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    Mistaken Eyewitness Identification and California Law

    Former D.A.: Why misidentification leads to wrongful convictions

    Mistaken identifications are the leading cause of wrongful convictions in the United States. Over 75% of cases so far overturned through DNA testing involved some form of eyewitness error.1

    Our California Criminal Defense Lawyers are here to help ensure that you or your loved done is not wrongly convicted and falsely accused based on misidentification.

    We bring decades of experience to the effort – accumulated from over a collective century of working in all aspects of the criminal justice system. We used to be cops and prosecutors, but now we have switched sides to defend the accused.2

    In this article, we provide an introduction to the problem of being wrongly accused of mistaken identity in California criminal cases. We cover:

    If you have further questions after reading this article, we invite you to contact us at Shouse Law Group for a consultation.

    1. What is mistaken eyewitness identification?

    Mistaken eyewitness identification is when a crime victim or eyewitness mistakenly identifies someone as the perpetrator of a crime even though that person did not commit the crime. The witness identifies the wrong person.

    It is a common problem that persists despite years of social science and psychological research into its causes and corresponding efforts to implement criminal justice reforms to guard against it.

    “The vagaries of eyewitness identification are well known,” Justice Brennan wrote in an important United States Supreme Court case affirming a defendant’s right to counsel during pretrial lineups, “the annals of criminal law are rife with instances of mistaken identification.”3

    Improper “suggestive” police tactics are sometimes to blame for misidentification. Other times it is just an honest mistake. That is what happened in the case of Ronald Cotton, who spent eleven years in prison for a rape he did not commit. The victim misidentified Cotton as her rapist from a lineup.

    Kirk Bloodsworth spent two years on death row for a rape and murder he did not commit, largely on the basis of mistaken eyewitness testimony. Like Cotton, Bloodsworth was later exonerated by DNA evidence.

    Misidentification can happen during:

        • lineups (witness is shown a group of individuals, like on television)
        • photo arrays (witness is shown a group of photos, sometimes called a “six-pack”)
        • showups (witness is shown a single person, often near the crime scene)
        • voice lineups (witness listens to different voices)
        • in-court identifications (witness is asked to identify the perpetrator in court)4

    Ripple effect

    The problem of mistaken identification is made worse because it ripples. If a witness makes an incorrect identification at an early stage in the process, such as a lineup, that witness can “latch onto” this new memory and thus continue mistakenly to identify the same person down the road, during trial.

    2. What leads to mistaken misidentification?

    Mistaken identification is caused by two groups of factors referred to as estimator variables and system variables. Estimator variables are factors outside the control of police investigators. System variables are factors that cops can control during the investigation.

    Even the best police protocols cannot change whether a witness viewed a perpetrator under optimal lighting conditions. But sound investigative techniques can minimize the chance that an eyewitness has been “deliberately or accidentally subjected to investigation procedures that compromise the quality of eyewitness identification.”5

    Mistaken identity expert Elizabeth Loftus captures the essence of the problem in her book Eyewitness Testimony: “When someone is accused of a crime he did not commit, two people are trapped on the dark side of justice, while the real perpetrator remains free.”

    It is in everyone’s interest that we do all we can to avoid erroneous identifications.

    2.1. Estimator variables?

    Let us start with estimator variables – factors that relate to the circumstances under which “witnessing” takes place.

    Most people readily understand that someone’s ability to perceive and identify another person is impacted by things like lighting conditions and preexisting familiarity. But other factors come into play, too.6

    Impact of race, weapons, stress and other factors

    Research shows that people have more difficulty identifying a person of another race.7 Further, because of “weapons-focus phenomenon,” when a weapon is used, people tend to focus on the weapon instead of the perpetrator’s face.8

    And when it comes to stress, “studies have shown that a person’s ability to recall details of an event is likely to be worse if a witness has observed a violent event as opposed to a nonviolent one.”9

    Here are questions to consider in evaluating estimator variables:

    • Did the witness know or have contact with the defendant before the event?
    • How well could the witness see the perpetrator? Was it dark when the crime occurred? Were the streetlights knocked out that weekend? Were any lights on in the house? Did the perpetrator wear a mask or disguise?
    • How far away was the witness from the perpetrator? Was the witness’s view obstructed by buildings, other people or parked cars?
    • Was the witness drunk at the time or high on drugs? Does the witness have a vision problem?
    • Did the witness have time to fully see the perpetrator’s face or was everything over in a matter of moments? Was the witness frightened and stressed out? Was she fixated on the perpetrator’s weapon?
    • How much time passed between the event and the identification? In the intervening period, did the witness have occasion to “compare notes” with others or read media reports that may have influenced his or her independent memory?
    • Are the witness and perpetrator of different races?

