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Requiring Jury Instructions on Eyewitness Identification Evidence at Federal Criminal Trials Michael H Journal of Criminal Law and Criminology Volume 80 Article 1 Issue 3 Fall Fall 1989 Requiring Jury Instructions on Eyewitness Identification Evidence at Federal Criminal Trials Michael H. Hoffheimer Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Michael H. Hoffheimer, Requiring Jury Instructions on Eyewitness Identification Evidence at Federal Criminal Trials, 80 J. Crim. L. & Criminology 585 (1989-1990) This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/89/8003-585 THEJOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 80, No. 3 Copyright 0 1989 by Northwestern University, School of Law Printedin U.S.A. CRIMINAL LAW REQUIRING JURY INSTRUCTIONS ON EYEWITNESS IDENTIFICATION EVIDENCE AT FEDERAL CRIMINAL TRIALS Michael H. Hoffheimer* Eyewitness identification evidence poses real risks of wrongful conviction.' During the 1960s, in the wake of scholarship and Supreme Court opinions that called attention to the serious prob- lem of misidentification in criminal trials, federal circuit courts be- gan to join a growing number of state2 and foreign common-law * Assistant Professor of Law, University of Mississippi Law School. J.D., University of Michigan, 1984; M.A., Ph.D., University of Chicago, 1978, 1981; B.A., The Johns Hopkins University. The Author wishes to thank Julia H. Terry and Terrell S. Williamson. I Dangers of eyewitness misidentification have been discussed frequently. The Supreme Court quoted one scholar's view with approval: "A commentator has observed that '[t]he influence of improper suggestion upon identifying witnesses probably ac- counts for more miscarriages ofjustice than any other single factor-perhaps it is re- sponsible for more such errors than all other factors combined.'" United States v. Wade, 388 U.S. 218, 228-29 (1967) (quoting P. WALL, EYE-WITNESS IDENTIFICATION IN CRIMINAL CASES 26 (1965)). The literature is full of references to notorious cases in which the wrong person was convicted, but by its nature the full scope of the problem can never be known. For discussions of some of the cases, see E. ARNOLDS, W. CARROLL, M. LEWIs & M. SENG, EYEwrrNESs TESTIMONY: STRATEGIES & TACTICS § 1.02 (1984); E. BORCHARD, CONVICT- ING THE INNOCENT, ERRORS OF CRIMINALJUSTICE (1932); P. DEVLIN, REPORT TO THE SEC- RETARY OF STATE FOR THE HOME DEPARTMENT OF THE DEPARTMENTAL COMMITTEE ON EVIDENCE OF IDENTIFICATION IN CRIMINAL CASES 1 (1976); F. FRANKFURTER, THE CASE OF SACCO & VANZETrI 30 (1962); E. LOFTUS, EYEWrrNESS TESTIMONY 1-8 (1979); P. WALL, supra, at 11-24; Johnson, Cross-RacialIdentification Errors in Criminal Cases, 69 CORNELL L. REV. 934, 935-37 (1984); Katz & Reid, Expert Testimony on the Fallibility of Eyewitness Identfi- cation, 1 CRIM.JUST.J. 177, 177-78 (1977); Note, Eyewitness Identification in Utah: A Chang- ing Perspective, 1988 UTAH L. REV. 113, 113-14. 2 For discussions of state court opinions that treat the issue of identification instruc- tions, see E. ARNOLDS, W. CARROLL, M. LEWIS & M. SENG, supra note 1, at § 9.07; Anno- tation, Necessity of and Preudicial Effect of Omitting, Cautionary Instruction to Jury as to 585 586 MICHAEL H. HOFFHEIMER [Vol. 80 jurisdictions that required or encouraged use of identification in- structions. 3 Most federal circuits have encouraged the use of special jury instructions at criminal trials when inculpatory evidence in- cludes eyewitness identification. 4 The instructions are designed to reduce the risk of wrongful conviction, and circuits have emphasized their importance by characterizing the instructions as required and by suggesting that their omission will result in reversal. 5 Reliability of or Factors to be Consideredin Evaluating,Eyewitness Identification Testimony-State Cases, 23 A.L.R. 4TH 1089-1133 (1983). Scholarly discussions include Johnson, supra note 1, at 978-82; Annual Survey of Oklahoma Law-CriminalLaw & Procedure-Eyewitness Identification Testimony, 6 OKLA. CITY U.L. REV. 549, 632-41 (1981); Note, Eyewitness Identi- fication Testimony and the Need for CautionaryJury Instructions in Criminal Cases, 60 WASH. U.L.Q. 1387, 1414-19 (1983) [hereinafter Note, Eyewitness Identification Testimony]; Note, supra note 1, at 127-29; Note, Seeing Is Believing? The Need for CautionaryJury Instructions on the Unreliability of Eyewitness Identification Testimony, 11 SAN FERN. V.L. REV. 95, 109-22 (1983) [hereinafter Note, Seeing Is Believing]. 