Eyewitness Identification (ID Expert)
Category > Eyewitness Identification (ID Expert)
The trial court erred by omitting a standard factor from the eyewitness identification instruction. Identification was an issue at defendant’s capital trial, and the court instructed with CALJIC 2.92, the standard identification instruction. However, the court omitted the factor referring to a witness’s prior contact with the perpetrator finding it didn’t apply. The court erred by excluding this factor as it was relevant to show the identification was less reliable. The error was harmless where defense counsel strongly attacked the eyewitness identifications.id: 25643
Court erred in failing to permit expert testimony on the effects of stress and expectancy on perception.Defense sought to introduce testimony of a psychologist to show that defendant's actual perception of events may have differed from reality due to stress and preconceived expectations about what might happen. The court erred in finding the studies in that area are not sufficiently reliable to permit such expert testimony. The court further erred in questioning the witness' credentials where she was basing her testimony on her reading of the work of others rather than her own independent research. However, the error was not prejudicial where the jury found defendant guilty of attempted voluntary manslaughter, rejecting a charge of attempted murder. Relying on a theory of imperfect self-defense, they necessarily accepted defendant's testimony that he believed himself threatened, but concluded such belief was not objectively reasonable.id: 11426
Court erred in failing to give a revised pinpoint instruction directing the jury's attention to the problematic nature of eyewitness identification.Defendant presented the testimony of an expert on eyewitness identification to explain potential problems with the accuracy of such identifications. The trial court then denied a proposed special instruction relating to the testimony. Denial of the instruction was erroneous. To the extent that the instruction was argumentative the court could have revised it. However, given the strength of the evidence of guilt, the detail in defense counsel's argument, and the other instructions given regarding eyewitness identification - the court's error in failing to deliver a revised pinpoint instruction directing the jury's attention to the problematic nature of eyewitness identifications was harmless.id: 11425
Updated 2/4/2024Instructing that witness certainty can be considered when evaluating eyewitness identification did not violate due process.Defendant argued that CALCRIM 315, the pattern instruction on relevant factor when evaluating eyewitness identification evidence violated due process by including witness certainty, which has been shown to be irrelevant to accuracy. However, listing witness certainty as one of the 15 factors to consider did not render defendant’s trial unfair. The court did recommend that the Judicial Counsel consider whether the should be modified, and recommended that courts omit the certainty factor from CALCRIM 315 until the Judicial Counsel has completed its evaluation. id: 27329
The trial court did not err in denying expert testimony on the reliability of eyewitness identifications given the other evidence corroborating the identification.The trial court did not abuse its discretion in excluding Dr. Shomer’s expert testimony on the reliability of eyewitness identifications. Ample other evidence corroborated the identification, giving it independent reliability and substantially reducing the probative value of the expert’s testimony.id: 25942
The trial court did not err by instructing the jury that certainty would be considered on the issue of witness identification.Defendant argued the trial court erred by instructing the jurors under CALJIC 2.92, that it could consider the extent to which a witness was certain of the identification. While studies now show there is a weak correlation between certainty and accuracy (and several states have disapproved of using the certainty factor), the instruction was not improper here, where the case involved uncertain as well as certain identifications. id: 24788
Defendant's failure to show expert testimony would have been helpful prevented him from successfully challenging trial counsel's competence in failing to produce an eyewitness identification expert.Defendant argued that trial counsel rendered ineffective assistance by failing to present expert testimony on eyewitness identification at trial. However, because defendant did not show that trial counsel failed to consult an expert or that such an expert would have been able to provide favorable testimony, he did not show trial counsel was deficient in failing to present expert eyewitness identification testimony.id: 21628
The trial court did not violate defendant's constitutional rights by denying his request to present the testimony of an eyewitness identification expert. The trial court did not violate defendant's due process or Sixth Amendment rights when it disallowed testimony by an eyewitness identification expert. There were four eyewitnesses who positively identified defendant and other evidence which corroborated the eyewitness testimony. Moreover, contrary
to defendant's claim, he was not prevented from presenting the defense of third party culpability.id: 19438
The court did not err in denying the request for an eyewitness ID expert where no witness identified the perpetrators.The trial court did not abuse its discretion in denying
defendant's pretrial motion for funds to retain an expert on eyewitness identification. No witnesses identified the masked perpetrators, and the prosecution relied on circumstantial
evidence showing defendant's intent, motive and opportunity to commit the crime. That certain witnesses could not identify defendant did not require the expert.id: 19243
The prosecutor did not commit misconduct by referring in questioning and argument to defendant's failure to request a live lineup.Defendant argued that the prosecutor's questioning and argument about his failure to request a live lineup was akin to Doyle v. Ohio error which prohibits the prosecutor from exploiting a defendant's post-Miranda-advisement silence. The comments were made after the defense made the photo lineups the focus of the defense case. However, because lineups do not implicate the right to remain silent, Griffin and Doyle do not prohibit comment on refusal to participate in a lineup or failure to request one.id: 17806
Exclusion of the expert testimony was justified where defendant's admissions substantially corroborated the eyewitness identification.The defense sought to call an eyewitness identification expert witness. The prosecutor argued the witness was not necessary since the identification evidence was a small part of the case, but the larger focus was on defendant's admissions. Exclusion of expert testimony is justified only if there is other evidence that substantially corroborates the eyewitness identification and gives it independent reliability. The cumulative corroborative effect of the testimony of defendant's admission was to give independent reliability to the eyewitness identification.id: 17399
