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On Behalf of | Oct 12, 2019 | Eyewitness Identification



By Robert C. Bonsib, Esq.

MarcusBonsib, LLC

The Maryland Court of Appeals (COA) in Small v. State, 464 Md. 68, 211 A.2d 236 (2019), in an opinion decided this past summer, affirmed the conviction of Small for attempted robbery and related offenses. The COA addressed the issue of the eyewitness identification of Small by the victim and concluded that despite finding an identification suggestive, it found that the identification was sufficiently reliable to overcome the suggestivity of the identification procedure.

What is significant in the Small case is not the opinion affirming the conviction, rather it is the concurring opinion of Chief Judge Barbera challenging the manner in which Maryland courts are addressing the evaluation of eyewitness identification testimony. Judge Barbera notes her “disappointment in the Court’s unwillingness to seriously consider, and act upon, the research that currently informs the many “vagaries of eyewitness identification.” (Click here for full opinion)

Judge Barbera strongly cautions that “there is general consensus that misidentification is the greatest single cause of wrongful convictions in the country” and that “more than seventy-five percent of convictions are overturned due to DNA evidence involved misidentification.” Judge Barbera cites from a 2006 Publication by the International Association of Chiefs of Police that concluded that “[o]f all investigative procedures employed by police in criminal investigations, probably none is less reliable than eyewitness identification. Erroneous identifications create more injustice and cause more suffering to innocent persons than perhaps any other aspect of police work.”

The majority opinion in Small restated the current framework for addressing eyewitness identification. It stated that:

“When assessing an identification’s reliability, among the factors that the suppression court may consider are:

(i) the opportunity of the witness to view the criminal at the time of the crime;

(ii) the witness’ degree of attention;

(ii) the accuracy of the witness’ prior description of the criminal;

(iv) the level of certainty demonstrated by the witness at the confrontation; and

(v) the length of time between the crime and the confrontation.

The critical inquiry is “whether under the ‘totality of the circumstances’ the identification is reliable even though the confrontation procedure was suggestive.”

The identification’s reliability must be weighed in light of the procedure’s suggestiveness.

The Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140 (1977) concluded “that reliability is the linchpin in determining the admissibility of identification testimony for both pre- and post-Stovall confrontations. The factors to be considered are set out in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 382, 34 L.Ed.2d 401 (1972). These include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

Judge Barbera calls for a review as to whether reliance upon the Mason factors is still appropriate, noting that “[t]he rapidly expanding body of social science research exposes the frailty of the Mason factors for eyewitness identification reliability.”

The New Jersey Supreme Court’s decision in State v. Henderson, 27 A.3d 872, 886 (N.J. 2011) is extensively discussed by Judge Barbera and cited as an example of a court leading the way in departing from long-held judicial assumptions regarding eyewitness identifications.

Judge Barbera observes that Henderson discussed how we now know far more about memory than we did in the 1970s when the Supreme Court decided Manson. At that time of Manson researchers conducted some experiments on the malleability of human memory. But according to expert testimony in Henderson, that decade produced only four published articles in psychology literature containing the words “eyewitness” and “identity” in their abstracts. By contrast, the Special Master in Henderson estimated that more than two thousand studies related to eyewitness identification have been published in the past thirty years. Judicial procedures, the Special Master’s report stated, must account for the fact that a “witness does not perceive all that a videotape would disclose, but rather ‘get[s] the gist of things and constructs a ‘memory’ on ‘bits of information … and what seems plausible,’ ” and that memory can therefore be “distorted, contaminated and even falsely imagined.”

The concurring opinion in Small summarizes in substantial detail portions of the Henderson opinion.

The Henderson court’s framework for addressing identification evidence recognizes a far more comprehensive list of suggestiveness and reliability factors than that devised from whole cloth in the 1970s. Based on the research, these factors fall into one of two categories, system variables and estimator variables.

System variables are factors within the State’s control, including:

• whether a lineup was “administered in double-blind or blind fashion,”

• whether pre-identification instructions specified that the suspect may or may not be in the lineup or array and that the witness should not feel compelled to make an identification;

• whether a lineup or array is properly constructed or makes a suspect stand out;

• whether post-identification feedback or confirmation signal[s] to eyewitnesses that they correctly identified the suspect, thus engendering a false sense of confidence in a witness;

• whether a witness had multiple viewings of the same suspect during the investigation and thus the later identification may merely stem from a memory of the earlier identification procedure;

• whether lineups are presented simultaneously or sequentially; and

• whether unreliable composites or suggestive show-ups were used.

