United States v. Telfaire

¶5PER CURIAM:

¶6Appellant was found guilty of robbery, D.C.Code § 22-2901, and sentenced under the Youth Corrections Act. On this appeal it is contended the judge erred (1) in sending the case to the jury on the uncorroborated testimony of a single witness; (2) in failing to initiate a special instruction on identification even in the absence of request by defense counsel, and (3) in failing to give an instruction on the absence of flight. We affirm.

¶7I.

¶8Anglo-American jurisprudence has accepted the “one witness” rule, declining to follow the rule of the canon and civil law requiring a greater number of witnesses or corroboration,1 with exceptions requiring corroboration for particular crimes, notably “sex” offenses, where the urge to fantacize or motive to fabricate makes the risk of unjust conviction high.2

¶9The one witness rule recognizes that certain crimes are solitary, and as to such crimes both the deterrence of punishment and the rehabilitation of offenders are proper concerns of the state. Moreover, Anglo-American jurisprudence — with its strong presumption of innocence, and adversary system — has safeguards which dilute the danger of conviction of the innocent, a problem that concerns every civilized system of justice.

¶10 With retention of the one-witness rule, which is plainly applicable to the crime of robbery,3 the evidence in this case — set forth in the footnote4— *555while having some weak spots, is sufficient to preclude us from finding an abuse of discretion on the part of the trial judge in sending the case to the jury.5

¶11II.

¶12The presumption of innocence that safeguards the common law system must be a premise that is realized in instruction and not merely a promise. In pursuance of that objective, we have pointed out the importance of and need for a special instruction on the key issue of identification, which emphasizes to the jury the need for finding that the circumstances of the identification are convincing beyond a reasonable doubt. This need was voiced in 1942 in McKenzie v. United States6 and it has been given vitality in our opinions of recent years — -following the Supreme Court’s 1966 Wade-Gilbert-Stovall trilogy7 focusing on the very real danger of mistaken identification as a threat to justice. We refer to our post-Wade opinions in Gregory 8 and Macklin.9These opinions sought to take into account the traditional recognition that identification testimony presents special problems of reliability10 by stressing the importance of an identification instruction even in cases meeting the constitutional threshold of admissability.11

¶13We do not qualify in any particular the importance of and need for a special identification instruction. But in evaluating the prejudice inherent in the fail*556ure of the trial court to offer one, we have taken into account that in the circumstances of a particular case, the proof, contentions and general instructions may have so shaped the case as to convince us that in any real sense the minds of the jury were plainly focused on the need for finding the identification of the defendant as the offender proved beyond a reasonable doubt.12

¶14In this case, as in Macklin, we consider the instructions given by the trial judge13- — both the initial instructions on the burden of proving beyond a reasonable doubt all the elements of the offense, and the follow-on instructions dealing with the defense of alibi, and the problem of mistaken identity — and the overall context of the case, and we are satisfied that the attention of the jury was significantly focused on the issue of identity.

¶15Moreover, this case exhibits none of the special difficulties often presented by identification testimony that would require additional information be given to the jury in order for us to repose confidence in their ability to evaluate the reliability of the identification.14 Here the victim had an adequate opportunity to observe, and the testimony revealed a spontaneous identification of the defendant in the lobby of the hotel where the robbery took place as soon as the complainant entered the lobby with the police officers (see fn. 4). The absence *557of a special identification instruction did not prejudice appellant’s defense.15

¶16We do, however, consider our appellate function to require a supplement to our prior rulings. In Macklin, we called attention to a standard criminal jury instruction prepared in 1966 by the Junior Bar Section of the District of Columbia Bar Association. That instruction does little more than incorporate one sentence modeled on our 1942 opinion in McKenzie. It does not take note of the discussion in Wade and subsequent cases.

