Identification Testimony

Reporter’s Note:

(August 2012 Warning: Use these instructions with caution.  The issue of eyewitness testimony has recently received considerable attention in the news, at the Supreme Court of the United States, and in other states, most notably New Jersey (both by opinion and by newly-adopted jury instructions in that state).  The committee has not yet discussed the recent developments.)

Most criminal cases will include identity as the first essential element, with a short instruction such as CR09-011.  If the case is one in which the issue of identity turns on eyewitness identification, it may be appropriate to include a longer instruction.  Instruction CR05-601 derives from State v. Seifert, 151 Vt. 66 (1989).  Also see Devitt and Blackmer, Fed. Jury Inst. Vol 1. § 15.19; State v. Kasper, 137 Vt. 184, 192-93 (1979).  Instruction CR05-605 addresses testimony about identification in a line-up.  Instruction CR05-611 is designed to address the very specific circumstances of identification based on signature conduct.  See State v. Bruyette, 158Vt. 21 (1992).

Instruction CR05-601 has been shortened from the one given in Seifert.  The model instruction does not include a list of factors that could affect a witness’s opportunity to observe a suspect.  In Seifert, the list of factors was approximately as follows:

            (a) How much time was available for the observation?

            (b) How close was the witness to the person being observed?

            (c) How good were the lighting conditions?

            (d) Was the witness paying attention to the other person?

            (e) How accurate was the witness’s prior description of the alleged perpetrator?

            (f) How certain was the witness in making the identification?

            (g) How much time passed between the alleged offense and the witness’s identification?

            (h) Had the witness seen or known the other person in the past?

The committee cautions against using a longer instruction on eyewitness identification.  One concern is that the jury might interpret a lengthy instruction as reflecting the judge’s views on the identification, without any firm basis in law.  Another concern is that the traditional views about factors to consider (such as the level of certainty) may conflict with modern research.  This is an evolving area of the law, and the court should consider attorneys’ requests for instructions in particular cases.  There is a developing body of research, and the general approach to eyewitness identification may be evolving.  See the article by Atul Gawande, “Under Suspicion – The fugitive science of criminal justice,” The New Yorker (January 8, 2001) at 50.

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