Estimator variables are factors beyond the control of the criminal justice system and may be related to the incident, the witness, or the perpetrator. They include:

• the level of stress the eyewitness was under at the time of the events;

• whether “weapon focus” may have “distract[ed] a witness and draw[n] his or her attention away from the culprit;”

• the “amount of time an eyewitness has to observe an event;”

• the distance and lighting conditions between the eyewitness and the perpetrator:

• eyewitness characteristics both temporary-like intoxication-or immutable-like age-that can affect reliability;

• characteristics of the perpetrator that can affect reliability, such as disguises, masks, or changed facial features;

• the passage of time, as memories fade over time and “memory decay ‘is irreversible.;

• whether the identification is “cross-racial,” as that is generally more difficult;

• whether private actors-e.g., other witnesses, newspaper accounts, or photographs-may have altered a witness’s memory; and

• the speed with which the witness makes an identification.

The Henderson court adopted a new procedure for evaluating suggestiveness and reliability incorporating these variables:

First, to obtain a pretrial hearing, a defendant has the initial burden of showing some evidence of suggestiveness that could lead to a mistaken identification. That evidence, in general, must be tied to a system-and not an estimator-variable.

Second, the State must then offer proof to show that the proffered eyewitness identification is reliable-accounting for system and estimator variables.

Third, the ultimate burden remains on the defendant to prove a very substantial likelihood of irreparable misidentification. To do so, a defendant can cross-examine eyewitnesses and police officials and present witnesses and other relevant evidence linked to system and estimator variables.

Fourth, if after weighing the evidence presented a court finds from the totality of the circumstances that the defendant has demonstrated a very substantial likelihood of irreparable misidentification, the court should suppress the identification evidence. If the evidence is admitted, the court should provide appropriate, tailored jury instructions.

Judge Barbera observed that through the targeted consideration of new variables and its new four-part inquiry, New Jersey has ameliorated two drawbacks to the Mason framework: (1) it inadequately accounts for the impact of suggestiveness in the first prong on reliability in the second prong; and (2) it does not incorporate current knowledge about how the human brain functions.

Of particular concern to Judge Barbera was the belief of many jurors “that eyewitness identification correlates with accurate identifications.”

The current Maryland pattern jury instruction on eyewitness identification tells jurors to do the following in evaluating eyewitness identification:

MPJI-Cr 3:30

Identification of Defendant

“The burden is on the State to prove beyond a reasonable doubt that the offense was committed and that the defendant was the person who committed it. You have heard evidence about the identification of the defendant as the person who committed the crime. You should consider the witness’s opportunity to observe the criminal act and the person committing it, including the length of time the witness had to observe the person committing the crime, the witness’s state of mind, and any other circumstance surrounding the event. You should also consider the witness’s certainty or lack of certainty, the accuracy of any prior description, and the witness’s credibility or lack of credibility, as well as any other factor surrounding the identification. (emphasis added)

The identification of the defendant by a single eyewitness, as the person who committed the crime, if believed beyond a reasonable doubt, can be enough evidence to convict the defendant. However, you should examine the identification of the defendant with great care.

It is for you to determine the reliability of any identification and give it the weight you believe it deserves.”

Maryland trial judges continue to instruct jurors that certainty in eyewitness identification is an appropriate factor to consider in evaluating the reliability of eyewitness identification.

In concluding her concurring opinion, Judge Barbera calls upon her judicial colleagues “going forward, [to] forgo its continued adherence to the Mason-Jones ‘framework[] which Maryland courts….have used for decades.’ Such reliance is no reason to ignore science.”

Judge Barbera concludes her concurring opinion with the following two statements:

“…I suggest that this Court direct the Rules Committee to craft and propose rules of procedure that brings scientific rigor to the assessment of an eyewitness identification that a defendant has challenged as unduly suggestive and, ultimately, unreliable”


“I await the day – which cannot come too soon – when this Court, prompted by the research on potential fallibility of eyewitness identification evidence, takes meaningful steps to improve Maryland’s pretrial and trial-related procedures, so as to mitigate, if not eliminate, the present concerns that attend the admission of, and weight given to, such evidence in future cases.”

The Rules Committee will be considering Judge Barbera’s concurring opinion in its upcoming meetings and it will be the subject of discussion by the Maryland Criminal Pattern Jury Instruction Committee (of which the author is a member).

Over 45 years of trial experience as a federal and state prosecutor and as a criminal defense attorney