a smattering of scholarly efforts to
establish an empirical basis for occasional judicial and scholarly
observations about the unreliability of eyewitness identifications. In 1908,
Harvard psychologist Hugo Münsterberg published On the Witness Stand.
In this volume, Münsterberg presented empirical evidence that eyewitness
testimony was often inaccurate. Hugo Münsterberg, On the Witness Stand:
Essays on Psychology and Crime (1908). In 1932, Edwin M. Borchard
documented sixty-five cases of miscarriage of justice in Convicting the
Innocent: Sixty Five Actual Errors of Criminal Justice. Edwin M. Borchard,
Convicting the Innocent: Sixty Five Actual Errors of Criminal Justice (1932),
in Convicting the Innocent and State Indemnity for Errors of Criminal Justice
44 (Justice Inst. 2013). Borchard concluded that the convictions were
31
based on misidentification by eyewitnesses in forty-four of the sixty-five
cases. Id. at 283.
If eyewitness testimony is notoriously unreliable, and much more
unreliable than an ordinary juror likely believes, what is to be done? Is
there a good way we can separate acceptably reliable identifications from
unacceptably unreliable identifications, present to the jury only
identifications that are reasonably reliable, and suppress identifications
that are simply too tainted to justify the risk of error? Neither Münsterberg
nor Borchard offered compelling answers to these important questions.
C. Explosion in the Science of Eyewitness Testimony in Recent
Decades. Aside from Münsterberg and Borchard, eyewitness
identification did not receive much scholarly consideration until the late
1960s and early 1970s. Beginning about this time, researchers developed
a rapidly accelerating and expanding body of science related to eyewitness
identification. Iowa State University Professor Gary Wells has published
numerous articles and studies on the topic and has emerged as one of the
few nationally recognized scholars challenging the manner in which the
law treats eyewitness identifications. See, e.g., Gary L. Wells et al.,
Accuracy, Confidence, and Juror Perceptions in Eyewitness Identification,
64 J. Applied Psychol. 440 (1979) [hereinafter Wells, Juror Perceptions];
Gary L. Wells, Applied Eyewitness-Testimony Research: System Variables
and Estimator Variables, 36 J. Personality & Soc. Psychol. 1546 (1978)
[hereinafter Wells, Variables]; Gary L. Wells et al., Effects of Expert
Psychological Advice on Human Performance in Judging the Validity of
Eyewitness Testimony, 4 Law & Hum. Behav. 275 (1980); Gary L. Wells
et al., Eyewitness Identification Procedures: Recommendations for Lineups
and Photospreads, 22 Law & Hum. Behav. 603 (1998) [hereinafter Wells,
Lineups and Photospreads]; Gary L. Wells, Eyewitness Identification:
32
Systemic Reforms, 2006 Wis. L. Rev. 615; Gary L. Wells et al., Guidelines
for Empirically Assessing the Fairness of a Lineup, 3 Law & Hum. Behav.
285 (1979); Gary L. Wells & Deah S. Quinlivan, Suggestive Eyewitness
Identification Procedures and the Supreme Court’s Reliability Test in Light
of Eyewitness Science: 30 Years Later, 33 Law & Hum. Behav. 1 (2009)
[hereinafter Wells & Quinlivan, Suggestive Procedures]. Over time, these
studies have identified a number of factors that increase the risk of
inaccurate eyewitness identification. Although there is always room for
additional research on the margins, there is now a scholarly consensus on
a number of core concepts that must be recognized in any court that takes
the question of reliability of its verdicts seriously. 9
9Courts have extensively used the results of scientific research in the context of
eyewitness testimony. See, e.g., Young, 374 P.3d 395, 417–26 (exploring scientific
eyewitness identification research); Guilbert, 49 A.3d at 734–40 (evaluating eyewitness
identification); Henderson, 27 A.3d at 889–914 (canvassing scientific eyewitness-
testimony research extensively); Lawson, 291 P.3d 673, 685–88 (applying eyewitness
identification science within the framework of the courts); see also United States v.
Bartlett, 567 F.3d 901, 906 (7th Cir. 2009) (applying the science of confidence-accuracy
relationship and memory decay); United States v. Brownlee, 454 F.3d 131, 142–44 (3d
Cir. 2006) (citing the “inherent unreliability” of eyewitness identifications and accuracy-
confidence relationship); United States v. Smith, 621 F. Supp. 2d 1207, 1215–17 (M.D.
Ala. 2009) (surveying cross-racial identifications, impact of high stress, and feedback);
State v. Chapple, 660 P.2d 1208, 1220–22 (Ariz. 1983) (en banc) (applying available
science on memory decay, stress, feedback, and confidence-accuracy); People v.
McDonald, 690 P.2d 709, 719–27 (Cal. 1984) (en banc) (exploring discretion of trial court
regarding admission of expert testimony on reliability of eyewitness testimony), overruled
on other grounds by People v. Mendoza, 4 P.3d 265, 277–78 (Cal. 2000); Benn v. United
States, 978 A.2d 1257, 1273–1284 (D.C. 2009) (reviewing system and estimator
identification variables in a court context); Brodes, 614 S.E.2d at 770 (citing studies
regarding witness confidence and certainty); People v. LeGrand, 867 N.E.2d 374, 378–79
(N.Y. 2007) (reviewing confidence-accuracy relationship, feedback, and confidence
malleability); State v. Copeland, 226 S.W.3d 287, 299–300, 302 (Tenn. 2007) (finding trial
court erred by not admitting expert testimony on reliability of eyewitness identification);
State v. Clopten, 223 P.3d 1103, 1108–11 (Utah 2009) (citing research and multiple
systems and estimator variables); State v. Dubose, 699 N.W.2d 582, 591–93 (Wis. 2005)
(canvassing scientific literature), overruled by State v. Roberson, 935 N.W.2d 813, 816
(Wis. 2019).
33
III. Measuring the Dimension of the Problem of Eyewitness
Misidentification.
A. Estimates Developed Through Social Science Research.
Among other things, the scholarly work has raised a threshold question:
how serious is the problem of eyewitness identification? It seems obvious
that the greater the frequency of errors in identification, the more pressure
there is on the legal system to develop a sensible method of addressing the
problem.
The results of the eyewitness research over the past three decades
or so can only be characterized as quite disturbing. For example, a meta-
analysis [combined analysis of multiple studies] of ninety-four
experiments revealed that after nonsuggestive lineups, 46% of witnesses
choose the perpetrator correctly, 33% decline to choose, and 21% choose
someone who was innocent. Samantha L. Oden, Note, Limiting First-Time
In-Court Eyewitness Identifications: An Analysis of State v. Dickson, 36
Quinnipiac L. Rev. 327, 334 (2018). In another meta-analysis, research
considered eyewitness responses where the perpetrator was not part of the
lineup and found roughly half of witnesses picked someone who was an
innocent filler. Id.
In one illustrative study, convenience store clerks were exposed to
bizarre behavior by “customers.” Noah Clements, Flipping a Coin: A
Solution for Inherent Unreliability of Eyewitness Identification Testimony,
40 Ind. L. Rev. 271, 272–73 (2007) [hereinafter Clements]. Two hours
later, only 34.2% of the clerks were able to identify the customer in a
nonsuggestive photo array. Id. Twenty-four hours later, the identification
percentage declined to 7.8%. In this study, the initial rate of identification
was fairly low and deteriorated rapidly. Id.
34
There are literally dozens and dozens of studies that consistently
show a high rate of error in eyewitness identifications even under favorable
conditions. As summarized by the American Psychological Association
(APA) in an amicus brief filed in Perry, studies have “consistently found
that the rate of incorrect identifications is roughly 33 percent.” See Brief
for Amicus Curiae Am. Psychological Ass’n in Support of Petitioner at 3,
Perry, 565 U.S. 228, 132 S. Ct. 716 (No. 10-8974), 2011 WL 3488994 at
*3 [hereinafter APA Amicus]. The rate of incorrect identification in live
lineups show similarly unreliability. See, e.g., Bruce W. Behrman &
Sherrie L. Davey, Eyewitness Identification in Actual Criminal Cases: An
Archival Analysis, 25 Law & Hum. Behav. 475, 480–82 (2001) (concluding
a 24% error rate in fifty-eight live lineups studied); Tim Valentine et al.,
Characteristics of Eyewitness Identification that Predict the Outcome of Real
Lineups, 17 Applied Cognitive Psychol. 969, 974 (2003) (finding between
19%-22% error rate in live lineups); Daniel B. Wright & Anne T. McDaid,
Comparing System and Estimator Variables Using Data from Real Line-Ups,
10 Applied Cognitive Psychol. 75, 77 (1996) (finding 19.9%
misidentification in live lineups).
With results like these, eyewitness identification is sometimes
referred to as a “coin flip” rather than an objective process. See Clements,
40 Ind. L. Rev. at 271. The unreliability of eyewitness identifications is
not a concept found exclusively in the rarified atmosphere of the academe.
As noted by the IACP National Law Enforcement Policy Center, “Of all
investigative procedure employed by police in a criminal case, probably
none is less reliable than the eyewitness identification.” IACP Nat’l Enf’t
Policy Ctr., Eyewitness Identification 5 (rev. Sept. 2010).
Authoritarians inclined to defend convictions regardless of guilt or
innocence may not be disturbed by the undisputed science on the theory
35
that a crime victim deserves a conviction of the best available suspect. But
anyone who believes that reliability should be an important part of the
criminal justice process and isn’t concerned by these persistent
inaccuracies is unthinking, or unconscious.
B. Confirmation of Scope of Problem of Eyewitness
Misidentification in Retrospective DNA Studies. The problematic
nature of eyewitness identifications has been confirmed in recent years by
retrospective study of cases involving DNA exonerations. In these cases,
it is virtually certain that the individuals convicted of the crimes were, in
fact, innocent. In a recent retrospective study of DNA exonerations, the
author concluded that 76% of all convictions shown to be wrongful by DNA
evidence were based on inaccurate eyewitness identifications. Brandon L.
Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 48
(2011). Another retrospective of exonerations found that faulty eyewitness
identification exceeds all other causes as the reason for wrongful
conviction. Samuel R. Gross et al., Exonerations in the United States 1989
Through 2003, 95 J. Crim. L. & Criminology 523, 542, 544 (2003)
[hereinafter Gross] (finding “the most common cause of wrongful
convictions is eyewitness misidentification,” with misidentification
accounting for 50% and 88% of wrongful convictions for murder and rape,
respectively).
One of the most prominent DNA exoneration cases illustrates the
nature of the problem. In the case of Ron Cotton, the victim identified him
as her rapist in a photo array, claiming to have studied “every single detail
on the rapist’s face” at the time of the assault. Clements, 40 Ind. L. Rev.
at 275–76. Later DNA evidence demonstrated that Cotton was not the
culprit, and the real perpetrator was identified. Id. at 276. When shown
the real culprit, the victim declared, “I have never seen him in my life.” Id.
36
See generally William J. Morgan, Jr., Justice in Foresight: The Past
Problems with Eyewitness Identification and Exoneration by DNA
Technology, 3 S. Region Black Students Ass’n L.J. 60 (2009) (listing a
number of cases where highly certain eyewitness testimony was proven
incorrect by DNA technology).
DNA exonerations, of course, usually involve cases of sexual assault.
Gross, 95 J. Crim. L. & Criminology at 530–31. In most robbery cases,
DNA evidence has not been available. Id. There is reason to believe,
however, that there is a greater risk of eyewitness misidentification in
robberies than other crimes because robberies are often committed by
strangers to the victim and the robber is usually within the victim’s
physical proximity for a short period of time. Id.
C. Summary. The first step in addressing a problem is recognizing
its existence. With respect to eyewitness identification, there can be no
doubt that the problem of misidentification by well-meaning witnesses
poses an urgent problem for a legal system which is designed with the twin
goals of convicting the guilty and protecting the innocent.
IV. Identification and Importance of Key Variables that
Contribute to Unreliable Eyewitness Identifications in One Person
Showups.
A. Introduction. The massive scientific literature on eyewitness
identification has sought to develop an understanding of the general
principles of human memory and to identify key variables that contribute
to misidentification. Although there are many potential lines for additional
fruitful scientific inquiry, a number of key variables have clearly emerged
from the decades of professional inquiry. For many years, the literature
generally divides the variables into two categories: estimator variables and
37
system variables. See Wells, Variables, 36 J. Personality & Soc. Psychol.
at 1548.
No attempt is made here to catalogue all relevant variables, but a
nonexhaustive review provides the context for considering the proper legal
framework for evaluating the reliability of eyewitness identifications.
Further, much of the descriptions provided below may be found in the rich
eyewitness caselaw and was relied upon in the development of the
summary below. See, e.g., Young, 374 P.3d at 417–26; Henderson, 27 A.3d
at 894–909; Lawson, 291 P.3d at 706–11.
B. General Principles of Human Memory.
1. Human memory is not like the retrieval of photographic images.
Many believe that eyewitness identification is like retrieving a photo from
an album, except that the photo album is your memory. But the science
on eyewitness identification consistently demonstrates that this is not the
case. Rather than the common perception that memory works like a video
recorder, the science around eyewitness identification shows us that
memory is impacted by a wide range of estimator and systems variables at
the perception, retention, and retrieval stages of identification. See
Elizabeth F. Loftus et al., Eyewitness Testimony: Civil and Criminal § 2-2,
at 14 (5th ed. 2013) [hereinafter Loftus et al., Civil and Criminal].
2. Human memory decays quickly and never improves over time.
When it comes to eyewitness identifications, human memory declines
rapidly over time. The rate of memory loss for an unfamiliar face is greatest
right after the encounter and then tends to level off. See id. §3-2[a], at 51–
54; Brian L. Cutler, A Sample of Witness, Crime, and Perpetrator
Characteristics Affecting Eyewitness Identification Accuracy, 4 Cardozo
Pub. L., Pol’y & Ethics J. 327, 336 (2006) [hereinafter Cutler, ID
Characteristics]; Kenneth A. Deffenbacher et al., Forgetting the Once-Seen
38
Face: Estimating the Strength of an Eyewitness’s Memory Representation,
14 J. Experimental Psychol.: Applied 139, 147–48 (2008).
C. Estimator Variables.
1. Illumination at time of exposure affects human memory. “Dark
lighting conditions” has been described as one of the “classic variables”
that reduces the accuracy of eyewitness identification. Sandra Guerra
Thompson, Beyond a Reasonable Doubt? Reconstructing Uncorroborated
Eyewitness Identification Testimony, 41 U.C. Davis L. Rev. 1487, 1493
(2005); see also Loftus et al., Civil and Criminal §2-4, at 17–19; Marloes de
Jong et al., Familiar Face Recognition as a Function of Distance and
Illumination: A Practical Tool for Use in the Courtroom, 11 Psychol., Crime
& L. 87, 87 (2005) [hereinafter de Jong et al., Familiar Face Recognition].
The degree of illumination at the time of an encounter is a factor that
impacts human memory. The darker the environment, the less reliable an
eyewitness identification. de Jong et al., Familiar Face Recognition, 11
Psychol., Crime & L. at 95 (finding that while facial recognition at 30 lux
is generally reliable, facial recognition at the same distance between 3–10
lux is questionable).
2. Time of exposure. Time of exposure may also affect human
memory. All other things being equal, the longer the exposure and
opportunity to study an image, the greater the likelihood of an accurate
identification. See Brian H. Bornstein et al., Effects of Exposure Time and
Cognitive Operations on Facial Identification Accuracy: A Meta-Analysis of
Two Variables Associated with Initial Memory Strength, 18 Psychol., Crime
& L. 473, 486 (2012) (finding that short exposure time negatively impacts
eyewitness memory). Conversely, the shorter the exposure, any
identification is likely to be less reliable. Id. at 482.
 39
It is noteworthy, however, that victims experiencing arousal and
stress are likely to overestimate the length of time of the event. See Loftus
et al., Civil and Criminal §2-5, at 20; Sven-Äke Christianson & Elizabeth
F. Loftus, Memory for Traumatic Events, 1 Applied Cognitive Psychol. 225,
236 (1987); Elizabeth F. Loftus et al., Time Went by So Slowly:
Overestimation of Event Duration by Males and Females, 1 Applied
Cognitive Psychol. 1, 4–5 (1987). The scientific literature paints a clear
picture of time-exposure overestimation of those reporting stressful
events.
3. Hats or other obstacles to vision as an accurate identification
inhibitor. The science demonstrates that eyewitness identification is
complicated when full vision of the face is impaired. For instance,
researchers in a 1987 study determined that wearing a hat inhibits
accurate eyewitness identification, dropping identification accuracy from
50% to about 25%. Margaret A. Hagan & Sou Hee Yang, How Can So Many
Be Wrong? Making the Due Process Case for an Eyewitness Expert 9 (2019).
This decrease in identification accuracy occurred without any
corresponding decrease in witness confidence in the identification. Id. A
later review of six studies with more than 1300 witnesses showed again
that identification accuracy was significantly reduced when perpetrators
wore hats that masked hair and hairline. Id.; see also Cutler, ID
Characteristics, 4 Cardozo Pub. L., Pol’y & Ethics J. at 332; Brian L. Cutler
et al., The Reliability of Eyewitness Identification: The Role of System and
Estimator Variables, 11 Law & Hum. Behav. 233, 240 (1987).
4. Stress as an accurate identification inhibitor. It is commonly
thought by lay persons that in a highly stressful situation, the face of a
perpetrator can be “burned into” a witness memory. This manifests itself
at trial with declarations like “I’ll never forget the face” of the attacker. The
40
eyewitness science, however, is flatly to the contrary. As demonstrated by
the research, even where no stress is present, eyewitness identification is
often inaccurate. With stress, however, the studies consistently show that
the accuracy of eyewitness identification is not enhanced, but declines.
See Loftus et al., Civil and Criminal §2-9, at 28–32; Kenneth A.
