ARRON N. YOUNG, Petitioner,
v.
STATE OF ALASKA, Respondent.
Petition
for Hearing from the Court of Appeals of the State of Alaska,
on Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District Court of Appeals Nos. A-11006,
A-11015, Superior Court Nos. 08-03022/02834 CR, Fairbanks,
Michael A. MacDonald, Judge.
Renee
McFarland, Assistant Public Defender, and Quinlan Steiner,
Public Defender, Anchorage, for Petitioner.
Eric
A. Ringsmuth, Assistant Attorney General, Anchorage, and
Craig W. Richards, Attorney General, Juneau, for Respondent.
Before: Fabe, Chief Justice, Stowers, Maassen, and Bolger,
Justices. [Winfree, Justice, not participating.]
OPINION
MAASSEN, Justice.
I.
INTRODUCTION
A
defendant accused of involvement in a shooting was convicted
at trial, in part on the strength of three eyewitness
identifications. He challenged the admissibility of two of
the identifications on due process grounds, but the superior
court ruled them admissible. The defendant also requested an
eyewitness-specific jury instruction, which the superior
court refused. Finally, the defendant argued that he was
entitled to a mistrial because of an alleged discovery
violation by the State that he learned of mid-trial. The
superior court denied his motion, finding that the State had
not violated the disclosure rules and alternatively that the
defendant had not suffered any prejudice. The defendant was
convicted, and the court of appeals affirmed his conviction.
On
petition to this court, the defendant argues not only that we
should reverse his conviction based on the current law on the
admissibility of eyewitness identifications but also that
Alaska's due process clause requires the adoption of a
new test. He also argues that the superior court erred in
failing to give his requested jury instruction and in failing
to grant him a mistrial.
We hold
that the superior court erred under the law as it currently
exists when it held one of the eyewitness identifications
sufficiently reliable to be admitted at trial, but that it
did not err in admitting the other. We also hold that the
superior court erred in refusing to give an
eyewitness-specific jury instruction but did not err in
denying a mistrial. Because the errors are harmless, we
affirm the defendant's conviction.
We also
conclude, however, that the current test for the
admissibility of eyewitness identification evidence does not
adequately protect the right to due process under the Alaska
Constitution. We therefore identify factors that courts
should consider in future cases when deciding whether to
admit eyewitness identification evidence.
II.
FACTS AND PROCEEDINGS
A. The
Crime And The Investigation
During
the summer of 2008 a series of violent incidents took place
in the Fairbanks area between members of two gangs, the
Bloods and the Crips. In late July there was a fight inside
the Fairbanks Walmart; in early August there was another at
the Tanana Valley Fair. Persons known or alleged to be
current or former members of the Bloods were later shot at
outside the Eagles Hall by persons shouting Crips slogans.
The
incident at issue here occurred on August 15 at approximately
4:00 p.m. A green Buick sedan carrying alleged members of the
Bloods was traveling down College Road in Fairbanks, followed
by friends in another car. Another vehicle variously
described as a gray, silver, or white SUV passed them going
the other way, made a U-turn, and pulled up alongside the
Buick. Someone in the SUV started shooting at the Buick and
continued to do so while the vehicles raced along for what
was later estimated to be two miles.
No one
was injured in the shooting, but the Buick was significantly
damaged. Bullets also passed through two uninvolved vehicles,
narrowly missing their passengers. A bystander walking her
bike reported hearing a bullet pass by her head; she jumped
into a ditch to take cover.
Later
that evening the police arrested Arron Young. He had a gun in
the waistband of his pants and the key to a silver SUV in his
pocket.
The
police interviewed witnesses from the scene and put out a
request for those with information to come forward. Jason
Gazewood, a criminal defense attorney and former prosecutor,
contacted the police department to report that he had
witnessed part of the gunplay. A police detective visited
Gazewood's office and showed him a six- person
photographic array; Gazewood picked Young as looking most
like the man he had seen behind the wheel of the SUV.
A grand
jury convened in September 2008. There Gazewood testified
about what he had seen. Another witness, Arles Arauz, also
identified Young as the driver of the SUV. Although Arauz had
told the police immediately after the incident that he was
unable to identify the assailants, at the grand jury hearing
he picked Young's picture out of a photographic array.
But a third grand jury witness, John Anzalone, failed to
identify Young and picked another man instead.
The
grand jury indicted Young for attempted murder in the first
degree and misconduct involving weapons in the first degree.
B.
Young's Motion To Suppress Gazewood's Identification
Trial
was eventually set for January 4, 2010. In late December 2009
Young moved to suppress Gazewood's pretrial and in-court
identifications, claiming that the pretrial identification
procedure had been unnecessarily suggestive.
The
superior court held an evidentiary hearing. Gazewood
testified that the police detective had come to his office
about three days after the incident and showed him a
six-person photographic array. He testified that he
remembered "saying something about . . . having a
recollection of it being someone of Samoan descent . . .
before the lineup was brought out, " though he could not
recall whether he said this on the telephone or after the
detective arrived at his office. The detective testified that
he did not remember whether Gazewood had identified the
driver's race in the phone call.
The
photographic array contained photographs of six black men but
no Samoans. The detective testified that, because Gazewood
was an attorney experienced in criminal law, he did not give
Gazewood any instructions before showing him the array; he
assumed Gazewood would understand the process and its
purpose. Gazewood testified that although he was given no
instructions, he assumed that the array contained the suspect
because he had been involved in many such procedures in the
past. He also testified, however, that he did not feel he was
required to select someone from among the photos he was
shown.
Gazewood
testified that he quickly narrowed his choice to two photos,
one of which was Young's. Though conflicted, he was most
focused on Young; he testified that the way Young's hair
was pulled back in the photograph made him "more like
the person I'd seen in the vehicle certainly." He
testified that he put his finger tentatively on Young's
photograph, at which point the detective told him to
"trust your instincts." Gazewood testified that the
detective's remark terminated his deliberations, and he
selected Young as the man who looked most like the one he had
seen in the SUV. When asked at the hearing whether he
believed the detective was suggesting the desired result, he
answered:
Yeah, I . . . think he saw me laboring over it and spending a
little more time pointing to Mr. Young than the other two, or
the other one by the time I had eliminated one of them. And I
took it as, you know, you're pointing to this guy more
than the others, you know, that's the guy you should
identify. . . . I took it as that's the guy we want you
to pick.
