State of Iowa v. Earl Booth-Harris ( 2020 )

IN THE SUPREME COURT OF IOWA
No. 18–0002
Filed April 24, 2020
STATE OF IOWA,
Appellee,
vs.
EARL BOOTH-HARRIS,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Des Moines County, John G.
Linn, Judge.
A defendant seeks further review of a court of appeals decision
rejecting his due process challenge to a police photo array identification
procedure and the court’s failure to grant relief on his claim that trial
counsel was ineffective for failing to request different jury instructions on
eyewitness identifications reflecting scientific research. DECISION OF
COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART;
DISTRICT COURT JUDGMENT AFFIRMED.
Mark C. Smith, State Appellate Defender (until withdrawal), and Nan
Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
2
WATERMAN, Justice.
In this appeal, a defendant convicted of first-degree murder based
in part on eyewitness testimony seeks a new trial on two grounds. First,
he contends the police used unduly suggestive photographic identification
procedures and the district court erred by failing to grant his motion to
suppress the resulting identification. Second, he contends his trial
counsel was ineffective for failing to request more robust jury instructions
on eyewitness identifications that reflect modern scientific research. The
district court, without objection, had given the Iowa State Bar Association
(ISBA) Uniform Criminal Jury Instruction 200.45 on eyewitness
identification. We transferred the case to the court of appeals, which
affirmed his conviction while preserving his ineffective-assistance-of-
counsel claims for possible postconviction proceedings. We granted the
defendant’s application for further review.
On our review, we decline the defendant’s invitation to change our
constitutional precedent to further limit the admissibility of eyewitness
identifications following police photo arrays. We determine that the
double-blind procedures used in this case, with an appropriate admonition
given the witness, were not unduly suggestive. Unlike the court of appeals,
we determine the record is adequate to decide the ineffective-assistance-
of-counsel claim challenging ISBA Instruction 200.45, and we reject the
claim on the merits. For the reasons explained below, we affirm the district
court’s judgment of conviction.
I. Background Facts and Proceedings.
The trial testimony established the following facts. On February 16,
2015, in Burlington, Iowa, an argument broke out between Deonte Carter
and Terrance Polk in the front yard of Rita Lewis’s home. Carter accused
Polk of breaking into his home and stealing a pair of sneakers. Lewis told
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the men to take their fight elsewhere, and the disputants dispersed. Polk
and Carter then communicated through Facebook and set a time and place
to fight.
That afternoon, Carter, along with his cousin, Donnell Watson, and
friend, Edward DeWitt, arrived at the park on 7th and Elm in Burlington.
Polk showed up with several men who had accompanied him earlier at the
Lewis house. All of the men were the same race. Carter and his group
were approached by a shooter wearing a black stocking cap whom Watson
later identified as Earl Booth-Harris. The shooter and Carter engaged in
a brief exchange of words with Carter telling the shooter, “[D]o what you
gotta do.” The shooter opened fire, hitting Carter multiple times. Watson
ran away when the shooting started. When it stopped, he returned and
found Carter on the ground bleeding from bullet wounds. DeWitt called
911. Watson found a .40 caliber gun on the ground next to Carter and
took it to Lewis’s house. Police recovered that weapon later. Carter died
due to gunshot wounds to his chest, abdomen, and back. Carter was shot
by a .45 caliber gun.
The same day, Booth-Harris presented to a hospital in Monmouth,
Illinois, for a gunshot wound to his leg. Booth-Harris was shot with a .40
caliber gun. In an interview with the police at the hospital, Booth-Harris
stated that he was in the area of the shooting and saw an argument
involving several men. He told police he heard gunshots and ran and while
running away was shot. Booth-Harris told the police that he went home,
changed clothes, and contacted his father, who took him to the Illinois
hospital. Booth-Harris feared going to the hospital in Burlington where he
might be shot. Booth-Harris denied participating in the shooting.
On the day of the shooting, Watson gave a statement to police and
was presented with a photo array. A photo of Polk was included because
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police suspected he was the shooter. This array did not include a photo
of Booth-Harris. Watson did not identify anyone in these photos as the
shooter. Watson was next presented with a single photo of Booth-Harris.1
He denied knowing who Booth-Harris was.
Two days later, Watson was again interviewed and shown photo
arrays prepared by Detective Josh Tripp. Detective Tripp “pick[ed]
photographs of subjects that look[ed] similar to the suspect that [they]
ha[d] at the time.” Detective Tripp personally picked six photographs out
of ten to twelve that he believed looked the most similar. Sergeant Chad
McCune, who was not involved in the investigation and did not know who
was a suspect, presented the photo array in a double-blind protocol.
Sergeant McCune read to Watson a photographic admonition, which
Watson signed before looking at the photos. The admonition states,
You are about to view a photographic line-up. The person who
committed the crime may or may not be included in it. While
looking at the photographs, keep an open mind that the
individuals may not appear exactly as they did on the date of
the crime. Their hairstyles, facial hair, clothing, etc. may have
changed. Also, photographs may not always depict the true
complexion of a person, who may be lighter or darker than
shown in the photo. The officer showing you the photographs
has no knowledge of the incident. In the line-up process, the
photographs will be shown to you one at a time and are not in
any specific order. Take as much time as you need to look at
each photograph. Even if you identify an individual, the
officer will continue to show you all of the photographs. The
officer is not allowed to tell you whether your choice, if you
make one, is a suspect in the investigation. Do not tell other
witnesses that you have or have not identified anyone.
1When presented with the picture of Booth-Harris, Officer Derek Schwandt
testified,
Q. Why did you show him the picture then? A. Well, we just had
a shooting in Burlington and there’s a subject with a gunshot wound. We
don’t know if he’s a victim. We don’t know if he’s a suspect. We don’t
know if he’s a bystander, so at that time, we’re not sure what his
involvement was.
5
A photo of Booth-Harris was included in this second array, and Watson
identified him as likely being the shooter after quickly dismissing the other
five photographs. Watson commented that he wanted to say Booth-Harris
was the shooter, but he stated his eyes were smaller in the photo than
they were the day of the shooting; however, Watson noted favorably the
“strong jaw structure” of Booth-Harris and indicated that was the “only
thing he could kind of see.” Watson also called attention to Booth-Harris’s
eyebrows, stating that the eyebrows of the shooter were thicker. At this
point, Watson said he had a fifty percent certainty and initialed the
picture. Watson told the officer, “[Y]’all can like take another picture and
show me.”
The officers informed Watson that they were going to try to find more
recent photos. While Watson was still at the station, Detective Tripp
prepared another array. Sergeant McCune again administered the array
and again read the admonition to Watson, which he signed. Watson again
quickly dismissed the other photographs, and he identified Booth-Harris
as the shooter. When asked about his level of certainty, Watson this time
said he was seventy percent certain. Watson commented about “feelin’
like” it was him. After an exchange between Watson and Sergeant
McCune, in which Sergeant McCune stated that “feelin’ like it” means more
than seventy percent, Watson ended by stating he had one hundred
percent certainty.
A search of Booth-Harris’s home yielded evidence used at trial.
Blood drops outside led into the home. A black stocking cap and bloody
t-shirt were found inside the home. A .45 caliber shell casing was located
on the ground outside the back door. The casing matched the .45 caliber
casings at the scene of the shooting, indicating they were fired from the
same gun. Additionally, live .45 caliber rounds were recovered from Booth-
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Harris’s home. An expert identified the live rounds as the same brand of
casings as those at the shooting and opined the casings at the scene of the
shooting and those at the Booth-Harris house were likely manufactured
around the same time.
Booth-Harris was charged with murder in the first degree, in
violation of Iowa Code section 707.2 (2015), a class “A” felony. Booth-
Harris filed a motion to suppress the identification, arguing the procedure
was impermissibly suggestive and a violation of his due process rights.
The district court denied the motion to suppress. Watson testified at trial
and identified Booth-Harris as the shooter. Booth-Harris was found guilty
of first-degree murder and was sentenced to life in prison without the
possibility of parole. Booth-Harris appealed, raising two issues. First,
Booth-Harris claimed the district court erred in denying his motion to
suppress Watson’s in-court identification because the out-of-court
identification was impermissibly suggestive and unreliable. Second,
Booth-Harris claimed his trial counsel was ineffective for failing to request
jury instructions similar to those adopted in State v. Henderson, 27 A.3d
872 (N.J. 2011). 2
We transferred the case to the court of appeals, which affirmed
Booth-Harris’s conviction while preserving for possible postconviction
relief action his “due process claim raised under the Iowa Constitution and
his claim defense counsel should have requested a different eyewitness
identification instruction.” We granted Booth-Harris’s application for
further review.
2Booth-Harris’s trial counsel offered no expert testimony on the reliability of
eyewitness identifications, and his appellate counsel makes no claim Booth-Harris
received constitutionally deficient representation based on the lack of such expert
testimony.
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II. Standard of Review.
We review constitutional challenges to eyewitness testimony
de novo. State v. Taft, 506 N.W.2d 757, 762 (Iowa 1993). As we recently
reiterated,
“When a defendant challenges a district court’s denial of a
motion to suppress based upon the deprivation of a state or
federal constitutional right, our standard of review is de novo.”
We examine the whole record and “make ‘an independent
evaluation of the totality of the circumstances.’ ” “Each case
must be evaluated in light of its unique circumstances.”
State v. Fogg, 936 N.W.2d 664, 667 (Iowa 2019) (quoting State v. Coffman,
914 N.W.2d 240, 244 (Iowa 2018)).
Claims of ineffective assistance of counsel are reviewed de novo.
State v. Harrison, 914 N.W.2d 178, 188 (Iowa 2018).
III. Analysis.
A. The Motion to Suppress. We begin with Booth-Harris’s
argument that the district court erred in denying his motion to suppress
Watson’s pretrial identification of him as Carter’s killer. Booth-Harris
contends the pretrial photographic identification procedures violated his
due process rights under the Federal and Iowa Constitutions. 3 See U.S.
Const. amend. XIV; Iowa Const. art. I, § 9. Booth-Harris has the burden
of proving that the identification procedures were unconstitutionally
suggestive or unreliable. State v. Neal, 353 N.W.2d 83, 86 (Iowa 1984).
We apply a long-standing, two-part analysis to challenges to out-of-
court identifications, the same test set by the United States Supreme Court
and utilized by most other states. Taft, 506 N.W.2d at 762; J.P. Christian
3The court of appeals determined that Booth-Harris failed to preserve error on his
due process claim under the Iowa Constitution because he did not argue for a different
standard in his motion to suppress. Booth-Harris argues that error was preserved in his
motion to suppress because he alleged due process claims under the Federal and Iowa
Constitutions, and the district court ruled on them. We agree with Booth-Harris that
error was preserved.
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Milde, Bare Necessity: Simplifying the Standard for Admitting Showup
Identifications, 60 B.C. L. Rev. 1771, 1806, 1823 (2019) (stating “[t]he
majority of state high courts apply the federal standard that the Supreme
Court reiterated in [Manson]” and collecting cases that “follow the [Manson]
test and apply the [Neal v.] Biggers[, 409 U.S. 188, 93 S. Ct. 375 (1972),]
factors with little or no divergence”); Lawrence Rosenthal, Eyewitness
Identification and the Problematics of Blackstonian Reform of the Criminal
Law, 110 J. Crim. L. & Criminology 181, 205–06 & nn.132–133 (2020)
[hereinafter Rosenthal, Eyewitness Identification] (identifying forty-one
states and the District of Columbia that utilize the test articulated in
Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243 (1977), and noting
“[m]ost courts, when invited to depart from Manson as a matter of state
law, have declined to do so”). “First, we decide whether the procedure used
for the identification was impermissibly suggestive.” Taft, 506 N.W.2d at
762. If we determine the procedure was impermissibly suggestive, we turn
to the second step to decide whether “under the totality of [the]
circumstances the suggestive procedure gave rise to a very substantial
likelihood of irreparable misidentification.” Id. (alteration in original)
(quoting State v. Whetstine, 315 N.W.2d 758, 764 (Iowa 1982)).
Under the second step, the critical question is whether the out-of-
court identification was reliable. Id. We have endorsed the prevailing five-
factor test for assessing reliability of out-of-court identification procedures
adopted from Biggers:
(1) the opportunity of the witness to view the perpetrator at
the time of the crime, (2) the witness’ degree of attention,
(3) the accuracy of the witness’ prior description of the
perpetrator, (4) the level of certainty demonstrated by the
witness at the confrontation, and (5) the length of time
between the crime and the confrontation.
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Id. at 763; Manson, 432 U.S. at 114, 97 S. Ct. at 2253; Biggers, 409 U.S.
at 199–200, 93 S. Ct. at 382. “When unnecessarily suggestive pretrial out-
of-court identification procedures conducive to mistaken identification
that are incapable of repair are used, the Due Process Clause requires
exclusion of the testimony of the identification.” State v. Folkerts, 703
N.W.2d 761, 763 (Iowa 2005). There is no Due Process Clause violation
as long as the identification has sufficient aspects of reliability. State v.
Webb, 516 N.W.2d 824, 830 (Iowa 1994). If Booth-Harris cannot satisfy
our two-part test, “the identification evidence and its shortcomings or
credibility are for the jury to weigh.” Neal, 353 N.W.2d at 87.
Booth-Harris urges us to modify our approach to eyewitness
identification evidence given empirical research showing the accuracy and
trustworthiness of eyewitness identifications are limited by estimator
variables and system variables. 4 Booth-Harris asserts that the current
test does not account for these variables and that some of the Biggers
factors are at odds with the research. Booth-Harris asks us to incorporate
these system and estimator variables when determining whether an
identification is unduly suggestive and unreliable and to abandon the
second step of our test. We decline to alter our test under the Iowa or
Federal Due Process Clauses. The two-part test remains our law.
We acknowledge the evolving social science research without
concluding that it serves as “a basis for establishing fixed principles of
4“Estimator variables” are the factors related to reliability that are “connected to
the event, witness, or perpetrator—items over which the justice system has no control.”
State v. Lujan, 459 P.3d 992, 1001 (Utah 2020). Examples of estimator variables are the
conditions such as lighting or distance that may have affected the witness’s view, any
stress or duress that the witness incurred, weapon focus, witness characteristics,
perpetrator characteristics, and memory deterioration factors. Id. “System variables” are
defined as “factors controlled by the court or law enforcement” such as the use of double-
blind identification procedures, detailed instructions for the witness before conducting
the identification procedure, and a proper lineup. Id.
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constitutional law.” See State v. Lujan, 459 P.3d at 992, 999 (Utah 2020).
