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jury instruction blog archive

May 2019


I posted a YouTube video yesterday that explains how to use the trialdex police interrogation tool.

I used free copies of CamStudio and Shotcut to create the video. It is pretty vanilla, and certainly not compelling cinema, but posted in the hopes that people looking at it will check out this site.


Official restraint

Courts have reasoned that there is not an "entry" or "reentry" under 8 U.S.C. § 1325 or § 1326 unless the defendant is physically present in the United States and free from official restraint.

The rationale for this can be traced back to the distinction between exclusion and deportion. Excluded aliens are stopped and sent home at the border. Deported aliens are already physically in the United States, and have greater procedural rights. This distinction was problematic where aliens present themselves at a point of entry, and are taken to a secondary inspection area on this side of the border. Once they have entered the United States in this manner, are they entitled to claim the procedural rights they would have in deportation proceedings?

Courts resolved this by developing a legal fiction that entry is not accomplished until a person is free from official restraint. The leading case is Ex Parte Chow Chok, 161 F. 627 (N.D.N.Y.), aff'd, 163 F. 1021 (2d Cir. 1908). In that case government officials surveiled illegal aliens, keeping them under observation, before arresting them a quarter mile inside the border. The aliens claimed deportation procedural rights, but court found that the aliens had not successfully entered the United States because "from the moment when they crossed the border, they were in the actual, though not formal, custody of the inspectors." Id. at 630.

Courts soon began applying this definition of an entry in criminal cases, and continued to do so even after Congress broadly defined entry in the Immigration and Nationality Act of 1952.

The government may seek to avoid this issue by prosecuting these crimes as attempts. "Actual reentry requires physical presence in the United States and freedom from official restraint, while attempted reentry only requires that a previously deported alien approach a port of entry and make a false claim of citizenship or non-resident alien status." Pattern Crim. Jury Instr. 5th Cir. 2.0A Note.

In the Ninth Circuit, an alien "is under official restraint if, after crossing the border, he is 'deprived of his liberty and prevented from going at large within the United States.' An alien need not be in physical custody to be officially restrained. '[R]estraint may take the form of surveillance, unbeknownst to the alien.' The government has the burden of proving the defendant was free from official restraint, but need not respond to a defendant's free floating speculation that he might have been observed the whole time." Model Crim. Jury Instr. 9th Cir. 9.6 Comment (citations omitted). "[A]ttempted illegal reentry is a specific intent crime that requires proof of intent to enter the country free from official restraint. United States v. Argueta-Rosales, 819 F.3d 1149, 1151 (9th Cir. 2016).


Almendarez-Torres and immigration crimes

The "Apprendi rule," announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. The rule was later expanded to fines, Southern Union Co. v. United States, 567 U.S. 343 (2012), and mandatory minimums. Alleyne v. United States, 570 U.S. 99 (2013).

Two years before Apprendi, though, the Supreme Court in Almendarez-Torres v. United States, 523 U.S. 224 (1998), held that facts related to a defendant's recidivism need not be presented to a jury even if they could result in an increase in the sentence. This "Almendarez-Torres exception" survives Apprendi. There are, however, a couple of recognized exceptions to the exception in immigration cases, both of which originated in the Ninth Circuit, but have been accepted elsewhere.

  1. Although the fact of an aggravated felony conviction need not be alleged or proven to the jury, the government must establish that the removal came after the aggravated felony conviction. Model Crim. Jury Instr. 9th Cir. 9.6 Comment (2019); Model Crim. Jury Instr. 8th Cir. 6.8.1326(b) Comment (2017).
  2. Illegal entries are petty misdemeanors for a first offense, but two-year felonies for subsequent convictions. 8 U.S.C. § 1325(a). The Ninth Circuit has held that Almendarez-Torres does not apply to prior convictions under § 1325 because they elevate a misdemeanor to a felony. United States v. Rodriguez-Gonzales, 358 F.3d 1156 (9th Cir. 2004). The Fifth Circuit cites Rodriguez-Gonzales with approval in it § 1325 instructions. Pattern Crm. Jury Instr. 5th Cir. 2.0A Note (2015).