Gazewood
testified that he was leaning toward Young anyway but that
the detective's remark "ended this elimination
process that I was kind of . . . undergoing. . . . [I]t was a
process that was taking a little bit of time and . . . that
certainly ended it." The detective testified that he did
not remember telling Gazewood to "trust your
instincts" but that he knew Young was the suspect and
knew Young's photograph was included in the array.
At the
evidentiary hearing Gazewood also testified about what he saw
of the crime. He testified that while he was waiting at a
stoplight on College Road, "the thing that drew [his]
attention" was that a "green car" coming from
behind him drove "into the oncoming lanes of
traffic" to get around the cars waiting at the light. He
testified that he then saw a white SUV coming up quickly
behind him, and that he observed the driver of the SUV in his
rearview mirror for "between three and eight
seconds" before the vehicle passed him on the left in
pursuit of the green car. He also testified that he had seen
Young's photo in the newspaper a week before the
evidentiary hearing, and the newspaper photo looked more like
the person he recalled seeing at the time of the shooting
than did the photo he picked in the array.
The
superior court denied Young's motion to suppress.
Employing the test we have adopted from Manson v.
Brathwaite, a decision of the United States Supreme
Court, [1] the superior court first found that the
photographic array itself was not unnecessarily suggestive
because there was "nothing in the photo array to
distinguish the defendant's photo from the others."
The court found that the detective made the "trust your
instincts" comment but that it was not suggestive and
did not influence Gazewood's choice. Finally, the court
determined that even if the procedure was unnecessarily
suggestive, Gazewood's identification of Young was still
reliable under the totality of the circumstances and
therefore admissible.
C.
Trial
1.
Pretrial disclosure of Anzalone's identification of Young
On the
first day of trial Young informed the court that the State
had just disclosed a police report stating that John
Anzalone, who had failed to select Young from the
photographic array when testifying before the grand jury,
would now identify Young as one of the shooters. Anzalone had
informed the prosecutor that he had seen Young's picture
on television in connection with the case about a week before
trial and was prepared to identify him in court.
Young
objected to Anzalone's testimony. He claimed that the
pretrial publicity had tainted Anzalone's identification
and it was therefore unreliable. He argued that any in-court
identification by Anzalone would be improperly suggestive
because Young would be the only African-American man sitting
at the defense table and this suggestiveness could not be
overcome because Anzalone's identification of Young
otherwise lacked sufficient indicia of reliability. The
superior court ruled that while Anzalone could not testify
that he had first recognized Young on television (unless the
defense raised the issue on cross-examination), he could
identify Young in the courtroom. The court determined that
Anzalone's failure to pick Young from the initial photo
array did not affect his ability to identify Young at trial,
and that any problems with the in-court identification were
properly addressed through cross-examination.
2. The
State's case at trial
The
State presented testimony from occupants of the Buick sedan
and the following vehicle, only one of whom, Arauz, could
identify a shooter. Some witnesses were unable to say how
many people were in the assailants' SUV, while others
testified it had two to four occupants. One witness testified
that the assailants had bandanas over their
faces.[2]
The
driver of the Buick, Joseph Fainuu, testified that although
he did not see who was shooting at them, the shots were
coming from a gray SUV. He testified that the SUV was the one
identified by the State. He further testified that he knew
Young by the nickname "Big Nasty" and that he had
seen Big Nasty driving the SUV at times before the shooting.
Another of the Buick's occupants testified that he had
heard others refer to the gray SUV as "Big Nasty's
car" at the time of the Eagles Hall shooting, and that,
though he could not identify Young as a participant in the
College Road shooting, the SUV the State alleged to belong to
the shooters appeared to him to be Big Nasty's car. And
another witness who had been riding in the second vehicle
testified that he heard someone in his car identify the
silver SUV as "Big Nasty's truck" right before
the shooting started.
The
State's ballistics evidence indicated that shell casings
retrieved from the scene of the shooting were probably
ejected from the gun found in Young's waistband at the
time of his arrest. The State also established that the key
found in Young's pocket fit the silver SUV identified as
the one used in the shootings.
The
State presented three eyewitnesses to place Young at the
scene. Consistent with his testimony at the evidentiary
hearing, Gazewood testified that Young looked like the man he
saw drive past him in the SUV. His testimony, however,
reflected some uncertainty. He did not say Young was
definitely the driver, only that upon seeing Young's
photo in the array he "thought that . . . that looked a
lot like the person there and then seeing [Young's]
photograph in the paper made me think that that looked a lot
like the person I'd seen."
The
second eyewitness, Anzalone, testified that he was starting a
left turn at a traffic light on College Road when he heard
"several popping noises" coming from his left. He
testified that he saw two vehicles coming directly toward him
and "what looked like somebody firing a pistol out of
[the] driver's side window" of one of them, an SUV.
He testified that he reversed back through the intersection
to avoid the oncoming vehicles and, while doing so, observed
Young at the wheel of the SUV, though he did not make note of
any passengers. Anzalone identified the driver definitively
in court as the man "sitting at the defense table,
" but he also acknowledged his earlier failure at the
grand jury to pick Young out of a photo array.
The
third eyewitness, Arles Arauz, was an admitted former member
of the Bloods. Arauz had known Young since high school, when
Young "beat [him] up" in a fight over a romantic
interest. Arauz testified that at the time of the shooting he
was riding in the vehicle following the Buick sedan. He
testified that the Buick started a U-turn, at which point a
gray SUV "pull[ed] up and - from the back behind and
then start[ed] shooting at it." He testified that he saw
Young driving the gray SUV as it passed him in pursuit of the
Buick.
Young
sought to impeach Arauzn grounds that, although he had
identified Young at the grand jury, he had told investigating
detectives right after the crime that he could not identify
any of the shooters. But Arauz insisted he had
identified Young to the police on the night of the shooting;
this caused some confusion at trial. In the absence of the
jury, Arauz testified that the night of the shooting, after
he had denied knowing any of the shooters, he met with one of
the investigating detectives in an off-the-record interview
and identified Young. The superior court recessed for the day
to allow the prosecution to investigate the matter.
3.