This research has not persuaded the United States Supreme Court or the
overwhelming majority of other state supreme courts to alter or abandon
the two-part test. Our adherence to stare decisis is supported by the
recent decisions of the Utah and Wisconsin Supreme Courts that retreated
from their earlier decisions relying on the scientific research to alter the
test for admissibility of eyewitness identifications under state due process
provisions.
In Lujan, the Utah Supreme Court clarified an earlier opinion that
had expanded on the Biggers factors for the admissibility of eyewitness
identification testimony under the due process clause of the Utah
Constitution. Id. at 997–99 (discussing State v. Ramirez, 817 P.2d 774
(Utah 1991)). The unanimous Lujan court stated,
The Ramirez opinion looked only to evolving social science in
its articulation of the reliability factors that it identified. It
based the factors on “well-respected and essentially
unchallenged empirical studies” as laid out in State v. Long,
721 P.2d 483 (Utah 1986), even while conceding that the
holding in Long “was not squarely based on the state
constitution.” The opinion established this “more empirically
based approach” solely because the court “judge[d] this to be
a more appropriate approach.”
These sorts of considerations—rooted in evolving social
science and legal scholarship—may be appropriate grounds
for our provision of “guidance” on the reliability of eyewitness
identification testimony. But such evolving grounds are not a
basis for establishing fixed principles of constitutional law.
And our decision in Ramirez nowhere offered an originalist
basis for constitutionalizing the reliability factors set forth in
that opinion.
Id. at 999 (alteration in original) (citations omitted) (quoting Ramirez, 817
P.2d at 780). Lujan held the Ramirez factors could provide guidance under
the rules of evidence but could no longer serve as a constitutionally
11
required test for admissibility under the state due process clause. Id. at
999–1000. We agree.
We join the Lujan court in recognizing the development in the
research and the use of estimator and system variables, but we echo that
“research in this field is ongoing.” Id. at 1001. As such, we agree with the
Utah Supreme Court that other methods such as the evidentiary
“rulemaking process lends itself nicely to adaptation over time in response
to developments in scientific and legal scholarship in this important field.”
Id. at 995. “[A]s our understanding of the factors that affect the reliability
of eyewitness testimony develops, our application and understanding of
our rules of evidence can likewise evolve.” Id. at 1001.
Similarly, in State v. Roberson, the Wisconsin Supreme Court
rejected the defendant’s argument that a victim’s identification of the
defendant should be suppressed because it began with law enforcement
showing the victim a single Facebook photograph of the defendant. 935
N.W.2d 813, 815–16 (Wis. 2019). The Wisconsin Supreme Court expressly
overruled its prior decision that departed from the United States Supreme
Court decisions in Manson and Biggers and “was based on
misunderstanding [those decisions] in regard to out-of-court
identifications and on topical social science.” Id. at 822. The Roberson
court aptly held that given the tendency of scholars to embody the
subjective beliefs of the time period, “social science research cannot be
used to define the meaning of a constitutional provision.” Id. at 820. We
agree.
This is not to suggest that social science does not play a role in
challenging the admissibility of eyewitness testimony under Iowa Rule of
Evidence 5.403 or through expert testimony or modified jury instructions.
The ISBA Jury Instruction Committee is welcome to evaluate revisions to
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Iowa Uniform Jury Instruction 200.45. We anticipate that a new task force
will evaluate revisions to the Iowa Rules of Evidence. Meanwhile, as
always, defense counsel can cross-examine witnesses and argue the
weight to be given their testimony. Counsel may also consider introducing
expert testimony regarding the social science research. But we decline to
defer to social science to raise our constitutional bar to admissibility. We
trust Iowa juries to give the testimony appropriate weight.
1. The photographic identification procedures were not impermissibly
suggestive. Turning to the first step in our analysis, we must determine
whether the photographic identification procedures were impermissibly
suggestive. “It must be conceded that even the most well-designed and
well-applied pretrial identification procedure will be, to some extent,
suggestive.” State v. Walton, 424 N.W.2d 444, 447 (Iowa 1988).
The officers showed Watson a photo of Booth-Harris on three
occasions. First, on the day of the shooting after Watson viewed the
photographic array that included Polk’s photograph and made no
identification, 5 officers showed Watson a photo of Booth-Harris in a single-
photographic display. Watson did not identify Booth-Harris at that time.
Second, two days later, Watson was shown a photographic array that
included Booth-Harris’s photo when he stated he was fifty percent sure
that Booth-Harris was the shooter but could not say so definitively given
the way his eyes looked. Lastly, that same day, the officers showed Watson
another photographic array that included a more recent photo of Booth-
Harris, and Watson identified him as the shooter.
Booth-Harris contends the single-photographic display was
impermissibly suggestive by making him stand out and appear familiar to
5Booth-Harris’sphoto was not shown to Watson in the first photographic array on
February 16, 2015, and he did not identify any of those individuals as the shooter.
13
Watson when Booth-Harris appeared again in the subsequent two
photographic arrays. He claims it was unnecessary for the officers to show
Watson his photograph in a single array given that there were no exigent
circumstances and a photographic array could have been prepared and
presented to Watson instead. Booth-Harris relies heavily on State v.
Lawson, 291 P.3d 673 (Or. 2012) (en banc).
In Lawson, the Oregon Supreme Court outlined the existing
research and eight system variables, or the best practices surrounding the
eyewitness identification procedures. Id. at 686–87. First, the research
recommends that the identification procedures be conducted by a “blind”
administrator who does not know the identity of the suspect and therefore
cannot purposely or unintentionally suggest that information to the
witness. Id. at 686. Secondly, it recommends preidentification
instructions that tell the witness that a suspect may or may not be in the
lineup or photo array and that it is acceptable to not make an
identification. Id. It notes that such an instruction significantly decreases
the likelihood of misidentification. Id. Third, “lineup fillers should be
selected first on the basis of their physical similarity with the witness’s
description of the perpetrator” and then based on their similarity to the
suspect if there is no description. Id.
Fourth, the research favors a sequential showing of the photographs
one at a time over a simultaneous viewing of the photos as a group because
witnesses are more likely to make an absolute judgment rather than a
relative judgment. Id. Fifth, the research states that showups, or
procedures when the officer presents the witness with a single suspect for
identification, are generally less reliable because the witness then knows
who the police believe is a suspect. Id. However, the Lawson court noted
that
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[w]hen conducted properly and within a limited time period
immediately following an incident, a showup can be as reliable
as a lineup. A showup is most likely to be reliable when it
occurs immediately after the witness has observed a criminal
perpetrator in action because the benefit of a fresh memory
outweighs the inherent suggestiveness of the procedure.
Id. Sixth, the research warns that “[v]iewing a suspect multiple times
throughout the course of an investigation can adversely affect the
reliability of any identification that follows those viewings.” Id. Seventh,
Lawson identifies concerns with suggestive wording and leading
questions. Id. at 687. And lastly, eighth, research warns that “[p]ost-
identification confirming feedback tends to falsely inflate witnesses’
confidence in the accuracy of their identifications, as well as their
recollections concerning the quality of their opportunity to view a
perpetrator and an event.” Id.
Most of Lawson’s identified best practices for conducting eyewitness
identification procedures were followed by the officers here. Sergeant
McCune, who administered the second and third photograph arrays, was
not involved in the criminal investigation and did not know who the
suspect was. In each of those subsequent photographic arrays, Sergeant
McCune read the photographic identification admonition form to Watson,
and he signed it. The form reflects the best practice since it instructs the
witness that the person who committed the crime may or may not be
included in the photographic array, to “keep an open mind that the
individuals may not appear exactly as they did on the date of the crime,”
and to take as much time as necessary to look at each photograph. The
people used as “lineup fillers” were chosen by another detective because
they looked the most similar to the suspect. For each array, the
photographs were shown sequentially, one at a time. Watson quickly ruled
out the five other photographs (in the first array), but paused on
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photograph four, which was Booth-Harris. In the second array, Watson
identified Booth-Harris again and stated the eyes were a closer match to
the shooter’s.
Although the officers showed Watson a single photograph of Booth-
Harris, at that time, they did not consider him to be a suspect, and they
did not know if he had a connection to the crime. Booth-Harris’s
photograph was not presented to Watson as a potential shooter; it was
merely used to ask Watson if he knew who Booth-Harris was. This
occurred on the same day as the crime. This single-photographic array is
not sufficient to taint the identification procedure as impermissibly
suggestive.
Neal is instructive. 353 N.W.2d 83 (Iowa 1984). In Neal, the victim
had been abducted and sexually abused one evening but was able to
escape her captor. Id. at 85. Shortly after the assault, and while the victim
was in the hospital, the police showed her a set of photographs that did
not include the defendant’s picture. Id. at 87. She made no identification.
Id. Six days later, the police showed her five mugshots, and “[a]lthough
she would not make a positive identification, she did point out [the
defendant] as most closely resembling her assailant.” Id. Approximately
two weeks later, a second array of four photos was prepared that contained
a more recent photo of the defendant. Id. at 89. This time, the victim
positively identified the defendant as her assailant. Id.
The defendant in Neal asserted that the second photo array was
tainted by the fact that the victim had already been exposed to him
through the image from the first photo array. Id. He claimed it was
possible that she was identifying him based on the image from the first
photo array rather than from the image of the person who assaulted her.
Id. We held that the “defendant’s first picture did not mislead the victim
16
into making the subsequent identification” because she did not make an
identification during the first photo array and there were distinct
differences between the images such that the second photo, which more
closely resembled how the defendant looked around the time of the
assault, portrayed a different hairstyle and a more mature individual. Id.
As in Neal, we do not find that the first photo misled Watson into
making the subsequent identification. Watson did not initially identify
Booth-Harris in the single photograph array, and he was careful not to
select an individual whose facial features did not match his memory of the
shooter. The photograph in the second array additionally showed a
different angle and portion of Booth-Harris’s face to reflect the portion of
the shooter’s face that Watson saw. Watson took care not to identify
anyone until the facial features matched his memory of the shooter. See
State v. Rawlings, 402 N.W.2d 406, 408 (Iowa 1987) (holding that the
identification was not impermissibly suggestive despite the fact that the
defendant was the only individual whose picture was repeated in the two
arrays because “[a] reasonable effort to harmonize the lineup is normally
all that is required”). Further, at trial, Watson stated that he had lied to
the police about not knowing Booth-Harris when he was shown the single
photograph array.
Q. Well, isn’t it a fact that you saw [Officer] Derek
Schwandt at the police station on February 16th? A. I guess
so.
Q. Did you tell the truth to [Officer] Derek Schwandt
about what happened that afternoon? A. No.
Q. What did you not tell him the truth about? A. The
picture lineup.
Q. I’m sorry? A. The picture lineup.
Q. What do you mean, the picture lineup? A. Like,
when they was showing me the pictures and stuff like that, I
lied about the person who it was.
17
Q. What lie did you tell? A. That I didn’t know who it
was.
The credibility of Watson’s identifications was for the jury to decide.
Additionally, Booth-Harris contends the photographic identification
procedures were impermissibly suggestive due to Watson’s inflation of his
level of certainty that Booth-Harris was the killer from seventy percent to
one hundred percent after Sergeant McCune’s prompting. Even
“[a]ssuming, without deciding, that the photographic identification
procedure employed by the police here was ‘suggestive,’ it does not
necessarily follow that the procedure was ‘impermissibly’ suggestive.”
State v. Mark, 286 N.W.2d 396, 404 (Iowa 1979). We discourage officers
from urging the witness to increase their level of certainty. But we decline
to find that Sergeant McCune’s comments after Watson had identified
Booth-Harris require exclusion of the identification. Again, the jury could
evaluate Watson’s credibility in light of Sergeant McCune’s
postidentification comments.
The person that created the photo arrays, Detective Tripp, was not
the same individual who showed the arrays to Watson, Sergeant McCune.
In fact, Sergeant McCune was not involved in the investigation; did not
know which of the photographs depicted the suspect; and, therefore, could
not have signaled whether or not Watson correctly identified the suspect.
As stated, Sergeant McCune’s lack of involvement with, or knowledge of,
the case was purposeful and in line with the best practices. Since Sergeant
McCune did not know whether or not Booth-Harris was the suspect, his
potential encouragement that Watson increase his level of confidence in
his identification was not impermissibly suggestive. The availability of
video evidence of their interaction further ensured the jury could make its
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own determination on the reliability of Watson’s level of certainty in his
identification.
For the above reasons, we do not find that Watson’s identification of
Booth-Harris as the shooter was impermissibly suggestive.
2. The photographic identification procedures were reliable. To
assess reliability under the second factor of our analysis, we turn to the
five-factor Biggers test.
(1) the opportunity of the witness to view the perpetrator at
the time of the crime, (2) the witness’ degree of attention,
(3) the accuracy of the witness’ prior description of the
perpetrator, (4) the level of certainty demonstrated by the
witness at the confrontation, and (5) the length of time
between the crime and the confrontation.
Taft, 506 N.W.2d at 763. Veering from the Biggers test, Booth-Harris
contends that the identification was unreliable for a variety of reasons:
Watson did not initially identify him in the single-photographic display, it
was a high-stress situation, Watson could not see Booth-Harris’s face or
did not get a good look at him, weapon focus can affect reliability, Watson’s
certainty does not amount to reliability, there was a time delay between
the incident and the identification, and Watson’s drug use negatively
impacted the accuracy of the identification.
As stated above, we reject Booth-Harris’s invitation to abandon the
Biggers factors. We will review each factor in turn. Watson had ample
opportunity to view the shooter. Watson’s attention was focused on the
individual who he saw with a gun before he ran away when shots were
fired. Watson acknowledged that his view of the shooter’s face was from
his nose to his forehead, and he particularly focused on the shooter’s eyes.
Watson’s description of the shooter was largely accurate with the exception
of his height estimate. Watson identified Booth-Harris as the shooter in
two of the three arrays, and he indicated his level of certainty in the
19
identification each time. Additionally, Watson identified Booth-Harris’s
photograph and pointed out how the facial features matched that of the
shooter whereas he quickly dismissed the other photographs in the array.
Lastly, only two days passed between the incident and the positive
identification. See Mark, 286 N.W.2d at 406 (holding that a timespan of
one week between the incident and the identification was insufficient to
defeat the reliability of the identification). Altogether, under the totality of
the circumstances, the five factors weigh in favor of reliability.