    2.2. System variables

    System variables include overt or subtle suggestive techniques cops use to influence a witness to pick a particular suspect. In other words, cops often do things to make a particular suspect stand out from others. When this happens, it greatly increases the danger of misidentification.

    A California law was recently passed to help make lineups more reliable. Police are now mandated to take the following measures when performing a live lineup or a photo lineup:

    1. The eyewitness is required to give a description of the suspect before having the lineup, and the lineup should happen as quickly as possible after the incident.
    2. The officer doing the lineup should not know who the suspect is in the lineup (a.k.a. “double-blind lineups”).
    3. Only one suspect may be included in any one lineup.
    4. All eyewitnesses must be separated during a lineup.
    5. The officer may not say anything to an eyewitness that could influence his/her identification of the suspect.
    6. A lineup must have fillers who match the eyewitness’ description of the suspect.
    7. In photo lineups, the officer should hide from the eyewitness any writings or information concerning any prior arrest of the suspect.
    8. If possible, the officer should make a electronic recording that includes audio and visual representations of the lineups.
    9. The officer shall give the eyewitness the following instructions before the lineup:
      1. The suspect might or might not be among the people in the lineup;
      2. The eyewitness should not feel pressured to make an identification; and
      3. An identification or failure to make an identification will not stop the investigation.
    10. If the eyewitness identifies a person he/she believes to be the suspect, all of the following shall apply:
      1. The investigator will immediately ask about the eyewitness’ confidence level in the accuracy of the identification and record in writing, word for word, what the eyewitness says;
      2. Information concerning the identified person will not be given to the eyewitness before obtaining the eyewitness’ statement of confidence level and documenting the precise words of the eyewitness;
      3. The officer will not validate or invalidate the eyewitness’ identification.10

    3. Do California laws protect against mistaken identification?

    Eyewitness identification is covered by various constitutional and evidentiary provisions. But as we will see, protection in theory does not necessarily translate into protection in practice.

    Judges maintain discretion in important areas and they do not always exercise that discretion in favor of defendants.

    3.1. Due process clause

    The federal constitution’s Due Process Clause and Article I, Section 15 of the California Constitution provide protection against mistaken eyewitness identification. Courts have held that identifications that are both unnecessarily suggestive and unreliable violate due process.11

    The analysis consists of a two-part test that looks at system and estimator variables.

    First, the court determines whether the identification was unduly suggestive. If the court decides that the identification was not unduly suggestive, then the analysis ends from a constitutional standpoint.12

    Second, if the court decides that the identification was unduly suggestive, then the court looks at the totality of the circumstances to see whether the identification was nonetheless reliable.13 The court considers:

        • the opportunity of the witness to view the criminal at the time of the crime
        • the witness’s degree of attention
        • the accuracy of the witness’s prior description of the criminal
        • the level of certainty demonstrated by the witness at the confrontation14
        • the length of time between the crime and the confrontation

    The “blind eye” problem

    It is great that defendants have due process protections when it comes to eyewitness identification, but legal protections are only effective to the extent they get enforced. It appears that police departments continue to engage in suggestive practices and courts are not always stepping up to hold them accountable.

    In her 2009 law review article, Judicial Blindness to Eyewitness Misidentification, Professor Sandra Guerra Thompson reviewed nearly 100 appellate cases (including from California) that challenged witness identifications on suggestibility grounds. She concluded that:

    Just as in the days before the reforms were proposed, the study shows that dubious eyewitness identification evidence continues to be admitted, and appellate courts continue to turn a blind eye to defense challenges based on suggestiveness and unreliability of such evidence. If one reads only the recent case law challenging suggestive identification procedures, one might get the impression that the innocence reform movement – and the exoneration of hundreds of innocent persons – never happened.15

    3.2. Sixth Amendment

    In addition to due process rights, defendants have a Sixth Amendment constitutional right to have their criminal defense attorney present at pretrial lineups.16

    A criminal defense lawyer can be a significant asset during a pretrial lineup. Not only can the lawyer explain what is going on, but the attorney can also spot troublesome system variables that can lead to mistaken identification and miscarriages of justice.17

    Just having a lawyer in the room (especially a former cop who knows all the tricks) can deter officers from engaging in improper suggestive tactics.