Young's motion for mistrial based on Arauz's newly
revealed statements to an investigator
The
next morning the State filed with the court a supplemental
report of an investigating detective, Detective Elzey, which
described how he had indeed met with Arauz a second time on
the night of the shooting, after Arauz's initial failure
to identify any of the shooters. The report explained that an
unidentified man had called the police station that night,
stating that a friend knew about the shooting but would talk
to investigators only if what he told them was not written
down or recorded. Elzey agreed to these terms, and Arauz
appeared at the police station and identified Young as the
shooter. Called to the stand for voir dire, Elzey testified
that he did not disclose this conversation to the prosecutor
because he had promised not to. Instead, he decided to wait
to see how Arauz testified at the grand jury; if Arauz again
identified Young, the detective would consider the matter
resolved, and if he did not identify Young the detective
would inform the prosecutor of the inconsistency. When Arauz
positively identified Young at the grand jury, Elzey decided
that no disclosure was necessary.
Young
moved for a mistrial. He argued that the State's failure
to disclose Arauz's same-day identification of Young
violated Rule 16 of the Alaska Rules of Criminal Procedure
and prejudiced his defense, which rested in part on showing
that Arauz decided to falsely identify Young at the grand
jury only after learning that Young was already a suspect.
Young argued that Arauz's earlier identification,
before he knew that Young was a suspect, damaged his
ability to impeach Arauz, and that had he known before trial
of the same-day identification he might have pursued a
defense of justification instead of denying his involvement.
The
superior court denied the motion. It found that there was no
violation of Rule 16 because the rule requires only
disclosure of written or recorded witness statements, and
Arauz's statement to Detective Elzey was neither written
nor recorded; it also found that disclosure of Arauz's
grand jury identification satisfied the requirements of the
rule. The court further found that, even if there had been a
violation of Rule 16, Young was not prejudiced because he
knew from the grand jury testimony that Arauz would identify
Young as the shooter. But the court offered to continue trial
for a day to allow Young to further investigate the matter,
[3] and
it allowed the defense the option of excluding evidence that
would corroborate Arauz's claim that he had made a
same-day identification.
4.
Young's defense
Young
presented his alibi defense. His sister Angie testified that
although she and Young were estranged and had not seen each
other much in the years leading up to the shooting, she was
with him that afternoon at his apartment. She testified that
a person she knew as "Little O" came over during
the afternoon and gave Young a gun. Young also presented
evidence disputing his possession or ownership of the SUV, as
well as evidence relating to the earlier gang disputes that
implicated a different Crips faction than the one to which he
belonged.
5.
Young's requested jury instructions
After
the close of evidence, Young asked the court to give a jury
instruction, based on case law from the Alaska Court of
Appeals and other jurisdictions, that identified factors
affecting there liability of eye witness identifications.
Alternatively, Young asked the court to give the jury
instruction approved by a federal appeals court in United
States v. Telfaire.[4] The superior court declined to give
either one. It found Young's customized instruction
"more argument than it [was] a proposition of law,
" rejected the Telfaire instruction on the same
grounds, and decided that the issues raised by the eyewitness
identifications were fully addressed by the existing pattern
jury instructions regarding the credibility of witnesses
generally and the State's burden of proof.
The
jury convicted Young on all counts.
D.
Appeal To The Court Of Appeals And Petition For Hearing
Young
appealed his conviction to the court of
appeals.[5] He argued first that the superior court
erred when it failed to suppress Gazewood's
identification under the standard set out in Manson v.
Brathwaite.[6] The court of appeals disagreed with the
superior court in part, holding that the identification
procedure had indeed been unnecessarily
suggestive.[7] But the court of appeals ultimately found
no error in admitting Gazewood's identification,
concluding that it was nonetheless reliable under the
totality of the circumstances.[8]
Young
also argued that the superior court erred when it allowed
Anzalone to make his in-court identification.[9] The court of
appeals noted the superior court's reasoning: (1)
"that it was not impermissible for a witness who failed
to identify a defendant in a lineup to make an in-court
identification later"; (2) "that Young could
cross-examine Anzalone and bring out the factors that might
cast doubt on Anzalone's identification"; and (3)
that although Young was the only African-American man at the
defense table, "in a criminal trial, the defendant is
almost always the only person at the defense table aside from
his attorney."[10] On this rationale, the court of appeals
held "that the [superior] court did not abuse its
discretion by permitting Anzalone to make an in-court
identification."[11]
Young
also challenged the superior court's failure to give
either of his requested jury instructions on eyewitness
testimony.[12] As the court of appeals noted, Young
acknowledged "that this court has previously affirmed
convictions where the trial court gave the pattern
instruction instead of a more focused instruction on
eyewitness identification";[13] the court of appeals
"adhere[d] to those prior decisions and conclude[d] that
the trial court did not abuse its discretion in giving the
pattern jury instruction in this case."[14]
Finally,
Young argued that the superior court erred when it refused to
grant a mistrial based on the State's failure to disclose
Arauz's same-day identification of Young as one of the
assailants.[15] The court of appeals held that the
superior court erred in deciding that the failure was not a
discovery violation, because the prosecution's conduct
"violated both the text and the spirit of Criminal Rule
16, which is designed to prevent precisely this type of
unfair surprise."[16] It concluded, however, that the
superior court had not erred in refusing to grant a mistrial,
because Young had failed to show prejudice.[17] The court of
appeals observed that "the major prejudice Young
alleged" was that he might have abandoned his alibi
defense for a defense of justification; it also observed,
however, that a justification defense would have been
"completely inconsistent" with either Young's
alibi defense or the State's evidence.[18] Further,
"Young did not make an offer of proof or ask to present
information to the court in camera to establish that
he had evidence to support the defense."[19] The court of
appeals accordingly found no error in the superior
court's denial of a mistrial.[20]
Young
filed a petition for hearing with this court. He urged us to
abandon our reliance on Manson v. Brathwaite,
"adopt a different test for the admission of eyewitness
identification evidence under the Alaska Constitution, "
and reverse his conviction. He argued that even in the
absence of a new test, Alaska law required that the Gazewood
and Anzalone identifications be excluded. He also argued that
the court of appeals erred by affirming the superior
court's refusal to give his requested instructions and to
grant a mistrial. We granted Young's petition.
III.