We acknowledge that “[t]he reliability of eyewitness identification
can be affected by a number of variables.” State v. Doolin, ___ N.W.2d ___,
___ (Iowa 2020) (filed today). The additional factors that Booth-Harris
argues should be considered when assessing reliability all go to the weight
of Watson’s identification, not admissibility. The fact that it was a high-
stress situation and that Watson was under the influence of drugs is
insufficient to exclude his identification. “Most evidence can be called into
question in some way; however, that does not give the . . . court the ability
to preclude admission. We have cross-examination for a reason; evidence
often is tested in that way.” Roberson, 935 N.W.2d at 828. The jury is
responsible for weighing the evidence. As such,
[w]e are content to rely upon the good sense and judgment of
[our] juries, for evidence with some element of
untrustworthiness is customary grist for the jury mill. Juries
are not so susceptible that they cannot measure intelligently
the weight of identification testimony that has some
questionable feature.
Mark, 286 N.W.2d at 405 (quoting Manson, 432 U.S. at 116, 97 S. Ct. at
2254). “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
20
will do better.” Rosenthal, Eyewitness Identification, 110 J. Crim. L. &
Criminology at 243.
The Roberson court correctly noted that “not all showings of a single
photo are infected by improper police influence causing a very substantial
likelihood of misidentification. Each identification must be evaluated
based on its own facts.” 935 N.W.2d at 826. After applying the Biggers
factors, the Roberson court determined that the single photographic array
did not result in a substantial likelihood of misidentification and “the jury
should decide whether [the defendant] was correctly identified.” Id. at
827–28. Similarly, we do not believe that there is a substantial likelihood
of irreparable misidentification under the totality of the circumstances
here.
We conclude the photo array identification was not impermissibly
suggestive and unreliable. Therefore, the district court did not err in
denying Booth-Harris’s motion to suppress Watson’s photo array
identification of him.
B. Uniform Jury Instruction.
We now turn to Booth-Harris’s ineffective-assistance-of-counsel
claim. The district court submitted Iowa’s uniform instruction on
eyewitness identification to the jury. See Iowa State Bar Ass’n, Iowa
Criminal Jury Instruction 200.45. Booth-Harris asserts on appeal that
his trial counsel breached his duty by failing to request a more thorough
eyewitness identification instruction that incorporated system and
estimator variables and that he was prejudiced as a result. We disagree,
and we determine that Booth-Harris’s trial counsel did not provide
constitutionally deficient representation by failing to request a different
jury instruction.
21
To prevail on an ineffective-assistance-of-counsel claim, Booth-
Harris must prove that his trial counsel (1) failed to perform an essential
duty and (2) 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 S. Ct.
2052, 2064 (1984)). We presume counsel performed competently unless
the claimant proves otherwise by a preponderance of the evidence. Id.
Counsel’s performance is measured 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) (same). Counsel has a duty to be
“familiar with the current state of the law.” State v. Hopkins, 576 N.W.2d
374, 379–80 (Iowa 1998). But “[w]e 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). As
such, “[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. (alteration in
original) (quoting Graves, 668 N.W.2d at 881). The record must be
adequate to enable us to resolve an ineffective-assistance-of-counsel claim
on direct appeal. State v. Ary, 877 N.W.2d 686, 704 (Iowa 2016).
To establish the second prong of the test, 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]
22
confidence in the outcome’ of the trial.” Id. (alteration in original) (quoting
Graves, 668 N.W.2d at 882).
We begin our analysis with the text of ISBA Criminal Jury
Instruction 200.45, which states,
The reliability of eyewitness identification has been raised as
an issue. Identification testimony is an expression of belief or
impression by the witness. Its value depends on the
opportunity the witness had to see the person at the time of
the crime and to make a reliable identification later.
In evaluating the identification testimony of a witness,
you should consider the following:
1. If the witness had an adequate opportunity to see
the person at the time of the crime. You may consider such
matters as the length of time the witness had to observe the
person, the conditions at that time in terms of visibility and
distance, and whether the witness had known or seen the
person in the past.
2. If an identification was made after the crime, you
shall consider whether it was the result of the witness’s own
recollection. You may consider the way in which the
defendant was presented to the witness for identification, and
the length of time that passed between the crime and the
witness’s next opportunity to see the defendant.
3. Any identification made by picking the defendant out
of a group of similar individuals is generally more reliable than
one which results from the presentation of the defendant
alone to the witness.
4. Any occasion in which the witness failed to identify
the defendant or made an inconsistent identification.
Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 200.45 (2015). The
instruction’s comment notes that it is “provided for use when appropriate
under State v. Tobin, 338 N.W.2d 879 (Iowa 1983).”
Booth-Harris contends that this model instruction is insufficient
and that his counsel should have requested an alternative instruction or
a modified model instruction that better informs the jury about system
and estimator variables and educates them on memory recollection. He
cites to other jurisdictions that have criticized the use of the federal
23
framework and instead encouraged and ultimately incorporated such
enhanced instructions. See Commonwealth v. Gomes, 22 N.E.3d 897
(Mass. 2015); Henderson, 27 A.3d 872; 6 N.J. Criminal Model Jury
Instructions, Identification: In-Court and Out-of-Court Identifications
(2012), https://www.njcourts.gov/attorneys/criminalcharges.html.
However, despite the research relied upon by the Massachusetts and
New Jersey courts, there is a growing body of academic literature that
questions the efficacy of certain provisions in such jury instructions on
eyewitness identifications. In fact, recent studies have shown that the
more comprehensive jury instructions like New Jersey’s Henderson
instruction can actually overcorrect the problem. See Abigail Twenter,
Striking the Right Balance: Mitigating the Effects of Eyewitness
Misidentification in Missouri, 75 J. Mo. B. 14, 16 (2019) (noting the studies
that support this theory). Results of a study that tested the efficacy of the
instruction in a simulated murder trial with 335 mock jurors “indicated
[that] the [Henderson] jury instruction was more likely to indiscriminately
increase the rate of exonerations for all defendants, not just those who are
innocent.” Id. “Ideally, an instruction should help jurors discriminate
good eyewitness testimony from bad,” but studies that have tested the
effect of the Henderson instruction have shown it does not accomplish this
goal. Elizabeth F. Loftus, Eyewitness Science and the Legal System,
14 Ann. Rev. L. & Soc. Sci. 1, 6 (2018).
As one scholar noted, these studies, such as the one that found that
6A commentator recently observed that “Henderson’s protections may prove
illusory.” Rosenthal, Eyewitness Identification, 110 J. Crim. L. & Criminology at 201,
222–23. On remand, the Henderson trial court “conducted a hearing, made findings
regarding each of the relevant systems and estimator variables, and then denied the
motion to suppress [the witness’s] identification.” Id. at 201. The New Jersey
intermediate appellate court upheld that ruling, and the New Jersey Supreme Court
denied Henderson’s petition seeking further review. Id.
24
the reduction in the conviction rate occurred for both the
strong and the weak case . . . suggest that scholars need to
keep working to find new ways to improve the jury
instructions so that they do not merely induce general
skepticism but also improve sensitivity.
Id.; see also Nicholas A. Kahn-Fogel, The Promises and Pitfalls of State
Eyewitness Identification Reforms, 104 Ky. L.J. 99, 119 (2015–2016) (“Yet
there are reasons to believe that even the most detailed instructions might
be insufficient to cause jurors to incorporate fully the results of scientific
research into their decision-making. . . . [T]his research has not
demonstrated superior outcomes with detailed instructions, and leading
scientists have concluded that it remains an ‘open question’ whether
detailed instructions can have a significant impact on juries.”); Rosenthal,
Eyewitness Identification, 110 J. Crim. L. & Criminology at 218 (“[S]tudies
of the jury instructions utilized in New Jersey since the Henderson decision
indicate that the new instructions cause mock jurors to become more
skeptical of all eyewitness identifications, regardless of the strength of the
evidence.”); John T. Wixted & Gary L. Wells, The Relationship Between
Eyewitness Confidence and Identification Accuracy: A New Synthesis, 18
Psychol. Sci. Pub. Int. 10, 11–13 (2017) (casting doubt on part of
New Jersey’s Henderson instruction and similar instructions adopted by
Massachusetts, Connecticut, and other states that suggest eyewitness
confidence is generally an unreliable indicator of accuracy because
research indicates those jury instructions fail to “appropriately
communicate the high information value of an initial statement of
confidence obtained from a pristine identification procedure”). Another
scholar recently surveyed research studies, concluding the Henderson jury
instructions are less effective than expected.
Nor did we observe a significant impact on the verdict
and non-verdict measures in interaction with case strength,
indicating that Henderson instructions did not produce
25
sensitivity to eyewitness identification evidence. These
findings are in contrast to the Henderson Court’s assumption
that the new researched-based case-specific instructions
would help jurors to objectively evaluate eyewitness evidence.
In fact, results indicate that Henderson instruction might not
only fail to induce sensitivity but also might induce skepticism
among jurors instead. These results are consistent with
previous research findings ([Athan P.] Papailiou et al., [The
Novel New Jersey Eyewitness Instruction Induces Skepticism
but Not Sensitivity, PLoS ONE 10(12) (Dec. 2015)];
[Marlee Kind] Dillon et al., [Henderson Instructions: Do They
Enhance Evidence Evaluation?, 17(1) J. of Forensic Psych.
Res. & Prac. 1 (2017)]; [Angela M.] Jones et al., [Comparing the
Effectiveness of Henderson Instructions and Expert Testimony:
Which Safeguard Improves Jurors’ Evaluations of Eyewitness
Evidence?, 13 J. of Experimental Criminology 29 (2017)];
[Angela M.] Jones & [Steven D.] Penrod, [Improving the
Effectiveness of the Henderson Instruction Safeguard Against
Unreliable Eyewitness Identification, 24(2) Psych., Crime & L.
177 (2017)]). While the former two studies found that
Henderson instructions led to an overall skepticism, the two
latter studies found lack of any effect on the verdict. These
studies also examined the effectiveness of Henderson
instructions on different samples (undergraduates,
community members), using different media (video,
transcript), and types of crime (from robbery to murder) and
different timing of the instructions (before or after eyewitness
testimony), always with null findings. Altogether, the results
suggest that Henderson instructions are not as effective as
they were meant to be.
Radim Koníček, Assessment of Eyewitness Testimony Accuracy: Effect of
Different Type of Instructions on Delivering Guilty or Not Guilty Verdicts 68
(April 27, 2018) (unpublished Master’s thesis, Masaryk University) (on file
with author). Another scholar more broadly observed:
[T]he data are noisy, sometimes inconsistent, and provide
nothing approaching a clear indication that reforms that
reduce the risk of suggestion are likely to have a meaningful
effect on the rate of false identifications—much less benefits
that exceed their costs. The data are chaotic, and the state of
our knowledge about eyewitness identification reform remains
primitive.
Rosenthal, Eyewitness Identification, 110 J. Crim. L. & Criminology at 216.
Given the evolving research and debate in this area, trial counsel did
not provide constitutionally deficient representation by failing to request
26
an alternative instruction or additions to the uniform instruction. When
the researchers themselves are uncertain about the best practice for jury
instructions, and when some recent research rejects utilizing the very type
of instructions that Booth-Harris now desires, we cannot expect counsel
to predict which side will prevail. Counsel did not breach his duty by
failing to object to the ISBA Instruction 200.45, an instruction we have
never held misstates the law.
We reiterate that “we are slow to disapprove of the uniform jury
instructions.” State v. Ambrose, 861 N.W.2d 550, 559 (Iowa 2015); see
also State v. Beets, 528 N.W.2d 521, 523 (Iowa 1995) (per curiam) (same);
State v. Monk, 514 N.W.2d 448, 450 (Iowa 1994) (en banc) (same); State v.
McMullin, 421 N.W.2d 517, 518 (Iowa 1988) (“[W]e normally approve the
submission of uniform instructions . . . .”); State v. Weaver, 405 N.W.2d
852, 855 (Iowa 1987) (same); State v. Jeffries, 313 N.W.2d 508, 509 (Iowa
1981) (same); State v. Whiteside, 272 N.W.2d 468, 471 (Iowa 1978) (same);
Ness v. H.M. Iltis Lumber Co., 256 Iowa 588, 594, 128 N.W.2d 237, 240
(1964) (same); McMaster v. Hutchins, 255 Iowa 39, 45, 120 N.W.2d 509,
512 (1963) (same). The uniform instructions are valuable to the bench
and bar.
“While we normally approve the submission of uniform
instructions,” we are free to find a “particular instruction is
faulty.” Everyone knows this. What some readers may fail to
fully appreciate, however, is the tremendous service the
members of the ISBA Jury Instruction Committee do for our
justice system. Without the uniform instructions, trial judges
and lawyers statewide would be burdened reinventing the
wheel researching and drafting ad hoc jury instructions every
trial. The variances in the wording of instructions would
increase exponentially, further burdening appellate review. It
is far better to have a committee of dedicated trial judges and
lawyers craft uniform instructions to spare their colleagues
that time and trouble. If an appellate court concludes a
particular jury instruction is erroneous, or if our court
changes the law in a manner requiring a revision, then
corrections to the uniform instruction can be readily made
27
and implemented statewide. The value of our current process
is well understood by the bench and bar.
Ambrose, 861 N.W.2d at 563 (Waterman, J., concurring) (quoting
McMullin, 421 N.W.2d at 518).
Of course, the ISBA Jury Instructions Committee is welcome to
revisit Instruction 200.45 and recommend changes to the instruction for
the ISBA Board of Governors to adopt or decline. “[T]he court is not
required to give any particular form of an instruction; rather, the court
must merely give instructions that fairly state the law as applied to the
facts of the case.” State v. Marin, 788 N.W.2d 833, 838 (Iowa 2010),
overruled on other grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699,
708 & n.3 (Iowa 2016). We hold that the ISBA Criminal Jury Instruction
200.45 does not misstate the law.
We hold that Booth-Harris’s trial counsel had no duty to object to
Instruction 200.45 or to request a different instruction on eyewitness
identifications. Because Booth-Harris failed to prove the first element
required to prevail on an ineffective-assistance-of-counsel claim, a breach
of duty, we end our analysis there. See Graves, 668 N.W.2d at 869 (“A
defendant’s inability to prove either element is fatal.”).
IV. Disposition.
For the foregoing reasons, we affirm the court of appeals decision in
part and vacate in part. We affirm the district court’s judgment of
conviction and denial of the motion to suppress.
DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED.
All justices concur except Appel, J., who dissents.
28
#18–0002, State v. Booth-Harris
APPEL, Justice (dissenting).
The comfortable conventional canard is this: “Juries are not so
susceptible that they cannot measure intelligently the weight of
identification testimony that has some questionable feature.” Manson v.
