State v. Faust

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STATE v. FAUST—CONCURRENCE
BORDEN, J., concurring. I disagree with the majority
regarding the claim by the defendant, Nathaniel Faust,
that the trial court improperly instructed the jury on
the issue of eyewitness identification. See part V A and
B of the majority opinion.1 I conclude, to the contrary,
that the court should have given the instructions
requested by the defendant. I agree, however, that the
court’s failure to give the instructions requested by the
defendant constituted harmless error. Accordingly, I
agree with the majority that the judgment of conviction
should be affirmed.
The defendant challenges two aspects of the court’s
instructions on eyewitness identification. The first, dis-
cussed in part V A of the majority opinion, involved the
weak correlation between a witness’ confidence in his
or her identification and its accuracy. The second, dis-
cussed in part V B of the majority opinion, involved
the notion that eyewitness identifications become less
reliable the longer the period of time between the initial
observation of the alleged perpetrator and the identifi-
cation.
I begin with some general background. As the major-
ity opinion aptly notes, in State v. Guilbert, 306 Conn.
218, 49 A.3d 705 (2012), our Supreme Court substan-
tially revised the law regarding eyewitness identifica-
tions. Significantly, the court in Guilbert, in noting ‘‘a
near perfect scientific consensus’’; id., 234–35; about
the ‘‘array of variables that are most likely to lead to a
mistaken identification’’; id., 236; overruled two prior
cases, namely, State v. Kemp, 199 Conn. 473, 507 A.2d
1387 (1986), and State v. McClendon, 248 Conn. 572,
730 A.2d 1107 (1999), both of which were premised on
the notion that the factors regarding the reliability of
eyewitness identification are within the common
knowledge of jurors, indeed of the common experience
of mankind; see State v. Kemp, supra, 479; State v.
McClendon, supra, 586; and therefore a trial court had
the discretion to exclude expert testimony on those
factors. In their place, however, the court in Guilbert
extensively reviewed the science of eyewitness identifi-
cations and held that appropriate expert testimony was
now admissible in our trial courts; specifically, ‘‘the
expert should be permitted to testify only about factors
that generally have an adverse effect on the reliability
of eyewitness identifications and are relevant to the
specific eyewitness identification at issue’’ in the case.
State v. Guilbert, supra, 248.
Central to the court’s holding was the acknowledge-
ment that many of the scientific findings regarding the
factors affecting the reliability of eyewitness identifica-
tion ‘‘are largely unfamiliar to the average person, and,
in fact, many of the findings are counterintuitive.’’ Id.,
239. Furthermore, although Guilbert on its facts
involved only the question of the admissibility of expert
testimony, the court also addressed the question of
jury instructions: ‘‘a trial court retains the discretion to
decide whether, under the specific facts and circum-
stances presented, focused and informative jury
instructions on the fallibility of eyewitness identifica-
tion evidence of the kind contemplated by the New
Jersey Supreme Court [in State v. Henderson, 208 N.J.
208, 219, 27 A.3d 872 (2011)] would alone be adequate to
aid the jury in evaluating the eyewitness identification at
issue. We emphasize, however, that any such instruc-
tions should reflect the findings and conclusions of the
scientific literature pertaining to the particular variable
or variables at issue in the case; broad generalized
instructions on eyewitness identifications, such those
previously approved by this court in State v. Tatum,
219 Conn. 721, 734–35, 595 A.2d 322 (1991) . . . or
those given in the present case . . . do not suffice.’’
(Citation omitted; emphasis added; footnote omitted.)
State v. Guilbert, supra, 306 Conn. 257–58.
With this background in mind, I turn now to the two
specific instructional challenges raised by the defen-
dant. The factual background relevant to the instruc-
tional challenges is as follows.
Rose Schroeder, an employee of the jewelry shop in
the present case, Paul Lirot Jewelers in Madison, testi-
fied at the trial on June 21, 2012, that she could not
identify any of the perpetrators of the robbery at the
time of the robbery because they had worn masks and
had instructed her to lie on the floor, keep her head
down and not look at them. She also testified, however,
that the night before the robbery, just after closing time,
there was an incident during which she saw, about
ten feet away through the store window, an African-
American man exit a Mercedes vehicle and stand out-
side the door. She testified that she observed the man
for approximately ten seconds. She testified further
that eight or nine months after the robbery, the police
showed her a set of photographs from which she identi-
fied the defendant as the man who had been outside
the store the night before the robbery, and she also
identified the defendant in the courtroom as that man.