STANDARD OF REVIEW
"The
proper extent of appellate review for an unpreserved claim of
constitutional error is a question of law that we review de
novo."[21] "We apply our independent judgment
to any questions of law, adopting the rule of law that is
most persuasive in light of precedent, reason, and
policy."[22]
The
determination whether an identification has been derived from
unnecessarily suggestive identification procedures and, if
so, whether it is nonetheless sufficiently reliable to be
admitted at trial in conformance with due process is a mixed
question of law and fact.[23] On mixed questions we
"review[] the superior court's factual findings for
clear error, and the legal issues de
novo."[24]
"As
long as the jury is properly instructed on the law, . . . the
trial [judge] has broad discretion to determine whether to
give instructions specially tailored to the case at
hand."[25] "Issues involving the adequacy of
jury instructions generally raise questions of law and are
subject to de novo review."[26]
"[T]he
trial court is vested with 'wide discretion' in
determining whether a mistrial should be granted and its
decision will be disturbed only if an abuse of discretion is
shown."[27]
IV. DISCUSSION
In its
2009 opinion in Tegoseak v. State, the court of
appeals highlighted a number of weaknesses in the way courts,
including Alaska's, have evaluated the reliability of
eyewitness testimony in the decades since the United States
Supreme Court's formative opinion in Manson v.
Brathwaite. [28] Young contends that it is time for this
court to take a similarly close look at the scientific
evidence related to eyewitness identifications and to change
the standards for determining their admissibility and the
instructions that inform juries about how to assess their
weight. As explained below, while we conclude that a change
in the way we evaluate eyewitness identifications would not
change the result in Young's case, we agree that a
Brathwaite-based test fails to take into account the
myriad factors now generally known to affect the reliability
of eyewitness evidence, and that such a test can no longer be
viewed as consistent with Alaska's constitutional
guarantee of due process.
A.
Young's Challenges To The Eyewitness Identifications
Admitted At Trial Do Not Require Reversal Of His Conviction.
Young
argues that it was error to admit the Gazewood and Anzalone
identifications at trial. He first contends that because the
test we use to evaluate eyewitness identifications is
insufficiently protective of due process, we should adopt in
its place a new test based in part on due process protections
and in part on the Alaska Rules of Evidence. He also contends
that it was error to admit the Gazewood and Anzalone
identifications even under current law.
Young
did not explicitly propose a new test for eyewitness
identification evidence to the superior court or the court of
appeals. Having arguably failed to preserve the issue, he
urges us to adopt a "futility exception" to the
preservation rule. We see no need to do so here. First, we
conclude that it was error to admit Gazewood's
identification of Young at trial even under the existing
Brathwaite test, as we discuss below, though we also
conclude that the error was harmless. Second, we conclude
that it was not error to admit Anzalone’s in-court
identification and that our conclusion would not be different
under a new, more protective test. Thus, the application of a
new test for the admissibility of eyewitness identifications
would not change the result in Young's case.
As
noted above, however, we are nonetheless convinced that the
Brathwaite test does not adequately screen out
unreliable eyewitness identifications at trial and therefore
does not adequately protect defendants' due process
rights under the Alaska Constitution. We outline today the
factors relevant to the admission of eyewitness
identification testimony that courts should consider in
future cases.
1.
Under the Brathwaite test it was error to allow
Gazewood to identify Young as the driver - but that error was
harmless.
Nearly
50 years ago the United States Supreme Court decided that a
pretrial identification procedure could be "so
unnecessarily suggestive and conducive to irreparable
mistaken identification that [a defendant] was denied due
process of law" when the witness later testified at
trial about the pretrial identification[29] or identified
the defendant in court as the perpetrator.[30] We embraced
these principles as consistent with the due process clause of
the Alaska Constitution.[31]
In
Manson v. Brathwaite, the Supreme Court clarified
that an unnecessarily pretrial identification procedure does
not require automatic exclusion of the identification on due
process grounds.[32] Rather, "reliability is the
linchpin in determining the admissibility of identification
testimony."[33] In determining reliability, "[t]he
factors to be considered are set out in [Neil v.]
Biggers" (the "Biggers
factors"), which "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."[34] "Against these
factors is to be weighed the corrupting effect of the
suggestive identification itself, " evaluated in light
of the totality of the circumstances.[35]
In this
case, the superior court found that the procedure used for
Gazewood's initial identification of Young (including the
detective's comment to "trust your instincts"
as Gazewood lingered over Young's photo) was not
unnecessarily suggestive. It also found that the
identification was sufficiently reliable to be admitted even
if the procedure had been unnecessarily suggestive.
The court of appeals held that the superior court erred in
determining that the procedure was not unnecessarily
suggestive but that the identification was nonetheless
sufficiently reliable to be admitted.[36] We agree with
the court of appeals' first conclusion but disagree with
its second. We hold that in addition to being the product of
an improperly suggestive procedure, Gazewood's
identification was not sufficiently reliable to be admitted.
Accordingly, we hold that it was error to allow Gazewood to
identify Young at trial as the driver.
a. The
procedure through which Gazewood identified Young as the
driver was unnecessarily suggestive.
According
to the State, the court of appeals erred in deciding that the
procedure for Gazewood's pretrial identification was
unnecessarily suggestive, because Gazewood had already chosen
Young as the driver before the detective said to "trust
your instincts." But the court of appeals rejected this
argument, [37] and it was correct to do so. While
Gazewood testified that he "was kind of going
there" in selecting Young as the shooter and may well
have picked Young anyway, he also testified that he took the
detective's comment to mean "that's the guy we
want you to pick" and that it ended his deliberations.
He testified that what "stopped the process of me, ...
you know, looking at the photo identification was [the
detective’s] going trust your instinct. I mean, that
ended this elimination process I was kind of. . . undergoing.
. . . [T]hat certainly ended it." He agreed that the
detective's comment was "pretty suggestive,
yeah." We conclude that the court of appeals was correct
to hold that the detective's comment made Gazewood's
identification procedure "so suggestive as to create
'a very substantial likelihood of irreparable
misidentification.' "[38]
b. It
was error to hold that Gazewood's identification of Young
was reliable despite the unnecessarily suggestive
identification procedure.
Though
concluding that the identification procedure was
unnecessarily suggestive, the court of appeals affirmed the
admissibility of Gazewood's identification testimony
because it determined that his identification of Young was
nonetheless reliable under the Brathwaite
test.[39] We conclude that this was error.
The
court of appeals summarized the superior court's findings
relating to the five Biggers factors, noted that
"eyewitness testimony is often critical and is the kind
of testimony that juries have traditionally been able to
evaluate, " and determined that "because of
Gazewood's extensive prior experience with lineup
procedure and his criticism of the procedure used in this
case, his testimony was effective in establishing the
problems with the photo lineup and the influence this
procedure had on his identification."[40]
We
agree that Gazewood's testimony - due to both his own
expressed qualms about the identification process and an
adept cross-examination - alerted the jury to a number of
factors relevant to assessing the reliability of his
identification of Young.[41] But under Brathwaite the
testimony was not admissible unless the identification was
reliable, and, following an unnecessarily suggestive
identification procedure, a finding of reliability depends on
an evaluation of the five Biggers factors: "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."[42] We disagree
that such an analysis supports the superior court's
finding of reliability in this case.