One month in

I have not been promoting the site lately, and the traffic has gone down to about 50 unique visitors a day. It is going to be hard to increase the traffic much beyond that. The issue is this. The site ought to be on the first page when someone googles "jury instructions." But it will never get near that until I get more traffic. But I can't get the traffic if Google doesn't put me on the front page. It is kind of like the old saw about getting your first job; they won't hire you if you don't have experience, but you can't get experience unless you get a job.

The one avenue I have avoided in social media; facebook, twitter, etc. I have never had a personal account on any of those platforms, and am hesitant to start now.

The encouraging thing is that the site is getting linked a lot on law school sites, etc. I am definitely going to keep the site going.


Encouraging illegal entry

There is only one pattern instruction (Seventh Circuit). The Ninth Circuit has held that 8 U.S.C. § 1324(a)(1)(A)(iv) is unconstitutionally overbroad. United States v. Sineneng-Smith, 910 F.3d 461, 485 (9th Cir. 2018).


Harboring illegal aliens

The statute, which has no recent amendments, reads:

knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation

Once again, there is no circuit consensus on the elements. We have already noted the split regarding "reckless disregard" in the post below (re transporting, which has the same phrase).

The Fifth Circuit takes the view that the government must prove that the defendant's conduct tended to "substantially facilitate" the alien entering, coming to, or remaining in the United States illegally. "Substantially facilitate" means "to make an alien's illegal presence in the United States substantially easier or less difficult." Pattern Crim. Jury Instr. 5th Cir. 2.01C (2015). None of the other circuits list this as an element.

The Ninth and Tenth Circuits require proof that the defendant concealed, harbored, or shielded the alien(s) with intent to violate the law.

The Eleventh Circuit inserts "knowingly" before concealing, harboring, or sheltering. This does not strike me as being particularly consequential.

An elements list therefore looks something like this:

  1. That the alien entered [came to] [remained in] the United States in violation of law
  2. The defendant ["knowingly" in the Eleventh Circuit] concealed [harbored] [shielded from detection] [attempted to conceal, harbor or shield from detection] the alien within the United States
  3. The defendant [knew] [acted in reckless disregard of the fact that] the alien entered [came to] [remained in] the United States in violation of law
  4. The defendant's conduct tended to substantially facilitate the alien entering [coming to] [remaining in] the United States illegally [Fifth Circuit]
  5. The defendant [harbored, concealed, or shielded from detection] [attempted to harbor, conceal, or shield from detection] [name of alien] with intent to violate the law [Ninth and Tenth Circuits]


Transporting illegal aliens—"reckless disregard"

Next up is the most commonly charged alien smuggling crime, transporting illegal aliens, 8 U.S.C. § 1324(a)(1)(A)(ii). The language of the statute has been unchanged for decades:

knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law

Note the unusual mens rea. The prosecution has the option of proving "knowing" or "reckless disregard." The latter mental state is not defined in the United States Code. Does it mean mere recklessness, willful blindness, or willfulness (i.e., knew the aliens were illegal)? And what does the last clause mean? Does it require a mens rea?

Pattern jury instructions are an obvious first stop on questions like this.

An elements list combining all of the circuits would look something like this:

  1. That an alien had entered or remained in the United States in violation of the law
  2. That the defendant [knew] [recklessly disregarded the fact] that the alien was in the United States in violation of the law
  3. That the defendant [transported] [moved] [attempted to transport] [attempted to move] the alien within the United States
    1. with intent to further the alien's unlawful presence [Fifth Circuit]
    2. in furtherance of [alien's] violation of the law [Seventh and Eleventh]
    3. in order to help [him] [her] remain in the United States illegally [Ninth and Tenth]

Here is how the circuits define "reckless disregard":

  • The Fifth Circuit notes case law rejecting "willful transportation" as an element, and defines reckless disregard as occurring when the defendant "is aware of, but consciously disregards, facts and circumstances indicating that the person transported was an alien who had entered or remained in the United States in violation of the law." Pattern Crim. Jury Instr. 5th Cir. 2.01B (2015).

