State v. Cerilli

¶1dissenting. In this case the trial court gave no instruction to the jury on the fallibility of eyewitness identification, notwithstanding that the defendant’s sole theory of defense was misidentification. The majority concedes, as it must, that the failure to instruct the jury on the dangers of eyewitness identification1 was error, but it places the burden on the defendant to prove that it was reasonably probable that the jury was misled by the trial court’s failure to so instruct.

¶2Just recently, in State v. Tatum, 219 Conn. 721, 733 n.18, 595 A.2d 322 (1991), this court made clear that “a trial court’s refusal to give any special instruction whatsoever on the dangers inherent in eyewitness identification constitutes reversible error where ‘the conviction of the defendant [turns] upon the testimony of *586eyewitnesses who were uncertain, unclear or inconsistent’; State v. Harden, 175 Conn. 315, 322, 398 A.2d 1169 (1978); State v. Davis, 198 Conn. 680, 504 A.2d 1392 (1986). . . .” (Emphasis added.) Surely, at the very least, the eyewitnesses in this case were inconsistent.2

¶3The need for such a bright-line rule is apparent. As Justice Shea wrote for a unanimous court in Tatum: “The dangers of misidentification are well known and have been widely recognized by this court and other courts throughout the United States.” State v. Tatum, supra, 733. In United States v. Wade, 388 U.S. 218, 228, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), the United States Supreme Court emphasized the dangers inherent in eyewitness identification evidence: “[T]he confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.”3 See also Simmons v. United States, 390 U.S. 377, 383-84, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968).

¶4In this case, the majority divided the defendant’s request to charge on identification into four basic elements: “(1) a focus on the importance of identification *587as one of the most important issues in the case, and the requirement that the jury be satisfied beyond a reasonable doubt that the defendant was the perpetrator; (2) the capacity and opportunity of the witness to observe the perpetrator; (3) whether the identification of the defendant, subsequent to the offense, was the product of the witnesses’ own recollection; and (4) an assessment of the credibility of the witnesses under general standards governing credibility.” The majority claims that the trial court essentially complied with the defendant’s request to charge on identification by making reference to portions of the entire charge, which are taken out of context. So, for example, the majority ingeniously asserts that the first element was satisfied because the trial court “advert[ed]” to that element by giving the general instruction that proof beyond a reasonable doubt is required for conviction. The fact is, no instruction was given on the fallibility of eyewitness identification. Indeed, even the trial court acknowledged as much when, in response to the defendant’s exception to the jury charge, it stated the following: “[Y]ou are right in your assessment—I did not give a separate [eyewitness] identification charge because I thought it was abundantly clear to the jury that it was this defendant that they would have to identify [as] being the perpetrator of the crime.”

¶5The majority principally relies upon State v. Tillman, 220 Conn. 487, 600 A.2d 738 (1991), for precedent that the burden rests upon the defendant to prove that the jury was misled by the trial court’s failure to instruct the jury on the issue of identification, even though the identification testimony is “ ‘uncertain, unclear or inconsistent.’ ” State v. Tatum, supra, 733 n.18. In Tillman, the majority of this court stated that “[e]ven if the [trial] court’s instructions were less informative on the risks of misidentification than they might have been,” a conviction would be reversed only “if the *588defendant could establish that it was reasonably probable that the jury was misled.” State v. Tillman, supra, 501. The holding in Tillman, however, is inapposite. In Tillman, special instructions were given that “adequately alerted the jury to the factors that it had to assess in determining the reliability of the victim testimony.” Id. Therefore, unlike the present case, the trial court in Tillmaninstructed the jury that “in determining whether to credit a witness’ testimony, it must assess the witness' ‘ability to observe facts correctly.’ The [trial] court further said that among the factors the jury was to consider [on the issue of identification] was the witness’ ‘degree of stress’ and ‘her opportunity to observe the person.’ ” Id., 500.

¶6Furthermore, the need for jury instructions on the danger of eyewitness identification and the factors to consider in our multiracial society is essential. In this case, the defendant was white and the complainant and only other eyewitness were black. It is well documented that cross-racial identification is less reliable than identification of one person by another of the same race. “ [Considerable evidence indicates that people are poorer at identifying members of another race than of their own. . . . Moreover, counterintuitively, the ability to perceive the physical characteristics of a person from another racial group apparently does not improve significantly upon increased contact with other members of that race. Because many crimes are cross-racial, these factors may play an important role in reducing the accuracy of eyewitness perception.” Note, “Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification,” 29 Stan. L. Rev. 969, 982 (1977). Elizabeth F. Loftus, in her classic treatise entitled “Eyewitness Testimony,” wrote that “[i]t seems to be a fact—it has been observed so many times—that people are better at recognizing faces of persons of their own race than a *589different race.” E. Loftus, Eyewitness Testimony (1979) pp. 136-37. She concluded, on the basis of an examination of studies made on the subject, that “[pjeople have greater difficulty in recognizing faces of another race than faces of their own race.” Id., 139.

¶7We cannot assume that the average juror is aware of the inherent problems of identification, including, inter alia, poor observation conditions, the stressfulness of the situation, the effect of the passage of time between the incident and the identification, the witness’ expectations,4 the witness’ personal needs and biases— that is, seeing what he or she wants to see, and the inherent problems of cross-racial identifications. “It would be pleasant, but unduly optimistic, to think that the danger inherent in identification evidence by comparative strangers to the accused is now generally recognized. The fact is that juries do not recognize its unreliable nature.” G. Williams, The Proof of Guilt (3d Ed. 1963) pp. 119-20.

¶8Although the Telfaire instruction; United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972); leaves much to be desired,5 the trial court should have at least given this instruction. “The Telfaireinstruction tells the jury *590to consider in appraising the identification testimony of a witness the adequacy of his opportunity and his capacity to observe the offender; the length of time available for the witness to observe the offender; the proximity of the witness to the offender; whether the witness had seen or known this person in the past; whether the identification was a product of the witness’ own recollection; and the credibility of the witness.” State v. Davis, 198 Conn. 680, 685, 504 A.2d 1372 (1986).

¶9The majority argues that I provided no analysis or principle that would support my conclusion that the trial court’s failure to furnish the jury with specific instructions on eyewitness identification was reversible error. As I stated at the beginning of my dissent, my analysis is based on a per se rule confirmed by a unanimous court in State v. Tatum, supra, which consisted of three of the four members of the majority in this case. Again, the rule mandates that it is reversible error for the trial court to refuse to furnish any special instructions to the jury on the fallibility of eyewitness identification when “the conviction of the defendant [turns] upon the testimony of eyewitnesses who were uncertain, unclear or inconsistent.” (Internal quotation marks omitted.) Id., 733 n.18. In this case, the conviction of the defendant turned upon the testimony of the eyewitnesses who, as the majority demonstrated in its footnote 6, were uncertain, unclear and inconsistent. Because there were no special identification instructions given, there was reversible error.

¶10Finally, the majority seems to raise an interesting question—that is, whether the trial court should be required to instruct the jury on the dangers of cross-racial identification if requested by the defendant. My answer is simply yes. The scientific evidence of its unreliability is overwhelming and the jury should be made aware of this problem.

¶11*591A miscarriage of justice could result if we allow the jury to use eyewitness identification evidence without proper guidance from the trial court’s instructions alerting the jury to the factors to consider in its evaluation. I would find reversible error in the trial court’s failure to give a cautionary instruction on eyewitness identification and remand this case for a new trial. Accordingly, I respectfully dissent.