Supporting
the reliability of Gazewood's identification is "the
length of time between the crime and the
confrontation."[43] The three days that passed before
Gazewood saw the photo array is longer than the time involved
in other cases in which we addressed the reliability of
eyewitness identifications, [44] but not so long as to weigh
against a finding of reliability given the circumstances of
this case.[45]
More
weakly supporting reliability is the superior court's
finding that Gazewood "had a sufficient degree of
attention to the events"[46] because the fast approach of
the vehicles in his rearview mirror put him on the alert. But
Gazewood readily acknowledged the simultaneous distractions
of the other cars stopped at the light, the changing signal,
and having to watch for cross-traffic.
The
remaining three Biggers factors weigh against a
finding of reliability. Considering Gazewood's
"level of certainty, " the superior court found
that his "conduct during the photo lineup and his
demeanor while testifying suggest a significant degree of
certainty." Lacking the trial judge's perspective on
Gazewood's demeanor, we nonetheless note that Gazewood
repeatedly declined to state definitively that Young was the
man he had seen. He testified at the evidentiary hearing that
when the detective said "trust your instincts, " he
had narrowed his choice down to two photos that "looked
vaguely familiar" - "I remember the two of them
looked vaguely like the person that I saw" - and that
even though the detective's comment terminated his
deliberation with the choice of Young, he "[didn't]
know necessarily where [he] would have wound up"
otherwise. Describing his earlier identification of Young at
the grand jury, Gazewood testified, "I said he looked .
. . the most like the guy I saw that particular day."
Throughout the evidentiary hearing he cautiously avoided
stating that Young was definitely the man he had seen; his
testimony shows at most a relative certainty that Young
looked more like the perpetrator than did the other subjects
he was shown.[47] We conclude that Gazewood's level of
certainty does not support a finding of reliability.
Considering
Gazewood's "opportunity . . . to view the criminal
at the time of the crime, "[48] the superior court found
that he was a "bona fide on the scene witness who had a
good view of the events[, ] . . . saw the events unfolding up
close, " and had "three to eight seconds to witness
[those] events." While these findings do reflect
Gazewood's testimony, we also note that his brief view of
the driver in his rearview mirror was not enough to give him
confidence in his identification, as noted above; in fact,
Gazewood cited these details to explain why he hesitated to
say definitively it was Young. He readily admitted that while
the SUV was coming up behind him the light changed, traffic
started to move, and his focus was shifting back and forth.
It is also worth noting that in Gazewood's quick sighting
of the driver in his rearview mirror he identified him as
Samoan (whereas Young is African American), identified the
SUV as white (whereas Young's SUV was gray or silver),
and failed to note the presence of any passenger (until the
SUV had passed him, when he saw a hand with a gun extend from
the passenger-side window and start shooting). Under the
circumstances, we cannot agree that Gazewood's
opportunity to view the perpetrator weighs in favor of the
reliability of his identification.[49]
Finally,
with regard to "the accuracy of [the witness's]
prior description of the criminal, "[50] the superior
court found significant that Gazewood had previously
identified the shooter as a "Black or Samoan man who had
his hair pulled back." This factual finding, however, is
clearly erroneous: while Gazewood consistently recalled that
the driver's hair was "pulled back, " he
initially described the man not as "Black or
Samoan" but as "Samoan."[51] And other
than the pulled-back hair and "kind of a round face,
" the record does not reflect that Gazewood could or did
describe the driver's facial features, clothing, or other
distinguishing characteristics. While Gazewood's initial
description of the driver may have matched Young in a very
general sense, we conclude that it was not accurate or
specific enough to support a finding that his later selection
of Young's photograph was reliable.[52]
The
Brathwaite test requires that we weigh the five
Biggers factors "[i]n light of the totality of
the circumstances" against "the corrupting effect
of the suggestive identification itself."[53] Given that
only two of the Biggers factors provide only modest
support for a finding of reliability, we conclude that they
cannot overcome the unnecessary suggestiveness of the photo
array. We therefore hold that it was error to admit
Gazewood's identification of Young at trial.
c. The
error in admitting Gazewood's identification at trial was
harmless.
We
conclude, however, that the error in admitting the evidence
of Gazewood's identification was harmless beyond a
reasonable doubt.[54] The admission of an unreliable
eyewitness identification at trial is harmless "if there
[is] conclusive independent evidence, apart from the
[unreliable] identification testimony[, ] . . . that
identified [the defendant] as the
[culprit]."[55]
In
prosecuting Young, the State did not rely solely on
Gazewood's identification; two other eyewitnesses placed
Young at the scene. Arles Arauz, who had known Young since
high school, identified him as the driver of the SUV. John
Anzalone, another driver near the shooting, positively
identified Young as the driver. And significant
circumstantial evidence tied Young to the crime. The key in
his pocket when he was arrested was found to operate the SUV
the State alleged was used in the shooting. The State's
witnesses identified the SUV as belonging to "Big Nasty,
" a nickname for Young. The nine-millimeter Luger pistol
Young was carrying when he was arrested was shown to match
bullet casings found at the crime scene.
In
assessing whether the erroneous admission of Gazewood’s
identification was harmless, we also find significant the
extent to which he qualified his own testimony by emphasizing
the brevity of his opportunity to view the perpetrator and
his frustration with what he considered to be a suggestive
comment at the photo array.[56] Admission of a weak and
equivocal identification is more likely to be harmless error
than admission of a strong and confident one.[57]
Thus,
despite the error in admitting Gazewood's identification,
the fact that there was "conclusive independent
evidence, apart from the [unreliable] identification
testimony, "[58] implicating Young in the shooting leads
us to conclude that the error was harmless beyond a
reasonable doubt.
2. It
was not error to allow Anzalone to identify Young in court.
Young
also argues that it was error to permit Anzalone, who had
failed to identify him at the grand jury, to identify him at
trial as the driver after having seen his photo on the
television news. We conclude that this was not error.
a. Due
process protections against unnecessarily suggestive
identifications do not apply to Anzalone's initial
identification of Young after seeing his picture on
television.
