WPIC 6.52 Eyewitness Identification Testimony

This instruction is intended for use solely in criminal prosecutions in which the jury has heard eyewitness identification testimony. The court may use this instruction as appropriate when evidence has been presented concerning an identification made by an eyewitness either at trial or pretrial, whether or not expert testimony on the subject was presented. Use bracketed language regarding cross-racial identification if requested. See Comment. Although the other factors are not bracketed, the court may choose to delete some or add others based on the evidence and issues in the particular case.

The prosecution must prove the identity of the perpetrator of an alleged crime. When the prosecution evidence includes eyewitness identification testimony and the defense includes a denial of this aspect of the case, the jury may be called upon to evaluate this testimony.

The fallibility of eyewitness identification is a subject that has been duly noted and discussed over the years. “The annals of criminal law are rife with instances of mistaken identification.” United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 18 L.Ed. 1149 (1967). The role of a jury instruction on the topic as a potential safeguard has also been debated for some time. See United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972). In Washington, courts initially expressed concerns that such instructions could constitute a comment on the evidence. See State v. Laureano, 101 Wn.2d 745, 767–69, 682 P.2d 889 (1984); State v. Hall, 40 Wn.App. 162, 167, 697 P.2d 597 (1985); State v. Watkins, 53 Wn.App. 264, 275, 766 P.2d 484 (1989).

More recently, the notion of an instruction to assist a jury in evaluating eyewitness identification testimony has gained more of a foothold. This development was noted by the U.S. Supreme Court in Perry v. New Hampshire, 565 U.S. 228, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012). Footnote 7 in that opinion cites to the pattern instructions of fifteen states that address the topic. Such instructions are noted approvingly as being among the “safeguards built into our adversary system that caution juries against placing undue weight on eyewitness testimony of questionable reliability.” Perry v. New Hampshire, 565 U.S. at 245.

In 2013, the Washington Supreme Court decided the case of State v. Allen, 176 Wn.2d 611, 294 P.3d 679 (2013). Although on the facts before it the court declined to find an abuse of discretion in the trial court's failure to instruct on “the fallibility of cross-racial eyewitness identifications,” the opinion in its entirety (lead, concurrence, and dissent) is supportive of the WPI Committee's conclusion that publication of a general instruction on the topic is advisable. The court emphasized that there is no case law establishing a due process requirement for such an instruction under either the U.S. or Washington constitutions. State v. Allen, 176 Wn.2d at 624.

The WPI Committee's instruction is drawn from the California pattern instruction that is set forth in a footnote in State v. Allen, 176 Wn.2d at 618 n.3. See People v. Wright, 45 Cal.3d 1126, 755 P.2d 1049, 248 Cal.Rptr. 600 (1988). With a view to juror comprehension and neutrality of phrasing, and Washington's prohibition on judicial comments on the evidence, the WPI Committee has made some modifications. (Const. art. IV, § 16; compare Cal. Const. art. VI, § 10).

Much of the discussion in State v. Allen, 176 Wn.2d 611, 294 P.3d 679 (2013), concerns the circumstances under which a trial court either must, should or may instruct a jury specifically on impediments to identifying a person of a different race. Although this is commonly referred to as “cross-racial identification,” the WPI Committee has phrased this bracketed factor somewhat differently both to avoid commenting on the evidence and also to leave it to the jury to evaluate the particular witness's basis for his or her conclusion. The Allen opinions (as well as the Court of Appeals opinions in the same case at 161 Wn.App. 727, 255 P.3d 784 (2011)) should be carefully reviewed in determining whether this factor must or should be included.