Deffenbacher et al., A Meta-Analytic Review of the Effects of High Stress on
Eyewitness Memory, 28 Law & Hum. Behav. 687, 694 (2004); Charles A.
Morgan III et al., Accuracy of Eyewitness Memory for Persons Encountered
During Exposure to Highly Intense Stress, 27 Int’l J.L. & Psychiatry 265,
274 (2004).
5. Weapon focus as an accurate identification inhibitor. Another
commonly held view is that if the perpetrator has a weapon, concentration
sharpens and the likelihood that the victim will be able to make an
accurate identification increases. Again, the research comes to an
opposite conclusion. Commonly described as weapon focus, the fact that
a perpetrator brandishes a weapon tends to decrease the accuracy of
eyewitness identification as the victim focuses not on the face of the
perpetrator or other identifying characteristics, but on the weapon.
See Loftus et al., Civil and Criminal §2-10, at 32–35; Nancy M. Steblay, A
Meta-Analytic Review of the Weapon Focus Effect, 16 Law & Hum. Behav.
413, 414 (1992) [hereinafter Steblay, Weapon Focus]; Gary Wells et al.,
Eyewitness Evidence: Improving Its Probative Value, 7 Psychol. Sci. Pub.
Int. 45, 53 (2006).
6. Expressions of witness confidence. The lack of a connection
between accuracy of identification and confidence expressed by an
eyewitness is “one of the most consistent findings in memory research
literature.” Kevin Krug, The Relationship Between Confidence and
Accuracy: Current Thoughts of the Literature and a New Area of Research,
41
3 Applied Psychol. Crim. Just. 7, 31 (2007). According to Gary Wells and
his colleagues, a witness’s “self-rated and overtly expressed confidence is
largely irrelevant in determining the criminal-identification accuracy of an
eyewitness.” Wells, Juror Perceptions, 64 J. Applied Psychol. at 447.
According to Wells, expression of confidence is reliable only under pristine,
nonsuggestive conditions. John T. Wixted & Gary L. Wells, The
Relationship Between Eyewitness Confidence and Identification Accuracy:
A New Synthesis, 18 Psychol. Sci. Pub. Int. 10, 11 (2017); see also Loftus
et al., Civil and Criminal §3-12, at 68–72; Neil Brewer & Gary L. Wells, The
Confidence–Accuracy Relationship in Eyewitness Identification: Effects of
Lineup Instructions, Foil Similarity, and Target-Absent Base Rates, 12 J.
Experimental Psychol.: Applied 11, 11 (2006) (indicating spontaneous
confidence at the time of identification not subject to suggestion may be
meaningful but the same is probably not true for statements made in
court); Steven M. Smith et al., Postdictors of Eyewitness Errors: Can False
Identifications Be Diagnosed?, 85 J. Applied Psychol. 542, 548 (2000).
7. Cross-racial identification. In an important article, Sheri Lynn
Johnson asserted that cross-racial identification is subject to a higher rate
of error. Participants were 1.56 times more likely to falsely identify a novel
other-race face when compared with performance on own-race faces.
Sheri Lynn Johnson, Cross-Racial Identification Errors in Criminal Cases,
69 Cornell L. Rev. 934, 935–36 (1984). Subsequent research confirms
Johnson’s approach. For example, in a 2001 meta-analysis that spanned
thirty-nine research articles and nearly five thousand participants,
researchers determined that cross-racial identifications are 56% more
likely to be erroneous than same-race identification. See Christian A.
Meissner & John C. Brigham, Thirty Years of Investigating the Own-Race
42
Bias in Memory for Faces: A Meta-Analytic Review, 7 Psychol., Pub. Pol’y,
& L. 3, 15, 21 (2001).
The effects of misidentification dovetail with the growing body of
social science finding the effects of implicit bias in color or skin tone, and
in Afrocentric facial features in sentencing and presumed guilt, among
other insidious effects. See generally Mark W. Bennett, The Implicit Racial
Bias in Sentencing: The Next Frontier, 126 Yale L.J.F. 391 (2017); Irene V.
Blair et al., The Automaticity of Race and Afrocentric Facial Features in
Social Judgments, 87 J. Personality & Soc. Psychol. 763 (2004); Irene V.
Blair et al., The Influence of Afrocentric Facial Features in Criminal
Sentencing, 15 Psychol. Sci. 674 (2004); Traci Burch, Skin Color and the
Criminal Justice System: Beyond Black-White Disparities in Sentencing, 12
J. Empirical Legal Stud. 395 (2015); Travis L. Dixon & Keith B. Maddox,
Skin Tone, Crime News, and Social Reality Judgments: Priming the
Stereotype of the Dark and Dangerous Black Criminal, 35 J. Applied Soc.
Psychol. 1555 (2005); Jennifer L. Eberhardt et al., Looking Deathworthy:
Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing
Outcomes, 17 Psychol. Sci. 383 (2006); Jennifer L. Eberhardt et al., Seeing
Black: Race, Crime, and Visual Processing, 87 J. Personality & Soc.
Psychol. 876 (2004); Ryan D. King & Brian D. Johnson, A Punishing Look:
Skin Tone and Afrocentric Features in the Halls of Justice, 122 Am. J. Soc.
90 (2016); William T. Pizzi et al., Discrimination in Sentencing on the Basis
of Afrocentric Features, 10 Mich. J. Race & L. 327 (2005); Jaclyn Ronquillo
et al., The Effects of Skin Tone on Race-Related Amygdala Activity: An fMRI
Investigation, 2 Soc. Cognitive Affective & Neuroscience 39 (2007).
8. Bystander effect. Research has demonstrated that a witness that
is vaguely familiar with another may innocently but wrongly identify the
person as the perpetrator of crime. See J.D. Read et al., The Unconscious
43
Transference Effect: Are Innocent Bystanders Ever Misidentified?, 4 Applied
Cognitive Psychol. 3, 26 (1990); David F. Ross et al., Unconscious
Transference and Mistaken Identity: When a Witness Misidentifies a
Familiar but Innocent Person, 79 J. Applied Psychol. 918, 918 (1994).
9. Cowitness contamination. Discussions with cowitnesses can
contaminate memories and lead to misidentification of perpetrators. Elim
M. Skagerberg, Co-Witness Feedback in Line-Ups, 21 Applied Cognitive
Psychol. 489, 495 (2007) (“[T]he present findings show that in cases
involving multiple witnesses, positive feedback about the identification
and choice of suspect from a co-witness could lead to higher levels of
certainty as compared to negative feedback. . . . [M]ean[ing] that a witness
could be more willing to testify in court and could be more certain about
the correctness of the identification simply due to confirming feedback
from a naïve co-witness and vice versa.”).
D. System Variables.
1. Blind administration. When an identification process is
conducted, the research demonstrates that lineup administrators familiar
with the suspect may leak that information “by consciously or
unconsciously communicating to witnesses which lineup member is
suspect.” Sarah M. Greathouse & Margaret Bull Kovera, Instruction Bias
and Lineup Presentation Moderate the Effects of Administrator Knowledge
on Eyewitness Identification, 33 Law & Hum. Behav. 70, 71 (2009); see
also Steven E. Clark et al., Lineup Administrator Influences on Eyewitness
Identification Decisions, 15 J. Experimental Psychol.: Applied 63, 67–73
(2009); Ryann M. Haw & Ronald P. Fisher, Effects of Administrator–Witness
Contact on Eyewitness Identification Accuracy, 89 Applied Psychol. 1106,
1107 (2004). The scholarship is in agreement: failure to conduct
44
administratively blind lineups increases the likelihood of a
misidentification.
2. Preidentification instructions. The science consistently
demonstrates that telling a witness in advance that a suspect may or may
not be in a lineup enhances the reliability of an eyewitness identification.
See Stephen E. Clark, A Re-examination of the Effects of Biased Lineup
Instructions in Eyewitness Identification, 29 Law & Hum. Behav. 395, 396
(2005); Nancy M. Steblay, Social Influence in Eyewitness Recall: A Meta-
Analytic Review of Lineup Instruction Effects, 21 Law & Hum. Behav. 283,
285–86, 294 (1997).
3. Lineup construction. Much has been written about the need to
properly construct lineups or photo arrays. It is important that the
suspect not stand out from the other fillers presented to the witness. See
David F. Ross et al., When Accurate and Inaccurate Eyewitnesses Look the
Same: A Limitation of the ‘Pop-Out’ Effect and the 10- to 12-Second Rule, 21
Applied Cognitive Psychol. 677, 687 (2007); Gary L. Wells & Amy Bradford,
Measuring the Goodness of Lineups: Parameter Estimation, Question
Effects, and Limits to the Mock Witness Paradigm, 13 Applied Cognitive
Psychol. S27, S30 (1999).
4. Feedback. The research shows that where a witness receives
positive feedback, the confidence level in the identification is artificially
increased. Further, confirmatory feedback can lead witnesses to
“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.” Amy Bradfield Douglass & Nancy
Steblay, Memory Distortion in Eyewitnesses: A Meta-Analysis of the Post-
Identification Feedback Effect, 20 Applied Cognitive Psychol. 859, 864–65
(2006); see also Jeffrey S. Neuschatz et al., The Effects of Post-Identification
45
Feedback and Age on Retrospective Eyewitness Memory, 19 Applied
Cognitive Psychol. 435, 449 (2005); Gary L. Wells & Amy L. Bradford,
“Good, You Identified the Suspect”: Feedback to Eyewitnesses Distorts Their
Reports of the Witnessing Experience, 83 J. Applied Psychol. 360, 374
(1998) [hereinafter Wells, Good ID].
5. Multiple viewing. The scientific literature finds multiple viewings
of a suspect problematic. The problem has been called “mugshot
exposure.” To illustrate, one meta-analysis found that while 15% of
eyewitnesses misidentified a suspect in a lineup, that figure increased to
37% if the witness had seen the innocent person in a prior mugshot.
Kenneth A. Deffenbacher et al., Mugshot Exposure Effects: Retroactive
Interference, Mugshot Commitment, Source Confusion, and Unconscious
Transference, 30 Law & Hum. Behav. 287, 299 (2006).
6. Showups. Showups occur when a witness is given a photo of one
person, or if a single person is presented to the witness for identification
purposes. A showup, of course, is highly suggestive in that only one
person is presented for identification and the witness may be confident
that the person presented has not been selected at random. Showups,
however, can be useful if a suspect is apprehended in close temporal
proximity to the crime.
Yet, a showup is necessarily highly suggestive and cannot be blindly
administered. Research shows that the ability of a witness to accurately
identify a suspect decreases rapidly within two hours of the event. A.
Daniel Yarmey et al., Accuracy of Eyewitness Identifications in Showups
and Lineups, 20 Law & Hum. Behav. 459, 464 (1996) [hereinafter Yarmey,
Lineup Accuracy]. According to the study, “after [two hours], a one-person
lineup was four times as likely to lead to a false identification of the
innocent suspect than if that same suspect was in a six-person lineup.”
46
Id. at 465. Research shows that when an innocent suspect closely
resembled a perpetrator, 23% identified the innocent person in a showup
compared to 17% in a lineup. Nancy Steblay et al., Eyewitness Accuracy
Rates in Police Showup and Lineup Presentations: A Meta-Analytic
Comparison, 27 Law & Hum. Behav. 523, 533 (2003) [hereinafter Steblay,
Police Presentations].
E. Compound Risk of Misidentification When Multiple Factors
Are Present. The risk of misidentification is compounded when multiple
factors that impair accurate identification are present. It is tempting to
regard some of the above factors as some kind of arithmetic checklist. This
would be a mistake. First, in a given case, any one of the above factors
may be so overwhelming as to run an unacceptable risk of error. For
example, a highly suggestive photo array where the defendant is obviously
different from fillers cannot be cured by an eyewitness instruction and a
double-blind administration of the process. Also, however, the various
factors that affect eyewitness accuracy often interact to compound the risk
of mistaken identification. See Kathy Pezdeck, Content, Form, and Ethical
Issues Concerning Expert Psychological Testimony on Eyewitness
Identification, in Expert Testimony on the Psychology of Eyewitness
Identification 36-37 (Brian L. Cutler ed., 2009). When confidence is
inflated, eyewitnesses tend to report that conditions of viewing the crime
were better than they were and that they were more confident in their
memory and their answers. Wells, Good ID, at 374. The negative effect of
weapon focus on identification accuracy may be magnified when combined
with stress, short exposure time, poor visibility conditions, or longer
retention intervals. Steblay, Weapon Focus, 16 Law & Hum. Behav. at
417.
47
F. Impact of Contamination on Later Identifications. We are all
familiar with the proverbial question, “[H]ow can you unring the bell?”
Wells and Quinlivan explain that following a misidentification, the witness’
original memory is overwritten by the memory of the misidentified suspect,
making later identifications tainted by the earlier error. Wells & Quinlivan,
Suggestive Procedures, 33 Law & Hum. Behav. at 8–9. Research tends to
indicate that witnesses who have taken part in suggestive procedures are
more likely to implicate an innocent subject in a later nonsuggestive
lineup. See generally Dan Simon, In Doubt: The Psychology of the Criminal
Justice Process (2012); Bruce W. Behrman & Lance T. Vayder, The Biasing
Influence of a Police Showup: Does the Observation of a Single Suspect Taint
Later Identification?, 79 Perceptual & Motor Skills 1239 (1994).
G. Impact of Unreliable Eyewitness Identification on Jurors.
Jurors tend to put great faith in eyewitness identifications. As noted by
three leading eyewitness experts, jurors tend to have a “nearly religious
faith in the accuracy of eyewitness accounts.” Loftus et al., Civil and
Criminal § 12-1 at 274. Two other experts have noted “jurors appear to
regard eyewitness evidence as one of the most persuasive type of evidence
that can be presented.” John C. Brigham & Robert K. Bothwell, The Ability
of Prospective Jurors to Estimate the Accuracy of Eyewitness Identification,
7 Law & Hum. Behav. 19, 19 (1983). The experimental results are telling.
In one illustrative study, mock jurors were presented with the same
evidence except one set of jurors were told that there were no eyewitnesses,
while the remainder were told that there was an eyewitness who identified
the defendant. The second set of jurors were told that the eyewitness was
legally blind and was not wearing prescribed glasses when the incident
occurred. Among the first set of mock jurors, only 18% convicted the
defendant, while among the second set, 68% returned a conviction. See
48
Cindy J. O’Hagen, When Seeing Is Not Believing: The Case for Eyewitness
Expert Testimony, 81 Geo. L.J. 741, 745 (1993).
In another experiment, mock jurors evaluated the accuracy of forty-
two witnesses. Some of the witnesses made an accurate identification,
while others did not. Some witnesses were examined using leading
questions, while other witnesses were examined with nonleading
questions. Where the witnesses were cross-examined with leading
questions, only 27% of the mock juror were able to identify inaccurate
eyewitnesses, while only 14% were able to identify inaccurate eyewitnesses
after nonleading examination. The study suggests that even with effective
cross-examination, jurors may believe three out of four mistaken
identifications. George Vallas, A Survey of Federal and State Standards for
the Admission of Expert Testimony on the Reliability of Eyewitnesses, 39
Am J. Crim. L. 97, 108–110 (2011).
Further, mounting evidence indicates that jurors continue to
disregard variables that detract from eyewitness accuracy. See Tanja
Rapus Benton et al., Eyewitness Memory Is Still Not Common Sense:
Comparing Jurors, Judges and Law Enforcement to Eyewitness Experts, 20
Applied Cognitive Psychol. 115, 119–20 (2006). Jurors tend to evaluate
eyewitnesses based upon three criteria: witness confidence, consistency of
testimony, and memory of specific details. None of these criteria relate
with identification accuracy. See Cutler & Penrod, Mistaken ID at 181–90,
200–03 (1995) (describing results of several studies regarding factors
contributing to accuracy of identifications); see also Jennifer L. Devenport
et al., Eyewitness Identification Evidence: Evaluating Commonsense
Evaluations, 3 Psychol., Pub. Pol’y, & L. 338, 340–42 (1997); Henry F.
Fradella, Why Judges Should Admit Expert Testimony on the Unreliability
of Eyewitness Testimony, 2 Fed. Cts. L. Rev. 1, 28 (2006) (“The scientific
49
research on memory, generally, and eyewitness identification in particular
‘are quite counterintuitive and hardly commonsensical.’ ”); Wells, Juror
Perceptions, 64 J. Applied Psychol. at 446; Richard A. Wise et al., A
Tripartite Solution to Eyewitness Error, 97 J. Crim. L. & Criminology 807,
812 (2007) (“[S]cientific research has revealed that eyewitness memory is
much more malleable and susceptible to error than is generally realized.”).
The effectiveness of cross-examination as a safeguard is
questionable in light of the lack of juror sensitivity to factors that are
known to be diagnostic of eyewitness reliability. Cutler & Penrod,
Mistaken ID, at 197–209. Indeed, the history of the development of cross-
examination shows that it was designed to detect perjury, or liars, who
might no longer be affected by the oath required to give testimony. See
Jules Epstein, The Great Engine that Couldn’t: Science, Mistaken
Identifications, and the Limits of Cross-Examination, 36 Stetson L. Rev.
727, 765–70 (2007) (tracing development of cross-examination to declining
power of oath and risk of perjury). Certainly the ability to cross-examine
had little impact in the DNA exoneration cases, where there is no reason
to believe that any of the victims did not honestly believe they had
accurately identified their attackers.