Brathwaite, 432 U.S. 98, 116, 97 S. Ct. 2243, 2254 (1977). From the
beginning, this proposition was doubtful, but we now know after decades
of scientific evidence that the opposite is true. Studies have shown that
our wonderfully honest jurors often hold intuitive views about the
accuracy of eyewitness testimony that are simply incorrect. Cindy Laub &
Brian H. Bornstein, Juries and Eyewitnesses, in Encyclopedia of
Psychology and Law 390, 390–92 (Brian L. Cutler ed., 2008); see Jules
Epstein, Irreparable Misidentifications and Reliability: Reassessing the
Threshold for Admissibility of Eyewitness Identification, 58 Vill. L. Rev. 69,
90 (2013) [hereinafter Epstein, Irreparable Misidentification] (citing a 2011
study surveying over 1800 people in the United States that showed that
63% agreed the memory works like a video camera where we can review
and inspect the event later and 47.6% agreed that once experiencing an
event and a memory is formed it does not change). The jurors need our
help.
In fact, because it is one of the most powerful pieces of evidence that
can be presented to a jury, eyewitness testimony is the leading cause of
wrongful convictions. Richard A. Wise et al., How to Analyze the Accuracy
of Eyewitness Testimony in a Criminal Case, 42 Conn. L. Rev. 435, 441
(2009) [hereinafter Wise et al., Criminal Eyewitness Testimony]. With the
significant role eyewitness testimony plays in our criminal justice system,
we must adapt our legal system to our scientific understanding in order to
29
ensure that convictions are not being obtained based on eyewitness
misidentifications.
Our system of justice currently tolerates an unacceptably high risk
of misidentification. The due process standard developed decades ago by
the United States Supreme Court under the United States Constitution,
and uncritically applied by this court under the Iowa Constitution,
requires only a “modicum of potential reliability” for admission of
eyewitness identification. Epstein, Irreparable Misidentification, 58 Vill. L.
Rev. at 71. As a corollary to the very low standard of admissibility, we
endorse the convenient and self-satisfying illusion that the adversarial
system and cross-examination provide jurors with the kind of information
needed to intelligently weigh the evidence in a fashion sufficient to afford
a defendant a fair trial.
But we now know better. For reasons beyond my comprehension,
the eyewitness science is not harnessed by the majority. But our system
today utilizes what amounts to stone-aged principles. The declaration that
“this is how it has always been done” is inadequate. As the great Oliver
Wendell Holmes observed,
It is revolting to have no better reason for a rule of law than
that so it was laid down in the time of Henry IV. It is still more
revolting if the grounds upon which it was laid down have
vanished long since and the rule simply persists from blind
imitation of the past.
Oliver Wendell Holmes, The Path of the Law, address dedicating a new hall
at Boston University School of Law (January 8, 1897), in 10 Harv. L. Rev.
457, 469 (1897), as quoted in Varnum v. Brien, 763 N.W.2d 862, 877 (Iowa
2009).
Further, our criminal justice system should not be a conveyor belt
designed efficiently to produce convictions, affirmed on appeal, in
30
sufficient number to meet the perceived demands of law and order. A court
system that singularly focuses on achieving convictions bends toward a
brand of state authoritarianism that should not be acceptable in a
democratic society.
Instead, we must zealously pursue with grit and determination twin
goals: that the guilty are convicted and the innocent go free. See Berger v.
United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935). In order to
achieve these twin goals, it is imperative that we fashion our legal rules to
conform to our developing scientific knowledge on the critically important
question of eyewitness identification. That is what I have tried to do in
Doolin and in this opinion.
If we applied a legal structure that is consistent with and based upon
what we know about eyewitness identification, the conviction in this case
would be reversed. I therefore respectfully dissent.
I. Introduction.
There is no need here to repeat the extensive overview of the
evolution of eyewitness testimony science given in State v. Doolin, ___
N.W.2d ___ (Iowa 2020) (Appel, J., dissenting), which I incorporate by
reference. There is, however, a body of science that relates directly to the
deficiencies presented in the identification of Earl Booth-Harris that did
not receive extended treatment in Doolin. First, I review that eyewitness
science below.
Second, I review the facts of the eyewitness identification in this
case. As will be seen, from the very beginning there were important
estimator and system variables that significantly decreased the overall
reliability of the identification later made by Donnell Watson. Further, the
identification process in this case was unnecessarily suggestive in several
respects. In short, the identification was highly unreliable.
31
Third, I examine the principles of due process under the United
States and Iowa Constitutions. I discuss how the Iowa Constitution can
provide greater protections for Iowans when facing possible eyewitness
testimony. Under the Iowa Constitution, we can incorporate widely
accepted scientific knowledge and utilize those developments to create a
system that advances the goal of a fundamentally fair criminal justice
system even if the United States Supreme Court declines to do so under
the United States Constitution. I conclude that fundamental fairness, in
light of the science, requires a new due process approach to the admission
of evidence of eyewitness identification.
Finally, I discuss whether defense counsel was ineffective in not
requesting a science-based eyewitness identification instruction to aid the
jury in this case. The Iowa State Bar Association (ISBA) instruction on
eyewitness identification, based on a case from the 1970s, has not been
modified to reflect the over forty years of research in the areas of cognition,
recall, and perception. The ISBA eyewitness identification jury instruction
became obsolete about twenty years ago.
The time for a change in the instruction has not simply arrived: it
has long since passed. A competent criminal attorney who has followed
the development of the law would know that and should have requested
an appropriate modern eyewitness identification instruction that can be
found in the caselaw and scholarly literature. I conclude that the failure
to seek a science-based eyewitness identification instruction amounted to
ineffective assistance of counsel.
II. Variables & the Identification.
A. Eyewitnesses, Juries, and the Science.
1. Introduction. As noted in the Doolin dissent, many states, though
not yet Iowa, have started to embrace the vast and extensive knowledge of
32
eyewitness science in their judicial system. 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). 7
It is virtually undisputed that over the past four decades, “serious
concerns have been raised about the potential unreliability of eyewitness
identification evidence.” Gary L. Wells et al., Policy and Procedure
Recommendations for the Collection and Preservation of Eyewitness
Identification Evidence, 44 Law & Hum. Behav. 3, 4 (2020) [hereinafter
Wells et al., Policy & Procedures]. When it comes to eyewitness
identifications, an “[a]ccurate eyewitness identification requires that a
witness to a crime correctly sense, perceive, and remember objects and
events that occurred and recall them later.” Nat’l Acad. of Scis., 8
Identifying the Culprit: Assessing Eyewitness Identification 9 45 (2014)
[hereinafter Nat’l Acad. of Scis., Identifying the Culprit]. Accordingly, the
accuracy of the witness’s identification depends on the limits of the
witness’s “sensation, perception, and memory.” Id. Current research
provides greater and more thorough insight into how these systems can
7For more states and cases embracing scientific research when evaluating
eyewitness testimony see Doolin, ___ N.W.2d at ___ n.1.
8The National Academy of Sciences is a private, nonprofit society, established by
an Act of Congress in 1863 charged with providing “independent, objective advice to the
nation on matters related to science and technology” and “committed to furthering
science in America.” Mission, Nat’l Acad. of Scis., http://www.nasonline.org/about-
nas/mission/ [https://perma.cc/WK7W-K36D].
9In preparing the report, the committee heard from numerous experts,
practitioners, and stakeholders and reviewed relevant, published and unpublished,
works in the relevant scientific arena. Nat’l Acad. of Scis., Identifying the Culprit at 2.
33
misdirect, misperceive, and fail the witness. In addition to the science
outlined in the Doolin dissent, there are several other points of scientific
consensus that have a bearing in the case before us.
2. Perception, memory, and noise. Both vision and memory are
contaminated by noise—factors that lead to uncertainty by the observer
about whether a particular signal is present. Id. at 47. In vision, noise
can be in the form of lighting, glares, shadows, obstructions, loud or
distracting sounds, and other sources relevant and not relevant to the
sensory content. Id.
Specific to vision, when a person views an object, person, or event,
a complex process in the form of light refraction, photoreceptors, and
sensory processing occur. Id. at 50 (outlining the process and research).
While some factors are inherent to the visual system of the perceiver,
others are dependent upon the viewing conditions, such as time of
exposure and lighting. Both work together to influence the quality and
accuracy of the information gained by the observer. Id. at 50–51. Even
further, the National Academy of Sciences asserted that under the typical
viewing conditions associated with a typical crime, “[the] source of noise
may place severe limitations on the ability of the observer to sense key
pieces of information that are not present at the center of gaze.” Id. at 51.
Similar to vision, memory is susceptible to noise. Encoding memory,
storing memory, and remembering does not occur in a vacuum, unaffected
by the outside environment. Id. at 59–60. Instead, the fidelity of our
memories face compromise at various stages in the process. “Without
awareness, we regularly encode events in a biased manner and
subsequently forget, reconstruct, update, and distort the things we believe
to be true.” Id. at 60. As such, the memory of an eyewitness is malleable
and requires care in testing. Brandon L. Garrett, Eyewitness
34
Identifications and Police Practices: A Virginia Case Study, 2 Va. J. Crim.
L. 1, 3 (2014).
3. Estimator variables. Factors independent of the criminal justice
system are referred to estimator variables and empirical studies explain
that a wide range of those variables may have a significant effect on
eyewitness accuracy. Clifford S. Fishman & Anne T. McKenna, 7 Jones on
Evidence § 61:10 (7th ed.), Westlaw (database updated July 2019).
Estimator variables are for augmenting or discounting the credibility of
witnesses. Gary L. Wells, Applied Eyewitness-Testimony Research: System
Variables and Estimator Variables, 36 J. Personality & Soc. Psychol. 1546,
1546 (1978). I turn to the estimator variables most pertinent to the Booth-
Harris identification, focusing on those impacting vision and memory, and
how they discount the credibility of the eyewitness.
a. Perpetrator characteristics—disguise, familiarity, and own-race
bias. Disguises negatively impact identification accuracy. Jamal K.
Mansour et al., Impact of Disguise on Identification Decisions and
Confidence with Simultaneous and Sequential Lineups, 36 Law & Hum.
Behav. 513, 513–14 (2012) [hereinafter Mansour et al., Disguise and
Identification] (discussing the various ways disguises can impact
identification, such as imparting less identifying information, highlighting
that disguises influence attention allocation by the witness and can
decrease the amount of information able to be encoded). The Mansour
study supported the postulation that the more disguised the target’s face
was the less likely a study participant was to make an accurate lineup
decision. Id. at 523. Additionally, the likelihood of erroneous identification
depended not only on the degree of disguise but also on what parts of the
face are disguised. Id. at 523–24. Disguises function as a type of noise
35
influencing a witness’s ability to fully take in and process information. See
Nat’l Acad. of Scis., Identifying the Culprit at 69.
Adding to the complexity of identifications, depending on the
observer’s familiarity with the face, their ability to recognize the person
varies. Angus F. Chapman et al., How Robust Is Familiar Face Recognition?
A Repeat Detection Study of More Than 1000 Faces, Royal Soc’y Open Sci.,
2, 10 (2018), https://royalsocietypublishing.org/doi/pdf/10.1098/
rsos.170634; Nat’l Acad. of Scis., Identifying the Culprit at 68. In fact,
people are “remarkably poor” at matching unfamiliar faces. Ahmed M.
Megreya & A. Mike Burton, Unfamiliar Faces Are Not Faces: Evidence from
a Matching Task, 34 Memory & Cognition 865, 865 (2006). In Wade, the
Supreme Court cautioned that the identification of a stranger is
“proverbially untrustworthy.” United States v. Wade, 388 U.S. 218, 228,
87 S. Ct. 1926, 1933 (1967).
Cross-race identification—identification of individuals outside of
one’s own racial group—is consistently worse than own-race identification.
Michael P. Seng & William K. Carroll, Eyewitness Testimony: Strategies
and Tactics § 2:23 (2d ed.), Westlaw (database updated Nov. 2019);
Christian A. Meissner & John C. Brigham, Thirty Years of Investigating the
Own-Race Bias in Memory for Faces: A Meta-Analytic Review, 7 Psychol.,
Pub. Pol’y, & L. 3, 3 (2001) (reviewing results of thirty years of research on
own-race bias in the memory of faces); Andrew E. Taslitz, “Curing” Own
Race Bias: What Cognitive Science and the Henderson Case Teach About
Improving Jurors’ Ability to Identify Race-Tainted Eyewitness Error, 16
N.Y.U. J. Legis. & Pub. Pol’y 1049, 1052 & n.18 (2013) (discussing the
extensive research regarding “own race bias” and how the effect results in
eyewitnesses of one race being more likely to misidentify innocent persons
when the innocent person is of another race).
36
b. Duration of exposure. Longer exposure duration—time available
to view the perpetrator—is generally associated with a witness’s ability to
subsequently identify the perpetrator. Gary L. Wells et al., Eyewitness
Evidence: Improving Its Probative Value, 7 Psychol. Sci. Pub. Int. 45, 53–
54 (2006) [hereinafter Wells et al., Eyewitness Evidence]. Legally, exposure
duration has long been thought of as a factor to be considered when
evaluating eyewitness testimony. 10 Research confirms exposure’s
significance, finding “relatively long exposure duration produces greater
accuracy.” Nat’l Acad. of Scis., Identifying the Culprit at 97–98. Exposure
may interact with, and affect, other variables as well.
c. Stress and attention. The face of the perpetrator following a
traumatic event is often said to be “burned into someone’s memory” or in
making an identification, someone may claim that they’ll “never forget” the
face. Contrary to the popular belief that stress heightens one’s ability to
perceive and memorize, research actually suggests the opposite. Elizabeth
F. Loftus, Ten Years in the Life of an Expert Witness, 10 Law & Hum. Behav.
241, 254–55 (1986) [hereinafter Loftus, Ten Years]. Instead, high stress
or fear can affect eyewitness identification impacting both vision and
memory. Nat’l Acad. of Scis., Identifying the Culprit at 94; Loftus, Ten
Years, 10 Law & Hum. Behav. at 254–55 (explaining the Yerkes-Dodson
Law as a theoretical relationship between stress and memory finding low
stress and high stress impair attention); Wise et al., Criminal Eyewitness
Testimony 42 Conn. L. Rev. at 456, 505–06; Wells et al., Eyewitness
10See Manson, 432 U.S. at 108, 97 S. Ct. at 2250 (considering eyewitness
testimony that focused on the distance between the officer and seller, the duration of the
interaction, and lighting, ultimately noting that the officer “certainly was paying attention
to [the] identity [of] the seller”); Neil v. Biggers, 409 U.S. 188, 200, 93 S. Ct. 375, 382
(1972) (when considering the eyewitness identification the court considered the
“considerable period of time” the victim spent with her assailant and the lighting
conditions under each observation).
37
Evidence, 7 Psychol. Sci. Pub. Int. at 52–53 (discussing a 2004 study on
active duty military personnel who experienced high-stress interrogations
with real physical confrontation and low-stress interrogations without
physical confrontation and concluding the low-stress interrogations
produced more accurate results).