She also testified that at the time of the photographic
identification she was very confident of her identifi-
cation.2
Samantha Edwards belonged to the same Longmea-
dow, Massachusetts country club as Sally Suchy, who
had testified previously that her Mercedes station
wagon had been stolen from the club two days before
the robbery, namely, on June 30, 2008. Edwards testified
at the trial that on the day that the vehicle had been
stolen, she was stopped at a traffic light in her vehicle
while going into Longmeadow from Enfield when she
saw Suchy’s vehicle parked in a gas station at that
location. She testified further that Suchy’s vehicle was
being driven by an African-American male, whom she
identified in the courtroom as the defendant. She also
testified that, on August 17, 2010, she was shown a set
of photographs by two Madison police officers, from
which she identified the defendant as the person whom
she had seen in Suchy’s car on June 30, 2008.3 She
testified further that she had no doubts about that iden-
tification,4 that she felt confident in the identification
she had made,5 and that she had no hesitation in identi-
fying the defendant in the courtroom.6
Certainty and Accuracy
After referring to the fact that both Schroeder and
Edwards had identified the defendant, the defendant
requested that the court charge as follows: ‘‘When the
identification of a suspect connected to a crime is based
upon the testimony of an eyewitness, the jury must use
particular caution when deciding whether to credit that
type of testimony. When assessing the credibility of
testimony as it relates to the issue of the reliability of
their identification, keep in mind that it is not sufficient
that one or both of them are free from doubt as to the
correctness of her identification of the defendant as
the person whom they observed in connection with this
investigation. . . . While the witness’ level of certainty
may be considered, bear in mind that certainty does
not ensure accuracy; in fact, it is now known that
there is little correlation between a witness’ degree
of certainty and the reliability of the identification.’’
(Emphasis altered.)
The trial court charged in this respect as follows:
‘‘You may also consider the strength of the identifica-
tion, including the witness’ degree of certainty. Cer-
tainty, however, does not mean accuracy.’’ Thus, the
court, after instructing the jury that it may consider
‘‘the witness’ degree of certainty,’’ merely told the jury
that ‘‘[c]ertainty . . . does not mean accuracy.’’ The
court’s instruction omitted the critical part of the defen-
dant’s request, namely, that not only does certainty not
mean accuracy, but that ‘‘it is now known that there is
little correlation between a witness’ degree of certainty
and the reliability [or accuracy] of the identification.’’
This omission was improper because the critical part
of the requested instruction both conformed to the over-
whelming scientific consensus identified in Guilbert
and was in accord with the law as stated therein. With
respect to the science, the court in Guilbert noted the
scientific consensus that ‘‘there is little if any correla-
tion between confidence and accuracy’’; State v. Guilb-
ert, supra, 306 Conn. 242; and that ‘‘there is at best a
weak correlation between a witness’ confidence in his
or her identification and the identification’s accuracy
. . . .’’ Id., 253–54. With respect to the law, the court
stated that ‘‘[c]ourts across the country now accept that
. . . there is at best a weak correlation between a wit-
ness’ confidence in his or her identification and its
accuracy . . . .’’ (Footnotes omitted.) Id., 237–39; see
also State v. Ledbetter, 275 Conn. 534, 576, 881 A.2d
290 (2005) (‘‘the correlation between witness confi-
dence and accuracy tends to be weak’’), cert. denied,
547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).
Furthermore, by preceding its instruction regarding
the relationship between certainty and accuracy with
the instruction to the jurors that they ‘‘may also consider
the strength of the identification, including the witness’
degree of certainty,’’ the court exacerbated the impro-
priety by inviting the jury to bring to the table precisely
the type of jurors’ misconception that had prevailed
under the now abandoned Kemp and McClendon
regime. Among the ‘‘widely accepted’’; State v. Guilbert,
supra, 306 Conn. 239; scientific findings noted in Guilb-
ert is that ‘‘people often believe that the more confident
an eyewitness is in an identification, the more likely
the identification is to be accurate’’; id., 240; yet, that
belief, like so many of the others cited in Guilbert, is,
although intuitive, simply not true. Id., 241. In addition,
the science shows that, ‘‘although there is little if any
correlation between confidence and accuracy, an eye-
witness’ confidence is the most powerful single determi-
nant of whether . . . observers . . . will believe that
the eyewitness made an accurate identification . . . .’’
(Internal quotation marks omitted.) Id., 242. Thus,
although we now know that jurors tend to place their
greatest weight on this unjustified belief, the jurors in
the present case were implicitly invited to do precisely
that by the court’s instruction.7
I disagree with the majority that the court’s anodyne
instruction, namely, ‘‘[c]ertainty . . . does not mean
accuracy,’’ was a sufficient surrogate for the defen-
dant’s requested instruction that ‘‘it is now known that
there is little correlation between a witness’ degree of
certainty and the reliability of the identification.’’ In my
view, it is one thing to tell jurors in general terms that
‘‘[c]ertainty . . . does not mean accuracy’’—which
does not specifically correlate with the known science
and established law—and telling them in specific terms
that ‘‘it is now known that there is little correlation
between a witness’ degree of certainty and the reliability
of the identification’’—which does so correlate. The
two instructions to the jury are simply not the same,
particularly when the first is immediately preceded by
the invitation to bring their intuitive, although untrue,
belief into play.