As noted by Gary Wells and his colleagues, “Cross-examination, a
marvelous tool for helping jurors discriminate between witnesses who are
intentionally deceptive and those who are truthful, is largely useless for
detecting who are trying to be truthful but are genuinely mistaken.” Wells,
Lineups and Photospreads, 22 Law & Hum. Behav. at 609 (citation
omitted). More colorfully, Elizabeth Loftus and her colleagues note that
cross-examination of a sincere eyewitness is “akin to trying to land a very
large energetic fish on a very light line.” Loftus et al., Civil and Criminal,
§ 12-1[b], at 276. They caution that the likelihood that “the lawyer will not
50
be able to obliterate the eyewitness during cross-examination” does not
“mean that the eyewitness cannot obliterate the lawyer.” Id. § 12-8, at
284. They characterize cross-examination of a sincere eyewitness as
generating thrills per moment equivalent to “walking through a mine field.”
Id. The mine field analogy is apt, as any lawyer who has attempted to
cross-examine a sincere but mistaken witness can attest.
H. The Severe Problem of Aggravated Suggestiveness: One
Person Showups. As noted more than fifty years ago by the United States
Supreme Court, “[i]t is hard to imagine a situation more clearly conveying
the suggestion to the witness that the one presented is believed guilty by
the police” than a one person showup. Wade, 388 U.S. at 234, 87 S. Ct.
at 1936; see also Richard Gonzales et al., Response Biases in Lineups and
Showups, 64 J. Personality & Soc. Psychol. 525, 525 (1993); Gary Wells,
Police Lineups: Data, Theory, and Policy, 7 Psychol., Pub. Pol’y, & L. 791,
795 (2001). In a meta-analysis, researchers have found that one person
showups produce twice as many false identifications as fair lineups.
Steblay, Police Presentations, 27 Law & Hum. Behav. at 530.
Research has further shown that the time disparity between the
event and the identification process affects this disparity. When the gap
is less than two hours, the disparity in accuracy is nonexistent. When the
gap is twenty-four hours, showups are almost four times as likely to
produce a misidentification with an error rate as high as 58%. Yarmey,
Lineup Accuracy, 20 Law & Hum. Behav. at 465. Thus the combination of
delay in the identification process and a one person showup produces a
very high risk of misidentification. See Amy Luria, Showup Identifications:
A Comprehensive Overview of the Problems and a Discussion of Necessary
Changes, 86 Neb. L. Rev. 515, 516, 519–20 (2008).
51
In-court identifications, of course, are a highly suggestive form of
one person showups. According to Gary Wells and Eric P. Seelau, “in-
court identification is a mere formality, of course, and should not be given
much credence, because it is usually obvious who is on trial.” Gary L.
Wells & Eric P. Seelau, Eyewitness Identification: Psychological Research
and Legal Policy on Lineups, 1 Psychol., Pub. Pol’y, & L. 765, 766 (1995);
see also Ralph Norman Haber & Lyn Haber, Experiencing, Remembering
and Reporting Events, 6 Psychol., Pub. Pol’y, & L. 1057, 1082 (2000).
In some respects, an in-court identification is worse than the usual
showup. In an in-court identification, the state has arrested and charged
the defendant. His appearance in court does not simply suggest, but
strongly announces in the solemnity of the courtroom, that the state
believes the defendant is guilty. See Jules Epstein, Irreparable
Misidentifications and Reliability: Reassessing the Threshold for
Admissibility of Eyewitness Identification, 58 Vill. L. Rev. 69, 69–70 (2013);
Aliza B. Kaplan & Janis C. Puracal, Who Could It Be Now: Challenging the
Reliability of First Time in-Court Identifications After State v. Henderson and
State v. Lawson, 105 J. Crim. L. & Criminology 947, 954 (2015); Dana
Walsh, The Dangers of Eyewitness Identification: A Call for Greater State
Involvement to Ensure Fundamental Fairness, 36 B.C. Int’l & Comp. L. Rev.
1415, 1416–17 (2013).
As noted by Loftus and her colleagues, a first-time, in-court
identification is not more reliable, but it is more compelling. Loftus et al.,
Civil and Criminal § 8.17(e), at 182–83. That spells real trouble for those
concerned with accurate verdicts.
I. Consensus in the Eyewitness Identification Scholarly
Community. The mere fact that an isolated study or two come to a certain
conclusion is ordinarily not enough to move the law. Certainly the law
52
responds to science, but it moves slowly. But move it does. When a
scholarly consensus emerges on basic scientific principles, however, the
law must adapt to avoid mindless perpetuation of irrational and arbitrary
processes.
Here, there is clearly a scholarly consensus. Based on the evidence
before a special master, the New Jersey Supreme Court agreed with one of
the experts who testified that eyewitness research represents the “gold
standard in terms of the applicability of social science research to the law.”
Henderson, 27 A.2d at 916. As noted in Henderson,
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. As
reflected above, consensus exists among the experts who
testified on remand and within the broader research
community.
Id. The state of the eyewitness science was described in the amicus brief
filed by the American Psychological Association in Perry. According to the
APA, “[e]yewitness science is widely accepted within the scientific
community, and its key findings are largely uncontroversial.” APA Amicus
at *9 n.5.
J. Summary. The above factors should inform the analysis of
whether an eyewitness identification runs an unacceptable risk of being
unreliable. They offer an opportunity to introduce science into the analysis
of reliability. It must be emphasized, however, that the factors are not
checklist-type midterm exam where scoring 70% amounts to a passing
grade. Any one of the factors might overwhelm the other factors in a given
case. For example, a highly suggestive photo array could spoil what might
otherwise have been a perfect identification procedure. Conversely, an
53
identification process using an excellent photo array may be undermined
by suggestive comments by officers.
V. The Development of the Nonscience Based Approach of the
United States Supreme Court.
A. The Wade, Gilbert, and Stovall Trilogy: Promising but
Ambiguous Beginnings.
1. Introduction. The United States Supreme Court considered the
admissibility of eyewitness testimony in three cases in the late 1960s:
Wade, 388 U.S. 218, 87 S. Ct. 1926, Gilbert v. California, 388 U.S. 263, 87
S. Ct. 1951 (1967), and Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967
(1967), abrogated on other grounds by United States v. Johnson, 457 U.S.
537, 102 S. Ct. 2579 (1982). In these cases, the United States Supreme
Court demonstrated sensitivity and awareness of the possibility of
misidentification through suggestive identification procedures.
2. Wade and Gilbert. In Wade, the Supreme Court considered an
eyewitness identification made at a postindictment without notice to, and
in the absence of, the defendant’s counsel. Id. at 219–20, 87 S. Ct. at
1928. The Wade Court held that a defendant has a right to counsel at any
stage of the prosecution where the absence of counsel might affect the
accused’s right to a fair trial. Id. at 227–28, 87 S. Ct. at 1932–33. 10
The Wade Court concluded that a lineup was a critical stage where
counsel was needed, noting that “identification evidence is peculiarly
riddled with innumerable dangers and variable factors which might
seriously, even crucially, derogate from a fair trial.” Id. at 228, 87 S. Ct.
at 1933. Further, the Wade Court stated that the suggestive nature of the
government’s identification process was “[a] major factor contributing to
10The right to counsel holdings in Wade and Gilbert were later eviscerated in Kirby
v. Illinois, 406 U.S. 682, 690, 92 S. Ct. 1877, 1882–83 (1972).
54
the high incidence of miscarriage of justice from mistaken identification.”
Id. The Wade Court also noted that “the dangers for the suspect are
particularly grave when the witness’ opportunity for observation was
insubstantial, and thus his susceptibility to suggestion the greatest.” Id.
at 229, 87 S. Ct. at 1933. 11
In Wade, however, although the lineup involved was highly
suggestive, the question was whether an in-court identification could be
admitted notwithstanding the highly suggestive pretrial identification. Id.
at 239–40, 87 S. Ct. at 1939. The Wade Court concluded that the state
should be given the opportunity to show by clear and convincing evidence
that the in-court identifications were based upon observations of the
suspect independent of the lineup. Id. at 240, 87 S. Ct. at 1939. The
Wade Court did not elaborate on the manner in which the district court
was to determine whether the in-court identification could be considered
independent of the prior identification.
In an interesting dissent, Justice White, joined by Justices Harlan
and Stewart, criticized the majority for its prophylactic per se rule that the
absence of counsel invalidated the pretrial identification. Id. at 251–52,
87 S. Ct. 1944–45. Justice White, however, showed an empirical bent,
11The Wade Court cited to a number of identification procedures in caselaw that
were strikingly suggestive:
[F]or example, that all in the lineup but the suspect were known to
the identifying witness, that the other participants in a lineup were grossly
dissimilar in appearance to the suspect, that only the suspect was required
to wear distinctive clothing which the culprit allegedly wore, that the
witness is told by the police that they have caught the culprit after which
the defendant is brought before the witness alone or is viewed in jail, that
the suspect is pointed out before or during a lineup, and that the
participants in the lineup are asked to try on an article of clothing which
fits only the suspect.
Id. at 233, 87 S. Ct. at 1935–36 (footnotes omitted).
55
stating that he would certainly bow to solid facts about how police conduct
interrogations in the future. Id.
A similar result occurred in Gilbert, 388 U.S. 263, 87 S. Ct. 1951.
There, the eyewitnesses identified the defendant in a postindictment
lineup held in an auditorium attended by upwards of one hundred
persons. Id. at 269–70, 87 S. Ct. at 1955. Defense counsel was not
present at the identifications and the identifications were subject to a per
se exclusionary rule. Id. at 271, 273, 87 S. Ct. at 1955–57. The state in
this case was
not entitled to an opportunity to show that that testimony had
an independent source. Only a per se exclusionary rule as to
such testimony can be an effective sanction to assure that law
enforcement authorities will respect the accused’s
constitutional right to the presence of his counsel at the
critical lineup. . . . [T]he desirability of deterring the
constitutionally objectionable practice must prevail over the
undesirability of excluding relevant evidence.
Id. at 273, 87 S. Ct. at 1957.
3. Stovall. The last case in the first eyewitness trilogy is Stovall,
388 U.S. 293, 87 S. Ct. 1967. In Stovall, the defendant was arrested in
connection with a knife attack on a husband and wife, causing the
husband’s death and seriously wounding the wife who required
hospitalization for life-saving surgery. Id. at 295, 87 S. Ct. 1969. The
defendant was brought to the wife’s hospital room, handcuffed to one of
five police officers. Id. The defendant was the only African-American in
the room. Id. After the defendant repeated a few words at the direction of
a police officer for voice identification, the victim identified him as the
assailant. Id. At trial, evidence was admitted related to the hospital room
identification, and in addition, the victim subsequently made an in-court
identification. Id. The defendant was convicted and sentenced to death.
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Id. Stovall sought to collaterally attack his conviction in federal court. Id.
at 295–96, 87 S. Ct. 1969.
The Stovall Court first determined that the right-to-counsel holdings
of Wade and Gilbert were not retroactive and, as a result, Stovall was not
entitled to the benefit of these right-to-counsel rulings. Id. at 296–301, 87
S. Ct. 1969–72. The Stovall Court’s decision turned on a different
argument, namely, that the eyewitness identification “was so
unnecessarily suggestive and conducive to irreparable mistaken
identification that [the admission of the identification] denied [the
defendant] due process of law.” Id. at 301–02, 87 S. Ct. at 1972. The
Stovall Court emphasized that the due process “is a recognized ground of
attack upon a conviction independent of any right to counsel claim”
developed in Wade and Gilbert. Id. at 302, 87 S. Ct. at 1972.
The Supreme Court also noted briefly that “[t]he practice of showing
suspects singly to persons for the purpose of identification, and not as part
of a lineup, has been widely condemned.” Id. Yet, the Stovall Court
declared that “a claimed violation of due process of law in the conduct of
a confrontation [eyewitness identification] depends on the totality of the
circumstances surrounding it.” Id. The Stovall Court concluded that
under the totality of circumstances, the presentation of the suspect to the
hospitalized witness was imperative and, in light of her medical condition,
“the usual police station line-up, which Stovall now argues he should have
had, was out of the question.” Id. at 302, 87 S. Ct. at 1972–73. In short,
although one person showups are highly disfavored, the state can
overcome such shortcomings by making a persuasive showing of
necessity.
4. Summary. Two observations arise from the Wade/Gilbert/Stovall
line of cases. First, Wade and Gilbert demonstrate that per se prophylactic
57
rules may be required to preserve the integrity of the underlying court
processes. Second, independent of the right to counsel, a defendant may
challenge unnecessarily suggestive identification processes that are
conducive to irreparable mistaken identification and seek exclusion of the
evidence from trial, on due process grounds. Third, in these cases, the
Supreme Court showed considerable sensitivity to the problem of
eyewitness misidentification.
B. Simmons, Foster, and Coleman: Development of Barriers to
Due Process Relief.
1. Introduction. In the immediate years following the
Wade/Gilbert/Stovall line of cases, the Supreme Court addressed
eyewitness identification in Simmons v. United States, 390 U.S. 377, 88
S. Ct. 967 (1968), Foster v. California, 394 U.S. 440, 89 S. Ct. 1127 (1969),
and Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999 (1970). In general,
while retaining a theory of due process challenge to eyewitness testimony,
the majority made it more difficult to prove a due process challenge by
grafting onto the previous caselaw an additional multifactor requirement
of reliability.
2. Simmons. In Simmons, a defendant was charged with armed
robbery of a savings and loan association. 390 U.S. at 379, 88 S. Ct. at
969. Five employees of the savings and loan identified the defendant the
morning after the robbery from a photograph of the suspects obtained from
another suspect’s family member. Id. at 380, 88 S. Ct. at 969. At trial,
the state relied upon in-court identification of the five witnesses. Id. at
381, 88 S. Ct. at 970. Simmons claimed that the pretrial identification
procedure was so unduly prejudicial as to fatally taint his conviction. Id.
The Simmons Court recognized that there was some danger that
eyewitness misidentifications may arise even with the most correct
58
photographic identification procedures. Id. at 383–84, 88 S. Ct. at 971.
Simmons further recognized that improper employment of photographs by
police may sometimes cause witnesses to err in identifying criminals. Id.
On the other hand, the Simmons Court observed that eyewitness
identifications had been used widely and effectively to apprehend offenders
and to “spar[e] innocent suspects the ignominy of arrest.” Id. at 384, 88
S. Ct. at 971. The danger of the use of eyewitness identification, according
to the Simmons Court “may be substantially lessened by a course of cross-
examination at trial which exposes to the jury the method’s potential for
error.” Id.
The Simmons Court rejected a rule-based approach to eyewitness
identification and instead noted that each case must be considered on its
own facts. Id. The Simmons Court declared that “convictions based on
eyewitness identification at trial following a pretrial identification by
photograph will be set aside . . . only if the photographic identification
procedure was so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification.” Id.
Examining the facts, the Simmons Court concluded that the
defendant was not entitled to relief. Id. The Simmons Court noted that
the defendant did not suggest that the photographic identification was
“unnecessary” in light of the interest to swiftly find the offenders. Id. at
384–85, 88 S. Ct. at 971. Further, the Simmons Court noted that there
was little chance of a misidentification, observing among other things that
the robbery took place in the afternoon in a well-lit bank, the robbers wore
no masks, five bank employees viewed the robbers for up to five minutes,
the identifications were made only a day later, all five bank employees
separately identified Simmons as one of the robbers, and none of the
witnesses expressed any doubt about the identifications. Id. at 385, 88
59
S. Ct. at 971–72. As a result, according to the Simmons Court, there was
“little room for doubt that the identification of Simmons was correct, even
though the identification procedure employed may have in some respects
fallen short of the ideal.” Id. at 385–86, 88 S. Ct. at 972.
In Simmons, Justice Black concurred in part and dissented in part.
Id. at 395–99, 88 S. Ct. at 977–79 (Black, J. concurring in part and
dissenting in part). He took the view that the reliability of eyewitness
testimony was a matter for the jury and not subject to due process attack.
Id. at 395–96, 88 S. Ct. at 977. He characterized this theory, later
advanced by the defendant in Coleman, 399 U.S. 1, 90 S. Ct. 1999, as
“frivolous.” Id. at 395, 88 S. Ct. at 977. No other member of the Court
joined his opinion.
3. Foster. The Supreme Court then considered a challenge to a
suggestive police lineup in Foster, 394 U.S. 440, 89 S. Ct. 1127. In Foster,
the defendant was charged with armed robbery of a Western Union office.
Id. at 441, 89 S. Ct. at 1127. The only eyewitness to the crime was asked
to make an identification from a lineup consisting of three men. Id. at 441,
89 S. Ct. at 1128. The defendant was around six feet tall, while the other
men were around half-a-foot shorter than the defendant. Id. The
defendant also wore a letter jacket, which the eyewitness said was similar
to one seen underneath the coveralls of the robber. Id. The eyewitness
could not positively identify the defendant, though he “ ‘thought’ he was
the man.” Id. After the defendant was brought into the room to speak to
the eyewitness, no positive identification resulted. Id. A week or ten days
later, a second lineup of five men occurred where defendant was the only
person who had been in the first lineup. Id. at 441–42, 89 S. Ct. at 1128.
This time, the eyewitness was “convinced” the defendant was the robber.
Id. at 442, 89 S. Ct. at 1128.
60
Applying the test articulated in Simmons, the Foster Court held that
the identification procedure in this case “presents a compelling example of
unfair lineup procedures.” Id. The Foster Court noted that the eyewitness
was presented with three opportunities to identify the defendant: a highly
suggestive three man lineup where defendant was made distinctive by his
height and attire, a one-on-one confrontation that was the equivalent of a
one man showup, and then a second five man lineup where the defendant
was the only person who also participated in the first lineup. Id. at 442–
43, 89 S. Ct. at 1128–29. The Foster Court stated that “[i]n effect, the
police repeatedly said to the witness, ‘This is the man.’ ” Id. at 443, 89
S. Ct. at 1129. The identification procedure employed “so undermined the
reliability of the eyewitness identification as to violate due process.” Id.
As a result, the Court reversed the case and remanded it for consideration
as to whether any error was harmless. Id. at 443–44, 89 S. Ct. at 1129.