  • The pattern instruction in the Seventh Circuit uses "knowing" in its elements list. It discusses "reckless disregard" in the Committee Comment, but notes that there is no helpful Seventh Circuit authority, and that there is not a helpful consensus in the other circuits.

  • The Ninth Circuit has a specific direction on how to proceed from recent case law, and defines reckless disregard as occurring where "(1) the person is aware of facts from which a reasonable inference could be drawn that the alleged alien was in fact an alien in the United States unlawfully; and (2) the person actually draws that inference." Model Crim. Jury Instr. 9th Cir. 9.2 (2018).

  • The Tenth Circuit defines reckless disregard as the "deliberate indifference to facts which, if considered and weighed in a reasonable manner, indicate the highest probability that the alleged aliens were in fact aliens and were in the United States unlawfully." Pattern Crim. Jury Instr. 10th Cir. 2.03 (2018).

  • The Eleventh Circuit instructs jurors that reckless disregard "means to be aware of but consciously and carelessly ignore facts and circumstances clearly indicating that the person transported was an alien who had entered or remained in the United States illegally."

So the Ninth Circuit uses language that sounds like willfulness, while the other courts use language that sounds like willful blindness. An older annotation to the Ninth Circuit instruction, quoted in the Seventh Circuit annotation, suggests that the legislative history of the statute referred to willful blindness.

In that regard, it should be noted that the definition of willful blindness was tightened up considerably by the Supreme Court in Global-Tech Appliances, Inc. v. SEB S.A., 131 S.Ct. 2060, 2070 (2011), which states that willful blindness has two elements: "(1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact." That second element wasn't consistently applied prior to Global-Tech, and does not appear in the current circuit definitions of "reckless disregard."

One ultimately determines the mens rea by marrying the way the courts treat the "in furtherance" clause with how they define "reckless disregard."


Alien smuggling crimes

Before moving to the next alien smuggling crime, it makes some sense to list all eight alien smuggling crimes (I probably should have done this first, before talking about § 1324(a)(1)(A)(i)).

The number in parenthesis is the number of times that the crime is mentioned in a Westlaw district court filing, which gives you a rough idea of how commonly the crime is charged:

  • § 1324(a)(1)(A)(i), bringing aliens to the U.S. other than at a designated port of entry (292)
  • § 1324(a)(1)(A)(ii), transporting illegal aliens (2462)
  • § 1324(a)(1)(A)(iii), harboring illegal aliens (720)
  • § 1324(a)(1)(A)(iv), encouraging illegal entry (372)
  • § 1324(a)(1)(A)(v)(I), conspiracy to smuggle aliens (889)
  • § 1324(a)(2), bringing aliens to the United States (2147)
  • § 1327, aiding or assisting entry of an aggravated felon (119)
  • § 1328, importation of aliens for immoral purposes (67)

There are no pattern instructions for the §§ 1327 and 1328.

Another side note; this survey of federal crimes is intended to serve several purposes:

  • One is to test the utility of the site. Does the study of jury instructions really help solve real world problems? Does the site do a good job of finding the instructions?
  • The site is new, and as readers of the prior posts know, I am trying to build traffic, both for the site and for the blog. I think that federal crimes are interesting subjects that people will want to read about, so hopefully having these articles get picked up by Google will cause some folks to be introduced to the site.
  • I am interested in monetizing this site in unobtrusive ways. You will notice that there are no ads on the site; to be honest, the traffic does not merit ads at this point, but I am certain that there will never be annoying ads or popups on the site (not ruling out ads that are not annoying, though). But one of the things one can do to generate revenue on a site is to sell products. I am thinking of writing a handbook on federal crimes, as an ebook or paperback, and selling it here. So this series of articles is part of the research for that project.


