3d Cir. Model Jury Instr. (Criminal) 4.15

One of the (most important) issues in this case is whether (name of

defendant) is the same person who committed the crime(s) charged in (Count(s)

___ of) the indictment. The government, as I have explained, has the burden

of proving every element, including identity, beyond a reasonable doubt.

Although it is not essential that a witness testifying about the identification

(himself)(herself) be free from doubt as to the accuracy or correctness of the

identification, you must be satisfied beyond a reasonable doubt based on all

the evidence in the case that (name of defendant) is the person who committed

the crime(s) charged. If you are not convinced beyond a reasonable doubt that

(name of defendant) is the person who committed the crime(s) charged in

(Count(s) ___ of) the indictment, you must find (name of defendant) not guilty.

Identification testimony is, in essence, the expression of an opinion or

belief by the witness. The value of the identification depends on the witness’s

opportunity to observe the person who committed the crime at the time of the

offense and the witness’s ability to make a reliable identification at a later

time based on those observations.

You must decide whether you believe the witness’s testimony and

whether you find beyond a reasonable doubt that the identification is correct.

You should evaluate the testimony of a witness who makes an identification in

the same manner as you would any other witness. In addition, as you evaluate

a witness’s identification testimony you should consider the following

questions as well as any other questions you believe are important (include

only those called for by the facts of the case):

(First), you should ask whether the witness was able to observe and had

an adequate opportunity to observe the person who committed the crime

charged. Many factors affect whether a witness has an adequate opportunity

to observe the person committing the crime; the factors include the length of

time during which the witness observed the person, the distance between the

witness and the person, the lighting conditions, how closely the witness was

paying attention to the person, whether the witness was under stress while

observing the person who committed the crime, whether the witness knew the

person from some prior experience, whether the witness and the person

committing the crime were of different races, and any other factors you

regard as important.

(Second), Even if the witness’s identification testimony is positive and

unqualified, you should ask whether the witness’s certainty is well-founded.

[(Third), you should ask whether the witness’s identification of (name of

defendant) after the crime was committed was the product of the witness’s own

recollection. You may take into account both the strength of the later identification

and the circumstances under which that identification was made. You may wish to

consider how much time passed between the crime and the witness’s later

identification of the defendant. You may also consider (whether the witness gave a

description of the person who committed the crime) (how the witness’s description

of the person who committed the crime compares to the defendant). (You may also

consider whether the witness was able to identify other participants in the crime.)

If the identification was made under circumstances that may have influenced the

witness, you should examine that identification with great care. Some

circumstances which may influence a witness’s identification are whether the

witness was presented with more than one person or just (name of defendant);

whether the witness made the identification while exposed to the suggestive

influences of others; and whether the witness identified (name of defendant) in

conditions that created the impression that (he)(she) was involved in the crime.]

[(Fourth), you should ask whether the witness failed to identify (name of

defendant) at any time, identified someone other than (name of defendant) as the

person who committed the crime, or changed his or her mind about the

identification at any time.]

[The court should also give the following admonition if the witness’s

opportunity to observe was impaired or if the witness’s identification is not

positive, was shaken on cross-examination, or was weakened by a prior failure to

identify the defendant or by a prior inconsistent identification:

You should receive the identification testimony with caution and scrutinize it

with care.]

If after examining all of the evidence, you have a reasonable doubt as to

whether (name of defendant) is the individual who committed the crime(s)

charged, you must find (name of defendant) not guilty.