Young
argues first that Anzalone's identification of him after
seeing his picture on the television news constitutes an
unnecessarily suggestive identification procedure and that
the superior court should have assessed its reliability under
the Brathwaite test before allowing Anzalone to
identify Young in court. But the due process protections
against unnecessarily suggestive identification procedures do
not apply in the absence of state action.[59] As the United
States Supreme Court has recently held, the "due process
check on the admission of eyewitness identification [is]
applicable when the police have arranged suggestive
circumstances leading the witness to identify a
particular person as the perpetrator of a
crime."[60]
When no improper law enforcement activity is involved, ... it
suffices to test reliability through the rights and
opportunities generally designed for that purpose, notably,
the presence of counsel at post-indictment lineups, vigorous
cross-examination, protective rules of evidence, and jury
instructions on both the fallibility of eyewitness
identification and the requirement that guilt be proved
beyond a reasonable doubt.[61]
Consistent
with these principles, we held in Kimble v. State
that accidental confrontations do not ordinarily implicate
due process concerns.[62] Such a confrontation "may be the
subject of cross-examination of course, but on the whole the
question is one going to the weight rather than the
admissibility of the evidence."[63] While the facts in
Kimble - where the police were alleged to have
arranged an "accidental" show up with the witness -
made for a close question, [64] this is not such a case.
Because there was no state action involved in Anzalone's
identification of Young from a picture on the television
news, due process did not require that the superior court
screen it for reliability under Brathwaite.
b. Due
process protections against unnecessarily suggestive
eyewitness identifications do not apply to Anzalone's
first-time in-court identification.
Young
also argues that Anzalone's in-court identification of
him was itself unnecessarily suggestive because it "was
equivalent to a show-up, where an individual is presented
with one suspect and asked to make a yes or no
identification." Young observes that he was the only
African-American man in the courtroom and that he was sitting
at counsel table with his lawyer. He contends that given the
suggestiveness of these circumstances, the superior court
should have assessed the reliability of the resulting
identification under Brathwaite and should have
excluded it.
We have
never directly addressed whether a first-time in-court
identification triggers application of the same due process
protections that apply to suggestive pretrial
identifications.[65] We now decide it does not. Our
conclusion is driven by the fundamental differences between
identifications derived from state action prior to trial and
those that occur in the courtroom. A pretrial identification
ordinarily involves only the police and the witness, and how
the identification is later evaluated at trial depends
largely on those participants' recollections of it. An
in-court identification, in contrast, occurs in the presence
of the judge, the jury, and the lawyers. The circumstances
under which the identification is made are apparent. Defense
counsel has the opportunity to identify firsthand the factors
that make the identification suggestive and to highlight them
for the jury.[66] We also note that there are other ways,
though not used in this case, in which the risks of in-court
misidentifications can be either minimized in practice or
pointed out to the jury. Expert witnesses can testify about
the problems inherent in first-time in-court
identifications;[67] the trial court may grant a
defendant's request for an in-court lineup or to be
seated somewhere other than counsel table for the
identification.[68]
We
recognize that this is a close question, and by our decision
today we do not mean to foreclose the possibility that a
first-time in-court identification could be unnecessarily
suggestive. For example, courts have found due process
violations where the prosecutor improperly coached the
witness into making an in-court identification.[69]
In
this case, however, Anzalone volunteered his identification
of Young. Theprosecutor simply asked him whether he could
"give us any description of the person that you saw,
" to which Anzaloneanswered, "He's in the
courtroom to day." The prosecutorasked, "Do you
recognize him?" and Anzalone responded, "He's
sitting at the defense table."
We
emphasize that the due process protections that have been
developed around the admissibility of eyewitness
identifications, and which we clarify today, are intended to
correct for unnecessarily suggestive police conduct during
its investigation, and that courtrooms have a number of other
safeguards - impartial judge and jury, competent defense
counsel, the rules of evidence, the State's burden of
proof - that are intended to ensure due
process.[70] While recognizing that the
suggestiveness and reliability of first-time in-court
identifications present many of the same issues as those that
affect pretrial identifications, we are not prepared to
extend the same rules to both. We conclude that the superior
court did not err when it allowed Anzalone to identify Young
in court as the driver.
3.
Because the Brathwaite test does not adequately protect the
right to due process under the Alaska Constitution, we adopt
a new approach to deciding the admissibility of eyewitness
identification evidence in future cases.
Although
the result in Young's case is unaffected by a prospective
change in the law, we are convinced that Alaska's
existing test for the admission of eyewitness identifications
does not go far enough in protecting the right to due process
under the Alaska Constitution. We generally refrain from
issuing advisory opinions, [71] but at times we set aside this
judicial policy of self-restraint to correct or clarify
important aspects of the law.[72] In the exercise of our general
"supervisory power to formulate standards for the
enforcement of criminal law in the courts of this
state"[73] and our more specific "supervisory
powers over state courts pertaining to the admissibility of
evidence, "[74] we today announce a new test for the
admissibility of eyewitness identification testimony that we
believe is consistent with the due process protections of
Alaska's constitution.
In so
doing we necessarily depart from Manson v.
Brathwaite and the Alaska cases that relied on it as the
touchstone. "We do not lightly overrule our past
decisions."[75] However, "stare decisis is a
practical, flexible command that balances our community's
competing interests in the stability of legal norms and the
need to adapt those norms to society's changing
demands."[76] With these considerations in mind,
"we will overrule a prior decision only when '
"clearly convinced that the rule was originally
erroneous or is no longer sound because of changed
conditions, and that more good than harm would result from a
departure from precedent." ' "[77] We are
convinced that this is the case with respect to the
Brathwaite test.
a.
Changed conditions justify replacing the Brathwaite
test.
The
"changed conditions" that justify abandoning a
prior decision include where "related principles of law
have so far developed as to have left the old rule no more
than a remnant of abandoned doctrine, [or] facts have so
changed or come to be seen so differently, as to have robbed
the old rule of significant application."[78]Developments
in the science related to the reliability of eyewitness
identifications, and courts' responses to those
developments, have significantly weakened our confidence in
the Brathwaite test as a tool for preventing the
admission of unreliable evidence at trial, and therefore its
capacity for protecting the due process rights afforded by
the Alaska Constitution.[79]
The
State aptly observes that doubts about the reliability of
eyewitness identifications are neither "revelatory nor
recent." The United States Supreme Court noted even
before Brathwaite that "[t]he vagaries of
eyewitness identification are well-known; the annals of
criminal law are rife with instances of mistaken
identification, " and "[t]he hazards of such
testimony are established by a formidable number of instances
in the records of English and American
trials."[80] But "the hazards of such
testimony" are even more well documented since
Brathwaite.