Put another way, I seriously doubt that the following
conversation would have taken place in the jury room:
‘‘[Juror 1]: The judge told us that we can take the
strength of the identification, including the level of cer-
tainty, into consideration. Following that instruction, I
believe that the more certain a witness is—as both
Schroeder and Edwards were—the more likely it is that
their identifications of the defendant were accurate.
And, of course, the judge also told us that certainty
does not mean accuracy; I understand that to mean that
certainty does not necessarily mean accuracy, but that
doesn’t contradict my belief.’’ ‘‘[Juror 2]: Oh, no. The
judge also told us that certainty does not mean accu-
racy. That means that not only does certainty not neces-
sarily mean accuracy, but it’s now known that there is a
very weak correlation between certainty and accuracy.
Therefore, your belief is simply wrong, and you cannot
use it in our deliberations.’’ (Emphasis added.) Where
would that hypothetical Juror 2 get that thought from?
Certainly not from anything the court told the jury.
Time and Accuracy
The defendant also requested the following instruc-
tion: ‘‘[H]ow did the passage of time between the wit-
ness’ viewing of the suspect and her subsequent
identification of him in a police photo array procedure
affect its reliability?—as courts have recognized that
the more time that goes by, the weaker the reliability
of the identification.’’ (Emphasis added.) In response,
the court instructed the jurors simply: ‘‘[Y]ou [should]
consider the length of time that’s elapsed between the
occurrence of the crime and the identification of the
defendant by the witness.’’ Thus, again, the court omit-
ted the critical part of the defendant’s instruction,
namely, the specific warning ‘‘that the more time that
goes by, the weaker the reliability of the identification.’’
As in the instruction on certainty and reliability, this
omission was also improper because the critical part
of the requested instruction both conformed to the over-
whelming scientific consensus identified in Guilbert
and was in accord with the law as stated therein. With
respect to the scientific consensus, the court in Guilbert
recognized that ‘‘a person’s memory diminishes rapidly
over a period of hours rather than days or weeks’’;
State v. Guilbert, supra, 306 Conn. 238; and ‘‘laypersons
commonly are unaware of the effect of the . . . rate
at which memory fades . . . .’’ Id., 241–42. With respect
to the law, the court in Guilbert recognized that
‘‘[c]courts across the country now accept that . . . a
person’s memory diminishes rapidly over a period of
hours rather than days or weeks . . . .’’ (Footnotes
omitted.) Id., 237–39.
And again, I disagree with the majority that the court’s
instruction as given was an adequate surrogate for the
critical part of the defendant’s requested instruction.
Indeed, the court’s general instruction, namely, that
‘‘you [should] consider the length of time that’s elapsed
between the occurrence of the crime and the identifica-
tion of the defendant by the witness,’’ does not even
mention the words ‘‘reliability’’ or ‘‘accuracy,’’ and does
not tell the jury the critical scientific fact and estab-
lished legal proposition regarding what specific consid-
eration to give to that length of time. As in the case of
its instruction on confidence and accuracy, the court’s
all too general instruction lacked the specifics to make
it truly informative. This is especially important in a
case like the present one, in which the two sets of
identifications were made so long after the initial obser-
vations of the defendant: in Schroeder’s case, her photo-
graphic identification was made eight to nine months
later; in Edwards’ case, the in-court identification was
made almost four years later, and her photographic
identification was made almost twenty-six months later.
Nor am I at all persuaded by the majority’s two asser-
tions in support of its conclusion on this issue. The first
is that ‘‘[t]he most reasonable conclusion that can be
drawn from this instruction is that as time passes, a
person’s memory fades and their recollections become
less reliable. We see no discernible difference between
the substance of the court’s charge and the defendant’s
request.’’ I simply disagree. An equally reasonable con-
clusion jurors may draw from the uninformative general
language in the court’s instruction is that the individual
jurors may treat the passage of time based on their own
intuitions and perceptions of how time interacts with
memory. Some jurors might well give credence to the
oft-expressed inaccurate conventional wisdom, said
colloquially as, ‘‘I can recall what happened last year,
but I can’t remember what I had for breakfast today,’’
and reach the conclusion that it is just as likely that long-
term memory can be better than short term memory as
vice versa.