Justice Black again expressed in a solo dissent the view that the
reliability of an eyewitness identification procedure was solely a question
for the jury. Id. at 444–53, 89 S. Ct. at 1129–34 (Black, J. dissenting).
4. Coleman. Finally, in Coleman, 399 U.S. 1, 90 S. Ct. 1999, two
defendants, convicted of assault with intent to murder, challenged their
convictions based in part upon a station-house lineup they contend was
“so unduly prejudicial and conducive to irreparable misidentification as
[to] fatally . . . taint [the] in-court identifications of them” by the victim. Id.
at 3, 90 S. Ct. at 2000. After the crime, the victim was only able to give a
vague description that the perpetrators were young African-American
males of similar age and height. Id. at 4, 90 S. Ct. at 2001. Yet, at a lineup
two months after the incident, the victim claimed to have immediately
identified Coleman in the lineup. Id. at 5, 90 S. Ct. at 2001. The victim
subsequently made an in-court identification. Id.
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On the record before it, the Coleman Court held that it could not find
“that the trial court erred in finding that [the victim’s] in-court
identification of the [defendants] did not stem from an identification
procedure at the lineup ‘so impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable misidentification.’ ” Id. The
Coleman Court could have found that the identification was based upon
observations at the time of the assault and was not prejudiced by the
lineup, but they deigned to do so. Id. at 5–6, 90 S. Ct. at 2001. Further,
the Coleman Court noted that because the victim immediately identified
the defendant without any prompting or suggestion, any factual dispute
regarding whether the defendant was the only one required to speak did
not aid or influence the identification. Id. at 6, 90 S. Ct. at 2001–02. The
Coleman Court further found the fact that the defendant was the only one
in the lineup to wear a hat was insufficient to show that he was unfairly
singled out, as the police did not require the hat to be worn and the witness
later asked that it be removed to allow a better view of the suspect’s face.
Id. at 6, 90 S. Ct. at 2002.
5. Summary. Wade, Gilbert, and Stovall were brief opinions setting
forth the bare structure of a potential due process claim arising out of
eyewitness identification. These opinions contained opaque but robust
language. Simmons in particular seems to represent a retreat, particularly
from the potential reach of Stovall, when it added a new requirement that,
to give rise to a due process claim, the identification procedure must under
“the totality of surrounding circumstances” be “so impermissibly
suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.” Simmons, 390 U.S. at 383, 384, 88 S. Ct. at 970, 971.
Whether the change in language from “unnecessarily suggestive” to
62
“impermissibly suggestive” was designed to be substantive is not clear
from the opinion.
Yet, Foster demonstrated that the due process doctrine was not
completely hollow, at least in a case where the eyewitness failed to identify
the defendant, participated in a suggestive lineup that did not yield an
identification, provided a showup yielding only a tentative identification,
and then participated in another lineup where the eyewitness finally made
a definite identification. Foster, 394 U.S. at 442–43, 89 S. Ct. at 1128–29.
Further, Foster squarely stands for the proposition that a remedy for a
constitutionally flawed identification potentially may be exclusion of
evidence. Id. at 443, 89 S. Ct. at 1129.
Finally, in all three cases, Simmons, Foster, and Coleman were three
turns on the screw establishing “a very substantial likelihood of
irreparable misidentification” as the focus of reliability analysis. In its
development of its due process framework and its analysis of reliability,
the Supreme Court was unaided by the large body of eyewitness science
that would become available decades later.
C. Biggers and Manson: The Emergence of Seat-of-the-Pants
Constitutional Criteria.
1. Introduction. The United States Supreme Court returned to the
question of the admission of eyewitness testimony in Biggers, 409 U.S.
188, 93 S. Ct. 375, and Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243
(1977). Like their predecessors, these forty-year-old cases predate the
explosion in eyewitness science which occurred largely in later years.
Nonetheless, Biggers and Manson form the basis of current federal
constitutional law on the due process challenges to eyewitness
identification.
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2. Biggers. In Biggers, a defendant convicted of rape challenged an
eyewitness identification on due process grounds. Biggers, 409 U.S. at
189–90, 93 S. Ct. at 377–78. In this case, the victim alleged the defendant
grabbed her from behind and threw her down on the floor in a kitchen that
had no light, though the victim claimed that at one point during the attack
sufficient light shined through from the bedroom to see the defendant’s
face. Id. at 193–94, 93 S. Ct. at 379. When the victim’s screams alerted
the victim’s daughter to the attack, the daughter also screamed, and the
assailant demanded that the victim tell her to shut up or both would be
killed. Id. at 194, 93 S. Ct. at 379. The assailant forced the victim outside
and into the woods at knifepoint, under a full moon, and raped her. Id.
The attack took approximately fifteen to thirty minutes. Id.
The victim testified in the criminal prosecution that she provided
police with “a very general description” of the assailant as “being fat and
flabby with smooth skin, bushy hair and a youthful voice.” Id. at 194, 93
S. Ct. at 380. At the federal habeas hearing, she further testified that she
“described her assailant as being between 16 and 18 years old and
between five feet ten inches and six feet, tall, as weighing between 180 and
200 pounds, and as having a dark brown complexion.” Id.
The victim was shown between thirty and forty photographs, finding
only one individual with similar features to her assailant, but did not make
an identification. Id. at 195, 93 S. Ct. at 380. When police arrested the
individual with similar features on other charges, they asked the victim to
come to the police station. Id. Police could not find additional stand-ins
with similar features for a lineup, and elected to do a one person showup
instead. Id. The suspect, accompanied by officers, was marched past the
victim and instructed to say “shut up or I’ll kill you.” Id. The victim made
an identification from the showup. Id.
64
In considering the due process issue, the Biggers Court canvassed
prior cases, and emphasized that “the primary evil to be avoided is ‘a very
substantial likelihood of irreparable misidentification.’ ” Id. at 198, 93
S. Ct. at 381 (quoting Simmons, 390 U.S. at 384, 88 S. Ct. at 971). The
Supreme Court doubled down, noting that “[i]t is the likelihood of
misidentification which violates a defendant’s right to due process, and it
is this which was the basis of the exclusion of evidence in Foster.” Id. at
198, 93 S. Ct. at 381–82.
The Biggers Court addressed the question of whether unnecessary
suggestiveness in an identification procedure alone was sufficient to give
rise to a due process violation, stating that a “strict rule” to that effect
would “deter the police from using a less reliable procedure where a more
reliable one may be available.” Id. at 199, 93 S. Ct. at 382. However, the
Court moved on to “whether under the ‘totality of the circumstances’ the
identification was reliable even though the confrontation procedure was
suggestive.” Id. In order to make that determination, the Biggers Court
stated that
the factors to be considered in evaluating the likelihood of
misidentification include the opportunity of the witness to
view the criminal at the time of the crime, the witness’ degree
of attention, the accuracy of the witness’ prior description of
the criminal, the level of certainty demonstrated by the
witness at the confrontation, and the length of time between
the crime and the confrontation.
Id. at 199–200, 93 S. Ct. at 382. There was no indication at all of where
these five factors came from, but they were simply declared ipse dixit.
Applying these factors of unexplained origin, the Biggers Court
determined that there was no substantial likelihood of misidentification in
this case. Id. at 200, 93 S. Ct. at 382. In making this determination, the
Court noted the victim was attacked up to thirty minutes by the
65
perpetrator under adequate artificial light in her house and under a full
moon outdoors, and on two occasions faced him directly and intimately.
Id. The Court emphasized that the eyewitness “was no casual observer,
but rather the victim of one of the most personally humiliating of all
crimes.” Id. at 200, 93 S. Ct. at 382–83. Her contemporaneous
description of the assailant to the police “might not have satisfied Proust
but was more than ordinarily thorough,” noting that the victim was “a
practical nurse by profession, [and] had an unusual opportunity to
observe and identify her assailant.” Id. at 200–01, 93 S. Ct. at 383.
Further, the victim testified the defendant had a face “I don’t think I could
ever forget.” Id. at 201, 93 S. Ct. at 383.
The Court did recognize that “a lapse of seven months between the
rape and the confrontation . . . would be a seriously negative factor in
most cases,” but, also noted that the witness had not made a prior
identification and resisted earlier suggestive procedures. Id. As a result,
weighing all the factors, the Court concluded that there was “no
substantial likelihood of misidentification.” Id.
Justice Brennan, joined by Justices Douglas and Stewart,
concurred in part and dissented in part. Id. at 201–04, 93 S. Ct. at 384
(Brennan, J., concurring in part and dissenting in part). Justice Brennan
did not directly attack the Biggers factors but instead challenged their
application in the case, emphasizing that the district court and the court
of appeals concluded under all the facts and circumstances that there
existed an “intolerable risk of misidentification.” Id. at 202, 93 S. Ct. at
384. Justice Brennan concluded that the Court should honor the lower
court determinations in this case. Id. at 203–04, 93 S. Ct. at 384.
3. Manson. In 1977, the Supreme Court considered another
challenge to eyewitness identification in Manson, 432 U.S. 98, 97 S. Ct.
66
2243. In Manson, undercover officers engaged in a drug transaction at the
door of a third floor apartment. Id. at 99–100, 97 S. Ct. at 2245–46. One
of the officers knocked on the door, which opened twelve to eighteen
inches, and observed a man standing at the door. Id. at 100, 97 S. Ct. at
2246. The undercover officer gave the man money, the door closed, and
soon thereafter the man opened the door and gave the undercover officer
two glassine bags. Id. The area was illuminated by a window in the third
floor hallway, and the entire transaction took approximately five to seven
minutes. Id. at 100–01, 97 S. Ct. at 2246.
After the transaction, the undercover officer described the man to
other police officers in some detail. Id. at 101, 97 S. Ct. at 2246. From
the description, one of the other officers suspected that the defendant may
have been the person selling the drugs and left the photograph at the office
of the undercover officer. Id. When the undercover officer returned to the
office, he identified the person in the photo as the person from whom he
had purchased drugs. Id. The photo of the defendant was admitted into
evidence at trial without objection, and the undercover officer also made
an in-court identification without objection. Id. at 102, 97 S. Ct. at 2247
“No explanation was offered by the prosecution for the failure to utilize a
photographic array or to conduct a lineup.” Id. at 102, 97 S. Ct. at 2247.
On appeal for a petition for habeas corpus, the United States Court
of Appeals for the Second Circuit concluded that the use of the photograph
was suggestive and unnecessary. Id. at 103–04, 97 S. Ct. at 2247. Indeed,
Thus, the question avoided in Biggers was posed: Is a post-Stovall showup
that is unnecessary subject to a per se rule of exclusion? Id. at 107, 97 S.
Ct. at 2249.
The Manson Court considered factors weighing in favor and against
exclusion, distinguishing between two possible approaches: one that
67
focused on the suggestive procedure and the other, more lenient approach,
that focused on the totality of the circumstances. Id. at 110–11, 97 S. Ct.
at 2250–51. The Manson Court cited an opinion by then-Judge John Paul
Stevens, noting, “There is surprising unanimity among scholars in
regarding such a rule [the per se approach] as essential to avoid serious
risk of miscarriage of justice.” Id. at 111, 97 S. Ct. at 2251 (alteration in
original) (quoting United States ex rel. Kirby v. Sturges, 510 F.2d 397, 405
(7th Cir. 1975)). The Manson Court acknowledged the defendant’s
argument that a totality rule does not provide adequate deterrence, that
identification evidence is so convincing to the jury that sweeping
exclusionary rules are required, and that the fairness of the trial is
threatened by a suggestive confrontation. Id. at 111, 97 S. Ct. at 2251.
While recognizing arguments to the contrary, the Manson Court
rejected the per se approach for three reasons. First, the Manson Court
stated that the per se rule swept too far would keep evidence from the jury
that is reliable and relevant. Id. at 112, 97 S. Ct. at 2252. Second, the
Manson Court found that while the per se approach has the more
significant deterrent effect, the totality approach also has an influence on
police behavior. Id. Finally, the Manson Court cited concerns that the
administration of justice may be impeded by the denial of admission of
reliable evidence. Id. at 112–13, 97 S. Ct. at 2251. As a result of these
three factors, the Manson Court declared that “reliability is the linchpin in
determining the admissibility of identification testimony for both pre- and
post-Stovall confrontations.” Id. at 114, 97 S. Ct. at 2253. Applying the
five Biggers factors, the Court concluded that the eyewitness evidence,
though the product of a suggestive showup, was nevertheless sufficiently
reliable to go to the jury. Id. at 117, 97 S. Ct. at 2254.
68
Justice Marshall, joined by Justice Brennan, dissented. Id. at 118–
36, 97 S. Ct. at 2255–64 (Marshall, J. dissenting). Justice Marshall
emphasized that the language in Wade noting the “high incidence of
miscarriage of justice” applied in this case as well. Id. at 119, 97 S. Ct. at
2255 (quoting Wade, 388 U.S. at 228, 87 S. Ct. at 1933). He urged a
return to the principle in Stovall that unnecessarily suggestive
identification should be subject to per se exclusion. Id. at 128, 97 S. Ct.
at 2260. In the alternative, Justice Marshall reviewed the facts of the case
in light of the five Biggers factors, concluding that under application in
this case, there was a serious risk of irreparable misidentification. Id. at
135–36, 97 S. Ct. at 2264.
4. Summary. Biggers and Manson plainly retreat from enforcement
of a per se exclusionary rule as suggested in Stovall in favor of an ad hoc,
case-by-case analysis of eyewitness identification under the unique facts
of each case for both lineups and showups. This difference between a
more stringent per se approach and an ad hoc multifactored approach was
based upon different perceptions of the depth of the problem by members
of the Court. Clearly, Justices Marshall and Brennan stressed the
injustice of conviction based on mistaken but highly persuasive eyewitness
identifications, while the more conservative members of the Court seemed
most concerned with upholding verdicts and conserving judicial resources.
The dissents in Biggers and Manson also demonstrate how
conscientious judges can come to different conclusions on the ad hoc
judgment required for flawed lineups. The pliable multifactored test is
sufficiently flexible to allow admission of most suggestive eyewitness
identification. See David E. Paseltiner, Twenty-Years of Diminishing
Protection: A Proposal to Return to the Wade Trilogy’s Standards, 15 Hofstra
69
L. Rev. 583, 606 (1987) [hereinafter Paseltiner, Diminishing Protection]. Put
simply, Biggers and Manson were not informed by science. 12
E. Analysis of Biggers Factors in Light of Modern Eyewitness
Science.
1. Introduction. The five-factor Biggers test developed forty years
ago is now largely discredited in light of the accumulated eyewitness
science. At the outset, the results of social science and DNA exonerations
have highlighted the depth of the problem. Obtaining accurate, reliable
eyewitness identification is not a one-off issue in an occasional case, but
is widespread throughout our criminal justice system. Thus, the
dimension of the problem of eyewitness identification is more consistent
with Stovall and the dissenting opinions of Justices Marshall and Brennan
than with the majority view in Biggers and Manson.
In addition, there are four avenues of criticism for the Biggers
factors. First, some of the five identified factors themselves are simply
inaccurate indicators of the reliability of eyewitness identifications.
Second, three of the five factors for judging reliability are not independent
of a suggestive underlying identification. In other words, the more
suggestive the underlying identification, the greater the likelihood of an
eyewitness confirming the accuracy of identification through the Biggers
factors. Third, the five factors do not consider potent additional factors
that can dramatically impact reliability. Finally, as a multifactored test,
the Biggers test fails to produce consistent results and may too often be
applied in an outcome oriented manner. Cumulatively, the validity of the
12In the 1970s, only four published articles appeared in the psychological
literature containing the words “eyewitness” and “identify” in their abstract. Henderson,
27 A.3d at 892.
70
Biggers test has been washed away by the overwhelming flood of
eyewitness science.
2. Inaccurate factors: consistency and confidence. With respect to
inaccuracy, two of the five Biggers factors are flawed. First, the notion
that consistency of the identification with a previous description is an
element of reliability is circular. It may simply show that the eyewitness
is consistently erroneous. As noted by Wells and Quinlivan, the
consistency thus may show accuracy with the person identified by the
eyewitness, but may not be accurate in connection with the real culprit.
Wells & Quinlivan, Suggestive Procedures, 33 Law & Hum. Behav. at 12–
13.
Second, as noted above, the certainty factor in Biggers is not
meaningfully related to accuracy. The eyewitness science on this issue
has been canvassed earlier in this opinion and need not be repeated. By
way of summary, confirmatory statements from lineup administrators
consistently inflate eyewitness certainly for eyewitnesses who are, in fact,
mistaken. Id. A spontaneous exclamation of certainty in a nonsuggestive
setting may have some value but only if such expression arises in a
pristine, nonsuggestive setting. Id.
3. Bitter irony: The more suggestive the identification, the more likely
it satisfies Biggers criteria. In addition, the literature notes that the
suggestive factors of an identification bleed into and affect the reliability
factors. The first three Biggers criteria of view, attention, and certainty,
are retrospective self-reports that ask a witness to report on their own
credibility. As noted in the discussion of eyewitness science presented
earlier, these self-reports are influenced by the suggestiveness of the
underlying identification procedure. Thus, a suggestive procedure drives
up the view, attention, and certainty criteria of reliability. This
71
interrelationship produces a huge irony: the more suggestive the
procedure, the greater the likelihood of reliability. Id. at 16–17. Rather
than its intended purpose of deterrence, the Biggers test encourages
suggestive procedures that artificially inflate witness self-reporting of
reliability factors.
4. Incomplete character of Biggers factors. As should be apparent
from the above discussion, the Biggers factors are woefully incomplete.
They do not include a wide selection of estimator and system variables. Id.
at 21. As the preceding discussion of eyewitness science demonstrates,
the list of excluded items is extensive.
5. Outcome oriented application. Finally, the indefinite character of
the five factor Biggers test invites outcome oriented applications. Id. at 18.