Bringing aliens to the United States other than at a designated port of entry

A few days ago I posted the first of what will be a series of posts about federal crimes. We'll focus on what you can learn about federal crimes from pattern jury instructions. We are selecting commonly charged federal crimes in the order that they appear in the United States Code.

Next up is Bringing aliens to the United States other than at a designated port of entry, 8 U.S.C. § 1324(a)(1)(A)(i). As always, we look first at the history of the statute, and in this case we have to go back to 1986 for the last significant revision. The statute originally read "bring into," and courts had required proof of an entry. This was remedied in 1986, when the statute was amended to read "bring to." Interestingly, most pattern instructions use the pre-1986 language (only the Seventh and Ninth Circuits get it right).

There is a circuit split regarding the mens rea. An illustrative elements list looks like this:

  1. The defendant [brought] [or attempted to bring] [person named in the indictment] to the United States
  2. [person named in the indictment] was an alien
  3. The defendant knew [person named in the indictment] was an alien
  4. The [entry] [attempted entry] into the United States was [made] [attempted] at a place other than a designated port of entry:
  5. [Ninth Circuit] The defendant acted with the intent to violate the immigration laws
    [Tenth and Eleventh Circuits] The defendant acted with the intent to violate the law
Note the attempt language inserted in the elements list. State law criminal codes tend to have generally applicable crimes of attempt, but federal law does not. Instead, individual statutes either have, or do not have, attempt language. If there is no attempt language in the statute, it cannot be prosecuted as an attempt. See generally Attempt: An Overview of Federal Criminal Law (CRS 2015). Most of the commonly charged immigration crimes may be charged as attempts; this is a matter of greater consequence for some of the other immigration crimes.


Alaska revises its eminent domain instructions

Alaska has revised Article 27 ("Eminent Domain") of its Civil Pattern Jury Instructions. Instructions 27.00 ("No Instruction"), 27.06 ("Severance Damages"), 27.07A ("Easement—Definition"), and 27.11 ("Just Compensation Special Verdict Form") have been withdrawn. The prior version can be viewed here.


Massachusetts revises its preliminary criminal instructions

Massachusetts has recently posted the "March 2019" edition of its Criminal model jury instructions for use in the District Court. The changed sections are 1.100 ("Impaneling the jury"), 1.120 ("Preliminary instruction to jury before trial"), and 2.120 ("Function of the jury").

The changes are quite extensive. The prior language can be viewed here.


Decoding mens rea

Continuing with our jury instruction based analysis of food stamp fraud, the elements of the crime are:

  1. The defendant [transferred] [acquired] [altered] [possessed] benefits in a manner not authorized by law or Department of Agriculture regulations
  2. The defendant knew that [he] [she] was acting unlawfully and intended to violate the law
  3. The benefits had a value of at least $100 [$5,000]
Pattern Crim. Jury Instr. 11th Cir. OI O95. The mens rea (scienter, mental state) for the crime is that the defendant knew that he or she was acting unlawfully and intended to violate the law. The statute just says "knowingly uses, transfers, acquires, alters, or possesses benefits in any manner contrary to this chapter or the regulations issued pursuant to this chapter," which suggests that the mens rea might only be that he or she was knowingly acquiring or possessing food stamps. Where did the heightened mens rea come from? The answer comes from (as we noted in the last post) Liparota v. United States, 471 U.S. 419, 433 (1985) (all the § 2024 pattern instructions tell us that).