Brathwaite
was decided in 1977, and "[t]he modern era of eyewitness
identification research began" more or less
contemporaneously, "in the 1970s."[81] But
"[t]he past few decades have seen an explosion of
additional research that has led to important insights into
how vision and memory work, what we see and remember best,
and what causes these processes to fail."[82] The Supreme
Court of New Jersey comprehensively surveyed the literature
in a 2011 opinion that we find particularly persuasive. The
court assigned a special master to consider the scientific
evidence on eyewitness identifications and, after receiving
the master's report, summarized: "Virtually all of
the scientific evidence considered on remand emerged after
[Brathwaite], " and, while the 1970s
"produced only four published articles in psychology
literature containing the words 'eyewitness' and
'identity' in their abstracts[, . . .] more than two
thousand studies related to eyewitness identification have
been published in the past thirty years."[83]
The
State contends that we should not consider scientific
evidence that was not subjected to the adversarial process at
trial. We "recognize that evaluation of scientific
information at the appellate level is without the advantage
of cross-examination."[84] Other states' high courts
have followed different procedural paths when modifying their
standards for evaluating eyewitness identifications. The
special master appointed by the New Jersey Supreme Court
"to evaluate scientific and other evidence about
eyewitness identifications . . . presided over a hearing that
probed testimony by seven experts and produced more than 2,
000 pages of transcripts along with hundreds of scientific
studies, " then issued an extensive report on which the
court heavily relied.[85] Other courts, acknowledging the
scientific consensus, have not required that the science be
tested again in a trial-like process. The Massachusetts
Supreme Judicial Court convened a "Study Group" in
2011 to determine how it could improve its model jury
instructions for the evaluation of eyewitness
identifications.[86] In 2015 the court "review[ed] the
scholarly research, analyses by other courts, amici
submissions, and the Study Group Report and comments"
and adopted new standards.[87] The supreme courts of
Connecticut, [88] Hawai'i, [89] Oregon, [90] Utah,
[91]
and Wisconsin, [92] while noting judicial trends, have also
relied directly on the scientific research to explain why
their standards should be modified.
We
consider it unnecessary to retest the validity of the
scientific evidence on which these other high courts rely. We
are not relying on disputed scientific evidence to disturb or
affirm the verdict in this case, but rather identifying
factors for trial courts' future use - factors other
courts have found highly relevant to their constitutional
guarantees of due process. We adopted the Brathwaite
test of reliability in 1979 without reference to whether its
assumptions were scientifically valid.[93] In the
decades that followed we applied a "totality of the
circumstances" test that included the Biggers
factors because the Supreme Court had decided those factors
were relevant.[94] As our sister courts find reason to be
dissatisfied with Brathwaite and the
Biggers factors, it is appropriate that we take note
of their concerns and use their reasoning to inform our own
constitutional analysis. We find highly significant the
extent to which other courts have reviewed the evidence,
accepted it as valid, and filtered it through their own
constitutional analyses.
Ultimately,
the movement away from the Brathwaite test in other
jurisdictions, in reliance on advances in the relevant
research, convinces us that conditions have
changed.[95] We conclude that "the legal
landscape is very different than it was" when we decided
to follow Brathwaite 37 years ago, and "[t]his
new diversity of opinions among the high courts of states
throughout the country is another reason to conclude that the
'changed conditions' element of the test for
overruling precedent is satisfied."[96]
We also
conclude that "more good than harm would result from a
departure from" the Brathwaite
test.[97] "It is indisputable that a primary
goal, perhaps the paramount goal, of the criminal justice
system is to protect the innocent accused against an
erroneous conviction, "[98] and we cannot doubt that
mistaken eyewitness identifications lead to wrongful
convictions.[99] Justice Sotomayor, dissenting in
Perry v. New Hampshire, noted that "[t]he
empirical evidence demonstrates that eyewitness
"misidentification is ' "the single greatest
cause of wrongful convictions in this country." '
"[100] Even the majority opinion in
Perry "d[id] not doubt either the importance or
the fallibility of eyewitness
identifications."[101] And the risks posed by the
admission of unreliable identifications is magnified by the
effect eyewitness testimony has on the jury: as Justice
Brennan noted, "[T]here is almost nothing more
convincing than a live human being who takes the stand,
points a finger at the defendant, and says 'That's
the one!'"[102]
In sum,
we are convinced that the Brathwaite test does not
adequately assess the reliability of eyewitness
identifications and thus allows the admission of very
persuasive evidence of doubtful reliability. In the belief
that a new approach - based on a better understanding of the
factors affecting the reliability of eyewitness
identifications -will lead to the exclusion of unreliable
evidence and there by reduce the risk of wrongful
convictions, we conclude that breaking away from our long
reliance on the Brathwaite test will do more good
than harm.[103]
b. The
scientific understanding of the factors affecting eyewitness
identifications has evolved since Brathwaite
The
science of human memory developed since Brathwaite
shows that memory does not function like a videotape, on
which events are simply stored linearly to be recalled later
in the same linear way.[104] Instead, there are three
major stages of memory and recall. First, in the acquisition
stage, "the event is perceived by a witness, and
information is entered into the memory system"; second,
in the retention stage, "some time passes before a
witness tries to remember the event"; finally, in the
retrieval stage, "the witness tries to recall the stored
information."[105] Eyewitness memory is malleable, and
many factors can affect the reliability of a memory at each
stage of the process of recalling it.[106] And as
the court of appeals noted in Tegoseak v. State, a
mistaken identification at the beginning of a criminal
investigation can "become" the witness's memory
for purposes of all subsequent identifications; the erroneous
picture displaces the fact.[107]
Scientific
literature often divides the factors that can affect the
reliability of eyewitness identifications into two
categories: "system variables, " which are
manipulable and can be influenced by the criminal justice
system (such as the instructions given a witness during a
lineup); and "estimator variables, " which cannot
be influenced by the criminal justice system because they are
related to environmental conditions and personal
characteristics (such as the stress of the
moment).[108] In replacing the Biggers
factors with a list that draws on these two categories of
variables, we follow most closely the New Jersey and Oregon
supreme courts' decisions in State v.
Henderson[109] and State v.
Lawson.[110] Like those courts, we recognize that
the science of eyewitness identifications is
"probabilistic"; it cannot say for certain whether
any particular identification is accurate but rather
identifies the variables that are relevant to evaluating the
risk of a misidentification.[111]
System
Variables
i.