There is no clear indication of where to draw the line, and thus there is a
tendency to draw no line at all. And, as Biggers and Manson
demonstrated, the five factors are quite malleable and produce different
results for different judges. But under the Biggers approach, the
condemned showup has flourished because the malleable Biggers
standards have not provided a barrier to admission of suggestive
identifications. 13 Accordingly, “even intentional or flagrant suggestive
conduct might produce no negative consequences for the police under the
totality of circumstances approach.” Steven P. Grossman, Suggestive
Identifications: The Supreme Court’s Due Process Test Fails to Meet Its Own
Criteria, 11 U. Balt. L. Rev. 53, 59 (1981); see Brandon L. Garrett,
Eyewitnesses and Exclusion, 65 Vand. L. Rev. 449, 451–52 (2012) (arguing
13The tendency of courts to admit identifications arising from unnecessarily
suggestive procedures is strong. According to one study, post-Biggers federal courts
upheld admissibility challenges of eyewitness testimony produced by suggestive
identification procedures in nine times out of ten. Nicholas A. Kahn-Fogel, Manson and
Its Progeny: An Empirical Analysis of American Eyewitness Law, 3 Ala. C.R. & C.L. L. Rev.
175, 209–10 (2012).
72
that the Biggers test is fundamentally flawed and weighted toward
inclusion of inherently unreliable evidence).
6. Summary. Both legal scholars and psychological experts decry
the Biggers test. The scholarly legal opinion is unanimously critical. See,
e.g., Nicholas A. Kahn-Fogel, Manson and Its Progeny: An Empirical
Analysis of American Eyewitness Law, 3 Ala. C.R. & C.L. L. Rev. 175, 191–
96 (2012) [hereinafter Kahn-Fogel, Manson Empirical Analysis] (citing
“unanimous opposition” among legal scholars to the Supreme Court
approach in Manson); Margery Malkin Koosed, Reforming Eyewitness
Identification Law and Practice to Protect the Innocent, 42 Creighton L. Rev.
595, 601 (2009) (urging action to reverse the current trend “to tolerate
eyewitness identification procedures that gratuitously increase the risk of
convicting innocent persons”); Timothy P. O’Toole & Giovanna Shay,
Manson v. Brathwaite Revisited: Towards a New Rule of Decision for Due
Process Challenges to Eyewitness Identification Procedures, 41 Val. U. L.
Rev. 109, 121 (2006) [hereinafter O’Toole, Due Process Challenges]
(characterizing the problems with Manson as “fairly obvious in light of the
psychological research”); Paseltiner, Diminishing Protection, 15 Hofstra L.
Rev. at 606–07 (advocating per se exclusion of unnecessarily suggestive
identification procedures); Charles A. Pulaski, Neil v. Biggers: The Supreme
Court Dismantles the Wade Trilogy’s Due Process Protection, 26 Stan. L.
Rev. 1097, 1119–21 (1974) (noting the ways that Biggers substantially
undermined the due process safeguards of the Wade trilogy); David A.
Sonenshein & Robin Nilon, Eyewitness Errors and Wrongful Convictions:
Let’s Give Science a Chance, 89 Or. L. Rev. 263, 300–01 (2010) (canvassing
advances in scientific evidence as applied to the Biggers reliability factors,
and finding them “seriously flawed and ineffective”).
73
The opinion of eyewitness scientists is similar. See, e.g., Wells,
Lineups and Photospreads, 22 Law & Hum. Behav. at 608 (finding the U.S.
Supreme Court’s safeguards fail to provide intended protection); Wells &
Quinlivan, Suggestive Procedures, 33 Law & Hum. Behav. at 1 (reviewing
studies and questioning the ongoing validity of Manson).
The bottom line is expressed in Jones on Evidence as follows:
[T]he due process standard and procedures the Supreme
Court [has] promulgated . . . for assessing identification
accuracy in criminal cases, including its five factor test, are
seriously flawed and in fact may contribute to, rather than
reduce, the number of wrongful convictions.
Clifford S. Fishman & Anne T. McKenna, 6 Jones on Evidence, § 40:8 (7th
ed.), Westlaw (database updated July 2019).
Similarly, another scholar, after analyzing Federal caselaw applying
Manson in great detail, declared,
Given ever-mounting proof of the ways that flawed analysis of
the reliability of identification evidence can lead to admission
of evidence that is, in fact, unreliable, courts must take
responsibility for improving their evaluative frameworks to
avoid undermining the validity of the conclusions they draw.
Finally, given unanimous criticism and irrefutable proof from
scientists and legal scholars that Manson has been
inadequate to guard against admission of unreliable evidence,
the Supreme Court must take responsibility for replacing its
flawed standard with a workable due process test.
Kahn-Fogel, Manson Empirical Analysis, 3 Ala. C.R. & C.L. L. Rev. at 226.
And, finally, another scholar has succinctly stated, “Sadly, the rule
of decision set out in Manson has failed to meet the Court’s objective of
furthering fairness and reliability. The results have been tragic.” O’Toole,
Due Process Challenges, 41 Val. U. L. Rev. at 110.
74
VI. Perry v. New Hampshire: Limiting Due Process Analysis to
Police-Orchestrated Identification (The State Action Requirement).
A. Approach to State Action in Prior Federal Cases. Prior to
Perry, 565 U.S. 228, 132 S. Ct. 716, the federal courts were divided on the
question of whether a due process attack on an unduly suggestive
identification could arise under situations where the identification was not
police orchestrated. The First, Second, Sixth and Ninth Circuits held that
all unduly suggestive identifications could be attacked regardless of
whether there was police orchestration. See Dunnigan v. Keane, 137 F.3d
117, 128 (2d Cir. 1998) (“Preliminarily, we note our rejection of the State’s
contention that no due process scrutiny of [the witness’s] pretrial
identification was required on the theory that [the individual] who showed
the pictures, was a private investigator acting independently, and not as
an agent of the police.”), abrogated by Perry, 565 U.S. at 248, 132 S. Ct.
at 730; United States v. Bouthot, 878 F.2d 1506, 1516 (1st Cir. 1989)
(“[O]verly suggestive identifications are suppressed primarily to avoid an
unfair trial.”), abrogated by Perry, 565 U.S. at 248, 132 S. Ct. at 730;
Thigpen v. Cory, 804 F.2d 893, 895 (6th Cir. 1986) (“[O]nly the effects of,
rather than the causes for, pre-identification encounters should be
determinative of whether the confrontations were unduly suggestive.”),
abrogated by Perry, 565 U.S. at 248, 132 S. Ct. at 730; Green v. Loggins,
614 F.2d 219, 222 (9th Cir. 1980) (“[D]eterrence of [wrongful police]
conduct is not the primary purpose behind judicial review of tainted
identification testimony. Rather, a court reviews a challenged in-court
identification essentially to determine whether the witness’ testimony
retains sufficient indicia of reliability.”). The Third and Seventh Circuits,
however, came to the contrary conclusion. See United States v. Kimberlin,
805 F.2d 210, 233 (7th Cir. 1986) (“We do not agree that [a nonpolice-
75
orchestrated lineup] triggers a due process right to judicial evaluation of
the reliability of the in-court identification under [Biggers].”); United States
v. Zeiler, 470 F.2d 717, 720 (3d Cir. 1972) (“Both Wade and Simmons were
concerned with the conduct of law enforcement officials in unfairly
influencing identifications.”). The United States Supreme Court in Perry
granted certiorari to resolve the split among the circuits on the question.
B. Perry v. New Hampshire: Turning Biggers Upside Down. The
most recent United States Supreme Court case dealing with eyewitness
identification is Perry, 565 U.S. 228, 132 S. Ct. 716. In Perry, police
responded to an early morning report that an African-American male was
breaking into cars in an apartment house parking lot. Id. at 233, 132
S. Ct. at 721. Police arrived at the scene and discovered Perry, an African-
American male, in the parking lot. Id. An eyewitness described the
perpetrator to police in general terms. Id. at 234, 132 S. Ct. at 721. When
police asked for a more specific description, the witness, looking out the
fourth floor apartment window, identified Perry in the parking lot standing
next to the police. Id. at 234, 132 S. Ct. at 722.
About a month later, the police presented the witness with a photo
array that included Perry, but the witness could not identify Perry from
the presentation. Id. At trial, the state sought to introduce the prior
identification of Perry made from the fourth floor apartment window; Perry
attacked the identification as unnecessarily suggestive and amounting to
a one person showup. Id. at 234–35, 132 S. Ct. at 722. Perry was found
guilty of theft. Id. at 236, 132 S. Ct. at 723.
The Perry Court affirmed the conviction. Id. at 248, 132 S. Ct. at
730. According to the majority, the primary aim of the exclusion of
eyewitness evidence is deterrence of unnecessarily suggestive
identification procedures by law enforcement. Id. In this case, according
76
to the Perry majority, law enforcement did not set up the identification;
instead, the witness simply made an identification out of the fourth story
window without any suggestion by police. Id. at 240–41, 132 S. Ct. at
725–26. As a result, it was not necessary to determine the reliability of the
eyewitness testimony. Id.
In reaching its conclusion that the due process protections in the
Wade line of cases did not apply to identifications not involving police
orchestration, the Perry Court noted that juries, and not judges,
traditionally determine the reliability of evidence. Id. at 245, 132 S. Ct. at
728. The Perry Court observed that procedural safeguards such as cross-
examination and jury instructions are available to expose flaws and
evaluate credibility of such testimony. Id. at 245–47, 132 S. Ct. at 728–
29. The Perry Court stated that the constitutional requirement that the
state prove guilt beyond a reasonable doubt impedes convictions based on
dubious identification evidence. Id. at 247, 132 S. Ct. at 729. The Court
also noted that the rules of evidence permit trial judges to exclude relevant
evidence if its probative value is substantially outweighed by its prejudicial
impact. Id. And, expert witnesses and jury instructions are available to
assist the defense. Id. at 245–47, 132 S. Ct. at 728–29.
Justice Sotomayor dissented. Id. at 249–65, 132 S. Ct. at 730–40
(Sotomayor, J., dissenting). She noted that the due process concerns
expressed in the Wade line of cases was rooted not in deterrence but
instead on the reliability of the underlying identification. Id. at 250, 132
S. Ct. at 731. She saw no meaningful distinction between a suggestive
lineup orchestrated by police and a suggestive lineup inadvertently caused
by police. Id. She noted the “vast body of scientific literature” and “more
than 2000 studies” on eyewitness reliability undermine the majority
position, yet “merit[] barely a parenthetical mention in the majority
77
opinion.” Id. at 262–63, 132 S. Ct. at 738–39. According to Justice
Sotomayor,
Study after study demonstrates that eyewitness recollections
are highly susceptible to distortion by postevent information
or social cues; that jurors routinely overestimate the accuracy
of eyewitness identifications; that jurors place the greatest
weight on eyewitness confidence in assessing identifications
even though confidence is a poor gauge of accuracy; and that
suggestiveness can stem from sources beyond police-
orchestrated procedures.
Id. at 264, 132 S. Ct. at 739 (footnotes omitted). According to Justice
Sotomayor, the majority “adopt[ed] an artificially narrow conception of the
dangers of suggestive identifications at a time when [the Court’s] concerns
should have deepened.” Id. at 264–65, 132 S. Ct. at 739.
Justice Sotomayor also attacked the majority’s reliance on the
ordinary trial process to root out unreliable eyewitness identifications,
pointing out that this was the position of Justice Black in the dissents in
Foster and Simmons that were not previously adopted by the majority of
the Court nor should they be now. Id. at 260–61, 132 S. Ct. at 737.
C. Analysis of Perry.
1. Perry has no applicability to first-time, in-court identification.
Perry seems to draw a bright line between police orchestrated
identifications and identification arising out of the conduct of private
parties. Plainly, a first-time, in-court identification is infused with state
action. The state has arrested the defendant, charged the defendant with
a crime, brought the defendant into court, and presented the jury with an
eyewitness who knows that the state believes the defendant is the culprit.
It is hard to imagine a more intensive state involvement in a suggestive
lineup
A contrary view would set a dangerous precedent and invite
gamesmanship. Specifically, if the state is concerned that an eyewitness
78
might be uncertain, it could avoid a nonsuggestive lineup or photo array,
and instead present the witness in-court where the defendant is on trial.
In the most suggestive environment imaginable, a court of law, where the
defendant is facing potentially severe penalties, the witness is then asked
to identify the defendant. The witness knows their role, does not want to
disappoint, and is inclined to be helpful to the state. Even a witness who
could not describe the defendant’s facial features contemporaneously with
the crime can have a sudden improvement in memory!
2. Deterrence as primary goal. It is simply not true that the prior
eyewitness identification cases of the United States Supreme Court were
based primarily on deterrence. Although such decisions are limited to
situations where police have not orchestrated the eyewitness
identification, and thus have no application to first-time, in-court
identifications, nothing in Perry, for instance, establishes this
extraordinary proposition. Historically, due process has always been
about fundamental fairness toward a defendant or a person otherwise
deprived of life, liberty, or property. See, e.g., Tom Pryor, Note, Turner v.
Rogers, the Right to Counsel, and the Deficiencies of Mathews v. Eldridge,
97 Minn. L. Rev. 1854, 1855 (2013) (“In procedural due process cases . . .
the Court typically balances the interests of the individual against society’s
interests in order to determine whether the costs of additional procedural
protections are worth the decreased risk of an erroneous deprivation of
rights.”).
Indeed, in case after case, the Supreme Court’s eyewitness
identification cases focused on the reliability of the identifications, not
deterrence. For instance, in Stovall, the Court noted that “it remains open
to all persons to allege and prove . . . that the confrontation resulted in
such unfairness that it infringed his right to due process of law,” and
79
further that “[t]his is a recognized ground of attack upon a conviction
independent of any right to counsel claim.” Stovall, 388 U.S. at 299, 302,
87 S. Ct. at 1971, 1972.
Similarly, in Foster, 394 U.S. 440, 89 S. Ct. 1127, the Supreme
Court declared that “it is the teaching of Wade, Gilbert, and Stovall . . .
that in some cases the procedures leading to an eyewitness identification
may be so defective as to make the identification constitutionally
inadmissible as a matter of law,” and further, that in this case, the
“[suggestive police] procedure so undermined the reliability of the
eyewitness identification as to violate due process.” Id. at 442 n.2, 443,
89 S. Ct. at 1128 n.2, 1129.
In Coleman, 399 U.S. 1, 90 S. Ct. 1999, the Supreme Court repeated
its emphasis on fairness by noting that the question was whether the
identification process was “so unduly prejudicial and conducive to
irreparable misidentification as fatally to taint [the witness’s] in-court
identifications of [the defendants] at the trial.” Id. at 3, 90 S. Ct. at 2000.
If there was any doubt, the Supreme Court clearly identified
reliability as the lodestar of the due process analysis in Biggers and
Manson. In Biggers, the Supreme Court declared that “the primary evil to
be avoided is ‘a very substantial likelihood of irreparable misidentification’
. . . which violates a defendant’s right to due process.” Biggers, 409 U.S.
at 198, 93 S. Ct. at 381–82 (quoting Simmons, 390 U.S. at 384, 88 S. Ct.
at 971). The Biggers “primary evil” approach was confirmed in Manson,
which declared that “reliability is the linchpin in determining the
admissibility of identification testimony for both pre- and post-Stovall
confrontations.” Manson, 432 U.S. at 114, 97 S. Ct. at 2253. In light of
the long line of cases, the majority’s apparent adoption of the erroneous
80
suggestion that the due process cases have been “primarily” about
deterrence is simply not correct.
Further, the notion that due process in the context of eyewitness
identification is based upon the reliability of the evidence is spot on. Due
process historically has always been about fundamental fairness. See
N. C. Dep’t of Revenue v. Kimberley Rice Kaestner 1992 Family Tr., 588 U.S.
___, ___, 139 S. Ct. 2213, 2219 (2019) (“The Due Process Clause provides
that ‘[n]o State shall . . . deprive any person of life, liberty, or property,
without due process of law’ . . . [and] ‘centrally concerns the fundamental
fairness of governmental activity,’ ” (first quoting U.S. Const. amend. XIV;
and then quoting Quill Corp. v. North Dakota, 504 U.S. 298, 312, 112 S. Ct.
1904, 1913 (1992), overruled on other grounds by South Dakota v. Wayfair,
Inc., 585 U.S. ___, ___, 138 S. Ct. 2080, 2099 (2018)); Lassiter v. Dep’t of
Soc. Servs., 452 U.S. 18, 24–25, 101 S. Ct. 2153, 2158 (1981) (“[T]he
requirement of ‘fundamental fairness’ [in the Due Process Clause is] a
requirement whose meaning can be as opaque as its importance is lofty .
. . [and applying it] is therefore an uncertain enterprise which must
discover what ‘fundamental fairness’ consists of in a particular situation
by first considering any relevant precedents and then by assessing the
several interests that are at stake.”). The due process incorporation of the
Bill of Rights against the states was necessary to provide a defendant with
the “fundamental fairness essential to the very concept of justice.” Lisenba
v. California, 314 U.S. 219, 236, 62 S. Ct. 280, 290 (1941). It has
repeatedly been said that the “touchstone” of due process is fundamental
fairness. See, e.g., Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S. Ct. 1756,
1763 (1973); United States v. Harrington, 749 F.3d 825, 828 (9th Cir.
2014); State v. Melendez, 834 P.2d 154, 157 (Ariz. 1992); Salas v. Cortez,
593 P.2d 226, 229 (Cal. 1979). Searching for the terms “due process” and
81
“fundamental fairness” together in the same sentence produces thousands
of legal cases and scholarly articles. Attempting a similar search for
caselaw finding the touchstone of due process is deterrence, however, is
fruitless.