¶17In Barber v. United States16 the Third Circuit undertook to present an approach that would “recognize a compelling need for guidelines which will obviate skeletal pattern instructions and assure the essential particularity demanded by the facts surrounding each identification.” To further the administration of justice in the District of Columbia the Appendix contains a model instruction, using material from Barber to some extent, which trial judges can use to focus on the identification issue— with revision and adaptation to suit the proof and contentions of a particular case. It is not being set forth in terms of compulsion, but a failure to use this model, with appropriate adaptations, would constitute a risk in future eases that should not be ignored unless there is strong reason in the particular case.

¶18III.

¶19Defense counsel requested an instruction, set forth in the footnote, on the absence of flight.17 It is a paraphrase, with verbal reversal, of an instruction on the inference from flight which appears in the Junior Bar Section’s standard instruction.18 That flight instruction is one which we have criticized as weak and as relating to an “extraordinarily complex action, potentially prompted by a variety of motives other than guilt of the actual crime.” 19 We have ruled that such an instruction may be used only “sparsely” 20 and only if the trial judge accompanies it with an indication of the variety of motives that may account for flight.

¶20In this case, the trial judge, presented with what can fairly be described as a new “form” instruction — on the absence of flight — noted that this court has approached the “whole question of flight” with circumspection, and concluded that the instruction should not be given. The court ruled that counsel would be permitted to argue the concept to the jury.

¶21*558We approve the trial court’s exercise of discretion. We need not consider what the situation would have been if defense trial counsel had presented an instruction that advised the jury that an inference might be drawn from the absence of flight, and at the same time advised the jury of different inferences which might also be drawn. While the inference from the absence of flight could properly be argued to the jury, we see no basis for requiring it to be elevated above any other inference that might be argued to the jury, and given the status of being particularly significant by being enshrined in an instruction. If anything, the interest of justice might better be served by removing entirely from instructions both flight and absence of flight, and relegating the entire subject to the give and take of argument.

¶22Affirmed.

¶23Appendix: Model Special Instructions on Identification

¶24One of the most important issues in this case is the identification of the defendant as the perpetrator of the crime. The Government has the burden of providing identity, beyond a reasonable doubt. It is not essential that the witness himself be free from doubt as to the correctness of his statement. However, you, the jury, must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may convict him. If you are not convinced beyond a reasonable doubt that the defendant was the person who committed the crime, you must find the defendant not guilty.

¶25Identification testimony is an expression of belief or impression by the witness. Its value depends on the opportunity the witness had to observe the offender at the time of the offense and to make a reliable identification later.

¶26In appraising the identification testimony of a witness, you should consider the following:

¶27(1) Are you convinced that the witness had the capacity and an adequate opportunity to observe the offender?

¶28Whether the witness had an adequate opportunity to observe the offender at the time of the offense will be affected by such mattei's as how long or short a time was available, how far or close the witness was, how good were lighting conditions, whether the witness had had occasion to see or know the person in the past.

¶29[In general, a witness bases any identification he makes on his perception through the use of his senses. Usually the witness identifies an offender by the sense of sight — but this is not necessarily so, and he may use other senses.] *

¶30(2) Are you satisfied that the identification made by the witness subsequent to the offense was the product of his own recollection? You may take into account both the strength of the identification, and the circumstances under which the identification was made.

¶31If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to him for identification, you should scrutinize the identification with great care. You may also consider the length of time that lapsed between the occurrence of the crime and the next opportunity of the witness to see defendant, as a factor bearing on the reliability of the identification.

¶32[You may also take into account that an identification made by picking the defendant out of a group of similar individuals is generally more reliable than one which results from the presentation of the defendant alone to the witness.]

¶33[(3) You make take into account any occasions in which the witness failed to *559make an identification of defendant, or made an identification that was inconsistent with his identification at trial-.]

¶34(4) Finally, you must consider the credibility of each identification witness in the same way as any other witness, consider whether he is truthful, and consider whether he had the capacity and opportunity to make a reliable observation on the matter covered in his testimony.

¶35I again emphasize that the burden of proof on the prosecutor extends to every element of the crime charged, and this specifically includes the burden of proving beyond a reasonable doubt the identity of the defendant as the perpetrator of the crime with which he stands charged. If after examining the testimony, you have a reasonable doubt as to the accuracy of the identification, you must find the defendant not guilty.