Some background. It would be helpful if statutes came with "elements lists" that specify the mental state that goes with each element, but they don't. Pattern jury instructions fill in the gaps, though, often with annotations explaining the reasons for the assignment. These decisions are based on certain interpretive rules set forth by the Supreme Court, which are also explained in the annotations for each crime. Two Circuits have extended introductory discussions:

Anyway, if you study the annotations, and read the cited Supreme Court decisions, you come up with this:

  • The elements of federal crimes are determined by Congress, because they are "solely creatures of statute." Liparota, id at 424.
  • However, the "mere omission from a criminal enactment of any mention of criminal intent" should not be read "as dispensing with it." Morissette v. United States, 342 U.S. 246, 250 (1952).
  • Unless congressional intent indicates otherwise, there is a presumption in favor of a scienter requirement for each of the statutory elements that criminalize otherwise innocent conduct. United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994).
  • Courts have imposed strict liability in rare "public welfare" or "regulatory" offenses, even where the statute is silent about mens rea, but that exception is narrow. See Staples v. United States, 511 U.S. 600 (1994).
  • Ignorance or a mistake of law is not a defense. Cheek v. United States, 498 U.S. 192, 199 (1991).
  • However, defendants generally must know the facts that make the conduct fit the definition of the offense, even if they do not know that those facts give rise to a crime. Elonis v. United States, 135 S.Ct. 2001, 2009 (2015).
  • For crimes that are well defined in state and/or common law, silence by Congress may signal an intent to adopt the state or common law mental state. Morrisette, id. at 273.
  • The government does not have to prove any mental state regarding jurisdictional elements (e.g., interstate commerce). United States v. Feola, 420 U.S. 671, 677 n.9 (1975).

Food stamp fraud

This is the first of a number of articles illustrating how the use of pattern jury instructions tell you what you need to know about any commonly charged federal crime. We'll do it in the order that the crimes appear in the United States Code, which means we start with food stamp fraud.

Checking the pattern instructions tells us two things about the crime right away, first, that it gets charged (courts don't waste time drafting instructions for crimes that do not get charged), and second, that the statute is 18 U.S.C. § 2024. Before looking at the instructions further, one must quickly check to see if there have been amendments to the statute. In this case, there have been a number of amendments since 1996 (about as far as we need to go back). The most significant ones were in 2008. These were largely a matter of terminology; instructions that talk about "coupons," "authorization cards," and "access devices" instead of "benefits" and "supplemental nutrition assistance" are likely out of date. The statute no longer references criminal restitution, and criminal forfeiture provisions have been added.

With those changes in mind, we can look up § 2024 in the federal jury instruction index. Eleventh Circuit Instruction O95 is a good one with an elements list using current language.

All of the instructions note the Supreme Court's decision in Liparota v. United States, 471 U.S. 419, 433 (1985), which holds that the government need not show that the defendant knew of specific laws or regulations prohibiting the conduct; it is sufficient if the government shows by reference to facts and circumstances surrounding the case that the defendant knew that the conduct was unauthorized or illegal.

The instructions also alert you to an enhanced penalty where the value exceeds $5,000, and notes the Apprendi issue; the government will have to plead and prove that amount because it triggers a greater maximum sentence.


Telfaire instructions

For many years courts have suggested the use of special cautionary instructions about eyewitness testimony in cases where the identity of the perpetrator is at issue.

In United States v. Barber, 442 F.2d 517, 525 (3rd Cir. 1971), the court below gave a general instruction about evaluating the testimony of a witness, and added that:

The accuracy of an identification of a particular defendant by a witness in this case must be determined from all the circumstances relating to that identification. In this connection, if you believe from all the evidence and circumstances pertaining to a particular defendant that there is reasonable doubt as to the accuracy of the identification and of that defendant as a participant in the acts charged on the indictment, then you must find him not guilty. On the other hand, if you find beyond a reasonable doubt from all the evidence and circumstances that the identification of that particular defendant as a participant in the acts charged in the indictment is accurate, then you must find him guilty.

The Third Circuit affirmed the conviction on the facts of that case, but expressed dissatisfaction with "skeletal" pattern jury instructions in cases where identification is an issue, and approved (prospectively) an instruction that tells the jury to consider the opportunity to observe, how positive the identification was, and whether there was a prior failure to identify or by prior inconsistent identification. If there any issues remain, the testimony "must be received with caution and scrutinized with care." Id. at 528.