The second of the majority’s assertions, closely
related to the first, is that ‘‘it is well within the knowl-
edge of the average juror that, as the months and years
pass, an identification, like any other recollection of
fact, may be based on faded memories rather than clear
recollection. . . . As the purpose of a cautionary
instruction, under Guilbert, is to notify the jury of estab-
lished science that is contrary to common assumptions
and not within the knowledge of the average juror, we
cannot conclude that such an instruction was necessary
in the present case.’’ (Citations omitted.) I reject this
assertion for four reasons.
First, it simply misreads Guilbert. The purpose under
Guilbert of permitting expert testimony, and providing
for the availability of properly tailored jury instructions,
on the entire issue of the reliability of eyewitness identi-
fications is not simply to isolate those factors that may
or may not be within the supposed ‘‘knowledge of the
average juror’’; it is to guard against such thinking in
the first place—that is, that courts should not rely on
our assumptions of what ‘‘average jurors’’ know or do
not know, and should rely, instead, on the science of
eyewitness identification. That is why the court in
Guilbert began by abandoning the Kemp and McClen-
don regime in the first place. See State v. Guilbert,
supra, 306 Conn. 248–51. Second, and related to the
first, it reverts to that abandoned regime by creating,
out of whole cloth, a juror assumption that conveniently
fits the majority’s conclusion, but for which the majority
cites neither science nor law. Third, the assumption
itself is questionable: as I indicate previously, many
laypersons labor under the belief—which may in some
instances be true but which is certainly not true in the
case of an eyewitness identification—that sometimes
long-term memory is better than short term. Fourth,
the majority’s assertion is based on the fact that such
long times elapsed between the initial observations and
the eventual identifications. This, of course, presents a
paradigmatic case of the risk of mistaken identification.
It bizarrely turns the whole scientific analysis on its
head to say that, as the majority seems to say, the longer
the time elapsed the less the need for a focused, specific
instruction specifically conforming to both science
and law.
Harmless Error
Despite my disagreement with the majority regarding
these two instructional claims, I agree with its conclu-
sion that the defendant has not established a sufficient
likelihood that the instructional errors were harmful to
him. The basis for this conclusion is the DNA evidence
tying the defendant convincingly to the crime, which
has been ably detailed in the majority opinion. I there-
fore concur with the majority that the judgment should
be affirmed.
1
I agree with the majority’s reasoning in rejecting the defendant’s
other claims.
2
Specifically, Schroeder testified as follows:
‘‘[The Prosecutor]: Were you confident with that identification?
‘‘[Schroeder]: Very.’’
3
This identification of the defendant from the photographic array was
accomplished in two steps. First, Edwards identified the particular photo-
graph from the array that she had chosen as being the driver of the Mercedes.
Second, Detective Richard Perron, of the Madison Police Department, testi-
fied that the photograph Edwards chose was of the defendant.
4
Specifically, Edwards testified as follows:
‘‘[The Prosecutor]: Did you have any doubts about the identification that
you made to the police?
‘‘[Edwards]: No.’’
5
Specifically, Edwards testified as follows:
‘‘[The Prosecutor]: And do you feel confident in the identification that
you made?
‘‘[Edwards]: Yes. . . .
‘‘[The Prosecutor]: Do you have any doubts about that as you sit here
now—
‘‘[Edwards]: No.
‘‘[The Prosecutor]: —about the identification that you made?
‘‘[Edwards]: No.’’
6
Specifically, Edwards testified as follows:
‘‘[The Prosecutor]: Did you have any hesitation in identifying the defen-
dant today?
‘‘[Edwards]: No, no.’’
7
I reject the majority’s assertion that the defendant induced error by
including in his requested instruction the language: ‘‘the witness’ level of
certainty may be considered,’’ and that, therefore, the trial court’s instruc-
tions, namely, that the jurors ‘‘may also consider the strength of the identifica-
tion, including the witness’ degree of certainty,’’ did not exacerbate the
error. See footnote 10 of the majority opinion. It is true that the defendant’s
instruction did contain those eight words, but they must be read in context.
And that context, which I quote in full in the text, is as follows: ‘‘While the
witness’ level of certainty may be considered, bear in mind that certainty
does not ensure accuracy; in fact, it is now known that there is little
correlation between a witness’ degree of certainty and the reliability of
the identification.’’ (Emphasis added.) Thus, there is a world of difference
between, on the one hand, the defendant’s request, which reminds the jury
that, in taking the certainty into consideration, it must know that there is
little correlation between certainty and accuracy, and, on the other hand,
the trial court’s bald instruction that ‘‘You may also consider the strength
of the identification, including the witness’ degree of certainty,’’ which con-
tains no such warning about the lack of correlation between certainty and
accuracy. Thus, the defendant’s request does not invite the jury to bring to
bear the type of jurors’ misconception that had prevailed under Kemp and
McClendon; the trial court’s instruction does.