    When it comes to state criminal proceedings, the right to counsel applies to pre-indictment lineups.18 Under federal law, it extends only to post-indictment lineups.19

    3.3. Evans lineups

    This is where the defense asks the judge to order that a new lineup is conducted.

    Interestingly, sometimes it is beneficial for a defendant to participate in a California pretrial lineup. If the witness cannot identify the defendant, that could be the end of the prosecution’s case.

    Let us look at an example.

    Example: A man robs a drive-in restaurant at gunpoint. Cops catch the alleged felon, Vernel Evans, near the crime scene and ask a witness to identify him in a field showup.

    But during the showup, suspect Evans is sitting in the back of a police car and the witness can only see his head and shoulders from behind. On this basis, the witness tells the cops that Evans has the same build as the defendant.

    Evans argues, and the court agrees, that the police should hold a lineup prior to trial to see whether or not the witness can actually identify Evans. The defense figures that, otherwise, even if the witness has doubts, he will likely finger Evans at trial ‘because he is the accused, is black, would appear in jail denims and would be positioned at the side of defense counsel.’20

    In order to get an Evans lineup: (1) the request must be made in a timely manner; (2) witness identification must be a material issue in the case; and (3) there must exist a reasonable likelihood of mistaken identification that a lineup would tend to resolve.21

    Evans lineups are not always a good idea. But it is something to talk over with your California criminal defense attorney.22

    3.4. Expert witnesses

    In many California criminal trials, the prosecution’s case is based on questionable eyewitness identification. At such trials, it is common for the defense to call an expert witness to explain the prevalence of and reasons for witness misidentification.

    Jurors know a great deal and have common sense. But they might not be up-to-speed on the latest’s social science and psychological research regarding human perception and memory.

    A 2006 study found that potential jurors continue to misunderstand how certain variables impact the reliability of witness identification. With respect to weapons-focus, for example, only “three out of ten potential jurors correctly understood that the presence of a weapon tends to make an eyewitness’ memory for details less reliable.”23

    When it came to a witness’ confidence, the “results also make clear that jurors have no meaningful idea of how to evaluate witness statements of confidence and are likely to substantially overestimate the reliability of a confident witness.”24

    In appropriate cases, it can thus be very helpful to have an expert testify about witness misidentification issues. The expert is not generally permitted to testify about the reliability of particular witnesses. Rather, the witness is there to give jurors information they need to make more legitimate reliability determinations and thus do their jobs better.

    McDonald test for expert testimony

    Expert witness testimony is not allowed in every case – it is up to the judge’s discretion.

    But the California Supreme Court made clear in People v. McDonald that such testimony generally should be admitted where eyewitness testimony is a key part of the prosecution’s case but is not “substantially corroborated by evidence giving it independent reliability.”25

    4. What can I do to help my case?

    Mistaken identification continues to be a significant problem leading to wrongful convictions in California criminal cases. People still have imperfect memories and cops and courts exacerbate the problem by failing to keep up with the research.

    As a result, defendants are subjected to unduly suggestive, unreliable procedures and innocent people are sometimes sent to prison for crimes they did not commit.

    That said, do not give up hope if you have a case involving mistaken identity. All is not lost.

    One thing you can do is hire a knowledgeable attorney, skilled in trial work, as early in the process as possible. Because of the way mistaken identity can ripple through a case from beginning to end, a lawyer can do the most good if he or she is able to begin troubleshooting early on.

    Our California Criminal Defense Lawyers know the most persuasive arguments to make to ensure that you get the full benefit of your rights. We might be able to get the charges dismissed altogether or at least get the unfair identification excluded from trial.

    As seasoned trial lawyers, we also have an edge when it comes to conducting the kind of penetrating voir dire and vigorous cross-examination that can make the difference in a case involving unreliable eyewitness testimony.

    The system has cracks. But until those cracks get repaired (hopefully), we will continue to use all the tools available – including legal argument and courtroom savvy – to prevent our clients from falling through them.

    Our California Criminal Defense Lawyers Can Help.

    If you or a loved one is in need of help with mistaken identification as a legal defense and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in the office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

    You might also be interested in reading our related articles Police Misconduct and Civil Rights Violations, Medical Neglect in California Jails, K-9 Police Dogs and Excessive Force, Police Pretrial Lineups, Coerced Confessions and Section 1983 Actions for Civil Rights Violations.