The court did not err in excluding expert testimony on eyewitness identification where there was no eyewitness identification in the present murder trial but the victim was an eyewitness in defendant's previous robbery case.Defendant was charged with the murder of a previous robbery victim to prevent the victim's testimony at trial. The victim was expected to make an eyewitness identification at the robbery trial. The trial court did not err at the subsequent murder trial in excluding as irrelevant, the defense's proffered expert testimony on the factors affecting the reliability of eyewitness identifications. No eyewitness identified defendant as the killer in the present case. While defendant's knowledge of the potential identification provided the motive for the murder, a psychologist's testimony regarding the factors affecting the reliability of eyewitness identification, did not tend to show a motive to kill or lack thereof.id: 17267
Photo lineup was not impermissibly suggestive even though all six men did not have goatees and only two were wearing suits as described by the eyewitness.Defendant argued the photographic line up was impermissibly suggestive because his picture was the only one in which the subject had three of the features described by the eyewitness - glasses, a goatee and a suit and tie. However, all six men in the photos wore glasses, two others had suits, all had a mustache, and some had other facial hair. Moreover, several had a hairstyle similar to the defendant's. Defendant's photo was sufficiently similar to the others.id: 14933
Court did not abuse its discretion in not allowing voir dire questions regarding the effects of stress on perception.Defendant argued the trial court abused its discretion when, during voir dire, it sustained the prosecutor's objection to defense questions that sought to elicit the opinions of potential jurors concerning the effects of stress on perception. Because the challenged questions were not related to aiding the exercise of peremptory challenges but instead were intended to support defendant's position on an evidentiary question, no abuse of discretion occurred.id: 12544
Court did not abuse its discretion in excluding an expert witness on eyewitness testimony where the eyewitness identification was substantially corroborated by other independent evidence.The trial court did not abuse its discretion in excluding expert testimony on the subject of eyewitness testimony. Although eyewitness testimony was a key element of the prosecution's case, eyewitness testimony was not the only evidence linking defendant to the crime. The testimony was corroborated by other independent evidence linking defendant to the crime. In any event, any potential error was harmless given the overwhelming nature of the evidence against defendant.id: 11423
Court did not err in refusing the requested instruction that the witness' memory may have been affected by intervening time and events.Defendant argued the court erred in refusing his request that the jury be instructed as follows: "Was the witness' memory affected by intervening time and events? Memory tends to fade over time, and studies show that a witness may subconsciously incorporate into her memory information from other sources." The trial court did not err in refusing the instruction. It was argumentative in that it invited the jury to draw inferences favorable to the defendant from specified items of evidence on a disputed question of fact.id: 11424
Court has no sua sponte duty to give eyewitness credibility instruction.CALJIC 2.92 governs the weight to be given eyewitness identification testimony. The trial court is under no duty to deliver the instruction absent a request from counsel.id: 11427
Court properly excluded evidence of identification expert's mock lineup experiment.Defendant argued the trial court erred by excluding evidence of his identification expert's mock lineup experiment conducted with the photospread shown the victim. However, admitting evidence of the mock lineup experiment would not have provided the jurors with anything that was not within their own expertise, since they obviously never observed the perpetrator. The court thus properly limited the expert's testimony to general factors that might have affected the accuracy of defendant's eyewitness identification and excluded the mock lineup experiment.id: 11428
Deleting two factors from proposed eyewitness identification instruction was not prejudicial.The trial court gave defendant's proposed instruction on reliability of eyewitness identification (a modified version of CALJIC 2.92), but deleted two factors: use of a weapon during the offense and age differences between the witnesses and the perpetrators. Any error in deleting these factors was harmless because the instruction, as given noted the factors bearing on reliability were not limited to those listed and both factors were employed in the defense argument.id: 11429
Exclusion of expert testimony regarding eyewitness identification was proper based on the substantial corroboration of the identification.The trial court did not err in excluding the defense expert's testimony regarding the accuracy of eyewitness identification. The victim's positive identification was bolstered by his recognition of defendant at a botched robbery attempt two days earlier, another witness' statement to the police which dovetailed with victim's description of the crimes, witness' description of defendant, and the fact that physical evidence linked defendant to the crime.id: 11430
Identification procedure was not unnecessarily suggestive where detective told the victim that Willie Johnson was in custody,Defendant argued the identification procedure was impermissibly suggestive because the detective improperly confirmed the victim's tentative identification by telling her en route to the aborted lineup that Willie Johnson was in custody. Defendant reasoned the victim must have assumed that she had selected Willie Johnson's photograph on July 2, and that he would be in the later photo lineup. The claim was without merit because the victim did not know, and before the crime had never seen Willie Johnson.id: 11431
Trial court did not abuse its discretion in refusing to authorize funds for the appointment of an expert on eyewitness identifications.The trial court did not abuse its discretion in refusing to authorize funds for the appointment of an expert on eyewitness identification where the defense failed to demonstrate the admissibility of the testimony and failed to show the need for the appointment of the expert at public expense. Moreover, CALJIC 2.92, which was read to the jurors, was not deficient in failing to explain the effects of each of the enumerated psychological factors relating to the reliability of eyewitness identifications.id: 11432
Where the identification was substantially corroborated there was no need for expert testimony on the dangers inherent in eyewitness identification.Defendant presented an expert to testify as to the reliability of eyewitness identifications and as to the fairness of the two lineups conducted prior to trial. The trial court did not err in excluding the proposed testimony. There was much corroborating evidence and thus no need for expert testimony on the dangers inherent in eyewitness identification. Regarding the lineups, the offered testimony did not require utilization of expertise beyond that possessed by the jurors.id: 11433
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245