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Third Circuit's revised criminal Chapter 4 addresses eyewitness testimony

The Third Circuit has continued its weekly rollout of revised criminal instructions. This week we have the February 2021 version of Chapter 4 ("Final Instructions: Consideration of Particular Kinds of Evidence").

The most noteworthy change is to Instruction 4.15 (Eyewitness Identification of the Defendant). The Comment to the former instruction had indicated its approval of a critical approach to eyewitness instructions taken by Pennsylvania courts as set out in this paragraph:

In any case raising the question whether the defendant was in fact the criminal actor, the jury will be instructed to resolve any conflict or uncertainty on the issue of identification. The jury will be instructed that identification may be made through the perception of any of the witness’ senses, and that it is not essential that the witness himself be free from doubt as to the correctness of his opinion. The identification testimony may be treated by the jury as a statement of fact by the witness: (1) if the witness had the opportunity to observe the accused; (2) if the witness is positive in his identification; (3) if the witness’ identification testimony is not weakened by prior failure to identify or by prior inconsistent identification; and (4) if, after cross-examination, his testimony remains positive and unqualified. In the absence of any one of these four conditions, however, the jury will be admonished by the court that the witness’ testimony as to identity must be received with caution and scrutinized with care. The burden of proof on the prosecution extends to every element of the crime charged, including the burden of proving beyond a reasonable doubt the identity of the defendant as the perpetrator of the crime for which he stands charged.

That paragraph has been deleted in the 2021 Instruction. The Comment explains:

Instruction 4.15 has never been amended. Neither the Supreme Court nor the Third Circuit has issued further guidance requiring amendment of the instruction. However, in 2016, the Third Circuit appointed a Task Force on Eyewitness Identification. The Task Force was 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.” In 2019, the Task Force issued a comprehensive Report on eyewitness identification. This Report includes sections on system and estimator variables, suggestions on modifications/additions regarding Instruction 4.15, and a best practices section. The Report does not have precedential authority (see “Disclaimer,” page 7 of the Report). However, it is a useful treatise on the myriad of issues that may arise during a trial that involves an eyewitness identification. The Report is available at and in the Temple Law Review, 92 TEMP. L. REV. 1 (2019). In the report, certain Task Force members recommended amendments to Instruction 4.15.

The Third Circuit Committee on Model Criminal Jury Instructions considered the information and recommendations in the Task Force report. The Committee declined to adopt most of these recommendations, concluding that the issues should be raised by counsel as they arise at trial. The Committee nevertheless adopted one recommendation, deleting the following language that directed the jury’s attention to witness certainty:

you should ask whether the witness is positive in the identification and whether the witness’ testimony remained positive and unqualified after cross-examination.

The Task Force reported that social science empirical evidence establishes that, at most, there is a weak relationship between the witness’s affirmative confidence in the identification and the accuracy of the identification. In addition, pattern instructions in other circuits do not mention witness certainty. Consequently, the members of the Task Force agreed that this language should be removed.

Accordingly, a paragraph in Instruction 4.15 has been modified as follows:

(Second), you should ask whether the witness is positive in the Even if the witness’s identification and whether the witness’ testimony remained is positive and unqualified after cross-examination. If the witness’ identification testimony is positive and unqualified, you should ask whether the witness’s certainty is well-founded.

Other less consequential changes:

  • The Comment to Instruction 4.09 (Opinion Evidence (Lay Witnesses) (F.R.E. 701)) now cites United States v. Brown, 754 F.App’x. 86 (3d Cir. 2019) (non-precedential) (discussing requirements and concluding that police officer’s lay opinion was properly admitted).

  • The Comment to Instruction 4.12 (Chain of Custody) notes that the burden is not heavy, citing United States v. Talley, 826 F. App’x. 158 (3d Cir. 2020) (non-precedential), and United States v. Rawlins, 606 F.3d 73, 82 (3d Cir. 2010).

  • The Comment to Instruction 4.24 (Impeachment of Witness - Prior Bad Acts (F.R.E. 608(b))) now cites United States v. Trant, 924 F.3d 83, 91 (3d Cir. 2019), where the Third Circuit held that the trial court properly precluded the defendant’s cross-examination of a prosecution witness concerning his illegal possession of a firearm because it did not bear on the witness’s character for truthfulness or untruthfulness.

The prior versions of these instructions are archived here.

(03/06/21) (permalink)