Conn. Crim. Jury Instr. 2.6-4

The state has the burden of proving beyond a reasonable doubt that the defendant was the

perpetrator of the crime.

[<Include if appropriate:> The defendant denies that (he/she) is the person who was involved in

the commission of the alleged offense(s).]

In this case, the state has presented evidence that an eyewitness identified the defendant in

connection with the crime charged. Identification is a question of fact for you to decide, taking

into consideration all the evidence that you have seen and heard in the course of the trial.

The identification of the defendant by a single witness as the one involved in the commission of

a crime is, in and of itself, sufficient to justify a conviction of such a person, provided, of course,

that you are satisfied beyond a reasonable doubt of the identity of the defendant as the one who

committed the crime. In arriving at a determination as to the matter of identification, you should

consider all the facts and circumstances that existed at the time of the observation of the

perpetrator by each witness. In this regard, the reliability of each witness is of paramount

importance, since identification testimony is an expression of belief or impression by the

witness. Its value depends upon the opportunity and ability of the witness to observe the

perpetrator at the time of the event and to make an accurate identification later. It is for you to

decide how much weight to place upon such testimony.

Capacity and opportunity of the witness to observe the perpetrator

In appraising the identification of the defendant as the perpetrator by any witness, you should

take into account whether the witness had adequate opportunity and ability to observe the

perpetrator on the date in question. This will be affected by such considerations as the length of

time available to make the observation; the distance between the witness and the perpetrator; the

lighting conditions at the time of the offense; whether the witness had known or seen the person

in the past; the history, if any, between them, including any degree of animosity; and whether

anything distracted the attention of the witness during the incident. You should also consider the

witness’s physical and emotional condition at the time of the incident, and the witness’s powers

of observation in general. High stress at the time of an observation may render a witness less

able to retain an accurate perception and memory of the observed events.

[<Include if appropriate:> In general, a witness bases any identification on (his/her) sense of

sight. But this is not necessarily so. An identification based on other senses, such as smell or the

sound of the perpetrator’s voice is just as valid.]

[<Include if appropriate:> The reliability of an identification can be diminished by a witness’s

focus on a weapon, particularly if the crime is of short duration. If the crime is not of short

duration, the witness may adapt to the presence of the weapon and focus on other details.]

Circumstances of identification

Furthermore, you should consider the length of time that elapsed between the occurrence of the

crime and the identification of the defendant by the witness. A witness’s memory diminishes

most rapidly in the hours immediately following the witnessed event and less dramatically in the

days and weeks thereafter. You also should consider any physical descriptions that the witness

may have given to police, and all the other factors which you find relating to the reliability or

lack of reliability of the identification of the defendant.

[<Include if appropriate:> For instance, cross-racial identifications are considerably less

accurate than identifications in which a witness and the perpetrator are of the same race. You

should consider whether <insert name of witness> and the defendant are of the same race.]

You may also consider the strength of the witness’s initial identification of the defendant,

including the degree of certainty expressed by the witness at the time of that identification.

Certainty, however, does not necessarily mean accuracy. You should also take into account the

circumstances under which the witness first viewed and identified the defendant and the

suggestibility, if any, of the procedure used in that viewing.

[<Include if appropriate:> If a witness identifies a suspect with high confidence from an initial

(lineup/photo array) conducted by the police using proper, non-suggestive procedures,

2 there is a

strong correlation between the witness’s confidence level and the accuracy of the identification.

That correlation is substantially weakened, however, if the (lineup/photo array) is not conducted

using proper, non-suggestive procedures. I remind you that identification is a question of fact for

you to decide.]

[<Include if appropriate:> If a witness identifies a suspect with low confidence, under any

conditions, there is a high probability of error.]

[<Include if appropriate:> The identification of the defendant by the witness, <insert name of

witness> (was/was not) made from a group of similar looking individuals. 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.]

[<Include if appropriate:>

3 The identification of the defendant by the witness, <insert name of

witness>, was the result of an identification procedure in which the individual conducting the

procedure either indicated to the witness that a suspect was present in the procedure or failed to

warn the witness that the perpetrator may or may not be in the procedure.

Indicating to a witness that a suspect is present in an identification procedure or failing to warn

the witness that the perpetrator may or may not be in the procedure may increase the likelihood

that the witness will select one of the individuals in the procedure even when the perpetrator is

not present. Thus, such action on the part of the procedure administrator may increase the

probability of a misidentification.]

[<Include if appropriate:> The identification of the defendant by the witness, <insert name of

witness>, was the result of an identification procedure conducted by an individual who knew that

the defendant was a suspect for the crime(s) that (is/are) the subject of this trial. An

identification may be less reliable when the individual conducting the identification procedure

knows that a suspect is present in the procedure, because that individual may convey that

knowledge to the witness, either intentionally or unintentionally.]

[<Include if appropriate:] An identification may be made using either sequential or

simultaneous procedures. In a sequential procedure, the witness looks at one

(individual/photograph) at a time; in a simultaneous procedure, the witness looks at all of the

(individuals/photographs) at the same time. Identifications made pursuant to simultaneous

identification procedures may be less reliable than those made pursuant to sequential

identification procedures. The identification of the defendant by the witness, <insert name of

witness>, was the result of an identification procedure in which the (individuals/photographs)

were presented to the witness (simultaneously/sequentially).]