Another commonly held belief is that in stressful situations,
experiences become more vivid. In highly stressful conditions, vision and
memory can be affected, resulting in significant impairments in reporting
key characteristics of a face. Nat’l Acad. of Scis., Identifying the Culprit at
94. In stressful situations, an observer is faced with the choice to “select”
what they are to pay attention to, and they must do so in a short window
of time and without advance warning. Id. at 53. The noise surrounding
the environment creates competing interest that can hijack attentional
focus. Id. at 54. Attentional hijacking is particularly relevant when
encountering stimuli that provoke a strong emotional response, such as
fear and arousal. Id. at 55. Further, visual stimuli may trigger fear and
command attention, as is the case with a weapon. Id.
When a person is aware that they are perceiving a significant event,
their attention is more focused, perception and their memory of the event
is improved. Henry F. Fradella, Why Judges Should Admit Expert
Testimony on the Unreliability of Eyewitness Testimony, 2 Fed. Cts. L. Rev.
1, 10 (2007) [hereinafter Fradella, Expert Eyewitness Testimony]. Along
with significance, violence also impacts attention to the event. Id. (“Even
when witnesses understand that they are watching a significant event, ‘the
more violent the act, the lower the accuracy and completeness of
perception and memory.’ This is a function of the negative impact that
high levels of arousal and stress can produce.” (quoting Frederick Emerson
Chemay, Unreliable Eyewitness Evidence: The Expert Psychologist and the
38
Defense in Criminal Cases, 42 La. L. Rev. 721, 728 (1985))). Discussing
the Yerkes-Dodson Law, Fradella noted, “When people are concerned
about personal safety, they tend to focus their attention on the details that
most directly affect their safety, such as ‘blood, masks, weapons, and
aggressive actions.’ ” Id. at 12 (quoting Curt R. Bartol & Anne M. Bartol,
Psychology and Law 221 (2d ed. 1994)). In drawing their attention towards
what may cause harm, they focus less on details of the crime scene.
Research has shown that the presence of a weapon during a crime
captures the attention of witnesses and impedes their ability to attend to
other aspects of the event, such as the face of the perpetrator. Ani A.
Aharonian & Brian H. Bornstein, Stress and Eyewitness Memory, in
2 Encyclopedia of Psychology and Law 770 (Brian L. Cutler ed., 2008)
[hereinafter Aharonian & Bornstein, Stress and Eyewitness Memory]
(“Stress effects can also be complicated by the presence of a particularly
arousing, eye-catching aspect of the event, such as gore or a weapon.”);
Nat’l Acad. of Scis., Identifying the Culprit at 93; Fradella, Expert
Eyewitness Testimony, 2 Fed. Cts. L. Rev. at 12 (“The so-called weapons
effect describes crime situations in which a weapon is used, and witnesses
spend more time and psychic energy focusing on the weapon rather than
on other aspects of the event.”); 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, 11 (2009) [hereinafter Wells & Quinlivan, Suggestive
Eyewitness ID] (“Eyewitness experiments have consistently shown that the
presence of a weapon . . . leads to a reduced ability to recognize the face
of the culprit later.”). While recognizing research’s limitations 11 in how
11Researchers are ethically limited to the amount of experimental stress that can
be induced in a subject. Even with highly arousing materials, participants in these
39
stress, arousal, and recall influence one another, it does not mean that we
must be silent on what we do know. “[I]t is clear that, overall, high levels
of stress harm eyewitness memory in more ways than they help it.”
Aharonian & Bornstein, Stress and Eyewitness Memory at 770.
d. Witness characteristics and condition. An eyewitness’s ability to
perceive and remember may be impacted by characteristics and conditions
of the witness themselves. Personal characteristics include intoxication,
injury, illness, age, and fatigue. Lawson, 291 P.3d at 687; Wells et al.,
Eyewitness Evidence, 7 Psychol. Sci. Pub. Int. at 54 (discussing how
intoxication has been shown to correlate with lower rates of correct
identification and how “alcohol myopia” results in less accuracy on target-
absent conditions). Research studying recall and cognition demonstrate
that cannabis intoxication affects memory. Annelies Vredeveldt et al.,
Effect of Cannabis on Eyewitness Memory: A Field Study, 32 Applied
Cognitive Psychol. 420, 420 (2018) (discussing their study and findings of
cannabis use on identification, recall, and confidence). From the studies,
it appears that the effect of cannabis occurs in all stages of memory,
however, more research is needed to determine what stage of memory
cannabis intoxication affects the most. Id. at 421.
e. Memory decay and contamination. Memory retrieval is the
“process by which stored information is accessed and brought into
consciousness, where it can be used to make decisions and guide actions.”
Nat’l Acad. of Scis., Identifying the Culprit at 65. It is a complex and
studies are usually not personally threatened, they are bystanders rather than victims or
potential victims. These limitations likely influence stress, behavior, degree of attention,
and other factors that a victim of crime must undergo and process. Aharonian &
Bornstein, Stress and Eyewitness Memory at 770; see also Nat’l Acad. of Scis., Identifying
the Culprit at 94 (speaking about weapon effect and recognizing that it may not be possible
to sufficiently test the effects of stress and heightened stress in a laboratory setting due
to limitations on participants).
40
dynamic system of encoding, 12 storing, 13 and remembering. 14 Id. at 59–
60. Memory declines over time, and once a memory is formed, it starts to
decay. See Nat’l Acad. of Scis., Identifying the Culprit at 60–61; Fradella,
Expert Eyewitness Testimony, 2 Fed. Cts. L. Rev. at 10; Gary L. Wells,
Applied Eyewitness-Testimony Research: System Variables and Estimator
Variables, 36 J. Personality & Soc. Psychol. 1546, 1552 (1978). The falsity
of stable and reliable memory was addressed in 1977 by Justice Marshall.
Manson, 432 U.S. at 131, 97 S. Ct. at 2261 (Marshall, J., dissenting) (“[T]he
fact is that the greatest memory loss occurs within hours after an event.
After that, the drop off continues much more slowly.”). Today, more than
forty years later, we know even more.
Memory can be compromised at any stage in the process. Nat’l Acad.
of Scis., Identifying the Culprit at 60. Furthermore, quality may be affected.
Once compromised, information may “never be consolidated fully” to long-
term memory when exposure occurs under highly emotional conditions or
with highly emotional content. Id. at 61.
Once memories are stored, there is still a possibility of modification.
Id. at 62 (“We forget, qualify, or distort existing memories as we acquire
new perceptual experiences and encode new content and associations into
memory.”). Again, the emotional nature of the event factors into the
storage process. Id. at 63–64 (noting that highly arousing emotional
stimuli, which tends to be more lasting than memories that are nonarousal
12“[E]ncoding refers to the process whereby perceived objects and events are
initially placed into storage.” Nat’l Acad. of Scis., Identifying the Culprit at 60.
13“[S]torage refers to long-term retention of the information after encoding.” Nat’l
Acad. of Scis., Identifying the Culprit at 62.
14Remembering refers to retrieval by which the encoded and stored information is
brought into consciousness and is used for decision-making. Nat’l Acad. of Scis.,
Identifying the Culprit at 65.
41
in stimuli, are more vivid, but are just as prone to errors and are held in
higher confidence).
Because of this complex system, reliability is higher when the
identification is made within hours after the crime, and with any delay in
time after that, reliability decreases. Wells & Quinlivan, Suggestive
Eyewitness ID, 33 Law & Hum. Behav. at 13 (explaining how with the
passage of time frames measured in minutes, hours, or days, more
memory loss occurs—described as the “forgetting curve”); see also Wise et
al., Criminal Eyewitness Testimony, 42 Conn. L. Rev. at 505 & n.340
(discussing the forgetting curve and retention interval).
4. System variables. The definition of system variables has
broadened over time to include “factors under the control of the justice
system that relate to (as opposed to influence) the accuracy of eyewitness
identifications. Wells et al., Policy & Procedures, 44 Law & Hum. Behav.
at 6. System variables were discussed in great length in Doolin, ___ N.W.2d
at ____. Only the system variables of concern here will be discussed. 15
15Preidentification
instructions and blind administration will not be discussed.
During the Booth-Harris identification, Watson was read the photographic admonition
before each photo array was presented. The admonition stated,
You are about to view a photographic line-up. The person who committed
the crime may or may not be included in it. While looking at the
photographs, keep an open mind that the individuals may not appear
exactly as they did on the date of the crime. Their hairstyles, facial hair,
clothing etc. may have changed. Also, photographs may not always depict
the true complexion of a person, who may be lighter or darker than shown
in the photo. The officer showing you the photographs has no knowledge
of the incident. In the line-up process, the photograph will be shown to
you one at a time and are not in any specific order. Take as much time as
you need to look at each photograph. Even if you identify an individual
the officer will continue to show you each photograph. The officer is not
allowed to tell you whether your choice, if you make one, is a suspect in
the investigation. Do not tell other witnesses that you have or have not
identified anyone.
Also, the two arrays were conducted under a double-blind administration since the
administrator was not involved in the investigation and did not know the identity of the
42
a. Lineup construction. There is significant research and writing on
the proper construction of a lineup or photo array. Guidance has been
provided by the Department of Justice (DOJ), local police departments,
and scientific research generally. The most common police-arranged tool
for identification is the photo array. Nat’l Acad. of Scis., Identifying the
Culprit at 23. Importantly, the suspect must not stand out from the fillers
in the array. Third Circuit Task Force, 2019 Report of the United States
Court of Appeals for the Third Circuit Task Force on Eyewitness
Identifications, 92 Temp. L. Rev. 1, 35 (2019) [hereinafter Third Circuit
Task Force, 2019 Report]; Memorandum from Sally Q. Yates, Deputy Att’y
Gen., Dep’t of Justice, to Heads of Dep’t Law Enf’t Components, All Dep’t
Prosecutors (Jan. 6, 2017) [hereinafter Yates Memo], https://
www.justice.gov/archives/opa/press-release/file/923201/download) (on
Eyewitness Identification: Procedures for Conducting Photo Arrays,
Procedures 3.2, 16 3.3. 17
suspect. See Doolin, ___ N.W.2d at ___ (further discussing preidentification instructions
and blind administration along with cited sources).
16Fillersshould generally fit the witness’s description of the perpetrator,
including such characteristics as gender, race, skin color, facial hair, age,
and distinctive physical features. They should be sufficiently similar so
that a suspect’s photograph does not stand out, but not so similar that a
person who knew the suspect would find it difficult to distinguish him or
her. When viewed as a whole, the array should not point to or suggest the
suspect to the witness.
17Where the suspect has a unique feature, such as a scar, tattoo, or mole,
or distinctive clothing that would make him or her stand out in a photo
array, filler photographs should include that unique feature either by
selecting fillers who have such a feature themselves or by altering the
photographs of fillers to the extent necessary to achieve a consistent
appearance. If the suspect’s distinctive feature cannot be readily
duplicated on the filler photographs, then the suspect’s feature can be
blacked out and a similar black mark can be placed on the filler
photographs. The administrator should document any alterations to
either the fillers or the suspect’s photograph as well as the reason(s) for
doing so.
43
b. Showups. 18 A showup occurs when a single suspect is shown to
a witness, typically live, and soon following the crime. In the scientific
community, showups, by their nature, are generally regarded as
suggestive. Third Circuit Task Force, 2019 Report, 92 Temp. L. Rev. at 41.
As the Supreme Court declared over fifty years ago, “It is hard to imagine
a situation more clearly conveying the suggestion to the witness that the
one presented is believed guilty by the police.” Wade, 388 U.S. at 234, 87
S. Ct. at 1936; accord Doolin, ___ N.W.2d at ___. When a witness is shown
a single photograph, there is an increased danger of error in identifying a
person. See State v. Mark, 286 N.W.2d 396, 404 (Iowa 1979). See
generally Amy Luria, Showup Identifications: A Comprehensive Overview of
the Problems and a Discussion of Necessary Changes, 86 Neb. L. Rev. 515
(2008).
c. Repeated exposure. Research supports that repeated viewings of
a suspect are risky due to mugshot exposure, unconscious transference,
and source confusion. Kenneth A. Deffenbacher et al., Mugshot Exposure
Effects: Retroactive Interference, Mugshot Commitment, Source Confusion,
and Unconscious Transference, 30 Law & Hum. Behav. 287, 287–88
(2006). Repeated exposure through a mugshot book, showup, or lineup,
increases the chance of being identified in a later identification even if an
initial identification did not occur in the first identification procedure.
Wells et al., Policy & Procedures, 44 Law & Hum. Behav. at 25 (citing
studies supporting the finding); see also Brandon L. Garrett, Eyewitnesses
and Exclusion, 65 Vand. L. Rev. 451, 470 (2012) [hereinafter Garrett,
Exclusion].
18See Doolin, ____ N.W.2d at ___ (discussing showups and related research).
44
d. Feedback to witness. Outside information presented to the
witness can contaminate an identification. The DOJ issued guidance on
eyewitness identifications and suggests avoiding “words, sounds,
expressions, actions[,] or behaviors” suggesting who the suspect is. Yates
Memo, Procedure 8.1, at 5. Should an identification be made, the
administrator should ask for a confidence statement. Id. Procedure 8.2,
at 5. If the witness provides a “vague” answer, the administrator should
ask for the witness to provide clarification. Id. Procedure 8.3, at 5.
Investigator or administrator feedback may result in the witness being
more inclined to make an identification or may inflate the witness’s
confidence in their selection. Id. at 8.
e. Level of confidence. 19 With the broadening of the definition of
system variables, confidence statements may now fall under system
variables because of their ability to be easily contaminated by events that
are under the control of system actors. Wells et al., Policy & Procedure, 44
Law & Hum. Behav. at 6. Under pristine identification procedures, 20 the
confidence that a witness expresses is usually a “highly reliable indicator
of accuracy.” 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). Confidence correlates to pristine
conditions, when the memory is first tested, and before contamination
occurs. Id. at 13.
19See Doolin, ____ N.W.2d at ___ (regarding witness confidence and corresponding
research).
20The pristine lineup conditions identified were (1) including only one suspect per
lineup, (2) including a suspect that does not stand out in the lineup, (3) cautioning that
the suspect might not be in the lineup, (4) using double-blind testing, and (5) collecting
a confidence statement at the time of the identification. John T. Wixted & Gary L. Wells,
The Relationship Between Eyewitness Confidence and Identification Accuracy: A New
Synthesis, 18 Psychol. Sci. Pub. Int. 10, 20 (2017).
45
I now turn now to the facts of the case and apply these factors.