Shortly after that the D.C. Circuit upheld a robbery conviction, but, citing Barber, and to "further the administration of justice in the District of Columbia," adopted "model special instructions on identification." United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972). Jurors are told to consider whether the witness had the capacity and an adequate opportunity to observe the offender, considering such things as distance, lighting, and prior acquaintance. The identification should be the product of the witness' own recollection, and the circumstances of any presentation of the defendant for identification should be scrutinized "with great care." Jurors should consider any failures to identify, or inconsistent identifications, and the general credibility of the witness.

The Telfaire court considered, but decided not to, mandate instructing the jury that inter-racial identifications are less reliable than other identifications.

The Federal Judicial Conference subcommittee drafted a set of criminal pattern jury instructions in 1982 that were revised in 1987, but have not been revised since then. They are not cited much any more, but may be referenced for historical purposes. Instruction 35 used Telfaire language. The Commentary suggests its use in cases where a one-witness identification is not corroborated.

In State v. Henderson, 27 A.3d 872 (N.J. 2011), the New Jersey Supreme Court revised its standard for admissibility of eyewitness testimony based on a report of a Special Master who had held hearings on the empirical studies of eyewitness reliability. It later crafted nine pages of jury instructions that tell jurors what the studies say about eyewitness identifications.

Specifically, they are told that

  • "a witness's level of confidence, standing alone, may not be an indication of the reliability of the identification."
  • "Even under the best viewing conditions, high levels of stress can reduce an eyewitness's ability to recall and make an accurate identification."
  • "time estimates given by witnesses may not always be accurate because witnesses tend to think events lasted longer than they actually did."
  • "the presence of a visible weapon may reduce the reliability of a subsequent identification if the crime is of short duration."
  • "a witness's estimate of how far he or she was from the perpetrator may not always be accurate because people tend to have difficulty estimating distances."
  • "The perpetrator's use of a disguise can affect a witness's ability both to remember and identify the perpetrator."
  • "Research has shown that people may have greater difficulty in accurately identifying members of a different race."
The instructions also describes what are deemed to be proper police procedures for lineups and showups (e.g., the use of double blind administrators). "In determining the reliability of the identification, you should also consider whether the identification procedure was properly conducted."

The Supreme Court has encouraged the use of "Telfaire instructions" by citing Telfaire when it endorsed the use of jury instructions concerning the risks of eyewitness identification. Perry v. New Hampshire, 565 U.S. 228, 233, 246 (2012). It noted as well some factors not addressed in Telfaire—witness stress, presence of a weapon, and the race of the suspect and the witness—but did not specifically mandate instructions addressing those issues.

Later that year, the First Circuit, in United States v. Jones, 689 F.3d 12, 19-20 (1st Cir. 2012), opined "that information bearing on the effects of stress, witness confidence and cross-racial identification would be helpful to the jury ... if supported by the relevant studies," and that the trial judge is "fully entitled to conclude that this general information could be more reliably and efficiently conveyed by instructions rather than through dueling experts." If the government objects to one or more of the assertions in the instruction, it may "argue for, and provide supporting information, in favor of different language."

The First Circuit does not maintain official pattern jury instructions, but Instruction 2.22 of a set of unofficial instructions maintained and updated by Judge Torresen (D. Maine) tells jurors that they "may consider [risks of cross-racial identification] [risks of identification under stress] [at best, weak correlation between the witness's confidence and accuracy of the identification] [the influence of suggestive identification practices]."

As noted above, the Third Circuit started mandating Telfaire type instructions before Telfaire was decided. The current instruction goes beyond Telfaire, and identifies "whether the witness and the person committing the crime were of different races" as being a factor, but it does not affirmatively state anything specific, or mention studies concerning, that factor.

The Comment notes, however, that the "Third Circuit has appointed a Task Force on Eyewitness Identification. The Task Force has been directed to 'make recommendations regarding jury instructions, use of expert testimony, and other procedures and policies intended to promote reliable practices for eyewitness identification and to effectively deter unnecessarily suggestive identification procedures, which raise the risk of a wrongful conviction.'" The original termination date was June 9, 2017, but that deadline was extended without a further deadline, and at this writing there is no report.