    Additionally, we have a wide array of articles available on criminal law topics like Arson, Carjacking, Evading a Police Officer, Firearm Offenses, California Drug Crimes, Probation Violation Hearings, and Three-Strikes

    Helpful links:

    The Innocence Project

    Centurion Ministries

    Northwestern Law Center on Wrongful Convictions

    Legal References:

    1. See Innocence Project, “Understand the Causes.”  See also Richard S. Schmechel, Timothy P. O’Toole, Catherine Easterly and Elizabeth F. Loftus, Beyond the Ken?  Testing Jurors’ Understanding of Eyewitness Reliability Evidence, 46 Jurimetrics, Winter 2006, p. 184 (“Such resistance is all the more surprising because long before DNA exoneration could prove what is now known – that mistaken eyewitness identifications are the leading cause of wrongful convictions – courts recognized that eyewitness evidence is not as reliable as many jurors think it is.”)
    2. Our California Criminal Defense Lawyers have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
    3. United States v. Wade, 388 U.S. 218, 228 (1967) [defendant entitled to counsel at post-indictment lineup as a “critical stage” of judicial process] (“The vagaries of eyewitness identification are well known; the annals of criminal law are rife with instances of mistaken identification.  Mr. Justice Frankfurter once said:  ‘What is the worth of identification testimony even when uncontradicted?  The identification of strangers is proverbially untrustworthy.  The hazards of such testimony are established by a formidable number of instances in the records of English and American trials.  These instances are recent — not due to the brutalities of ancient criminal procedure.’  The Case of Sacco and Vanzetti 30 (1927).”)
    4. Composite sketches are another identification tool that can be problematic.  For a discussion of the lack of reliability of composite sketches and the need to extend to sketches the protections granted to other forms of identification, see Jessica M. McNamara, Sketchy Eyewitness-Identification Procedures:  A Proposal to Draw Up Legal Guidelines for the Use of Facial Composites in Criminal Investigations, Wisconsin Law Review (2009), p. 768 (“A growing body of social-science research now shows numerous problems with the effectiveness and reliability of facial composites.  Questions about the reliability of identifications stemming from a facial composite are particularly relevant, given the significant number of wrongful convictions resulting from mistaken eyewitness identifications that began with a facial composite.”)
    5. Brian L. Cutler and Steven D. Penrod, Mistaken Identification (Cambridge University Press 1995), p. 6.  See also Gary L. Wells, Amina Memon and Steven D. Penrod, Eyewitness Evidence, Phsychological Science in the Public Interest, Volume 7, No. 2 (2006), p. 45 (“A subset of the variables that affect eyewitness accuracy fall into what researchers call system variables, which are variables that the criminal justice system has control over, such as how eyewitnesses are instructed before they view a lineup and methods of interviewing eyewitnesses.  We review a number of system variables and describe how psychological scientists have translated them into procedures that can improve the probative value of eyewitness accounts.  We also review estimator variables, variables that affect eyewitness accuracy but over which the system has no control, such as cross-race versus within-race identifications.”)
    6. See generally California Jury Instructions on Witness Identification, CALCRIM 315 (“You have heard eyewitness testimony identifying the defendant.  As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony.  In evaluating identification testimony, consider the following questions: • Did the witness know or have contact with the defendant before the event? • How well could the witness see the perpetrator? • What were the circumstances affecting the witness’s ability to observe, such as lighting, weather conditions, obstructions, distance, [and] duration of observation[, and <insert any other relevant circumstances>]? • How closely was the witness paying attention? • Was the witness under stress when he or she made the observation? • Did the witness give a description and how does that description compare to the defendant? • How much time passed between the event and the time when the witness identified the defendant? • Was the witness asked to pick the perpetrator out of a group? • Did the witness ever fail to identify the defendant? • Did the witness ever change his or her mind about the identification? • How certain was the witness when he or she made an identification? • Are the witness and the defendant of different races? • [Was the witness able to identify other participants in the crime?] • [Was the witness able to identify the defendant in a photographic or physical lineup?] • [ <insert other relevant factors raised by the evidence>.] • Were there any other circumstances affecting the witness’s ability to make an accurate identification? The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime.  