B. The Flawed Identification.
1. The limited opportunity to identify the shooter at the scene.
During his interview at the scene with Officer Fogle, Watson stated that
he, his cousin Deonte Carter, and Carter’s friend, Edward DeWitt, were
talking at the park when they noticed a large group of black males standing
on the corner of 8th and Elm. Except for Terrance Polk, Watson stated he
did not recognize any of the males in the other group.
The group of men continued to talk when “the next thing he knew,”
a black male approached them. Watson provided a very detailed
description of the clothing the male was wearing. Watson reported the
male was wearing a “dark colored windbreaker and a black hoodie
underneath with the hoodie pulled up, wearing blue jeans, brown boots,
and a black skull cap pulled over his forehead where [Watson] couldn’t see
his face.” He did however notice something at the man’s side: a gun. After
a brief exchange of words between the male and Carter, the male raised
the gun from his side, hesitated, and put it back down. Carter then said
to the man, “do what you’re gonna do,” and following those words, shooting
began.
Watson stated that once the shooting started he took off running
and only returned after the shooting ended. He returned to a traumatic
and chaotic scene, with his cousin bleeding on the ground, and called 911.
Watson was interviewed at the scene by the officers. While he was
not able to provide much of a physical description of the shooter, outside
of clothing, he could provide a description of the gun, a silver-colored gun
believed to be .40 or .45 caliber. 21 Watson was escorted to the police
21When asked about how he estimated the caliber, Watson stated his estimation
was based on the shell casings surrounding the scene.
46
station for further interviewing. In Officer Fogle’s report it is noted that he
asked Watson “several times” if he knew the shooter and Watson stated he
did not.
Watson was able to provide a final description to Detective
Schwandt, stating the shooter was a black male, about 5’11”, 150 pounds,
twenty-one to twenty-two years old, and with a light beard. He provided
more information about the clothing the shooter was wearing, adding the
shooter was wearing a black hat with yellow letters. Also at this time,
Watson admitted to smoking marijuana before arriving at the park. The
detective could still smell the marijuana emanating from his person.
Watson was shown a photo array soon after the shooting, and he
did not pick anyone out as the shooter. 22 Watson was then shown a stand-
alone picture of Booth-Harris. 23 He did not indicate that he knew Booth-
Harris, and he did not identify him as the shooter. So even when provided
with a one person showup, relatively shortly after the shooting, Watson
could not make the identification.
Based upon the events that unfolded, it is clear that there were
troublesome estimator variables that potentially impacted his perception
and memory of the event. The shooter was well disguised in that Watson
stated he could not see his face. It is difficult to make a solid identification
when one cannot see the perpetrator’s face. Further, the shooter had a
weapon and pointed it once or twice during the short interaction, thus
22 The police initially thought Polk was the shooter and had a picture of Polk in
the first array shown to Watson. Watson did not identify Polk as the shooter.
23When asked why he presented the picture of Booth-Harris to the witness,
Detective Schwandt testified,
Q. Why did you show him the picture then? A. Well, we just had a
shooting in Burlington and there’s a subject with a gunshot wound. We don’t
know if he’s a victim. We don’t know if he’s a suspect. We don’t know if he’s a
bystander, so at that time we’re not sure what his involvement was.
47
triggering weapons focus. The encounter was brief. Watson stated during
his interview two days later that everything happened quickly. It was a
stressful and emotional event and the person who approached Watson was
a stranger.
The majority argues that Watson could see the shooter from the nose
to his forehead and the description of the shooter was largely accurate with
the exception of the height estimate. In fact, there was no
contemporaneous description of the shooter. The descriptions came
during the time Watson was viewing photographs. There was no
description about a sharp jawline until Watson was shown the photo of
Booth-Harris. The only description provided regarding facial features was
the light facial hair, an observation which is inconsistent with Watson’s
prior statement of being able to see the shooter’s nose and forehead. 24 The
eyes were described only during the viewing of the second and third photo
arrays. In short, in the immediate aftermath of the crime when memory
remains fresh, Watson described the shooter’s clothes, height, and weight,
not his face or facial features. That came later, and only when shown
pictures by police and only after a one person showup presentation of
Booth-Harris.
These facts demonstrate that Watson did not have a clear view of
the face of the perpetrator, had a very limited opportunity to view what he
could see, and was exposed to the distraction of the presence of a weapon.
2. The use of a highly disfavored suggestive showup. After being
shown the array including Polk, Watson was shown a stand-alone picture
of Booth-Harris. Detective Schwandt noted in his report that at the time
24During the police briefing following the execution of the search warrant of Booth-
Harris’s home, Detective Moret, the detective who lead the search, heard that the shooter
wore “a mask covering part of his face.”
48
he was “advised Earl Booth-Harris [was] currently at the Monmouth
hospital speaking to Det[ective] Tripp because he also had sustained a
gunshot wound to the leg during the incident.”
At the time Booth-Harris’s photo was shown, the officer was
operating as if he may be a suspect. When asked why the photo was
presented, the detective acknowledged that Booth-Harris may have been a
suspect and they were trying to ascertain his role. The use of showup
procedures calls into question subsequent identifications. “Regardless of
how the initial misidentification comes about, the witness thereafter is apt
to retain in his memory the image of the photograph rather than of the
person actually seen, reducing the trustworthiness of subsequent lineup
or courtroom identifications.” Simmons v. United States, 390 U.S. 377,
383–84, 88 S. Ct. 967, 971 (1968).
Here, the use of the single picture was improper. There was no real
urgency. Watson and the detective were at the police station, and Watson
had already participated in one array. In Monmouth, Booth-Harris was at
the hospital seeking medical care and was speaking to an officer. There is
no excuse justifying the use of the highly suggestive process of a showup
under the circumstances present. If the investigator had the time to
secure a photo of Booth-Harris, knowing that he could be a suspect, the
photo could have been put into an array or lineup with fillers. See Wells
et al., Policy & Procedures, 44 Law & Hum. Behav. at 7.
Yet, even with the suggestive procedure, on the day of the shooting,
when Watson’s memory was the most accurate, he could not make the
identification. When presented with the photo of Booth-Harris, he
reported that he did not know who the person in the photo was. So,
notwithstanding the highly disfavored process, no identification was made.
49
But by showing a single person to Watson, an element of suggestiveness
was injected into the identification process.
3. The improper double arrays, with a heavy dose of suggestion. Two
days after the shooting, when memory would have dramatically decayed,
Watson was interviewed again by police. Sergeant McCune, who was not
involved with the case, administered the lineup while Detective Tripp
prepared it. Sergeant McCune read the photographic admonition before
showing Watson the photos.
During the first photo array, Watson lingered on the photo of Booth-
Harris and expressed some hesitancy to say definitively that Booth-Harris
was the shooter. Watson expressed concern about his memory of the
shooter’s eyes and eyebrows versus those of Booth-Harris. He expressed
concern regarding his memory of the shooter’s height and weight versus
those of Booth-Harris. Watson was able to say the “strong jaw structure”
was something that he noticed in the shooter, and Booth-Harris appeared
to have a jaw structure that reminded him of the shooter. Also, Watson
stated that the jaw structure of the shooter was the “only thing he could
kind of see.” Watson concluded that array with a 50% certainty that
Booth-Harris was the shooter, but also prefaced his 50% certainty with a
statement to the administering officer that “[stuff] happened so quick.”
At this point, the police did not have much. They had no
contemporaneous description of the shooter, got a nonidentification in a
highly suggestive one person showup, and got a 50% confidence
identification when Watson was presented an array with Booth-Harris.
The police elected to attempt yet a third identification process, another
photo array.
In the new photo array, Watson, seeing Booth-Harris for the third
time, identified Booth-Harris as the shooter with 70% certainty, noting
50
that “he doesn’t know for sure, but the [stuff] just like match, the eyeballs
and [stuff] like that.” This response, though marginally better than the
result in the first photo array, was hardly sufficient to overcome potential
reasonable doubt. Rather than rest here, the police pressed on with a
dialogue designed to push Watson to make a more positive identification.
Sergeant McCune begins tapping repeatedly on the photo of Booth-Harris
and exclaims “yeah.” Watson now declared, “nah, I feel like that’s him.”
Sergeant McCune then tells Watson that “feeling like it” is more than 70%
certainty and then asks if they are more at 100% certainty, to which
Watson replies, “might as well say 100.” Watson is then asked to put 100%
on the back of the photo and initial it.
The suggestiveness here is not inconsequential. As noted by one
commentator, “[E]ven fairly minimal confirmatory feedback can
significantly inflate a witness’s assessment of her own confidence.” Keith
A. Findley, Implementing the Lessons from Wrongful Convictions: An
Empirical Analysis of Eyewitness Identification Reform Strategies, 8 Mo. L.
Rev. 377, 393 (2016). This case presents a classic example of highly
inappropriate suggestiveness.
It is important to note that both Watson and Booth-Harris are
African-Americans. Research shows we are better at identifying people of
the same racial identity. Booth-Harris was a constant fixture among
pictures of other black men with different skin tones, nose widths, and
other Afrocentric features that Watson is attuned to recognizing. See Yair
Bar-Haim et al., Nature and Nurture in Own-Race Face Processing, 17
Psychol. Sci. 159, 160 (2006) (discussing research for own-race advantage
and why people tend to be better at recognizing own-race faces); see also
Doolin, ___N.W.2d at ___ (discussing more research as it relates to
51
Afrocentric features, recognition, and impact on the criminal justice
system).
Watson was exposed to Booth-Harris’s photo on three different
occasions after the shooting. Watson arrived at 100% certainly after three
views, one of which was a showup where no identification was made;
another at which Watson expressed doubt and eventually landed on a 50%
certainty identification; and finally, in a remarkable third process, where
police inquired whether Watson’s clearly expressed 70% certainty should
be something else, leading Watson to arrive at a 100% certainty.
To begin with, the impact of repeated exposures is extremely
powerful:
A prior viewing of a suspect at an identification procedure may
reduce the reliability of a subsequent identification procedure
in which the same suspect is shown. A prior viewing of a
suspect in an identification procedure raises doubts about the
reliability of a subsequent identification procedure using the
same suspect.
Gomes, 22 N.E.3d at 916 (emphasis omitted); see also Henderson, 27 A.3d
at 900 (stating that multiple viewings of a suspect can affect later reliability
due to risk of being unable to discern the source of recognition); Lawson,
291 P.3d at 686–87 (same). Repeated exposure calls the identification into
question. Watson was shown pictures of the same black male three times.
To say Booth-Harris did not stand out is to ignore common sense and what
science tells us. Tiffany Huinz & Kathy Pezdec, The Effect of Exposure to
Multiple Lineups on Face Identification Accuracy, 25 Law & Hum. Behav.
185, 195–97 (2001); John S. Shaw III & Kimberly A. McClure, Repeated
Postevent Questioning Can Lead to Elevated Levels of Eyewitness
Confidence, 20 Law & Hum. Behav. 629, 630–31, 649–50 (1996).
Further, there can be no doubt that in the third identification
process involving a photo of Booth-Harris, the exchange between Watson
52
and Sergeant McCune suggested to Watson that he could or should inflate
his level of certainty from 70% to 100%. The State maintains this was not
“encouragement” but instead an inquiry into what 70% certainty meant.
An inquiry into what 70% certainty meant resulted in a 30% certainty
increase and an expression of acquiescence in the form of the comment
“might as well.” If this was the case, why was there no similar inquiry into
ascertaining what 50% certainty meant during the first identification? And
when does “feeling like it,” while at the same time saying, “I don’t know for
sure,” equal 100% certainty?
The DOJ recommends administrators avoid words, sounds,
expressions, and actions that suggest who the suspect is. Yates Memo,
Procedure 8.1, at 5. Once an identification has been made, a confidence
statement should be obtained. Id. Procedure 8.2, at 5. And only if the
statement is vague, and 70% is not vague, is the administrator to ask for
clarification. Id. Procedure 8.3, at 5. The DOJ provides examples of how
further exploration should be obtained. Per the DOJ, the witness should
be asked, “You said [I think it’s #4]. What do you mean by that?” Id. The
exemplary question of “what do you mean by that,” and what happened in
practice with tapping on Booth-Harris’s picture and the statement of
feeling like it is more than 70%, are two entirely different things. The only
question presented was to the effect of “we’re thinking we’re more like
100%.”
The conduct here is beyond any clarifying question or statement and
is an explicit question to the witness to significantly increase his certainty
to a level that a jury could not help but place great weight in. “[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)
53
(Brennan, J., dissenting) (quoting Elizabeth F. Loftus, Eyewitness
Testimony 19 (1979)). Now, the State was able to say there is a witness
who is 100% certain in his identification, when in reality he did not himself
say he was 100% certain, but he accepted the suggestion of the officer.
The suggestion is of 100% certainty. Those words and numbers are
powerful. They were obtained in an impermissibly suggestive manner
when the officer asked Watson if he was at 100% certainty and did not
accept his initial answer of 70% certainty. To call this anything other than
an encouragement to inflate his level of certainty is, at best, disingenuous.
4. Testimony. The majority also points to the testimony of Watson
where he states he lied about not knowing Booth-Harris. But, the
questioning continued beyond the portion cited in the majority opinion:
Q. As a matter of fact, didn’t Officer Schwandt show
you a photo lineup that day? A. Yeah. Yes.
Q. And did you identify Earl Booth-Harris from the
lineup? A. I think it was, like, a 70 percent chance or
something like that, and then I think he brought some other
pictures in or whatever.
Q. Isn’t it a fact that he showed you Earl Booth-Harris’
photograph all by itself apart from the lineup that day? A. I
don’t remember. I think it was all on one paper.
Q. But, in any event, would you agree that if [Officer
Schwandt] [showed a photo lineup], you didn’t identify Earl
Booth-Harris as the shooter on February 16th? A. Could you
ask that question again.
Q. Would you agree that you never identified Earl
Booth-Harris as the shooter on February 16th? A. No, I did.
Q. I’m sorry? A. I think I did, and I think I wind up
reneging on it or something like that. I don’t know.
Q. Are you telling us that you don’t know whether you
identified him or not? A. The first time, like, yeah, I think I
lied or something like that. Like, yeah, I -- I seen him, and
then I went over the picture saying that I didn’t see him.
54
Watson did not say that the person he failed to identify was Booth-
Harris. Watson was familiar with Polk and was shown an array with Polk
on the 16th. Watson was shown an individual picture of Booth-Harris on
the 16th. He failed to identify either of them. Watson is confusing dates
and lineups. On the 16th, Watson was presented with a lineup involving
Polk, not Booth-Harris. Even more problematic, the jury may have been
lead to believe that on the day of the shooting an identification was made
and Watson reported his certainty at 70%.