It is simply wrong for the Supreme Court to convert the federal
constitutional due process protection that a trial be fundamentally fair into
some kind of review for police misconduct. The eyewitness identification
context is fundamentally different than when exclusion of evidence is
sought under search and seizure provisions, where reliable evidence is
excluded in order to deter violation of constitutional rights. Here, the exact
opposite is taking place. Exclusion occurs not to deter police misconduct,
but to ensure the reliability of eyewitness evidence submitted to the jury.
Due process in this context requires a laser-like focus on the potential
reliability and prejudicial effects of a faulty eyewitness identification.
When the focus shifts to police, the tendency is to excuse misconduct, but
when the focus is on the fairness of the process to the individual, the
outcomes are dictated by the core value of due process: fundamental
fairness for the accused.
Further, any distinction between police-orchestrated identification
and the identification process in Perry, for purposes of fundamental
fairness, makes no sense. A wrongly convicted defendant will not sleep
better in a prison bed because a highly unreliable eyewitness identification
offered by the state in the defendant’s criminal prosecution was not a
product of explicit state action at the time of the identification. The gist of
due process, from the very beginning, has been to guarantee that any
action by the state, like a criminal prosecution, is fundamentally fair. The
purpose of the Due Process Clause is to protect the defendant from unfair
imposition of criminal sanction, not to function as some kind of beneficent
82
police disciplinary board that gives law enforcement wide latitude in order
to maintain morale and obtain convictions by procuring unreliable
identification.
3. Inconsistent application of deterrence goals. Even on its face, the
deterrence rationale in Perry is flawed. Under the Biggers formulation,
many unnecessarily suggestive identifications become admissible. As
noted in Biggers, the deterrence of a per se rule was superior to the ad hoc
process of determining reliability based on a number of factors, yet the
Court insisted on focusing not on deterrence but instead on the reliability
of the underlying confession. In Biggers, the Court held that deterrence
played second fiddle to reliability. Now, in Perry, the Supreme Court
suggests that deterrence is more important than reliability in a due
process attack on an eyewitness identification. It seems the main goal
here is not consistency of reasoning but consistency in result: highly
suggestive eyewitness identifications are not excluded and can be used to
convict defendants.
4. Reliance on jury to sort out issues of suggestive identification. Of
course, as a general matter, we rely upon juries to find facts. Yet,
throughout the law, we refuse to allow admission of evidence for jury
consideration. We have an elaborate set of rules of evidence that excludes,
for instance, hearsay evidence on the ground that it is unreliable. The
admission of hearsay is thought to be so damaging that it is presumed to
be prejudicial. See, e.g., Fed. R. of Evid. 802; Iowa R. of Evid. 5.802. We
further have a regulatory regime surrounding the admission of other bad
acts evidence. See, e.g., Fed. R. of Evid. 404; Iowa R. of Evid. 5.404. Again,
evidence of prior bad acts is thought to be simply too prejudicial to be
provided to a jury. Finally, we control the admission of expert testimony
in order to prevent miscarriages of justice arising from reliance on
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unreliable expert testimony. See, e.g., Fed. R. of Evid. 702; Iowa R. of Evid.
5.702. In a wide variety of contexts, then, our legal system does not simply
hand evidence to the jury without gatekeeping, and we do not on rely on
Wigmore’s “engine” of cross-examination to establish reliability of hearsay,
other bad acts evidence, or expert testimony, nor should we here. 14 As
has been shown above, cross-examination is a limited tool when a lawyer
faces a sincere but mistaken eyewitness.
D. Application of Due Process Challenges to In-Court
Identifications. Prior to Perry, a majority of the circuit courts held that a
defendant could mount a Biggers/Manson due process attack on in-court
identifications. See United States v. Saunders, 501 F.3d 384, 389–90 (4th
Cir. 2007); United States v. Rattler, 475 F.3d 408, 411 (D.C. Cir. 2007);
United States v. Jones, 126 F. App’x 560, 567–69 (3d Cir. 2005); United
States v. Rogers, 126 F.3d 655, 657–59 (5th Cir. 1997); United States v.
Kime, 99 F.3d 870, 882–83 (8th Cir. 1996); United States v. Archibald, 734
F.2d 938, 940–43 (2d Cir.), as modified, 756 F.2d 223 (2d Cir. 1984). In
United States v. Domina, 784 F.2d 1361 (9th Cir. 1986), the Ninth Circuit
reviewed admission of a first-time, in-court identification for abuse of
discretion, stating an abuse of discretion would occur if “in-court
identification procedures are so ‘ “unnecessarily suggestive and conducive
to irreparable misidentification” as to amount to a denial of due process of
14We, of course, refer to
Dean and legal scholar John Henry Wigmore [1863–1943], whose greatest
contribution was the Treatise on the Anglo–American System of Evidence
in Trials at Common Law (1904) [“Wigmore on Evidence”], famously
described cross-examination as the “greatest legal engine ever invented for
the discovery of truth” and “the great and permanent contribution of the
Anglo–American system of law to improved methods of trial procedure.”
Barnaby v. Coreman, Inc., 890 N.Y.S.2d 291, 293 (Sup. Ct. 2009) (quoting 5 John Henry
Wigmore, Wigmore on Evidence § 1367, at 32 (Chadbourn rev. 1974)).
84
law.’ ” Id. at 1369 (quoting United States v. Williams, 436 F.2d 1166, 1168–
69 (9th Cir. 1970)).
After Perry, Federal courts are divided on the question of whether a
defendant may launch a due process challenge to an in-court
identification. The Fourth and Seventh Circuits have held that the Biggers
reliability test still applies to in-court identifications. See Lee v. Foster,
750 F.3d 687, 691–92 (7th Cir. 2014); United States v. Greene, 704 F.3d
298, 308 (4th Cir. 2013). On the other hand, the Tenth and Eleventh
Circuits have come to the opposite conclusion. See United States v.
Thomas, 849 F.3d 906, 911 (10th Cir. 2017); United States v. Whatley, 719
F.3d 1206, 1214–17 (11th Cir. 2013).
VII. State Court Developments Embracing Eyewitness Science.
A. Role of State Courts in Development of Law. Historically,
more often than not it has been the state courts that have taken the lead
in the development of constitutional law. While cases of the United States
Supreme Court often gain the most attention, invariably the seminal cases
are based on state court developments. See William J. Brennan, Jr., State
Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489,
490–91 (1977). While many of us attended law schools that focused
courses on constitutional law on developments in the Warren Court, it has
been the state courts that have been primarily the drivers of the
development of legal doctrine. As a result, if we are to have a vibrant legal
system, it is important that the state courts embrace their primary role in
legal development and not surrender it to an institution that, in large part
because of federalism considerations, tends to be an inert and lagging
decision-maker. States following the federal approach in lockstep with
constitutional issues stifle and inhibit the development of the law.
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No one should be surprised that state courts play the leadership role
in the development of constitutional law in the criminal justice system.
Indeed, that is exactly what the framers of the United States Constitution
intended. At the time the United States Constitution was adopted, there
were virtually no federal crimes and it was fully expected that criminal
justice would be the primary concern of state courts. The framers would
have been comfortable with the notion that the state courts would often
take the lead in the development of law, with the United States Supreme
Court, more often than not, responding to state court developments and
not the other way around.
B. State Court Return to Per Se Rejection of Unnecessary
Showups Framework of Wade/Gilbert/Stovall Under State
Constitutions.
1. Introduction. One approach designed to limit the risk of
misidentification in eyewitness testimony is to return to the
Wade/Gilbert/Stovall approach to the issue where showups are employed.
By adopting a per se rule that unnecessarily suggestive identification
procedures are inadmissible, courts avoid a slipshod, multifactored case-
by-case approach to reliability in favor of a more certain rule for law
enforcement to follow and the courts to apply.
2. New York. By the mid-1980s, state courts began to conform their
approach to eyewitness identification to bring it more in line with the
scientific consensus. By way of example, in People v. Adams, 423 N.E.2d
379 (N.Y. 1981), the New York court condemned a showup under the due
process clause of the New York Constitution where multiple witnesses
were presented with multiple suspects. Id. at 383–84. The Adams court
dubbed the police procedure “the ideal of suggestibility.” Id. at 383. The
Adams court rejected the grafting of a reliability test of Biggers on such
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pretrial showups and declared that under the due process clause of the
New York Constitution, the approach adopted in Stovall would control. Id.
at 383–84.
3. Massachusetts. In Commonwealth v. Johnson, 650 N.E.2d 1257
(Mass. 1995), the Supreme Judicial Court of Massachusetts considered
the validity of a suggestive showup under article 12 of the Declaration of
Rights of the Massachusetts Constitution. Id. at 1260. The Johnson court
noted that it followed the per se rule previously set forth in the
Wade/Gilbert/Stovall trilogy in a number of cases but had not had the
opportunity to consider whether to apply the approach of Biggers/Manson.
Id.; see Commonwealth v. Botelho, 343 N.E.2d 876, 880–81 (Mass. 1976).
The Johnson court rejected the invitation to follow Biggers/Manson
under the Massachusetts due process clause, recognizing the approach in
Manson “denies the trier reliable evidence, [and so] [the per se approach]
may result, on occasion, in the guilty going free.” Johnson, 650 N.E.2d at
1263 (quoting Manson, 432 U.S. at 112, 97 S. Ct. at 2252). But the
Johnson court declared that the inverse is more likely true, namely, that
the admission of unnecessarily suggestive identification procedures under
the reliability test would likely result in the innocent being jailed while the
guilty go free. Id.
Further, the Johnson court distinguished its per se exclusionary rule
for unnecessarily suggestive showups from the exclusionary rule applied
to confessions and the fruits of search and seizure. Unlike the confession
and search and seizure settings, the exclusion of suggestive identifications
is designed to enhance the reliability of trial and reduce the risk that the
wrong person will be convicted as a result of suggestive identification
procedures. Id. at 1264. According to the Johnson court, “The [Manson]
reliability test hinders, rather than aids, the fair and just administration
87
of justice by permitting largely unreliable evidence to be admitted directly
on the issue of defendant’s guilt or innocence.” Id.
The Johnson court also noted that the Manson test “does little or
nothing to discourage police from using suggestive identification
procedures.” Id. at 1263. The Johnson court noted that “[a]lmost any
suggestive lineup will still meet reliability standards” and be admitted into
evidence despite the unnecessary suggestiveness of the identification
procedure. Id. (quoting Paseltiner, Diminishing Protection, 15 Hofstra L.
Rev. at 606).
4. Wisconsin. The Wisconsin Supreme Court considered the
appropriate approach to showups under the due process clause of article I,
section 8 of the Wisconsin Constitution in State v. Dubose, 699 N.W.2d
582 (Wis. 2005), overruled by State v. Roberson, 935 N.W.2d 813, 816 (Wis.
2019). Prior Wisconsin caselaw had simply applied Biggers and Manson
to eyewitness identifications. See State v. Wolverton, 533 N.W.2d 167, 178
(Wis. 1995), overruled by Roberson, 935 N.W.2d at 816; Fells v. State, 223
N.W.2d 507, 513–14 (Wis. 1974), overruled by Roberson, 935 N.W.2d at
816. The defendant in DuBose asked the court to revisit its position with
regard to the application of Biggers and Manson under the Wisconsin
Constitution. Dubose, 699 N.W.2d at 591.
The Dubose court began its analysis by recognizing that much new
information had been assembled since the court reviewed a showup
procedure in Wolverton, citing research over the past decade, including the
work of Gary Wells, that the court characterized as “impossible for us to
ignore.” Id. at 591. The Dubose court concluded that the recent studies
confirmed that eyewitness testimony is often “hopelessly unreliable,” and
that its current approach has significant flaws. Id. at 592 (quoting
Johnson, 650 N.E.2d at 1262). In developing an independent test under
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the Wisconsin Constitution, the Dubose court returned to examine the
two-pronged test in Stovall of suggestiveness and necessity, concluding
that showups were always suggestive and that the focus of analysis should
be on the second Stovall prong of necessity. Id. at 599. Under the
Wisconsin due process test, the Dubose court narrowly defined necessity
to include only exigent circumstances or an inability to arrest a suspect
for lack of probable cause to prevent the police from engaging in a line up
or photo array procedure. Id. at 593–94.
C. Modification of Biggers Reliability Framework Under State
Constitutions.
1. Introduction. While New York, Massachusetts, and Wisconsin
returned to a Wade/Gilbert/Stovall model for consideration of the
admissibility of pretrial showup identifications under their state
constitutions, courts in Utah, New Jersey, Connecticut and other states
retained the two-step structure of Biggers/Manson, yet engaged in
substantial revision of the factors to be considered to better conform the
law to the consensus eyewitness science. A similar result was obtained
through application of local rules of evidence in Oregon and other
jurisdictions.
2. Utah. In Utah, the evolving caselaw begins with State v. Long,
721 P.2d 483. In Long, the court considered a claim that the defendant
was entitled to an instruction cautioning the jury about the fallibility of
eyewitness identifications where such an identification was at issue. Id.
at 484, 487. In order to answer the issue, the Long court canvassed the
scientific literature and concluded that it “is replete with empirical studies
documenting the unreliability of eyewitness identification.” Id. at 488. The
court further observed that “[p]erhaps it is precisely because jurors do not
89
appreciate the fallibility of eyewitness testimony that they give such
testimony great weight.” Id. at 490.
The Long court observed that courts and lawyers tend to “ignore the
teachings of other disciplines, especially when they contradict long-
accepted legal notions.” Id. at 491. As an example, the court noted “the
lag between the assumptions embodied in the law and the findings of other
disciplines” found in Biggers. Id. The court noted that several of the
criteria listed in Biggers were flatly contradicted by empirical studies and
that the time had come for a more empirically sound approach. Id.
The court concluded,
Given the great weight jurors are likely to give eyewitness
testimony, and the deep and generally unperceived flaws in it,
to convict a defendant on such evidence without advising the
jury of the factors that should be considered in evaluating it
could well deny the defendant due process of law under article
I, section 7 of the Utah Constitution.
Id. at 492.
The Utah Supreme Court built on Long in State v. Ramirez, 817 P.2d
774 (Utah 1991), abrogated by State v. Lujan, 459 P.3d 992, 999 (Utah
2020). In Ramirez, a defendant challenged the admission of eyewitness
showup testimony. Id. at 776–77. The Ramirez court noted that by
departing from the federal caselaw, it would be better able to craft a more
empirically based approach under Utah law. Id. at 780. The Ramirez court
declared that the ultimate question is whether, under the totality of
circumstances, the identification was reliable. Id. at 781. Reviewing Long,
the Ramirez court retained the first two Biggers factors and discarded the
last three (accuracy of prior description, level of certainty, and length of
time). Id. at 779. The Ramirez court then added the additional factors of
(1) “the witness’s capability to observe the event”; (2) “whether the
witness’s identification was made spontaneously and remained consistent
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thereafter, or whether it was the product of suggestion”; and (3) “the nature
of the event being observed and the likelihood that the witness would
perceive, remember and relate it correctly.” Id. (quoting Long, 721 P.2d at
493). The Ramirez court thus pruned unsound criteria in Biggers and
added science-based criteria which research showed were related to
reliability. Under the facts presented in the case, the Ramirez court
determined that construing the facts in a fashion most favorable to the
trial court’s determination to admit the evidence, no constitutional error
was present. Id. at 784.
3. New Jersey. In 2011, the New Jersey Supreme Court decided
Henderson, 27 A.3d 872, in which the court undertook a major review of
its approach to eyewitness identification. In order to assist in its
deliberations, the court appointed a special master to hold hearings,
review pertinent eyewitness science and make recommendations to the
court. Id. at 877. The Henderson opinion begins with an explicit
declaration that the scientific evidence reviewed by the special master was
reliable. Id. Among other findings, the court acknowledged the
malleability of memory and the impact of many factors on the reliability of
eyewitness identification. Id. at 878. According to Henderson,
misidentification was generally a product of a witness’s honest yet
mistaken belief. Id. at 889.
The Henderson court reviewed the United States Supreme Court’s
approach to eyewitness identification and found it to be inadequate,
concluding that Manson did not deter police from using suggestive
procedures and overestimated the ability of jurors to evaluate testimony
for reliability. Id. at 918–19. Henderson developed a framework for
admission of eyewitness evidence obtained through unnecessarily
suggestive procedures in New Jersey. Id. at 919–22. A defendant may
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trigger a pretrial hearing by showing evidence that a system variable could
have caused the identification to be suggestive. Id. at 920. The burden
shifts to the state to show that the identification is reliable. Id. If the state
succeeds, the burden shifts back to the defendant to show a “very
substantial likelihood” of incorrect identification. Id.
4. Oregon. A year after Henderson, the Oregon Supreme Court
considered its law of eyewitness identification in Lawson, 291 P.3d 673,
which surveyed the current eyewitness science and concluded that its
prior approach, which was similar to the Biggers test, was no longer
adequate. Id. at 677. The Lawson court replaced its prior approach with
a regime based upon the Oregon Evidence Code (OEC). Id. The new
framework adjudged that eyewitness identification must be based on
personal knowledge, and must be rationally based and “helpful to the trier
of fact” under Oregon Evidence Code 602 and 701, respectively. Id. at
692–94. If these tests are met, the identification is admissible unless the
defendant can show that the evidence is substantially more prejudicial
than probative under Oregon Evidence Code 403. Id. at 694. The Lawson
court listed a number of variables that could be considered by courts in
making the determination as to whether to admit evidence, but the Lawson
court gave trial courts broad discretion in determining whether to admit
the eyewitness evidence. Id. at 694–97.
5. Alaska. In 2009, the Alaska Court of Appeals highlighted the
weakness in the way courts evaluated the reliability of eyewitness
testimony under Manson. Tegoseak v. State, 221 P.3d 345, 350–63
(Alaska Ct. App. 2009). The Alaska Supreme Court then considered in
2016 the continued vitality of the Biggers/Manson approach under the due
process clause of the Alaska Constitution in Young, 374 P.3d 395.
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The Young court determined that any eyewitness identification error
that might have occurred in the case was harmless. Id. at 409–10.