¶60BAZELON, Chief Judge,

¶61concurring:

¶62I concur in the judgment that the trial court’s error in failing to offer a sua sponte identification instruction as required by Macklin v. United States1 was harmless. And I wholeheartedly concur in the promulgation of a model identification instruction which deals realistically with the shortcomings and trouble spots of the identification process. I have in the past repeatedly protested the practice of “turn[ing] over to the jury this critical question without even trying to acquaint it with the risks involved or the information now available that could illuminate its inquiry.” 2 The model instruction we approve today goes far toward providing that illumination. But not far enough.

¶63The available data, while not exhaustive, unanimously supports the widely held commonsense view that members of one race have greater difficulty in accurately identifying members of a different race.3 The problem is by no means insubstantial; a significant percentage of the identifications in this jurisdiction are inter-racial. Yet, we have developed a reluctance — almost a taboo —to even admit the existence of the problem, let alone provide the jury with the information necessary to evaluate its impact.

¶64This reluctance apparently grows out of a well-intentioned effort to insulate criminal trials from base appeals to racial prejudice. But I cannot agree that because any discussion of this identification problem necessarily refers to racial differences, such discussion is, as one New York appellate court has held, “prejudicial” and “divisive.”4 And it *560certainly does not excuse the pretension that the problem does not exist. In any event, a narrowly drawn instruction dealing with a familiar, albeit racial, phenomenon can hardly be equated with a broad appeal to racial prejudice.

¶65The admission in a criminal trial of any evidence is governed by the familiar tests of logical and legal relevancy. Proffered evidence will be excluded if it does not make the “existence of any fact that is of consequence . . . more probable or less probable than it would be without the evidence.”5 And even if logically relevant, it will still be excluded “if its probative value is substantially outweighed by the danger of undue prejudice.”6 This excludes the classic appeal to racial prejudice: for example, the suggestion often made to a white jury that, if they fail to convict a black defendant charged with a crime of violence against another black, he and other blacks will be encouraged to commit similar crimes against whites.7 Such racial fears do not bear on whether a crime was committed, and, if so, whether the defendant committed it. Its only use could be to obtain a conviction on naked racism.

¶66None of these problems are raised simply by recognizing the danger that inter-racial identifications may be more unreliable. That danger is plainly relevant to the accuracy of an identification, just as are the lighting conditions at the time of the offense, or the distance from which the subject was viewed. And it is certainly not “prejudicial” in the traditional sense of encouraging “decision on an improper basis.” 8 No appeal is made to decide guilt on the basis of race. That the identifying witness and the defendant are of different races is simply one of the factors to be considered in determining the central issue — the accuracy of the identification.9 Indeed, the jury will see with its own eyes when an identification is interracial. Explicit instruction restricting consideration of this fact solely to the issue of identification is an important safeguard against any other and unwarranted use of race by the jury.

¶67Nor is anything added by labelling the mere mention of this identification problem “divisive.” It is hardly “divisive” to point out that racial divisions not only exist, but may have an operative, though unintentional, effect on the determination of a defendant’s guilt. I do not know if there can be any circumstances which would justify the fiction that these divisions do not exist. But I do know that a criminal trial is not any of them. The quest there is for truth, not reassurance.

¶68It follows that counsel should be allowed to urge the jury to consider whether the inter-racial character of an identification affects its reliability. I also believe that when the issue is raised, the jury should be instructed to consider the matter. The jury’s knowledge of the relevant factors should not turn on the inadvertence or inexperience of trial counsel, and this is particularly so where the issue of identity is the question of guilt or innocence. Moreover, by offering something like the following instruction, the court sets the narrow context in which racial differences are relevant, *561and further ensures that jury consideration of these differences stays within such properly delineated bounds.