The State argues that Watson remembered seeing the picture of
Booth-Harris on the day of the shooting but declined to identify him
because of fear of law enforcement. The fear of law enforcement reconciles
with Watson lying about the gun on the day of the shooting, but not with
his failure to identify Booth-Harris.
If Watson declined to identify Booth-Harris on the day of the
shooting out of fear, why two days later did he identify him with 50%
certainty during the first lineup? Why did his certainty only jump 20%
when he saw him for the third time and only get to 100% after speaking
with the Sergeant? If Watson had lied or simply failed to make the
identification the day of the shooting, why did he not come in with 100%
certainty after being presented with the first photo of Booth-Harris?
III. Due Process Analysis Under the United States and Iowa
Constitutions.
This case involves the question of due process rights and eyewitness
identification under both the Iowa and United States Constitutions. Under
the Iowa Constitution, we “jealously reserve” the right to reach results
different from the United States Supreme Court under our parallel
provisions. State v. Ingram, 914 N.W.2d 794, 799 (Iowa 2018); see, e.g.,
55
Zaber v. City of Dubuque, 789 N.W.2d 634, 654 (Iowa 2010); State v.
Wilkes, 756 N.W.2d 838, 842 n.1 (Iowa 2008).
The Fourteenth Amendment provides that no state “shall . . . deprive
any person of life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV. Article I, section 9 of the Iowa Constitution requires
that “no person shall be deprived of life, liberty, or property, without due
process of law.” Iowa Const. art. I, § 9. Our caselaw states that “[a]lthough
the Iowa and United States Constitutions have similarly worded [due
process] provisions, that does not mean the two regimes and the cases
under them may be conflated.” Ingram, 914 N.W.2d at 799.
In Doolin, ___ N.W.2d. at ____, the United States Supreme Court
precedent of due process and eyewitness testimony was thoroughly
discussed by the dissent. The Doolin dissent noted that through the
various cases before the Court, the reliability analysis focused on “a very
substantial likelihood of irreparable misidentification.” Id. at ___ (quoting
Simmons, 390 U.S. at 384, 88 S. Ct. at 971). It also focused on the role of
law enforcement and their actions in the scope of due process analysis. It
is an incredibly forgiving standard that was created over forty years ago.
Further in the Supreme Court analysis is the Neil v. Biggers and
Manson framework. See Manson, 432 U.S. 98, 97 S. Ct. 2243 (majority
opinion); Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 275 (1972). While these
cases somewhat considered the application of scientific evidence, these
decisions embraced a case-by-case, multifactor analysis that was
ultimately uninformed by science. See Doolin, ___ N.W.2d at ____ n.4;
Wells & Quinlivan, Suggestive Eyewitness ID, 33 Law & Hum. Behav. at 5
(noting the late 1970s is generally regarded as the birth of modern
eyewitness research, and the work of researchers during that time did not
appear in law reviews or other publications for legal consideration, but
56
instead appeared in peer-reviewed psychology journals). However, even
before the explosive growth of science regarding eyewitness evidence, the
role of misidentification in wrongful convictions was “well established”
through Edwin Borchard’s 1932 book, Convicting the Innocent, where
Borchard claimed eyewitness errors were “perhaps a major source” of
wrongful convictions. Nicholas A. Kahn-Fogel, The Promises and Pitfalls of
State Eyewitness Identification Reforms, 104 Ky. L. J. 99, 107 (2016)
[hereinafter Kahn-Fogel, Promises & Pitfalls] (quoting Edwin M. Borchard,
Convicting the Innocent: Sixty-Five Actual Errors of Criminal Justice 367
(1932)). Before Bouchard, in 1908, Hugo Münsterberg penned On the
Witness Stand: Essays on Psychology and Crime where the unreliability of
eyewitness memory was demonstrated. Id. at 107 & n.43. Today we know
even more with thousands of published and peer-reviewed studies and
articles on eyewitness testimony. Why would we disregard them?
The issue isn’t whether the identification would stand our current
standard, the Biggers/ Manson test that has been determined to be
unscientific and very forgiving. The majority’s use of Neal demonstrates
how forgiving the standard is. See State v. Neal, 353 N.W.2d 83 (Iowa
1984). In Neal, six days after the assault, the victim was shown
photographs and made an identification that most closely resembled her
assailant. Id. at 87. It wasn’t until almost two weeks later, when she was
shown another array with the defendant, that she identified him as her
assailant. Id. at 89. The acceptance of this identification rejects the
science the majority states they acknowledge. In Neal, the court calls
attention to how “even rather startling differences” between the defendant
and other fillers in arrays have not resulted in findings of suggestiveness.
Id. at 88. The current standard fails to provide adequate protections by
rejecting system and estimator variables.
57
Since the time of the Manson Court, social science has demonstrated
how “unhelpful and flawed” the Manson factors are in the proper
evaluation of witness reliability. Garrett, Exclusion, 65 Vand. L. Rev. at
468. This is especially troubling because the Manson Court emphasized
that “reliability is the linchpin in determining admissibility of identification
testimony.” Manson, 432 U.S. at 114, 97 S. Ct. at 2253. Despite this
extensive body of work, the Court has not revisited the Biggers/ Manson
test for eyewitness reliability. In Perry v. New Hampshire, Justice
Sotomayor, dissenting, discussed the incredibly high bar set for excluding
eyewitness identification testimony and highlighted that there has been
one case 25 at the time of the opinion where a due process violation was
found. 565 U.S. 228, 261, 132 S. Ct. 716, 737 (2012) (Sotomayor, J.,
dissenting). Ultimately, the federal framework continues to ignore the
mounting body of evidence that has “reinforced every concern [the Court’s]
25See Foster v. California, 394 U.S. 440, 89 S. Ct. 1127 (1969). In Foster, the first
lineup procedure involved three men: Foster, who was close to six feet tall, and two other
men, who were approximately six inches shorter. Id. at 441, 89 S. Ct. at 1128. The
witness during the lineup was unable to identify Foster and asked to speak with him in
a room. Id. After the one-on-one confrontation, the witness was still unable to identify
Foster. Id. A week or ten days later, the police arranged for the same witness to
participate in a second lineup. Id. This time, there were five men present, and Foster
was the only repeat between the two lineups. Id. at 441–42, 89 S. Ct. at 1128. After the
second lineup, the witness was “convinced” Foster was the man. Id. at 442, 89 S. Ct. at
1128. The Court concluded the case presented “a compelling example of unfair lineup
procedures.” Id. The Court concluded that in the first lineup, Foster stood out because
of the contrast of heights, the jacket he was wearing (a jacket that was similar to that
worn by the robber), and the one-on-one confrontation. Id. at 442–43, 89 S. Ct. at 1128.
Further, the Court highlighted 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. at 443, 89 S. Ct. at 1128–29 (alteration in original) (quoting Stovall v. Denno, 388 U.S.
293, 302, 87 S. Ct. 1967, 1972 (1967), abrogated on other grounds by United States v.
Johnson, 457 U.S. 537, 102 S. Ct. 2579 (1982)). After a tentative identification, another
lineup was arranged, Foster was the only repeat in the first and second lineups, and only
after all of this process was a definite identification produced. Id. The Court concluded
that the suggestive procedure all but stated to the witness that “this is the man.” Id. at
443, 89 S. Ct. at 1129.
58
precedents articulated nearly a half-century ago.” Id. at 565 U.S. at 262–
63, 132 S. Ct. at 738.
In Booth-Harris’s motion to suppress the eyewitness testimony, he
argued due process violations under the Fourteenth Amendment to the
United States Constitution and article I, section 9 of the Iowa Constitution.
Recently, in State v. Shorter, 893 N.W.2d 65 (Iowa 2017), we specifically
noted that the defendant did not raise a state constitutional challenge
regarding the eyewitness identification evidence in his case. Id. at 74.
Today we should address this issue and utilize science to take steps within
our control to ensure due process under the Iowa Constitution when
eyewitness evidence is proposed.
[For] “the law will always lag behind the sciences to some
degree because of the need for solid scientific consensus
before the law incorporates its teachings . . . .” Appellate
courts have a responsibility to look forward, and a legal
concept’s longevity should not be extended when it is
established that it is no longer appropriate.
Brodes, 614 S.E.2d at 771 (quoting Long, 721 P.2d at 491). If reliability is
truly the linchpin of admissibility, we must recognize and utilize the years
of research that have shown the Biggers/ Manson framework is unreliable
and outdated, leading to a lack of reliability. We have a scientific
consensus on many issues that can be applied to safeguard due process
rights.
A few states, in interpreting their state constitutional due process
requirements, have explicitly rejected the Biggers/ Manson framework,
and this court should follow their lead. As stated by Greg Hurley,
Knowledge and Information Services Analyst for the National Center for
State Courts,
To protect the public from wrongful convictions based on an
eyewitness misidentification, it is important that both law
enforcement and the courts take notice of recent
59
developments on the issue in the social sciences. The courts
must be aware of the malleable nature of human memory and
the lineup practices used by law enforcement in the
jurisdiction. Although they are downstream of the primary
problem, the courts have the power and duty to properly
instruct jurors, the ability to refuse to admit evidence that does
not meet a fundamental level of trustworthiness, and the ability
to work with justice system partners to improve the criminal
justice system.
Gary Hurley, Nat’l Ctr. for State Cts., Trends in State Courts: The Trouble
with Eyewitness Identification Testimony in Criminal Cases,
https://www.ncsc.org/microsites/trends/home/Monthly-Trends-
Articles/2017/The-Trouble-with-Eyewitness-Identification-Testimony-in-
Criminal-Cases.aspx (emphasis added).
States are interpreting their due process clauses and are modifying
how eyewitness identification testimony is used in trial. See Young, 374
P.3d at 412–28 (holding the Manson test does not adequately protect due
process rights under the Alaska Constitution and utilizing scientific
evidence in adopting a new approach); State v. Harris, 191 A.3d 119, 123,
133–45 (Conn. 2018) (reaffirming the due process clause under the state
constitution provides greater protection than the Federal Constitution and
utilizing other state precedent of estimator and system variables);
Commonwealth v. Johnson, 650 N.E.2d 1257, 1260, 1261 (Mass. 1995)
(rejecting the Manson reliability test as an accurate interpretation of the
state’s due process clause); State v. Adams, 423 N.E.2d 379, 383–84 (N.Y.
1981) (rejecting Manson test under the state’s constitution); cf. State v.
Lujan, 459 P.3d 992, 1000–05 (Utah 2020) (utilizing scientific research in
determining admissibility of eyewitness testimony under the Utah Rules of
Evidence while reserving the possibility that the Utah due process clause
may differ from the federal standard).
The majority cites State v. Roberson, 935 N.W.2d 813 (Wis. 2019),
and their about-face in utilizing eyewitness science in determining
60
admissibility. The Roberson opinion focuses attention on social science
and the role of social science in the application and interpretation of law.
I agree with that assertion to a degree. Social science is characterized as
a branch of science dealing with human behavior in its social and cultural
aspects. Should courts use the social science that was utilized to endorse
the theory of racial inferiority that was the catalyst for racist policy and
judicial decisions? No. We must also recognize that the perception or
“science” of inferiority had no scientific basis. Social science that helped
shape racially discriminatory policy, as mentioned in Roberson, was based
on physical characteristics and if someone was “well-born.” Id. at 821–22.
In recognizing that use of social science in judicial decision-making, we
must also attribute social science’s contributions to socially important
decisions. See id. at 834 (Dallet, J., dissenting) (citing decisions leading
to the decriminalization of consensual same-sex intimate conduct and the
abolition of the death penalty against the mentally ill and juveniles).
Today, however, social science of societal beliefs is not the science I
would rely upon. Eyewitness science utilizes studies that have a
foundation in neuroscience and other disciplines, from studies that are
reliable. Missing from both the Roberson opinion and today’s majority is
the research that calls into question the validity or reliability of the
information presented, through methodologies that are tested and retested
through various other methodologies. The science is sound and the
wrongful convictions resulting from misidentification provide support to
the notion that there is a problem with the way eyewitness identification
testimony is handled.
This isn’t the “social science . . . embod[ying] the subjective beliefs
of the time.” Id. at 822 (majority opinion). This isn’t the same type of
science that reinforced the beliefs and findings of Plessy v. Ferguson,
61
antimiscegenation laws, and forced sterilizations. See Plessy v. Ferguson,
163 U.S. 537, 16 S. Ct. 1138 (1896), overruled by Brown v. Bd. of Educ.,
347 U.S. 483, 495, 74 S. Ct. 686, 692 (1954). The science of eyewitness
identification is not rooted in the subjective belief of superiority or
inferiority, and this is not a societal value. It is based in how the brain
perceives, how the brain recalls, and how the brain processes. In Justice
Dallet’s dissent, she stated that the majority, by abrogating State v.
Dubose, 699 N.W.2d 582 (Wis. 2005), “erodes the due process protection
afforded by the Wisconsin Constitution and places jurors in the impossible
position of separating the taint of a suggestive single photo identification
from its reliability.” Roberson, 935 N.W.2d at 831 (Dallet, J., dissenting).
Under the current Biggers/ Manson factors, we are asked to balance
the corrupting effects of a suggestive identification procedure against
reliability factors that decades of research have indicated are unreliable.
This practice is harmful to those who encounter our criminal justice
system and does little to deter suggestive practices engaged in by law
enforcement. Federally, “[t]he development of due process protections
against mistaken identification evidence, begun in Stovall, was continued
in Simmons” and has effectively ended in the Manson framework. Manson,
432 U.S. at 121, 97 S. Ct. at 2256 (Marshall, J., dissenting). “But, the
Federal Constitution merely sets a ‘constitutional floor’ below which state
constitutional interpretations may not sink.” Mark S. Cady, The Vanguard
of Equality: The Iowa Supreme Court’s Journey to Stay Ahead of the Curve
on an Arc Bending Towards Justice, 76 Albany L. Rev. 1991, 1992 (2013).
Iowa has a history of protecting those within our borders before
federal courts reached the opposite or same conclusion. See Varnum, 763
N.W.2d at 906–07 (finding same-sex marriage equality six years before
62
Obergefell26); Coger v. Nw. Union Packet Co., 37 Iowa 145, 153–54 (1873)
(providing equality in public accommodations twenty years before Plessy27
arrived at the separate but equal doctrine); Clark v. Bd. of Dirs., 24 Iowa
266, 274 (1868) (desegregating public schools over eighty years before the
Brown 28 decision); In re Ralph, 1 Morris 1 (1839) (extending equal
protection to all men, regardless of color, and eighteen years before the
Supreme Court reached the opposite conclusion in the Dred Scott29
decision).