Nonetheless, while the court stated it generally refrained from issuing
advisory opinions, it at times set aside the policy of self-restraint to correct
or clarify important aspects of the law. Id. at 412–13. The Young court
proceeded to reevaluate the Biggers/Manson framework.
The Young court determined that it was time to abandon the
Biggers/Manson framework for a science-based approach, emphasizing
the explosion of eyewitness science after the 1970s. Id. at 414. The Young
court noted that it had adopted the Biggers/Manson framework of
reliability without reference to whether its assumptions were scientifically
valid. Id. at 415. The legal landscape, however, according to the Young
court, had changed. Id. The Young court noted that a primary goal of the
criminal justice system was “to protect the innocent accused against an
erroneous conviction.” Id. at 416 (quoting Shaw v. State, 861 P.2d 566,
570 (Alaska 1993)).
The court concluded that the five Biggers factors did not consider
many of the factors known to impact reliability of eyewitness
identifications. Id. at 425. Further, the court noted that three of the
Biggers factors rely on the witness’s own subjective perceptions, and
therefore the court questioned the reliability of witness confidence in light
of the eyewitness science. Id. at 426. According to the Young court,
[b]ecause the [Manson] test assesses reliability only after the
defendant has shown that the procedure was unnecessarily
suggestive, the test could have the perverse effect of making it
more likely an improperly suggestive procedure will be found
reliable and admissible, because the suggestiveness itself has
made a witness more certain.
Id.
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6. Connecticut. As in Utah, the evolution of law in Connecticut
began with a case which considered a relatively narrow issue. In Guilbert,
49 A.3d 705, the defendant challenged his conviction based on the refusal
of the trial court to allow the admission of expert testimony on the fallibility
of eyewitness identification testimony. Id. at 712. Prior Connecticut
caselaw held that such testimony would invade the province of the jury.
Id.; see, e.g., State v. McClendon, 730 A.2d 1107, 1114–15 (Conn. 1999),
overruled by Guilbert, 49 A.3d at 712; State v. Kemp, 507 A.2d 1387, 1389
(Conn. 1986), overruled by Guilbert, 49 A.3d at 712.
The Guilbert court, however, determined that the time had come to
overrule prior precedent prohibiting expert eyewitness testimony. Id. at
712. Noting widespread judicial recognition that eyewitness
identifications were potentially unreliable in a variety of ways unknown to
the average juror, the court found that the broad based judicial recognition
tracked a “near perfect scientific consensus.” Id. at 721. Among other
things, the Guilbert court provided a nonexhaustive list of concepts that
courts across the country now accepted:
(1) there is at best a weak correlation between a witness’
confidence and 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.
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Id. at 721–23 (footnotes omitted). The Guilbert court determined that while
these findings were widely accepted by scientists, they were largely
unfamiliar to the average person and that, in fact, many of the findings
were counterintuitive. Id. at 723.
The Guilbert court considered whether cross-examination was
adequate to identify the weakness of eyewitness testimony, and ultimately
concluded that it was not for several reasons. Most importantly, cross-
examination is far better at exposing lies than sincere but mistaken beliefs.
Id. at 725. Cross-examination also cannot effectively educate the jury
about the importance of factors affecting eyewitness identification. Id. at
726.
The Guilbert court also considered the curative efficacy of jury
instructions, determining that jury instructions in broad terms are
ineffective compared with expert testimony. Id. at 726–27. Further, jury
instructions generally come at the end of trial, when jurors are likely to
have formed opinions on the witness testimony and are likely to be fatigued
after a long trial. Id. For the above reasons, the Guilbert court reversed
its prior precedent and held it was error for the district court to refuse to
allow admission of eyewitness testimony. Id. at 735–38.
Guilbert foreshadowed the later case of State v. Harris, 191 A.3d 119
(Conn. 2018). Harris reversed course from an earlier case, State v.
Ledbetter, 441 A.2d 595 (Conn. 1981), where the Connecticut Supreme
Court rejected a request to depart from Biggers under the Connecticut
Constitution. In Harris, the defendant challenged under both the State
and Federal Constitutions a pretrial identification that occurred at his
arraignment and a subsequent in-court identification. Harris, 191 A.3d at
122–23. The Harris court first determined that the original identification
was unnecessarily suggestive as only nine of the persons being arraigned
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were African-American and there were marked dissimilarities between
each of those and the witness’s original description of the culprit. Id. at
127–30. The court then examined whether the product of the
unnecessarily suggestive procedure was nonetheless reliable. Id. at 130.
Applying the five Biggers factors, the court determined that the
identification was sufficiently reliable under the Federal Constitution. Id.
at 132.
The Harris court then turned to consider whether to adopt a different
approach under article first, section 8 of the Connecticut Constitution,
noting that in Guilbert, it adopted a framework for analyzing eyewitness
identification claims different than Biggers. Id. at 136. The court found
that the Guilbert approach was preferable as, among other things, it
provided greater specificity on the value of confidence statements and
included factors not recognized in Biggers, including weapon focus, level
of stress at the time of observation, cross-racial misidentification,
postevent exposure to information, and potential for unconscious
transference. Id. at 136–37.
In support of its independent state constitutional approach, the
Harris opinion cited courts in Alaska, Kansas, Massachusetts, New Jersey,
New York, Utah, and Wisconsin that have held that the Biggers
formulation insufficiently protected against the risks of misidentification.
Id. at 142. Further, the opinion noted that courts in Georgia and Oregon
came to the same conclusion as a matter of evidence law. Id. The Harris
court asserted that only two states, Idaho and New Hampshire, had
explicitly adopted Biggers, but the courts in these states did not engage in
any analysis of independent scientific developments that have exposed the
deficiencies of the Biggers reliability test. Id.; see State v. Buti, 964 P.2d
96
660, 665–66 (Idaho 1998); State v. Leclair, 385 A.2d 831, 833–34 (N.H.
1978).
Harris proceeded to develop a procedural framework to consider
eyewitness identification challenges under the Connecticut Constitution,
finding that a defendant may trigger a pretrial hearing by presenting “some
evidence that a system variable undermined the reliability of the
eyewitness identification.” Harris, 191 A.3d at 143. The burden then
shifts to the prosecution to show that the identification was reasonable,
taking into account all estimator and system variables. Id. If the
prosecution meets its burden, the burden shifts back to the defendant to
show “very substantial likelihood of misidentification” in order for the
evidence to be excluded. Id. In establishing criteria for making a reliability
determination, Harris relied on Guilbert, 49 A.3d at 731–32, where the
court identified eight factors about which eyewitness experts could testify.
Harris, 191 A.3d at 144. In addition to a motion to suppress, a defendant
could also seek to admit expert testimony and obtain instructions on the
fallibility of eyewitness identification evidence. Id. at 144–45. 15
D. Post-Perry State Court Application of Eyewitness Science to
First-Time, In-Court Identifications.
1. Introduction. After Perry, there has been a question as to whether
due process protections apply at all with respect to in-court identifications
where there has been no suggestive pretrial identification. There is
recognition in both state and federal courts that the Perry Court did not
expressly decide the issue. See State v. Dickson, 141 A.3d 810, 821 (Conn.
15A number of other state courts have departed from Biggers. See, e.g., State v.
Almaraz, 301 P.3d 242, 252–53 (Idaho 2013) (adding onto Biggers factors arising from
system and estimator variables established by eyewitness science); State v. Hunt, 69 P.3d
571, 576 (Kan. 2003) (adopting expanded science-based factors beyond Biggers); State v.
Discola, 184 A.3d 1177, 1188 (Vt. 2018) (abandoning witness certainty as a factor).
97
2016) (“The United States Supreme Court has not yet addressed the
question of whether first-time in-court identifications are in the category
of unnecessarily suggestive procedures that trigger due process
protections.”); Galloway v. State, 122 So. 3d 614, 663 (Miss. 2013) (“The
United States Supreme Court has not decided whether Biggers applies to
an in-court identification not preceded by an impermissibly suggestive
pretrial identification.”). As noted above, the post-Perry federal courts are
divided on this question. The question has also arisen in a number of
state courts, which are similarly divided on whether judicial prescreening
for reliability applies in the context of a first-time, in-court identification.
2. Massachusetts. In Commonwealth v. Crayton, 21 N.E.3d 157
(Mass. 2014), the Massachusetts Supreme Court considered the question
of admissibility of first-time, in-court identifications under the due process
clause of article 12 of the Massachusetts Declaration of Rights. Id. at 161,
164. The Crayton court reviewed Massachusetts caselaw noting that
showups were disfavored because they were highly suggestive. Id. at 165.
Explicitly in Commonwealth v. Johnson, 650 N.E.2d 1257, 1261 (Mass.
1995), the Supreme Judicial Court of Massachusetts ruled that
unnecessarily suggestive showups were subject to a per se rule of
exclusion, and that the Massachusetts Constitution “requires the
application of [a] stricter per se approach.”
The Crayton court emphasized that in-court identification of the
defendant is also highly suggestive. Crayton, 21 N.E.3d at 166. Indeed,
the Crayton court noted that in-court identification may be even more
suggestive a showup as the presence in the courtroom is likely to be
understood as a confirmation that the prosecutor believes that the
defendant committed the crime. Id. (citing Evan J. Mandery, Due Process
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Considerations of In-Court Identifications, 60 Alb. L. Rev. 389, 415–16
(1997)).
The Crayton court considered ways in which an in-court
identification differs from showups. While a jury is able to see the
identification process and may be better able to assess the confidence level
of the witness, the court did not believe those features lead to more reliable
assessments of eyewitnesses. Id. at 168. The court noted that “[s]ocial
science research has shown that a witness’s level of confidence in an
identification is not a reliable predictor of the accuracy of the identification,
especially where the level of confidence is inflated by its suggestiveness.”
Id. Further, the court recognized that a witness is subject to cross-
examination when an in-court identification is made, but the court was
not persuaded that the immediacy of cross-examination outweighed the
suggestiveness of the lineup. Id. Third, the Crayton court noted that
where the prosecutor provides defense counsel with advance warning,
there is an opportunity to arrange for less suggestive identification. Id. at
169. The court concluded that the proper approach was to place the
burden on the prosecution to move in limine for an in-court identification
and to develop alternatives to a suggestive process. Id. at 170–71. Under
the facts of the case, however, the Crayton court concluded that the in-
court identification was unreliable and vacated the defendant’s conviction.
Id. at 179.
3. Connecticut. The Connecticut Supreme Court considered the
admissibility of first-time, in-court identifications in Dickson, 141 A.3d
810. In Dickson, a witness who could not identify the defendant in a photo
array made an in-court identification of the defendant who was one of only
two African-Americans in the courtroom and was seated at counsel table.
Id. at 823. The court deemed any claim under the Connecticut
99
Constitution waived and considered only whether the in-court
identification violated the Fifth and Fourteenth Amendments of the United
States Constitution. Id. at 818–19. The Dickson court noted that whether
in-court identification was subject to due process attack was an open
question under Perry, stating that the question in Perry was whether an
identification that was the result of suggestive private conduct triggered
due process protection. Id. at 827–28.
The court determined in Dickson that an in-court identification was
unduly suggestive and subject to due process protection under the United
States Constitution under several theories. First, if the in-court
identification in this case was not suggestive, there would be no procedure
that was suggestive. Id. at 822–23. Second, the in-court identification
procedure amounted to a vouching of the witness by the government. Id.
Third, the Dickson court emphasized that misidentifications were a
significant cause of wrongful convictions. Id. at 823–24. Fourth, state
action subject to due process occurs when a prosecutor elicits an in-court
identification from a witness. Id. at 824. Fifth, the court found that the
purpose of excluding suggestive identifications under the United States
Constitution, deterrence, applied equally to prosecutors as to law
enforcement officers. Id.
The Dickson court rejected the view that a jury could effectively
evaluate in-court identifications, finding that because of its inherently
suggestive nature, a witness is far less likely to be hesitant or uncertain
when making a suggestive in-court identification. Id. at 832. The court
also found that curatives like cross-examination are inadequate, citing its
previous decision in Guilbert for the proposition that “cross-examination
is far better at exposing lies than at countering sincere but mistaken
beliefs.” Id. at 832 (quoting Guilbert, 49 A.3d at 725). While the Dickson
100
court recognized contrary authority, it concluded that “the arc of logic
trumps the weight of authority,” finding “no reason to distinguish
inherently suggestive in-court identifications from inherently suggestive
out-of-court identifications.” Id. at 827. Notwithstanding its
determination that the highly suggestive in-court identification violated
due process, the Dickson court concluded, based upon the evidence of the
case, that the error was harmless under the facts as presented. Id. at 844.
4. Montana. In 2016, the Montana Supreme Court updated their
approach to in-court eyewitness identification in City of Billings v. Nolan,
383 P.3d 219 (Mont. 2016). This case began with a road rage incident, in
which the eyewitnesses were being threatened by an individual driving a
car erratically, screaming, and honking at them. Id. at 221–22. Not only
was this a high-stress situation, with the individuals driving defensively
between fifty and seventy miles per hour, but this also involved cross-
racial identification between the witnesses and alleged aggressor. Id. An
officer observed a driver in a car matching the description from dispatch
of the aggressor somewhat proximate to the incident. Id. at 222. The
officer was “confident of his identification [of the defendant] based on his
own observations” and did not ask the eyewitnesses to do a photo lineup.
Id.
At trial, the defendant objected to a first-time, in-court identification
as he was “the only black male in the courtroom and . . . seated next to
defense counsel at the table for the defendant.” Id. The judge responded,
“[T]here’s nothing I can do about it. What do you want me to do? Get three
more defendants in here . . . that are black?” Id. The Montana Supreme
Court on appeal found that due process rights under the U.S. Constitution
barred admission of impermissibly suggestive first-time, in-court
identification, adopting a two-prong Biggers substantial likelihood of
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irreparable misidentification and unreliability standard. Id. at 224. In
this case, the court found that the first-time, in-court identification was
impermissibly suggestive, but that the identification by the eyewitness was
nonetheless reliable. Id. at 224–25.
5. Alaska. As indicated above, the Alaska Supreme Court revisited
its approach to eyewitness testimony under the due process clause of the
Alaska Constitution in Young, 374 P.3d 395. Yet, the Young court held
that due process protections do not extend to first-time, in-court
identifications. Id. at 411–12. The Young court noted that the jurors
observe the circumstances of the identification and expert witnesses may
testify about the problems of first-time, in-court identifications. Id. The
court also noted that a trial court could grant a request for an in-court
lineup or a request that the defendant be seated elsewhere than at counsel
table. Id.
6. Colorado. The Colorado Supreme Court considered whether in-
court identification was subject to due process protection in Garner v.
People, 436 P.3d 1107 (Colo. 2019), cert. denied 140 S. Ct. 448 (2019). The
opinion does not state whether the claim is made under the due process
clause of the State or Federal Constitution. The opinion itself, however,
focuses on the federal caselaw related to eyewitness identification. Id. at
1110. The Garner court concluded that the reasoning utilized by the U.S.
Supreme Court in Perry, namely, that in-court identification involves no
improper law enforcement action, that judicial prescreening of reliability
was not required in all cases, and that ordinary safeguards of the trial are
sufficient, apply in all cases involving in-court identification. Id. at 1117.
 102
E. Iowa’s Approach to Due Process Under the Iowa
Constitution.
1. Due process clause under the Iowa Constitution. Article I, section
9 of the Iowa Constitution provides that “no person shall be deprived of
life, liberty, or property, without due process of law.” Iowa Const. art. I,
§ 9. Although the language is similar to the Due Process Clause of the
United States Constitution, we may construe the provision in a different
fashion than federal precedent. See, e.g., State v. Pals, 805 N.W.2d 767,
771 (Iowa 2011) (“While these [Iowa and United States Constitutional]
provisions use nearly identical language and were generally designed with
the same scope, import, and purpose, we jealously protect this court's
authority to follow an independent approach under our state
constitution.”). Indeed, at the Iowa constitutional convention, floor
debates show derision for the due process decisions of the United States
Supreme Court to fugitive slaves. For example, the fugitive slave decisions
were decried at the Iowa constitutional convention in 1857. According to
George Ells, the Due Process Clause was “violated again and again by the
dominant party in the land, which rides rough-shod over the necks of
freemen.” 1 The Debates of the Constitutional Convention of the State of
Iowa 102 (W. Blair Lord rep., 1857), https://www.statelibraryofiowa.org/
services/collections/law-library/iaconst. Ells further opined that
[i]f the words “due process of law,” shall in time be recognized
by our judicial tribunals to mean what they really do mean,
. . . [t]hen, sir, that infamous Fugitive Slave Law will become
a nullity, and the American people will trample its odious
enactments in the dust.
Id.
We have considered challenges to convictions based upon the
admission of eyewitness identification in a number of cases. Some cases
103
involve due process challenges brought under the United States
Constitution. See State v. Whetstine, 315 N.W.2d 758, 764–65 (Iowa
1982); State v. Mark, 286 N.W.2d 396, 405 (Iowa 1979). In other cases,
the opinions do not indicate whether the challenge is brought under the
State or Federal Constitution. See State v. Webb, 516 N.W.2d 824, 829–
30 (Iowa 1994). In one case, the defendant cited article I, section 9 of the
Iowa Constitution, but did not suggest a different analytical framework.
State v. Taft, 506 N.W.2d 757, 762–63 (Iowa 1993). Where citations to the
Iowa Constitution are mere constitutional hitchhikers, or where the
parties do not indicate whether the case is brought under the State or
Federal Constitution, we ordinarily apply the established federal
framework but reserve the right to apply the framework in a fashion
different than the federal courts. State v. Baldon, 829 N.W.2d 785, 822–
23 (Iowa 2013). The important point, however, is that we have not had an
occasion where a party has asked us to depart from the established federal
eyewitness identification due process framework. The issues before us
today are questions of first impression.