The set of pattern instructions posted on the District of South Carolina are not official, but usefully discuss Fourth Circuit case law. A sample Telfaire instruction is provided, but the author concludes that it is not required in every case, and should be given "(1) there is a strong likelihood of misidentification, (2) there was uncertainty or qualification in the identification testimony, or (3) there were any special difficulties in the identification testimony."

Fifth Circuit Instruction 1.29 is of the Telfaire type. It does not mention cross-racial indentifications, and it does not recite social science conclusions. The Comment notes a case holding that it is not reversible error to refuse give the instruction.

Sixth Circuit Criminal Instruction 7.11 is "drawn directly from Telfaire, and does not mention cross-racial indentifications or social science conclusions. It "should be given when the identification has become an issue because of lack of corroboration, or limited opportunity for observation, or when the witness's memory has faded by the time of trial."

Seventh Circuit Criminal Instruction 3.12 is an abbreviated version of the Telfaire instruction. It "must be given when identification is at issue." Circuit practice is "to leave to argument the factors that may bear on the accuracy of an eyewitness identification." A judge "may consider whether it is appropriate in a given case to supplement this instruction by identifying a specific factor or factors for the jury's consideration." Also, a "court may, but is not required to, admit expert testimony regarding the reliability of eyewitness testimony."

Eighth Circuit Criminal Instruction 4.08 begins with Telfaire language, but also asserts that stress, weapons, and race are "[f]actors that bear on the likelihood of misidentification." The court noted that these additional considerations were mentioned in Perry. "While based upon Telfaire, this instruction also addresses the concerns the Supreme Court raised in Perry." The Comment further notes that in some circumstances the failure to give a cautionary instruction about eyewitness testimony would be reversible error.

Ninth Circuit Criminal Instruction 4.11 is of the Telfaire type. The Comment observes that the "need for heightened jury instructions should correlate with the amount of corroborative evidence." It also cited United States v. Hicks, 103 F.3d 837 (9th Cir. 1996), with approval. The trial court in Hicks properly exercised its discetion when it excluded the testimony of an expert regarding "weapons focus" and "cross-cultural identifications," giving instead a four-page Telfaire instruction.

Tenth Circuit Criminal Instruction 1.29 is a Telfaire instruction. The court suggests that some of it could be jettisoned without committing error. "The Committee believes that elaboration on the specific circumstances surrounding an identification is best left to argument at trial."

Eleventh Circuit Criminal Instruction S3 is a Telfaire instruction that also draws attention to "the way the Defendant was presented to the witness for identification."

In summary, then, most courts would likely give a Telfaire instruction—that is, a cautionary instruction that draws the jury's attention to certain common sense issues with eyewitness testimony—where the identification is seriously contested. Social scientists have suggested that other factors that jurors might not consider—stress, the presence of a weapon, cross-racial identifications, etc.—negatively affect the accuracy of identification testimony. There is authority suggesting that these issues could be communicated to the jury, and they might even be told of what the studies say, even without a foundation of expert testimony. Other courts may be unwilling to talk about such issues at all.


Reflections after the first week

The site has been up since early January, but that was beta testing, without any attempt to promote the site, and it was only getting a half dozen unique visitors each day. The site went off beta a week ago, and since then I have been writing emails to sites that I thought might be willing to give me a link or a review. I have not written a lot of these, and they have pretty much been written individually from scratch. I have received a lot of SPAM SEO PR emails since posting the site, and did not want recipients to associate mine with theirs (not that such an association would be entirely unfair; these are promotional emails).

Some of these emails have resulted in reviews or links, and now I am getting a couple hundred unique visitors a day. The number goes up and down, depending on whether there has been a recent article about my site elsewhere. I am mildly encouraged. I think that, for the next few weeks, I'll slow down on the emails and focus on content, and see where that takes things.


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