Blind administration[112]
Was
the lineup or photo array administered
"blind"? When the administrator of an
identification procedure knows who the suspect is, the
administrator may subconsciously affect the reliability of
the witness's identification.[113] Such influences are
referred to as "interpersonal expectancy
effects":[114] "the tendency for experimenters
to obtain results they expect . . . because they have helped
to shape that response."[115] In the eyewitness
identification context, this can occur when the administrator
of a lineup or photo array knows which person is the suspect
and, consciously or not, gives cues to the witness that
affect the witness's choice.[116] The phenomenon is not
limited to overt or explicit suggestion; "[e]ven small
changes in the experimenter's body posture or expression
have been shown to affect participants' responses, "
though the witness is often unaware that it is
happening.[117]
To
prevent these influences on the identification procedure,
studies recommend that it be administered
"blind."[118] "Double-blind administrators do
not know who the actual suspect is. Blind administrators are
aware of that information but shield themselves from knowing
where the suspect is located in the lineup or photo
array."[119]
ii.
Pre-identification instructions[120]
Was
the witness instructed before the identification procedure
that the suspect may or may not be present in the lineup,
showup, or array, and that the witness need not make an
identification? A witness's expectation that a
lineup will include the suspect may affect the
identification's reliability. Studies attest to the
phenomenon of "relative judgment, " in which
"the witness seems to be choosing the lineup member who
most resembles the witness['s] memory relative
to other lineup members."[121]Accordingly, studies
show that misidentification is less likely if the witness is
informed that the suspect might not be in the lineup. For
example, two meta-analyses compared the effect of different
instructions in lineups in which the perpetrator was present
and lineups in which he was not.[122] Both studies concluded
that failing to inform a witness that the perpetrator might
not be present, when the perpetrator in fact was not, led to
more incorrect identifications; that is, a witness tended to
select the person who best resembled the one in the
witness's memory.[123] By contrast, one of the studies
found that instructing witnesses that the lineup might not
contain the perpetrator had "minimal effect" on
identifications when the perpetrator was
present;[124] the other found that such instructions
increased correct identifications of the
perpetrator.[125] Both studies emphasized the context of
the latter finding: in the real world, the police may not
know whether a suspect is in fact the perpetrator, and the
identification will be affected by a host of other
variables.[126] Accordingly, "no good can come
frombiased instructions."[127]
iii.
The composition of lineups and photographic
arrays[128]
Were
there at least five subjects in the lineup or array besides
the suspect? Did the suspect stand out in any way
from the filers "? Lineups and photo arrays can be
constructed in ways that affect their reliability. Most
obviously, reliability is compromised if the suspect
noticeably stands out from the "fillers" who make
up the rest of the group.[129] As a compounding factor, a
lineup that suggests a result to the witness may artificially
inflate the witness's confidence in the identification
because of its apparent ease.[130]
Courts
also conclude, based on the research, that lineups or arrays
should include a minimum number of "fillers" in
order to ensure an adequate test of the witness's recall
and to reduce the chance that an identification is the result
of guesswork.[131] Although there is no "magic
number" of fillers, [132] many sources recommend a
minimum of five per single suspect.[133] By the same logic and
to reduce the possibility that a witness will err by
guessing, each lineup or photo array should include only one
suspect.[134]
There
is significant debate about the desirability of sequential
identification procedures - where suspects are viewed one at
a time - as opposed to simultaneous identification
procedures, like lineups and photo arrays, where suspects are
viewed as a group. [135] Some scholars believe that the
sequential procedure reduces the impact of "relative
judgment, " thereby increasing accuracy.[136] Others
find this conclusion premature.[137] Current research on
simultaneous versus sequential procedures seems insufficient
to preclude either.
iv.
Feedback and recording confidence[138]
What
feedback, if any, did the witness receive about the
identification procedure from the administrator? What
expressions of confidence, if any, did the witness make at
the time of the identification? An administrator's
unconscious cues risk influencing an eyewitness
identification after as well as before the witness has
selected a suspect. Witnesses who receive confirmatory
feedback express "significantly more . . . confidence in
their decision compared with participants who received no
feedback, "[139]and such feedback can lead witnesses to
"significantly inflate their reports to suggest better
witnessing conditions at the time of the crime, stronger
memory at the time of the lineup, and sharper memory
abilities in general."[140] Studies suggest that
confirmatory feedback has an effect even when it comes 48
hours after an identification, [141] and the effect is
powerful across other variables.[142]
v.
Showups[143]
Was
the witness identified in a showup? A "showup"
is an identification procedure in which a witness is
presented with a single suspect and asked if the suspect is
the person who committed the crime.[144] Alaska courts have
long restricted the use of showups as an identification
procedure to where it is necessary under the
circumstances.[145] The problems with showups are
apparent: in contrast to lineups and photo arrays, which
allow a witness with a faulty memory to pick someone other
than the suspect, every positive identification in a showup
implicates the suspect.[146] Showups seemingly provide
little protection against witnesses who are inclined to
guess, as witnesses participating in showups tend to base
their identifications on clothing.[147]Research shows that an
innocent suspect who resembles the actual perpetrator is more
likely to be incorrectly identified in a showup than in a
lineup.[148]
Showups
can be reliable when they are conducted immediately after a
crime, when the witness's memory is freshest; but
research shows that the likelihood of a misidentification
increases significantly with showups as little as two hours
after the event.[149]
vi.
Multiple viewings[150]
Was
the witness exposed to the suspect after the crime but before
making the identification?[151] Did the witness
fail to identify the suspect in an earlier procedure?
The reliability of an identification may suffer if the
witness has viewed the suspect more than once during the
investigation. This concern arises in part because witnesses
struggle to determine whether their memory comes from their
original observation of the perpetrator or a later one.
Studies describe this as "source confusion" or
"source monitoring" error.[152] It arises
in a number of different contexts.
For
example, "mugshot exposure" occurs when a witness
is repeatedly exposed to a suspect's photograph. The
witness may fail to identify the suspect on the first
presentation but on the second will recognize the photo;
including the same photo in a second presentation can thus
raise the risk of misidentification.[153] A similar
effect, "mugshot commitment, " occurs when a
witness identifies a suspect from a photograph and the same
photograph is included in a later identification procedure;
studies show that in this circumstance the witness is more
likely to remain "committed" to the suspect
originally selected even if the identification was
incorrect.[154]
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