In Wade, the Court called attention to the “annals of criminal law
[being] rife with instances of mistaken identification,” of which we know
now more than ever. 388 U.S. at 228, 87 S. Ct. at 1933. The Manson
factors “are flatly contradicted by well-respected and essentially
unchallenged empirical studies,” and the “time has come for a more
empirically sound approach.” State v. Ramirez, 817 P.2d 774, 780 (Utah
1991) (quoting Long, 721 P.2d at 491–92), abrogated by Lujan, 459 P.3d
at 999.
To provide due process, we must adjust and incorporate what we
know to best facilitate a system that is fair and seeks justice. We simply
cannot dismiss this expansive body of research. The Iowa Constitution
provides a foundation for society and our interpretation fosters growth
“consistent with the increasing knowledge and understanding of the
world.” Mark S. Cady, A Pioneer’s Constitution: How Iowa’s Constitutional
History Uniquely Shapes Our Pioneering Tradition in Recognizing Civil
26Obergefell v. Hodges, 576 U.S. ___, ___, 135 S. Ct. 2584, 2608 (2015).
27Plessy, 163 U.S. 537.
28Brown, 347 U.S. 483, 74 S. Ct. 686, supplemented sub nom., 349 U.S. 294, 75
S. Ct. 753 (1955).
29Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), superseded by U.S. Const.
amend. XIV.
63
Rights and Civil Liberties, 60 Drake L. Rev. 1133, 1142 (2012). So the
question is, what increased knowledge have we gained?
This is what we know. Eyewitness identification evidence is a
leading cause of wrongful convictions, and mistaken identifications
contributed to approximately 71% of the more than 360 wrongful
convictions subsequently overturned by DNA evidence to date in the
United States. Innocence Project, Eyewitness Identification Reform,
https://www.innocenceproject.org/eyewitness-identification-reform/
[https://perma.cc/J2TA-5BHZ]. As devastating as these numbers are,
they only tell us the number of those wrongfully convicted because DNA
evidence was available to later testing. For many, there is no DNA
evidence, whether the evidence is not preserved or the sample is not
sufficient enough to test. The statistics only give us a snapshot of the
wrongful convictions that occur in the United States. There are likely
countless others who remain incarcerated or have faced a term of
incarceration because DNA evidence was not available.
With all the information available about how sweeping this problem
is and how, as a system, we can address the problem, we choose not to
act. We perpetuate the illusion of due process and protection for those
involved in the criminal justice system, and in doing so, we do nothing to
curb the unacceptably high risk of wrongful convictions. Common sense
is losing out to precedent, and convictions are held in a higher regard than
the pursuit of truth.
In Doolin, I concluded that under the Iowa Constitution’s due
process clause, the wisest path forward regarding in-court identifications
should a per se exclusion approach. Doolin, ___ N.W.2d at ___. First-time,
in-court identifications would be inadmissible absent a prior identification
made through nonsuggestive procedures. Id. In arriving at a per se
64
exclusion approach, I surveyed various states and what they are doing to
combat unreliable eyewitness testimony. There, I discussed Harris, 191
A.3d 119. Under the Iowa due process clause, for eyewitness
identification, I would adopt a methodology similar to that created under
Harris.
In Harris, the Supreme Court of Connecticut determined that,
although the defendant’s due process challenge under the Federal
Constitution fell short in light of traditional caselaw, the due process
clause under the Connecticut Constitution required more. 191 A.3d at
123. While the court in Harris ruled the admission of the eyewitness
identification testimony to be harmless error, the Harris court outlined a
new science-based approach in determining admissibility under their state
due process clause. Id. at 143.
The Harris court developed a procedural framework to consider
eyewitness identification challenges. Finding the Biggers factors
“insufficiently protective” of due process rights under their state
constitution, the Harris court adopted a different due process framework.
Id. at 133–43. Under the new framework, a defendant may obtain a
pretrial hearing where the defendant carries the initial burden of offering
“some evidence that a system variable undermined the reliability of the
eyewitness identification.” Id. at 143. The burden then shifts to the
prosecution to show that the identification was reliable, accounting for all
relevant estimator and system variables. Id. If the prosecution meets its
burden, the burden shifts back to the defendant to prove a “very
substantial likelihood of misidentification” in order for the evidence to be
excluded. Id.
The defendant was entitled to challenge the eyewitness identification
under the Harris framework. Based on the record in this case, I cannot
65
see how the eyewitness identification would have been admitted under
Harris standards. Because the district court failed to utilize the Harris
framework, I would reverse Booth-Harris’s conviction and remand the case
for retrial.
IV. Ineffective Assistance of Counsel: Use of the ISBA Model
Jury Instruction.
A. Introduction. The jury was instructed using the ISBA Model
Jury Instruction on eyewitness identification. Booth-Harris argues that
his counsel should have requested jury instructions incorporating well-
established system and estimator variables and that failure to do so
constituted ineffective assistance of counsel. In addressing this claim, I
begin by examining the history of the ISBA Model Jury Instruction 200.45.
B. History of ISBA Model Jury Instruction 200.45. The current
ISBA instruction regarding eyewitness identification testimony is derived
from United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972) (per curiam).
In Telfaire, the court commented on the “one witness rule” 30 and its role
in Anglo-American jurisprudence. Id. at 554. Telfaire also commented on
the power of the presumption of innocence and the adversarial system with
safeguards to “dilute the danger of conviction of the innocent,” a problem
of concern for “every civilized system of justice.” Id. at 554–55 (“The
presumption of innocence that safeguards the common law system must
be a premise that is realized in instruction and not merely a promise.”).
In pursuit of that promise, the court recognized the importance for
a special instruction with eyewitness identification emphasizing that
eyewitness identification testimony involves special and heightened
30The one-witness rule recognizes that some crimes are solitary and allows for a
case to be sent to a jury, and a verdict to be upheld, on the uncorroborated testimony of
a single witness, and the witness need not be a victim. See Strickland v. United States,
332 A.2d 746, 749 (D.C. 1975).
66
problems of reliability. Id. at 555. The purpose of the instruction was to
emphasize to the jury the importance and need to find the identification
convincing beyond a reasonable doubt. Id. For jurors to find that, the
Telfaire court embraced education as a means of achieving this goal. Id.
at 557.
In Chief Judge Bazelon’s concurrence, he recognized that the
instructions went far in providing illumination to the shortcomings and
pitfalls of eyewitness identification testimony, though he believed the
instructions did not go far enough. Id. at 559 (Bazelon, C.J., concurring).
Specifically, he called attention to the issues that arise in cross-racial
identification, an issue not addressed in the special instructions. Id.
Utilizing data, Chief Judge Bazelon called attention to the “widely held
commonsense view” that cross-racial identification faces greater difficulty
than same-race identification. Id. He recognized the danger as just “as
relevant to the accuracy” of identification as other factors accounted for in
the model instructions. Id. at 560.
Judge Leventhal authored a concurrence to address Chief Judge
Bazelon’s concerns regarding cross-racial identification. Id. at 561–63
(Leventhal, J., concurring). Judge Leventhal expressed concern that the
issue of cross-race identification had not been developed enough to be
addressed in the model instructions. Id. at 561–62 (“The issue of inter-
racial identifications is not ripe for this kind of distillation of wisdom
involving as it does a matter on which there is only ‘meager data’ and an
assertion of ‘common sense’ views that merit further consideration.”). In
Judge Leventhal’s view, the issue was a launching point to be used to
identify a problem and, if needed, could warrant further discussion if it
was an issue in a specific case. Id. at 563.
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C. Impact of Science on Eyewitness Identification Instruction.
The Telfaire instructions were an “influential set of model jury
instructions” to be used in appropriate cases involving eyewitness
identification testimony. Nat’l Acad. of Scis., Identifying the Culprit at 41.
These instructions added factors for the jury to consider in assessing
eyewitness testimony. Telfaire, 469 F.2d at 558–59 (majority opinion)
(outlining the model special instruction on identification); Nat’l Acad. of
Scis., Identifying the Culprit at 41–42. Some states adopted the cautionary
instructions, and Iowa was one that did. See Iowa State Bar Ass’n, Iowa
Criminal Jury Instructions 200.45 (2018).
However, the Telfaire instructions fail to provide guidance on
variables that reduce the reliability of identification procedures and ignore
the issue of estimator and system variables that have since been identified
as important reliability factors. See Kahn-Fogel, Promises & Pitfalls, 104
Ky. L.J. at 118–19. The instructions are still based on what was known in
the 1970s. The instructions provide cautionary statements about some
generalities regarding the witness’s opportunity and capacity to view the
perpetrator and identification procedure. Id. at 119–20; Telfaire, 469 F.2d
at 558–59. Studies have shown the Telfaire instructions were ineffective
safeguards against misidentification. Kahn-Fogel, Promises & Pitfalls, 104
Ky. L.J. at 119.
There is no doubt that the Telfaire jury instructions are no longer
adequate in light of the scientific developments. Examples of scientifically
based instructions may be found in Henderson, 27 A.3d at 894–912, 925–
26, and Gomes, 22 N.E.3d at 907–17. There is no one version of an
instruction that must be used in all cases, but I think it is abundantly
clear that a criminal defendant, in cases where eyewitness identification is
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involved, is entitled to a science-based instruction such as those presented
in Henderson and Gomes.
D. Ineffective Assistance of Counsel. On appeal, Booth-Harris
asserts that his trial counsel was ineffective for failing to request
instructions incorporating well-established scientific information
regarding system and estimator variables. Accordingly, the merits are
analyzed through Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052
(1984).
The first prong requires an examination of whether trial counsel fell
below a level of competence expected for a similar attorney. The question
is whether a “normally competent attorney could have concluded that the
question . . . was not worth raising.” State v. Fountain, 786 N.W.2d 260,
266 (Iowa 2010) (quoting State v. Schoelerman, 315 N.W.2d 67, 72 (Iowa
1982)). A competent lawyer must stay abreast of legal developments to
render effective assistance of counsel. Id.; see also Doolin, ___ N.W.2d at
___ (citing the Iowa Rules of Professional Conduct and how they require
maintaining competence in changing and evolving fields).
Based on the above information, the eyewitness identification
evidence controversy has been in the public and legal purview for over forty
years. In Telfaire, Chief Judge Bazelon stated, “The jury’s knowledge of
the relevant factors should not turn on the inadvertence or inexperience
of trial counsel, and this is particularly so where the issue of identity is
the question of guilt or innocence.” Telfaire, 469 F.2d at 560 (Bazelon,
C.J., concurring). The accuracy of eyewitness identification testimony is
routinely overestimated by jurors and the confidence of the identification
often carries great weight with the juror. Perry, 565 U.S. at 263–64, 132
S. Ct. at 738–39. It falls to defense counsel to be well-informed and active
in protecting their client’s due process rights through knowledge of these
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well-known and established fallacies of eyewitness identification and to
inform the jury on both the best practices and pitfalls of eyewitness
identification. Gomes, Henderson, and Lawson, to name a few cases, have
addressed these issues at great length. Each case was also accompanied
by either a special report or an appendix of scholarly work addressing the
issues in question. Gomes, 22 N.E.3d at 918–27; Henderson, 27 A.3d at
894–912; Lawson, 291 P.3d at 695 & n.10.
Further, a veritable library on the question of science and eyewitness
identification can be quickly developed by any lawyer through a computer
search of commonly available legal databases. A search of “eyewitness
identification” in the same sentence as “science” produces rich results with
hundreds of hits, reflecting reliable, scholarly secondary literature of
germane materials. Or, a search of “eyewitness identification” in the same
sentence as “instruction” produces, again, hundreds of results, again,
many highly germane. The information regarding eyewitness identification
instructions is not stored in some kind of heavily guarded legal Fort Knox,
or encrypted in some complicated and remote file of the national
intelligence directorate. It is readily available to any lawyer with a
modicum of curiosity, a mouse, and a few minutes time. There should be
no lawyer practicing criminal law in the State of Iowa without a general
knowledge of recent developments in the law and science of eyewitness
identification. A lawyer without such knowledge has no place in an Iowa
courtroom defending clients facing deprivation of liberty where eyewitness
identifications are an important part of the State’s case.
The remaining question is whether the failure to give a science-
based instruction in this case caused prejudice. A review of the record
makes it abundantly clear that Watson’s identification was a critical part
of the State’s case. An appropriate eyewitness instruction would have
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significantly enhanced the ability of the defense to challenge the credibility
of Watson’s identification, assuming it was admissible, and empowered the
jury to more accurately assess the credibility of the identification.
Because of the weight jurors give eyewitness identification, it is
imperative that the jury be instructed on the vital issues surrounding
eyewitness identification. For example, a science-based instruction would
have told the jury that human memory does not function like a camera;
that a witness’s expressed certainty, standing alone, may not indicate the
accuracy of the identification; and that a prior viewing of a suspect at an
identification procedure may reduce the reliability of any subsequent
identification procedure. See Gomes, 22 N.E.3d at 918–27. Further, a
science-based instruction would have educated the jury about estimator
variables and would have, for example, (a) identified the issue of the
disguise and how disguises affect a witness’s ability to identify a person,
(b) advised that an exposure of short duration limits the power of memory,
(c) identified the distraction of weapons focus as a factor undermining the
accuracy of the identification, (d) brought up the possible effects of
Watson’s intoxication on identification, (e) illuminated the importance of
lack of familiarity with the suspect, (f) explored the role of memory decay
in the accuracy of eyewitness identification, and (g) explained the risks of
misidentification through contaminating suggestion.
The jury did not receive the information it needed regarding system
and estimator variables so they could properly assess the weight of the
evidence provided. The lack of a science-based eyewitness identification
instruction in this case undermines my confidence in the verdict and is
sufficient to satisfy the prejudice prong of an ineffective-assistance-of-
counsel claim. See Commonwealth v. Pressley, 457 N.E.2d 1119, 1120–
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21 (Mass. 1983) (reversing conviction based on failure to give adequate
eyewitness identification instruction).
V. Conclusion.
The majority opinion “persist[s] in wholesale reliance on an archaic
test based on seemingly logical assumptions that have since been refuted.”
Small v. State, 211 A.3d 236, 256 (Md. 2019) (Barbera, C.J., concurring).
They welcome a change in model jury instructions if the ISBA accepts the
invitation. In the meantime, criminal defendants face conviction by juries
that are woefully ill informed. The New Jersey Supreme Court put a stop
to this kind of process in 2011. See Henderson, 27 A.3d at 918.
Massachusetts has done so as well. See Gomes, 22 N.E.3d at 917–18. We
should do the same today.
For all of the above reasons, I would reverse the conviction and
remand the case.