If the People have not met this burden, you must find that the defendant not guilty.”) REGARDING JURY INSTRUCTIONS, see People v. Wright, 45 Cal.3d 1126, 1143 (1988) [armed robbery case in which only evidence was eyewitness identification and three of eleven victims identified defendant with varying levels of certainty as a perpetrator] (“We conclude that the listing of factors to be considered by the jury will sufficiently bring to the jury’s attention the appropriate factors, and that an explanation of the effects of those factors is best left to argument by counsel, cross-examination of the eyewitnesses, and expert testimony where appropriate.  The instruction should list the applicable factors in a neutral and nonargumentative instruction, thus effectively informing the jury without improperly invading the domain of either jury or expert witness.  It should list only factors applicable to the evidence at trial, and should refrain from being unduly long or argumentative.”); SEE ALSO California Criminal Defense Practice, Vol. 2 (Eyewitness Identification), §31.05[3][b] (“The court may not instruct the jury that eyewitness identification may be mistaken and should be received with caution.  This type of instruction is improper and unnecessary, and would usurp the jury’s role as exclusive trier of fact by binding it to the view that eyewitness identifications are often mistaken.  However, if the witness failed to attend a pretrial lineup that the defendant had requested, the trial court may inform the jurors about that failure and instruct them that, as a result, the in-court identification should be viewed with caution.”)
    7. See 2008 American Bar Association report to house of delegates on cross-racial identification and need for prophylactic efforts in the form of expert witness testimony and/or jury instructions (“Research results vary but they show a generally consistent pattern.  Persons of one racial group may have greater difficulty distinguishing among individual faces of persons in another group than among faces of persons in own group.  Persons who primarily interact within their own racial group, especially if they are in the majority group, will better perceive and process the subtlety of facial features of persons within their own racial group than persons of other racial groups.”)
    8. Elizabeth F. Loftus, Geoffrey R. Loftus, Jane Messo, Some Facts About “Weapons Focus” in Law and Human Behavior, Vol. 11, No. 1 (1987) (“‘Weapons focus’ refers to the concentration of a crime witness’s attention on a weapon, and the resultant reduction in ability to remember other details of the crime.”)
    9. Schmechel, O’Toole, Easterly and Loftus, Beyond the Ken?, supra, p. 197.
    10. California Senate Bill 932
    11. People v. Cunningham, 25 Cal.4th 926, 989 (2001) [death penalty case involving robbery and murder] (In order to determine whether the admission of identification evidence violates a defendant’s right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness’s degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification. The defendant bears the burden of demonstrating the existence of an unreliable identification procedure.”); Stovall v. Denno, 388 U.S. 293, 302 (1967) [no due process violation in case where defendant was brought to victim’s hospital room in showup while he was handcuffed to a cop because of time pressure and lack of alternatives] (“We turn now to the question whether petitioner, although not entitled to the application of Wade and Gilbert to his case, is entitled to relief on his claim that, in any event, the confrontation conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law. This is a recognized ground of attack upon a conviction independent of any right to counsel claim.  The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.  However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it, and the record in the present case reveals that the showing of Stovall to Mrs. Behrendt in an immediate hospital confrontation was imperative.  The Court of Appeals, en banc, stated. Here was the only person in the world who could possibly exonerate Stovall.  Her words, and only her words, ‘He is not the man,’ could have resulted in freedom for Stovall.  The hospital was not far distant from the courthouse and jail.  No one knew how long Mrs. Behrendt might live.  Faced with the responsibility of identifying the attacker, with the need for immediate action and with the knowledge that Mrs. Behrendt could not visit the jail, the police followed the only feasible procedure and took Stovall to the hospital room.  Under these circumstances, the usual police station line-up, which Stovall now argues he should have had, was out of the question.” Internal citations and quotations omitted); Simmons v. United States, 390 U.S. 377, 384 (1968) [Chicago bank robbery case involving photo arrays] (“Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”)
    12. People v. Yeoman, 31 Cal.4th 93, 125 (2004) (“Our determination that the identification procedures used here were not unnecessarily suggestive disposes of defendant’s claim under due process.  Only if the challenged identification procedure is unnecessarily suggestive is it necessary to determine the reliability of the resulting identification.”); People v. Ochoa, 19 Cal.4th 353 (1998) [not unduly suggestive for cop to show rape victim, who had only seen rapist in profile, to show witness defendant’s photo in profile but not other photos in array in profile] (“for a witness identification procedure to violate the due process clauses, the state must, at the threshold, improperly suggest something to the witness-i.e., it must, wittingly or unwittingly, initiate an unduly suggestive procedure. Due process does not forbid the state to provide useful further information in response to a witness’s request, for the state is not suggesting anything.”)