2. Iowa due process framework embraced in State v. Cox. We
considered a due process challenge to the admission of evidence under
article I, section 9 of the Iowa Constitution in State v. Cox, 781 N.W.2d 757
(Iowa 2010). In Cox, the defendant was charged with sexual abuse of a
younger cousin. Id. at 759. The state introduced evidence that the
defendant had sexually abused two other cousins. Id. The question posed
in the case was whether the introduction of the crimes allegedly committed
by the defendant against others violated due process under the Iowa
Constitution. Id. at 761.
 104
We noted that under Iowa Rule of Evidence 5.404(b), evidence of
other crimes or wrongs is generally not admissible to show that a person
acted in conformity with them. Id. at 760. The rule
is founded not on a belief that the evidence is irrelevant, but
on a fear that juries will tend to give it excessive weight, and
on a fundamental sense that no one should be convicted of a
crime based on his or her previous misdeeds.
Id. (quoting State v. Sullivan, 679 N.W.2d 19, 24 (Iowa 2004)). While the
prior crimes seemed excludable under rule 5.404(b), the legislature
enacted a statute that appeared to override the rule and allow for
admissibility of prior crimes in sex abuse cases. See Iowa Code § 701.11
(2007). The question thus became whether Iowa Code section 701.11
could be constitutionally applied in the case at hand.
In Cox, we held that the statute could not be constitutionally applied
against Cox and that the evidence of his other crimes was inadmissible
under the due process clause of the Iowa Constitution. Id. at 768–72. We
did so “[b]ased on Iowa’s history and the legal reasoning for prohibiting
admission of propensity evidence out of fundamental conceptions of
fairness.” Id. at 768. In precedent caselaw we found that “it would be
extremely difficult for jurors to put out of their minds knowledge [of past
crimes] and not allow this information to consciously or subconsciously
influence their decision.” Id. at 769 (quoting State v. Reynolds, 765 N.W.2d
283, 292 (Iowa 2009), overruled on other grounds by Alcala v. Marriott Int’l,
Inc., 880 N.W.2d 699, 708 & n.3 (Iowa 2016)).
Several propositions were embraced in Cox. First, the Iowa
Constitution could be construed to provide more due process protection
than its federal counterpart. Id. at 761. Second, a due process claim could
arise under the due process clause of the Iowa Constitution that would
exclude evidence from trial based on fundamental fairness. Id. at 767–68.
 105
Third, some types of evidence, such as prior bad acts evidence, is so
troubling that it should not go to the jury. Id. at 769–70. Fourth, although
not stated expressly in the opinion, by their notable omission as curatives
it is implied that cross-examination and jury instructions would not
remedy the constitutional error. Fifth, the evidence is this case was not
police generated, but the only state action was to offer the evidence at trial
as part of the prosecution’s case. Sixth, there is no mention of deterrence
in this due process case, only fundamental fairness. As is apparent,
although it does not deal with eyewitness identification, Cox runs dead
against the due process approach of Perry requiring police orchestration,
relying on trial processes, emphasizing the function of the jury, and
focusing on deterrence rather than fundamental fairness in its due process
analysis.
VIII. Iowa Due Process Analysis of In-Court Identification in
this Case.
A. Introduction. There are two general approaches to the
identification issues in this case. First, we could lockstep Iowa law with
federal precedent, embrace Biggers and Perry notwithstanding the
consensus eyewitness science, and decline to think about it any further.
In short, we function as if we were a municipal federal criminal claims
court and consign the Iowa Constitution on long-term loan to the Iowa
Historical Museum.
If we take this course, however, we must consider the question open
under Perry as to whether the in-court identification in this case remains
subject to a challenge under Biggers. If so, we must then apply the
antiquated Biggers factors, recognizing that a delay of identification of
seven months in Biggers is construed as a very serious factor against
reliability. Indeed, because the eyewitness identification in the case before
106
us is so suggestive and so unreliable even under the Biggers factors, there
is strong possibility that due process would require exclusion of Brkovic’s
in-court identification even under current federal law.
A second approach is to recognize the consensus eyewitness science
and develop a science-based approach to eyewitness evidence under the
due process clause of the Iowa Constitution. There are at least two
potential approaches here. First, we could adopt a per se approach to in-
court identifications similar to that adopted by the New York,
Massachusetts, and Wisconsin Supreme Courts for showup
identifications. Second, we could evaluate the admission of an in-court
eyewitness identification under a modified Biggers approach that
eliminates scientifically unsound factors and adds estimator and system
variables to the due process test.
B. Rejection of Federal Approach. Historically, the United States
Supreme Court often lags behind legal developments in the states. As we
have seen, eyewitness identification doctrine is no exception. The
developments in eyewitness science, however, make adherence to the
established federal approach untenable. Continued use of the federal
framework will simply perpetuate a system of criminal justice where highly
unreliable eyewitness identifications convict innocent persons. The
Biggers factors are demonstrably flawed by their inclusion of irrelevant
factors, the impact of improper suggestiveness on reliability factors, and
the exclusion of important estimator and system variables that impact the
likelihood of accurate eyewitness identifications.
The Perry approach is unpersuasive on many levels. First, it is
simply not true that due process claims related to the introduction of
eyewitness evidence have been based primarily in deterrence.
Fundamental fairness and reliability are the principles underlying due
107
process and, as suggested in Manson, “the reliability is the linchpin.”
Mason, 432 U.S. at 114, 97 S. Ct. at 2253. Further, nothing in the
prescience Biggers factors meaningfully deters unreliable testimony. The
notion of an unduly suggestive but reliable identification is hard to grasp,
particular when the more suggestive the identification process, the more
likely a witness will demonstrate the presence of Biggers factors that
establish “reliability.”
A per se approach that declares that in-court identifications are not
subject to due process screening is hard to fathom. The suggestiveness of
an in-court identification is of the highest order and yet, an in-court
identification often powerfully affects juries and may make the difference
between conviction and acquittal.
On the state action issue, Perry is wrong. A state orchestrated, first-
time in-court identification crashes full speed into the reliability
parameters previously embraced by the courts and are currently capable
of being informed by eyewitness science. In In re Winship, 397 U.S. 358,
90 S. Ct. 1068 (1970), no one asked whether state action was involved in
the due process challenge to a criminal conviction not based upon
substantial evidence. In Napue v. Illinois, 360 U.S. 264, 269–70, 79 S. Ct.
1173, 1177 (1959), the Supreme Court held that a due process violation
arose when a prosecutor introduced false evidence. In re Winship and
Napue teach that prosecutorial actions are state actions for purposes of
due process.
Further, our decision in Cox cuts dead against Perry. In Cox, the
state sought to admit evidence of prior sexual misconduct. 781 N.W.2d at
759. The state’s effort to introduce evidence was sufficient state action in
Cox to give rise to a due process claim under article I, section 9 of the Iowa
Constitution. Id. at 761–62.
 108
Further, the approach in Perry is also an invitation to abuse. For
example, a witness incapable of making an identification in a lineup of an
African-American defendant may walk into a courtroom and identify the
defendant, the only African-American present, as the culprit without
judicial intervention. See Perry, 565 U.S. at 236–48, 132 S. Ct. at 723–30.
A prosecutor who knows that this witness may not be able to make an
identification from a nonsuggestive identification process can simply bring
the witness into the highly suggestive courtroom, where the likelihood of
identification of the defendant is dramatically higher than in a
nonsuggestive procedure. Where the state has a doubtful eyewitness, it is
better off avoiding a disciplined nonsuggestive identification procedure
and simply presenting the witness in court for highly suggestive,
unreliable in-court identification. Indeed, all of the law that has been
constructed to control the reliability of pretrial identification can be
unilaterally dismantled by simply avoiding a pretrial identification process.
Further, the notion that first-time in-court eyewitness identifications can
be defended by effective cross-examination is wholly unmoored from
reality. While cross-examination can be an effective tool to expose liars, it
is completely ineffective for persons who honestly, but mistakenly, believe
in the accuracy of their testimony. As every trial lawyer knows, a frontal
attack in cross-examination of an eyewitness who honestly believes his
testimony is often counterproductive. Those who have tried such a frontal
attack on sincere witnesses generally regret it.
There are potential remedies other than exclusion. For example, a
defendant may call an expert witness to explain the developments of
eyewitness science and may seek a jury instruction tailored to it. But the
research indicates that jurors are simply not sufficiently sensitive to the
nuances of eyewitness identification. If we exclude evidence of prior bad
109
acts from a jury because of their potentially prejudicial effect, or exclude
highly relevant hearsay, or exclude bad science through a mechanism of
judicial prescreening, we should be able to do the same for in-court
identification where there is strong likelihood of unreliability.
C. Proper Approach to In-Court Identifications Under the Due
Process Clause of the Iowa Constitution. Having rejected the view that
first-time, in-court identifications are not outside due process protections,
the question is what approach to take under article I, section 8 of the Iowa
Constitution.
On the one hand, we could adopt the per se approach generally
applied in New York, Massachusetts, and Wisconsin and specifically
applicable with regard to in-court testimony in Crayton and Dickson. If we
did so, reversal would clearly be required in this case. There was no
necessity of the in-court identification in this case, and it was obviously
highly suggestive.
The advantage of the per se approach is that it tends to avoid ad hoc
judgments on reliability that provide trial courts with little guidance and
produce inconsistent results. It would require law enforcement seeking to
introduce eyewitness testimony in-court in most cases to engage in a
nonsuggestive, science based pretrial identification procedure. To the
extent deterrence is a goal, as claimed by Perry, the per se rule would be
very effective, and it would promote fundamental fairness in the
development of what is often highly unreliable but persuasive testimony.
On the other hand, we could adopt a multifactored reliability test that
drops or modifies scientifically unsupportable criteria in Biggers and
replaces them with factors identified by the eyewitness science. The
advantage of such an approach is its flexibility. The disadvantage is that
110
it would require ad hoc judgments by district courts. Disagreements over
application of ad hoc multifactored test permeate Biggers and Manson.
The wisest path forward is to adopt a per se approach like that in
Crayton and Dickson. First-time, in-court identifications would not be
admissible absent a prior identification made through a nonsuggestive
process. If the witness failed pretrial to identify the suspect, “[t]he state is
not entitled to conduct an unfair procedure merely because a fair
procedure failed to produce the desired result.” Dickson, 141 A.3d at 830.
The prosecution has the burden of showing a proper pretrial identification
occurred. Id. at 825–26.
In the alternative, if we were to adopt a science-based modification
of the Biggers test, the eyewitness identification in this case would be
excluded. The event happened under poor illumination. The witness had
a short period of time to observe the perpetrator, the perpetrator was
wearing a hat, the perpetrator had a gun, and whatever observation of the
perpetrator was made by the eyewitness was made during a time of great
stress. Shortly after the event, the eyewitness could not provide a
meaningful description of the defendant. All of these factors weigh heavily
against reliable identification contemporaneously in this case, let alone at
a later date. Then, two years later, in a remarkable turn of events, the
eyewitness makes an in-court identification of the defendant, whom he
could not describe a few hours after the event. In my mind, such an
identification, given what we know about eyewitness science, has “a very
substantial likelihood of irreparable misidentification.” Biggers, 409 U.S.
at 198, 93 S. Ct. at 381 (quoting Simon, 390 U.S. at 384, 88 S. Ct. at 971).
IX. Ineffective Assistance of Counsel.
In this case, Doolin’s counsel did not seek suppression of the in-
court identification. As a result, we can reach the merits of this case only
111
if his failure to seek suppression amounts to ineffective assistance of
counsel. The parties agree that the proper test of ineffective assistance in
this case is provided in Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 2064 (1984), finding “[a]s all the Federal Courts of Appeals
have now held, the proper standard for attorney performance is that of
reasonably effective assistance.”
The first prong of Strickland requires an examination of whether
Doolin’s counsel fell below the level of competence expected of Iowa
attorneys. The majority properly states that in order to establish a
violation of the first Strickland prong, a defendant must show that his
counsel failed to pursue “a claim ‘worth making.’ ” State v. Halverson, 857
N.W.2d 632, 634 (Iowa 2015); see State v. Graves, 668 N.W.2d 860, 882
(Iowa 2003).
A reasonably competent lawyer should have been aware of the legal
issues surrounding eyewitness development. The science has been
around for decades. More than a decade ago in State v. Folkerts, 703
N.W.2d 761, 765 (Iowa 2005), we were highly critical of what amounted to
a one person showup at a defendant’s criminal deposition. In that case,
we noted that litigating an in-court identification that was “so clearly
suggestive as to be impermissible” was “a waste of judicial resources and
time” and that counsel should “avoid[] a situation that will likely create an
impermissibly suggestive procedure and result in an inadmissible
identification.” Id.
Further, in Folkerts we cited the work of Gary Wells that summarized
developments in eyewitness science. Id. (citing Gary L. Wells, Eyewitness
Identification Evidence: Science and Reform, 29 Champion 12 (2005)). A
computerized search of authorities citing Folkerts would reveal a 2009
student note in the Drake Law Review provided a summary of the issues
112
surrounding eyewitness identification and urged a change in Iowa law.
Erica A. Nichols, Note, The Dangers of Eyewitness Identifications and the
Need for Change in Iowa, 57 Drake L. Rev. 985, 995–98, 1004 (2009). A
computer search of the catalogue of the Drake Law Library would have
revealed troves of comprehensive secondary sources on eyewitness
identification, including the work of Gary L. Wells and Elizabeth Loftus.
On top of these Iowa developments, the issue of eyewitness
identification has been among the most visible issues nationally.
Henderson and Lawson were indicators of fermentation in the issue in
state courts, and Perry indicated the question of eyewitness identifications
remained a very important part of the national legal dialogue.
Under Iowa Rules of Professional Conduct 32:1.1 and 32:1.3, Iowa
attorneys must act with reasonable diligence and reasonable competence
in handling matters for their clients. And indeed, part of a lawyer’s duty
of reasonable competence is maintaining competence through “keep[ing]
abreast of changes in the law and its practice, including . . . relevant
technology . . . [and] continuing study and education . . . .” Iowa R. of
Prof’l Conduct 32:1.1 cmt. [8]. As I see it, ignorance of caselaw, legal
trends, and changing science generally violates these professional
obligations of attorneys. Under these circumstances, reasonably
competent counsel should have known that a challenge to the admission
of the in-court identification in this case was a claim worth making.
The second prong of the Strickland test is prejudice. Strickland, 466
U.S. at 694–95, 104 S. Ct. at 2068. Under our approach, it is not
necessary that the defendant show it more likely than not that conviction
would not have resulted, but only that the alleged legal error undermines
our confidence in the verdict. State v. Clay, 824 N.W.2d 488, 496 (Iowa
2012).
113
The State does not argue that the prejudice prong has not been met
in this case. That showed good sense. In this case, there was no other
eyewitness identification. The evidence showed that Doolin was under
arrest at about 1:10 a.m., but Brkovic’s friend testified that the incident
happened ten or fifteen minutes before police returned to Flirts for a
second time that evening at 2:40 p.m. At the time the alleged crime
occurred, according to Brkovic’s friend, Doolin was in jail. If the crime
actually occurred at 1:10 a.m., why didn’t Brkovic report the matter to the
police who had arrived at the scene? It is true that Doolin was arrested in
the parking lot of Flirts, where he dropped a gun under a car, but the
evidence showed there were other persons carrying weapons that night at
Flirts. The many inconsistencies in this case are obvious, and therefore
the second prong of Strickland has plainly been met. 16
16In light of my resolution of the due process issue, I do not consider the question
of whether counsel was ineffective for failure to request an eyewitness instruction. The
case for science-based, Henderson-type instructions is well established. See Fiona
Leverick, Jury Instructions on Eyewitness Identification Evidence: A Re-Evaluation, 49
Creighton L. Rev. 555, 561–65 (2016). Conversely, there is authority for the position that
generalized, nonscience-based eyewitness instructions are not effective with juries. See
Guilbert, 49 A.3d at 725. There is also caselaw that finds both a breach of duty and
prejudice where counsel fails to request a science-based jury instruction. See State v.
Maestas, 984 P.2d 376, 381 (Utah 1999).
In addition, some cases see a relationship between the need for a science-based
instruction and whether the defendant called an expert witness to explain the consensus
science behind eyewitness identification. In United States v. Wiley, 545 F. App’x 598, 599
(9th Cir. 2013) (en banc), the Ninth Circuit noted that expert testimony is not necessary
when the court gives a science-based eyewitness instruction. Conversely, in State v.
Clopten, 362 P.3d 1216, 1228 (Utah 2015), the Utah Supreme Court noted that if an
expert does testify regarding eyewitness science, the giving of a science-based instruction
is discretionary. In this case, the problem is double barreled: counsel did not present
expert eyewitness testimony and did not seek a science-based instruction. See State v.
Clay, 824 N.W.2d 488, 500 (Iowa 2012) (discussing the concept of cumulative error).
Under the majority’s disposition, the question of whether the failure to call either an
expert witness or seek a science-based instruction amounted to ineffective assistance of
counsel is left unresolved and preserved for postconviction relief.
114
X. Conclusion.
William Blackstone wrote that “the law holds that it is better that
ten guilty persons escape than that one innocent suffer.” 4 William
Blackstone, Commentaries on the Laws of England 352 (1st ed. 1723–1780),
available at http://avalon.law.yale.edu/18th_century/blackstone_
bk4ch27.asp. The majority insults Blackstone, taking the position that if
highly suggestive in-court identifications are not admitted, the guilty will
go free. But, as noted by the Supreme Judicial Court of Massachusetts,
“[t]he inverse of this is probably more accurate: the admission of
unnecessarily suggestive identification procedures under the reliability
test would likely result in the innocent being jailed while the guilty remain
free.” Johnson, 650 N.E.2d at 1263.
For all of the above reasons, I would reverse the conviction and
remand the case.