Alaska Criminal Pattern Jury Instruction 1.24

Identity is a contested issue in this case. The state must prove, beyond a reasonable doubt, that the defendant is the person who committed each/the offense.

Eyewitness identifications should be examined with care. As with any witness, you must first determine the witness’s credibility – that is, do you believe the witness is being honest? In making this determination, you should consider the factors listed in Instruction No. 1.10 (witness credibility).

Even if you are convinced the witness honestly believes his or her identification of the defendant is accurate, you still must consider the possibility that the witness made a mistake in the identification. A witness may honestly believe he or she saw a particular person but perceive or remember the event incorrectly. You must decide whether the witness’s identification is not only truthful but accurate.

Scientific research has shown that human memory is not foolproof and that there are risks of making mistaken identifications. Memory does not function like a video recording where events are stored in a linear fashion; it is far more complex. The process of remembering consists of three stages: (1) the perception of the event; (2) the time that passes between the perception of the event and the recollection of the event; and (3) the moment when the witness recalls the event. At each of these stages, memory can be affected by a variety of factors. The witness may be unaware of these effects.

To evaluate the accuracy of an identification, you should consider the observations and perceptions on which the identification was based, the witness’s ability to make those observations and perceive events, and the circumstances under which the identification was made. Although nothing may appear more convincing than a witness’s certainty in identifying a suspect, you must critically analyze such testimony. Such identifications, even if made in good faith, may be mistaken. Be advised that a witness’s level of confidence, standing alone, may not be an indication of the accuracy of an identification.

In deciding what weight, if any, to give to the identification testimony, you should consider the following factors related to the witness, the suspect, and the event itself. Some factors may tend to support the reliability of the identification, while others may tend to weaken it. Whether and to what extent a factor actually affected an identification is for you to decide based on all of the evidence.

[stress

While moderate levels of stress may improve the accuracy of perception, high levels of stress may lead to inaccuracy of both the witness’s identification of the suspect and the witness’s memory of other details of the event. You should, however, consider a witness’s level of stress and whether that stress, if any, distracted the witness or made it harder for him or her to identify the suspect.]

[weapons/unexpected detail

The presence of [a weapon] [an unexpected detail] may take the witness’s attention away from other features of the event and the suspect. This may make the identification less reliable if the event is of a short duration. But over time, the effect of the [weapon][unexpected detail] may diminish, because the witness may become used to its presence.]

[duration

While there is no minimum amount of time necessary for a witness’s observation of a person to result in a reliable identification, longer viewings are more likely to lead to a reliable identification. You should consider that witnesses tend to overestimate the amount of time they had to view an incident, especially if conditions were stressful.]

[environmental conditions

Environmental conditions under which a witness views a suspect have an effect on the reliability of the identification. For example, weather conditions can affect a witness’s perception. A witness’s identification may be less reliable when the suspect is seen under poor lighting conditions or from far away. You should consider that people tend to have difficulty estimating distances.]

[witness characteristics

The witness’s personal characteristics may affect the reliability of an identification. Factors that are relevant include physical and mental condition, eyesight, drug or alcohol impairment, age, and relative ages of the witness and the suspect.]

[disguises/changed appearance

The suspect’s appearance may also affect the reliability of an eyewitness identification. Witnesses tend to more accurately identify individuals who have distinctive facial features than those without. Disguises and masks can also reduce the accuracy of identifications. Sunglasses, hats, hoods, and other things that hide the face, hair, and hairline may affect a witness’s ability to accurately identify a suspect. And changes in a suspect’s appearance between the time of the criminal incident and the time of the identification may also affect the accuracy of an identification.]

[cross-racial effects

If the witness and the person identified appear to be of different races [or ethnicities], you should consider that people may have greater difficulty in accurately identifying someone of a different race [or ethnicity] than someone of their own race [or ethnicity].]

[time elapsed

Memories tend to fade with time. While there is no precise time after which a witness’s identification will become unreliable, the more time that passes between the observation and the identification, the less reliable it may become. The speed at which a memory fades increases as time goes by.]

[third-party information

Exposure to the actions of another person or information from other sources, such as opinions, descriptions, or identifications given by other witnesses, or photographs or media accounts, may affect the reliability of an identification.]

[line-up/show-up

[Name of witness] participated in a [show-up] [photographic] [line-up]. In evaluating the reliability of [name of witness]’s identification, you should consider the manner in which this procedure was conducted, including anything said before, during, or after the identification procedure.]

[pre-identification instructions

You should consider what instructions were or were not given to the witness prior to identification procedures. Prior to an identification procedure, the witness should be instructed that the suspect may or may not be present and that the witness should not feel compelled to make an identification. The failure to give this information may increase the risk of misidentification.]

[blind administration

During a line-up, a line-up administrator who knows which person in the line-up is the suspect might intentionally or unintentionally convey that information to the witness. This can happen even with small changes in the administrator’s body posture or expression and even when the witness and administrator are unaware it is happening. This may increase the chance that the witness will select the suspect, even if the suspect is not the perpetrator. The recommended practice therefore is to not reveal to the line-up administrator the suspect’s identity or to take steps to make sure the administrator does not know which person the witness is viewing.]

[line-up composition

A suspect should not stand out from other members of the line-up. A line-up that suggests a result to a witness may cause the witness to choose the suspect because he or she is the obvious choice, not because he or she matches the witness’s independent memory. A line-up that suggests a result to a witness may also artificially inflate the witness’s confidence in the identification.

Besides the suspect, line-ups also include a number of possible choices, commonly known as “fillers,” for the witness to consider. A line-up should include a minimum of six photos. When a line-up consists of fewer than six photos, including a photo of the suspect, the chance that the suspect will be selected increases – whether or not the suspect is the perpetrator. For the same reason, each line-up should contain no more than one suspect to reduce the possibility that a witness will select a suspect by guessing.]

[feedback or cues

The intentional or unintentional cues of an administrator or a police officer might influence an eyewitness’s identification before or after a witness has identified a suspect. Confirmatory feedback occurs when these cues suggest to the eyewitness that the witness correctly identified the suspect. If such feedback occurs, the witness may have a false sense of confidence in the identification. Confirmatory feedback may also cause a witness to enhance his or her recollection of the quality of the view of the event, memory at the time of the line-up, or memory in general.]

[show-up

In this case, the witness identified the defendant during a “show-up.” A “show-up” is an identification procedure where the witness is presented with a single suspect and asked if that person committed the crime. It is sometimes necessary for law enforcement to conduct a show-up, even though such a procedure is suggestive.

Show-ups are more reliable when they are conducted immediately after a crime when the witness’s memory is fresh. Although the benefits of a fresh memory may balance the risks of undue suggestion, you should consider that show-ups conducted more than two hours after an event present a heightened risk of an inaccurate identification.

Another factor to consider is how the show-up was conducted, including how the suspect was presented to the witness.]

[witness certainty statement

A witness’s level of certainty in an identification is a factor you may consider in assessing the reliability of the identification. However, the witness’s level of certainty, by itself, may not be a reliable indicator of the accuracy of the identification, especially where the witness did not describe that level of certainty when the witness first made the identification.

You should consider whether a witness’s level of certainty in his or her identification was documented in the witness’s own words at the time he or she made an identification. You may consider a witness’s identification even where the witness is not free from doubt regarding its accuracy.]

[prior exposure/multiple procedures

When a witness views the same person in more than one identification procedure, it can be difficult to know whether a later identification comes from the witness’s memory of the earlier identification procedure or the original event. As a result, if a witness views an innocent suspect in multiple identification procedures, the risk of mistaken identification is increased.]