    13. Mason v. Brathwaite, 432 U.S. 98, 114 (1977) [suggestibility itself insufficient to invalidate a pre-trial identification ] (“We therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony for both pre- and post-Stovall confrontations.  The factors to be considered are set out in Biggers….These include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.  Against these factors is to be weighed the corrupting effect of the suggestive identification itself.”); Neil v. Biggers, 409 U.S. 188, 199 (1972) [no due process violation when rape victim identified defendant in showup several months after the attack] (“We turn, then, to the central question, whether under the ‘totality of the circumstances,’ the identification was reliable even though the confrontation procedure was suggestive.  As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.The victim spent a considerable period of time with her assailant, up to half an hour.  She was with him under adequate artificial light in her house and under a full moon outdoors, and at least twice, once in the house and later in the woods, faced him directly and intimately.  She was no casual observer, but rather the victim of one of the most personally humiliating of all crimes.  Her description to the police, which included the assailant’s approximate age, height, weight, complexion, skin texture, build, and voice, might not have satisfied Proust, but was more than ordinarily thorough.  She had ‘no doubt’ that respondent was the person who raped her..There was, to be sure, a lapse of seven months between the rape and the confrontation.  This would be a seriously negative factor in most cases.  Here, however, the testimony is undisputed that the victim made no previous identification at any of the showups, lineups, or photographic showings.  Her record for reliability was thus a good one, as she had previously resisted whatever suggestiveness inheres in a showup.  Weighing all the factors, we find no substantial likelihood of misidentification.”)
    14. Note that the “certainty of the witness” factor continues to come under criticism based on research showing that witness certainty does not significantly correlate to accuracy.  Wells, Eyewitness Identification:  Systemic Reforms, supra, p. 620 (“Meta-analyses, which combine the results of a large number of controlled experiments, show that the correlation between confidence and accuracy in eyewitness identification is likely to be somewhere in the range of +.40, where +1.0 is a perfect correlation and 0.0 is no correlation at all.  This means that a confident witness is more likely to be accurate than is a nonconfident witness.  However, the +.40 correlation is far from perfect (+1.0), indicating that there are many confident witnesses who are inaccurate and many nonconfident witnesses who are accurate.”); Thompson, Judicial Blindness to Eyewitness Misidentification, supra, p. 659 (“This five-factor test, fashioned in 1972, has been roundly criticized for including witness certainty as a factor when social science research shows that witness confidence in an identification does not necessarily correlate with accuracy, and that a witness’s confidence level has a tendency to rise as the witness moves through the criminal justice process. Nonetheless, state appellate courts, with few exceptions, continue to apply this test (including the witness confidence prong) in assessing federal and state due process claims.  Courts seem unfamiliar with, or unpersuaded by, the scientific research on witness confidence, and they erroneously rely on witness certainty in evaluating the reliability of the identification.”)
    15. Sandra Guerra Thompson, Judicial Blindness to Eyewitness Misidentification, Marquette Law Rev. 93:639 (2009) at 642.  SEE ALSO People v. Yeoman, 31 Cal.4th 93, 124, supra [different photos of defendant contained in two separate photo arrays, both in the fourth position, not unduly suggestive] (“We perceive nothing unduly suggestive in the identification procedures just described.  To determine whether a procedure is unduly suggestive, we ask whether anything caused defendant to ‘stand out’ from the others in a way that would suggest the witness should select him.  Defendant emphasizes that his image appeared in both lineups, each time in the fourth position.  To use a suspect’s image in successive lineups might be suggestive if the same photograph were reused or if the lineups followed each other quickly enough for the witness to retain a distinct memory of the prior lineup.  But here, different photographs of defendant appeared in each lineup, and the two lineups were separated in time by a month.  Under these circumstances we see no reason to believe that the use or position of defendant’s image in both lineups was unnecessarily suggestive.”  Internal citations and quotations omitted) People v. Wimberly, 5 Cal.App.4th 773, 790 (2010) [photographic lineup not unduly suggestive even though similarities exited and defendant was only one to repeat a phrase and do an action] (“Thus, courts have upheld lineup identifications despite the existence of similar or greater disparities among the lineup participants.Appellant also argues that, contrary to the procedures the police announced at the beginning of the lineup, the police asked only him ‘to repeat all of the words the suspect had used, and to try on a pair of glasses again ….’ However, the police made this request only because appellant had spoken too softly and did not put the glasses on properly.  Thus, the request did not render the identification improper.”); People v. Brandon, 32 Cal.App.4th 1033, 1052 (1995) [lineup not unduly suggestive in kidnapping and robbery case] (“As the trial court noted, Brandon’s photograph does not stand out as the sole possible or most distinguishable choice.  It is very similar to at least two other men’s photographs.  The circumstances surrounding the photographs being shown to Gonzales (loose, in a stack and shown one at a time) reflect she was not influenced by any so-called ‘filler’ photographs.  She immediately recognized Brandon as the man who attacked her and her trial testimony reflects she had ample time to see Brandon’s face and observe him throughout the duration of the criminal acts against her.  Based on the totality of the circumstances, we conclude Brandon has not met his burden of proving the photographic lineup was unfair and unduly suggestive.”)
    16. United States v. Wade, 388 U.S. 218, 236, supra (“Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that, for Wade, the post-indictment lineup was a critical stage of the prosecution at which he was ‘as much entitled to such aid [of counsel] . . . as at the trial itself.'”); Gilbert v. California, 388 U.S. 263, 272 (1967) [companion case to Wade, bank robbery and murder of a policeman case involved post-indictment lineup without notice to counsel] (“The admission of the in-court identifications without first determining that they were not tainted by the illegal lineup but were of independent origin was constitutional error. We there held that a post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to, and in the absence of his counsel denies the accused his Sixth Amendment right to counsel and calls in question the admissibility at trial of the in-court identifications of the accused by witnesses who attended the lineup.  However, as in Wade, the record does not permit an informed judgment whether the in-court identifications at the two stages of the trial had an independent source.”)
    17. California Criminal Defense Practice, Vol. 2, supra, §31.03[6] (“The exact role of an attorney who is allowed to attend an identification procedure, generally, a formal lineup, has never been clarified and he or she usually will not be allowed an active role in the identification procedure.  In fact, any efforts to interfere with police procedures are probably not advisable.  Undue participation might serve only to produce an unassailable identification.  However, a defense counsel should be prepared to (1) Explain the identification procedure to the client, and attempt to alleviate nervousness or confusion about the process that might result in behavior which would attract the attention of witnesses; (2) Observe any irregularities of procedure or hesitancy on the part of witnesses; and (3) To the extent possible, record evidence of problems for later review by the court.  For instance, counsel may ask permission to take photographs, particularly if there is to be no police photograph of the lineup.”); SEE ALSO CEB California Criminal Law Criminal Procedure and Practice, § 22.6 (Theory of Representation at Lineups) for theory of more active attorney role (“The other theory calls for the attorney to object to any errors he or she believes are occurring.”)
    18. People v. Fowler, 1 Cal. 3d 335, 342 (1969) [pre-indictment lineup in robbery case] (“We have concluded that the Wade-Gilbert rules are not limited in their application to lineups occurring after indictment..The presence or absence of those conditions attendant upon lineups which induced the high court to term such proceedings ‘a critical stage of the prosecution’ at which the right to counsel attaches.is certainly not dependent upon the occurrence or nonoccurrence of proceedings formally binding a defendant over for trial.  A lineup which occurs prior to the point in question may be fraught with the same risks of suggestion as one occurring after that point, and may result in the same far-reaching consequences for the defendant.”); People v. Bustamone, 30 Cal.3d 88, 101 (1981) [court confirms Fowler holding despite Kirby, infra] (“Although extending the right to counsel to preindictment lineups will thus impose an additional burden upon the police, and may delay the staging of the lineup, these consequences do not appear substantial enough to justify denying defendant this protective right.. We conclude that we should adhere to the views stated in People v. Fowler. We hold that article I, section 15 of the California Constitution, affords to a defendant the right to the presence of counsel at a preindictment lineup. “); People v. Keim, 8 Cal.App.3d 776, 780 [unreasonable for police in rape case to conduct lineup where defendant’s lawyer was late] (“While it is not our proper function to formulate precise rules, reasonable procedure would dictate first that the defense attorney be given as much notice as possible. Second, once it is clearly established, as it was here, that counsel for defendant was to be present, the lineup should have been delayed.  