[<Include if appropriate:> The accuracy of an initial identification may be affected by

information that the witness receives after the witnessed event but before the identification is

made. Similarly, a subsequent identification made by the witness in court may be affected by

information that (he/she) receives following (his/her) initial identification. Such information

may include identifications made by other witnesses, physical descriptions of the perpetrator

given by other witnesses, photographs or media accounts, or any other information that may

affect the independence or accuracy of a witness’s identification. Exposure to such information

may affect not only the accuracy of an identification, but also the witness’s certainty in the

identification and the witness’s memory about the quality of (his/her) opportunity to view the

perpetrator during the event in question. Additionally, the witness may not realize that (his/her)

memory has been affected by this information.]

[<Include if appropriate:> The accuracy of an identification may be undermined by unconscious

transference, which occurs when a person seen by the witness in one context is confused with a

person (he/she) saw in another context. In this case evidence was presented that <insert name of

witness> saw (the defendant/the defendant’s image) in a context other than the event in question

prior to identifying (him/her) as the perpetrator.]

The foregoing information is not intended to direct you to give more or less weight to the

eyewitness identification evidence offered by the state. It is your duty to determine what weight

to give to that evidence. You may, however, take into account this information, as just explained

to you, in making that determination.

Consistency of identification

You may consider whether the witness at any time either failed to identify the defendant or made

an identification that was inconsistent with the identification testified to at trial.

Credibility of witness

You will subject the testimony of any identification witness to the same standards of credibility

that apply to all the witnesses. When assessing the credibility of the testimony as it relates to the

issue of identification, keep in mind that it is not sufficient that the witness be free from doubt as

to the correctness of the identification of the defendant; rather, you must be satisfied beyond a

reasonable doubt of the accuracy of the identification of the defendant before you may find

(him/her) guilty on any charge.

[<If there has been expert testimony of eyewitness identification:> You heard the testimony of

<insert name of witness> on the (psychological / sociological / statistical) research on eyewitness

identification. You should evaluate that testimony as I have instructed you on expert

testimony.]5

Conclusion

In short, you must consider the totality of the circumstances affecting the identification.

Remember, the state has the burden to not only prove every element of the crime but also the

identity of the defendant as the perpetrator of the crime. You must be satisfied beyond a

reasonable doubt of the identity of the defendant as the one who committed the crime, or you

must find the defendant not guilty. If you have a reasonable doubt as to the accuracy of the

identification, you must find the defendant not guilty.

1 In United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972), the court proposed a model

instruction which has been followed substantially by many jurisdictions. While Connecticut

courts “have used the model Telfaire instruction as an aid in determining the adequacy of an

instruction on eyewitness identification . . . [the Connecticut Supreme Court has] never required

that it be given verbatim in order to ensure that the jury is properly guided.” (Citations omitted;

internal quotation marks omitted.) State v. Tatum, 219 Conn. 721, 733-34 (1991), overruled on

other grounds, State v. Dickson, 322 Conn. 410 (2016), cert. denied, 137 S. Ct. 2263 (2017). The

Telfaire instruction has four components: 1) the capacity and opportunity of the witness to

observe the offender; 2) the circumstances surrounding the subsequent identification; 3) whether

the witness at any time either failed to identify the defendant or made an identification

inconsistent with that made at trial; and 4) the credibility of the witness making the

identification. This instruction complies with the substantive requirements of Telfaire in all

respects, with several additional components based on more recent Connecticut decisions, but

should be modified according to the specific facts of the case and the particular claims of the

defendant regarding the identification(s).

2 See General Statutes § 54-1p (requiring, inter alia, that police lineups be conducted using

double-blind procedures using only one suspect and four [for a live lineup] or five [for a photo

array] innocent fillers that fit the suspect’s description, that the witness be cautioned that the

perpetrator may or may not be present in the lineup/photo array, and that a written record of the

procedure, including the witness’s own words regarding the certainty of his/her selection, be

made); see also J.T. Wixted and G.L. Wells, The Relationship between Eyewitness Confidence

and Identification Accuracy: A New Synthesis, 18 (1) Psychological Science in the Public

Interest 10 (2017) (discussing research showing that, when the foregoing practices are utilized,

high witness confidence correlates strongly with an accurate identification).

3 State v. Ledbetter, 275 Conn. 534 (2005), cert. denied, 547 U.S. 1082 (2006), overruled on

other grounds, State v. Harris, 330 Conn. 91, 130-31 (2018) requires specific instructions on

identification procedures under certain circumstances. See discussion of Ledbetter below.

4 Note that more recent studies considering sequential versus simultaneous procedures have

produced conflicting information. See State v. Dickson, supra, 322 Conn. 463 n.4 (Zarella, J.,

concurring).

5 See State v. Guilbert, 306 Conn. 218 (2012), for a thorough discussion of allowing expert

testimony on eyewitness identification. If expert testimony conflicts with any portion of this

instruction, the court should consider the propriety of including that portion.