In this case the identifying witness is of a different race than the defendant. In the experience of many it is more difficult to identify members of a different race than members of one’s own. If this is also your own experience, you may consider it in evaluating the witness’s testimony. You must also consider, of course, whether there are other factors present in this case which overcome any such difficulty of identification. For example, you may conclude that the witness has had sufficient contacts with members of the defendant’s race that he would not have greater difficulty in making a reliable identification.10

¶80LEVENTHAL, Circuit Judge,

¶81concurring:

¶82This is to add a thought as to useful procedure for consideration of the possibility of separate instruction on interracial identifications, discussed in Chief Bazelon’s separate opinion.

¶83In my judgment, this subject is not appropriate for inclusion in the model instruction provided with the opinion. Whether this case may involve a problem of inter-racial identification is not knowable from the record, and the point was not argued by counsel. The issue arose only because the court became concerned with the responsibility of trial judges to focus on the general issue of identification, concluding the time is ripe to fashion a model instruction that will help make this “a matter of routine” for trial judges.1

¶84A model instruction serves a useful function of survey and synthesis, to distill outstanding judgments on matters that have been pondered by this and other courts. The issue of inter-racial identifications is not ripe for this kind of distillation of wisdom involving as it does a matter on which' there is only “meager data” and an assertion of “common sense” views2 that merit further consideration. What seems obvious to one judge, based on his experience, may be questioned by another, see Quercia v. United States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321 (1933). When we are dealing with an instruction to the jury on “the law,” we are or should be dealing with propositions that reflect the wisdom of the community.

¶85My own reflections on the subject have been enhanced by some surprises encountered in a little reading undertaken after this subject arose in conference. Although some writers say it is “a well established socio-psychological phenomenon” that members of one race recognize each other more readily than members of another race,3 it develops that in at least one study — which apparently sought to confirm another point, that Negroes are more likely to recognize white than vice versa — the data seemed to show that Negroes recognize white faces with greater accuracy *562than black faces.4 If this is true, it would be necessary to investigate the possible explanations,5 and to provide the explanations and qualifications needed if a model instruction is to avoid distortion, and possibly outright error.

¶86If the instruction refers to the ultimate ingredients of .the problems of identification, it might well have to note that identifiability depends on the ability (and opportunity) of the individual as perhaps influenced by such matters as his attitude toward the other race, the extent to which his ability to distinguish may have been enhanced by need or reward for such ability in past situations, and the factor whether in the individual instance the subject being identified had homogeneous characteristics (see note 5).

¶87The wisdom of making haste slowly in discerning the generalization ready for inclusion in model instructions is underscored when what is involved is as sensitive as race relations in our society. If the subject of inter-racial identification is to be covered in instructions that are informative and objective, we may be opening the door to questioning and proffers of proof so that every time a witness makes an identification of an offender of another race, he is subject to cross-examination on the nature and extent of his contacts with and attitudes (favorable or not) toward the other race. The more I ponder the problems, the better I understand the kernel of wisdom in the decisions that shy away from instructions on inter-racial identifications as divisive.6

¶88*563Chief Judge Bazelon’s separate opinion may well serve the useful purpose of identifying a problem that merits pondering and discussion. Perhaps this opinion, too, may be of assistance when the time comes for analysis. The more difficult question is, what is the optimum means of providing such consideration. If it is to be done solely by an appellate court, then the adversarial process — lacking in this ease — would seem to be a minimum requirement. What strikes me is that this is the kind of issue which appellate judges should explore with trial judges, and with lawyers, in a manner more like that of a legislative committee, than a decision in an adversarial proceeding. There are models in this circuit in the work of committees of the Judicial Conference. There are national models in the work of committees of the American Bar Association. At least where problems require careful further exploration, these models seem to me to provide a more felicitous means of conducting such exploration — permitting common' meetings on common problems between members of bench (trial as well as appellate judges), bar, and social scientists; providing time for further explorations after initial discussion; enhancing collaborative conference as distinguished from competitive or adversarial skirmish.

¶89Mulling and interchange always take time. Yet if the problem of inter-racial identification is to be considered with discernment as well as authority, that time would be well spent.