3 A series of British and Irish common law cases held that in prosecutions for partic- ular crimes trial courts were required to instruct juries on the dangers of convicting on uncorroborated identification evidence. Some courts quashed convictions supported by uncorroborated identifications where weakness of identification evidence was clear from the record. See P. DEVLIN, supra note 1, at 82-85; Starkman, The Use of Eyewitness Identfica- tion Evidence in Criminal Trials, 21 CRIM. L.Q. 361, 375-76 (1979). Canadian courts en- courage the use of instructions designed to guide the jury in evaluating identification evidence, Starkman, supra, at 376, but they have required the instructions only when the evidence suggests a great danger of misidentification. See Bessner, Eyewitness Identfication in Canada, 25 CRIM. L.Q. 313, 345 (1983). Australian courts have required judicial warn- ings to the jury in some contexts. See Recent Cases, 57 AusTL. LJ. 527 (1983). A widely publicized 1976 report commissioned by The Home Secretary addressed the need for special identification instructions. Inquiry into the problem of eyewitness misidentification resulted from a number of publicized prosecutions of innocent persons in the 1970s. The report suggested that detailed summation, including articulation of dangers of misidentification, was the best way to reduce dangers of wrongful conviction. P. DEVLIN, supra note 1, at 86. The report proposed specific statutory reform: We do ... wish to ensure that in ordinary cases prosecutions are not brought on eye-witness evidence alone and that, if brought, they will fail. We think they ought to fail, since in our opinion it is only in exceptional cases that identification evidence is by itself sufficiently reliable to exclude a reasonable doubt about guilt. We rec- ommend that the trial judge should be required by statute a. to direct the jury that it is not safe to convict upon eyewitness evidence unless the circumstances of the identification are exceptional or the eyewitness evidence is supported by substantial evidence of another sort; and b. to indicate to the jury the circumstances, if any, which they might regard as exceptional and the evidence, if any, which they might regard as supporting the identification; and c. if he is unable to indicate either such circumstances or such evidence, to direct the jury to return a verdict of not guilty. Id. at 149-50. 4 See infra text of Section II for a discussion of the experience of the circuits. 5 See infra text accompanying notes 68-272. The gap between dicta and holdings has been treated ambivalently by scholars who have attempted to characterize the positions of the circuits. Compare 8AJ. MOORE, MOORE'S FEDERAL PRACTICE § 30.09[6] at 30-98 to 30-100 (2d ed. 1988) ("The [identification] instruction's utility and comprehensive na- ture is evidenced by its adoption or approval in the Third, Fourth, Seventh, Eighth, Ninth, and Tenth Circuits.") and N. SOBEL, EYEWITNESS IDENTIFICATION § 9.7(a) at 9-37 1989] REQUIRING INDENTIFICATION INSTRUCTIONS 587 Nevertheless, federal circuits have actually reversed in only a handful of the dozens of cases appealed on the basis of the omission of instructions. Rather the circuits have recognized numerous ex- ceptions to the general rules requiring the instructions and have adopted standards of review that tolerate persistent omission of the instructions by trial courts. This Article explores the gap between the hortatory dicta of federal circuit court opinions that articulate benefits of identification instructions and the practice of the circuit courts that affirm convic- tions routinely despite the omission of the instructions. The Article contends that reasons asserted by the circuit courts in tolerating omission of instructions are incompatible with the underlying pur- poses of the instructions. It proposes that the circuits adopt stan- dards of appellate review that assure routine administration of the instructions. Finally, this Article proposes specific approaches that effectuate the policies of the instructions while promoting economy of judicial resources. I. THE PROBLEM OF IDENTIFICATION ERROR A. SOURCES OF IDENTIFICATION ERROR Two different kinds of identification error may cause wrongful conviction. First, an eyewitness may commit a primary identification error. Such primary misidentification stems from inherent defects in the psychological processes of observation and recognition. Rad- ically different models have been proposed to explain phenomena of memory and forgetting, but all theories acknowledge that observ- ers frequently make inaccurate identifications of things and persons.6 to 9-38 (D. Pridgen 2d ed. 1988) ("There is no constitutional right or other requirement that judges specifically instruct
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