The brief wait of half an hour was clearly unreasonable.”); BUT SEE People v. Hart, 20 Cal.4th 546, 624 (1999) [police could proceed with lineup in death penalty rape/murder case where public defender showed up but refused to attend] (“Upon seeing the composition of the lineup, the public defender objected on the basis that the lineup was unfair, and departed. Defendant was left without counsel and initially refused to participate in the lineup. Although it is true that a lineup represents a ‘critical stage’ to which a defendant’s Sixth Amendment right to counsel attaches.the public defender’s refusal to attend the lineup cannot be equated with a denial of defendant’s right to counsel, and a defendant generally has no right to refrain from participating in a lineup. Nor does the record on appeal suggest that the lineup, as conducted, was improperly suggestive or unfair.”)
    19. Kirby v. Illinois, 406 U.S. 682, 689 1972 [pre-indictment lineup in robbery case] (“But the point is that, while members of the Court have differed as to existence of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.. The initiation of judicial criminal proceedings is far from a mere formalism.  It is the starting point of our whole system of adversary criminal justice.  For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified.  It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.”)
    20. People v. Evans, 11 Cal.3d 617, 621 (1974)
    21. People v. Evans, 11 Cal.3d 617, 625, supra (“We conclude in view of the foregoing that due process requires in an appropriate case that an accused, upon timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate.  The right to a lineup arises, however, only when eyewitness identification is shown to be in material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve.”); BUT SEE People v. Sullivan, 151 Cal.App.4th 524, 560 (2007) [no pretrial lineup granted in case where multiple witnesses identified defendant in case of multiple bank robberies] (“Upon our review of the record we find no ‘reasonable likelihood of a mistaken identification’ that would have been resolved by a pretrial lineup.  First, witnesses to the robbery at Citibank positively identified defendant in the field after he was apprehended near the crime scene in a taxi-the same one that brought him to the bank-in possession of the money and demand note, along with a sweater that matched the one worn by the robber.  Another Citibank employee identified defendant from a photo lineup and at trial as ‘the person who robbed the bank.’  The witnesses identified photographs of the robber taken by bank surveillance cameras, which were exhibited to the jury.  The descriptions of the robber provided by the witnesses, although not identical, were fairly uniform and corresponded to defendant’s appearance.  Most of the witnesses managed to get a good look at the face of the robber during the crimes.  Many, although not all, of the witnesses identified defendant from the photo lineups displayed to them, and defendant has not established that those photo lineups were in any way impermissibly suggestive.  Defendant was provided with the statements and descriptions of the witnesses, along with all of the information associated with the photo lineups.  He thus had ample opportunity to challenge the identifications at trial, even without a pretrial physical lineup.  We are convinced that an additional pretrial lineup would not have yielded any different testimony by the witnesses, or cast doubt upon any of the identifications made by them.”)
    22. CEB California Criminal Law Criminal Procedure and Practice, § 22.17 (Defense (Evans) Lineups) (“Whether to seek an Evans lineup is a difficult tactical decision and, therefore, counsel’s to make.It must be made early in the case, before all the facts are known and discovery is completed, and usually before the preliminary hearing.  Counsel must weigh the possible benefits against the dangers.  The following are some of the areas to consider: Factual and legal guilt of the client; Strength of the prosecution’s case; Possibility that the police or prosecutor will subsequently hold a lineup; and Differences in a client’s appearance from the description.”)
    23. Schmechel, O’Toole, Easterly and Loftus, Beyond the Ken?, supra, p. 196.
    24. Schmechel, O’Toole, Easterly and Loftus, Beyond the Ken?, supra, p. 199.
    25. People v. McDonald, 37 Cal.3d 351, 377 (1984), overruled on other grounds in People v. Mendoza, 23 Cal.4th 896 (2000) [conviction reversed because trial court abused its discretion in disallowing expert testimony where eyewitness testimony was conflicted and sole evidence] (“Because no other evidence connected defendant with the crime, the crucial factor in the case was the accuracy of the eyewitness identifications.  Yet on that issue the evidence was far from clear.  As we noted at the outset, in the testimony of each of the witnesses who identified defendant in the courtroom there were elements that could have raised reasonable doubts as to the accuracy of the identification.  These elements included the suddenness and unexpectedness of the event, discontinuity and other difficulty of observation, fear and other stress at the time of perception, overestimation of the duration of the event, ