Eyewitness identification is evidence received from a witness who has actually seen an event and can so testify in court.

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2 Eyewitness identification is evidence received from a witness who has actually seen an event and can so testify in court. Eyewitness identifications are among the most common forms of evidence presented at trials Frequently, they are an essential piece of evidence leading to a conviction

3 Md. PUBLIC SAFETY Code Ann On or before December 1, 2007, each law enforcement agency in the State shall adopt written policies relating to eyewitness identification that comply with the United States Department of Justice standards on obtaining accurate eyewitness identification.

4 Available at: Filing with Department of State Police. -- On or before January 1, 2008, each law enforcement agency in the State shall file a copy of the written policy relating to eyewitness identification with the Department of State Police.

5 Analysis of Submitted Policies The Mid-Atlantic Innocence Project (MAIP) identified 12 key recommendations in the DOJ report that pertain to photo arrays and analyzed the written policies submitted by law enforcement agencies to DSP pursuant to Chapter 590 of According to MAIP, of all State law enforcement agencies: 1) 17% do not have a written policy; 2) 30% do not comply with any of the 12 key DOJ recommendations; 3) 26% partially comply with the 12 key DOJ recommendations; and 4) 27% comply with all 12 of the key DOJ recommendations.

6 Eyewitness Identification Model Protocols (1) blind administrations of identification procedures; (2) instructions to eyewitnesses that deter the eyewitness from feeling compelled to make a choice or seek clues from the administrator; (3) using filler photographs of individuals who resemble the description provided by the witness, but do not unduly stand out from the suspect; (4) presenting lineup members sequentially; (5) obtaining statements from eyewitnesses immediately upon identification and before any feedback is provided about the level of confidence the eyewitness has in his/her identification; and (6) recording lineup procedures using audio recordings, video recordings, or written documentation. on-protocols.doc

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8 The Innocence Project has helped facilitate the exoneration of over 230 people who were convicted of crimes they did not commit, as a result of faulty eyewitness evidence. H94

9 Kirk Bloodsworth Bernard Webster Incident Year: 1984 Jurisdiction: MD Charge: Murder, Sexual Assault, Rape Conviction: First Degree Murder, Sexual Assault, Rape Sentence: Death Year of Conviction: 1985 Exoneration Date: 6/28/93 Sentence Served: 8 Years Real perpetrator found? Yes Contributing Causes: Eyewitness Misidentification, Government Misconduct Compensation? Yes Incident Year: 1982 Jurisdiction: MD Charge: Rape, Daytime Housebreaking Conviction: Rape, Daytime Housebreaking Sentence: 30 Years Year of Conviction: 1983 Exoneration Year: 2002 Sentence Served: 20 Years Real perpetrator found? Yes Contributing Causes: Eyewitness Misidentification, Unvalidated or Improper Forensic Science Compensation? Yes

10 According to the Innocence Project, eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing.

11 Source: The Innocence Project

12 System Variables Estimator Variables

13 Defined as variables that affect the accuracy of eyewitness identifications and over which the criminal justice system has (or can have) control. Examples: Pre-Lineup Instructions Filler Characteristics Simultaneous vs. Sequential Presentation Post-Lineup Feedback and Confidence Statements

14 Factors connected to the witness herself or to the circumstances surrounding her observation of the individual she would later attempt to identify. Examples: Event Factors Witness Factors Cross-Racial Identifications

15 Event Factors Lighting conditions Duration of the event Violence of the event Presence of a weapon Witness Factors Stress or fear Age Sex Expectations Other Factors Cross- Racial Identifications

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17 The legal standards addressing the treatment of eyewitness testimony as evidence in criminal trials vary widely across the U.S. Issues addressed include: Admissibility of eyewitness testimony as evidence The admissibility and scope of expert testimony on the factors affecting its reliability The propriety of jury instructions on the same factors.

18 In Perry v. New Hampshire, 132 S. Ct. 716 (2011), the Supreme Court, in an 8-1 decision held that the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement.

19 Expert Testimony Jury Instructions Cross-Examination

20 The Supreme Court has noted that there are several safeguards built into the adversary system that caution juries against placing undue weight on eyewitness testimony of questionable reliability These safeguards include: Assistance of effective counsel The opportunity to cross-examine the eyewitness Opening and closing arguments Cautionary jury instructions

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22 Defense attorneys may seek to introduce testimony from expert witnesses about the problems with eyewitness identification. Testimony usually focuses on how studies have shown that the assumptions of lay jurors about the accuracy of eyewitness identifications are not correct. Should this kind of testimony be admissible?

23 Expert testimony on the factors affecting the reliability of eyewitness evidence is allowed in some U.S. jurisdictions, and not in others. In most states, including Maryland, it is left to the discretion of the trial court judge.

24 The standard for the admissibility of expert testimony on eyewitness reliability is whether the testimony will be of real appreciable help to the trier of fact Trial court has wide discretion to determine issues of admissibility of such testimony on a case by case basis. Court of Appeals did note that a trial court should take into account scientific advances when exercising its discretion whether to admit expert testimony.

25 In those states where expert testimony on eyewitness reliability is not allowed, it is typically on grounds that: The various factors are within the common sense of the average juror, and thus not the proper topic of expert testimony. The testimony invades the province of the jury The testimony would offer no appreciable help to the jury or would confuse the jury

26 Be prepared to show that the testimony: Is scientifically grounded; That it relates directly to the circumstances of the identification at issue; and That the issues addressed by the testimony are beyond the knowledge of a layperson

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28 You are the sole judge of whether a witness should be believed. In making this decision, you may apply your own common sense and every day experiences. In determining whether a witness should be believed, you should carefully judge all the testimony and evidence and the circumstances under which the witness testified. You should consider such factors as: (1) the witness's behavior on the stand and manner of testifying; (2) did the witness appear to be telling the truth? (3) the witness's opportunity to see or hear the things about which testimony was given; (4) the accuracy of the witness's memory; (5) does the witness have a motive not to tell the truth? (6) does the witness have an interest in the outcome of the case? (7) was the witness's testimony consistent? (8) was the witness's testimony supported or contradicted by evidence that you believe? And (9) whether and the extent to which the witness's testimony in the court differed from the statements made by the witness on any previous occasion. You need not believe any witness, even if the testimony is uncontradicted. You may believe all, part, or non of the testimony of any witness.

29 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 regarding the identification of the defendant as the person who committed the crime. In this connection, 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. [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.

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31 Prosecutor s s Role: Screen out cases that have weak eyewitness identification evidence Defense Attorney s Role: Demonstrate the weaknesses of eyewitness testimony to the jury Thorough cross-examination of the eyewitness to show any potential issues surrounding the identification.