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December 15, 2012
Court adopts new eyewitness ID jury instruction

By Jan Pudlow
Senior Editor

Flowing from the work of the Florida Innocence Commission, the Florida Supreme Court issued a per curiam opinion November 12 adopting a new jury instruction on eyewitness identification.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases had submitted a report that includes three new standard criminal jury instructions, including Florida’s first one about gauging the reliability of eyewitness identification.

The Florida Innocence Commission, which met 13 times over two years and issued its final report in June, spent seven months studying the problems of eyewitness misidentifications that have contributed to about 75 percent of 301 wrongful convictions overturned by DNA evidence nationwide.

The new instruction — 3.9(f) Eyewitness Identification — is designed to help jurors decide how much weight to give eyewitness testimony. It lists nine factors jurors may consider in evaluating eyewitness identification, including “whether the identification was the product of the eyewitness’ own recollection or was the result of influence or suggestiveness.”

The Innocence Commission, chaired by Ninth Circuit Chief Judge Belvin Perry, recommended a new jury instruction. The commission also recommended “best practices” standards in how eyewitness identification lineups are conducted by law enforcement, but left it up to the discretion of law enforcement to carry them out.

That compromise came after law-enforcement members of the commission argued mandating the ideal “gold standard” for statewide uniform policies on how to conduct eyewitness identification lineups would be too costly.

Seth Miller, executive director of the Innocence Project of Florida, supplied detailed comments on the proposed new jury instruction, saying he did not think it went far enough. He asked the court to send the issue back to the committee for further deliberation and a stronger instruction.

“Alternatively, this court could appoint a special master, similar to that appointed by the New Jersey Supreme Court in Henderson, to hear and consider scientific testimony regarding the various factors affecting the reliability of eyewitness evidence,” Miller wrote in comments to the court.

After the Florida Supreme Court approved the new jury instruction, Miller said: “While we are happy the Supreme Court adopted an instruction, we are disappointed they didn’t decide to look a little more deeply and hold oral argument and decide whether there are ways to improve the instruction.”

But Miller did call the instruction “a step in the right direction to get it on the jurors’ radar that special care needs to be taken when assessing the reliability of eyewitness identifications.”

Besides a new jury instruction, Miller said Florida needs legislation mandating law enforcement use blind administration of photographic lineups and other related reforms based on 30 years of social science. Two years ago, Sen. Joe Negron, R-Palm City, attempted to pass such legislation, but it failed after organized pushback from law enforcement groups.

No bills about eyewitness identification reform have yet been filed for the upcoming legislative session.

Lastly, Miller said, there needs to be “greater access to experts in criminal cases” about eyewitness identification reliability. Now, it is within the judge’s discretion to allow such experts. The issue goes beyond jurors’ usual evaluation of a witness’ credibility, Miller said. Jurors need help understanding how an eyewitness may believe he or she is telling the truth, but the testimony is actually factually unreliable because of the many problems with how memory works and inadvertent suggestions given by law enforcement during lineups.

[Revised: 03-26-2017]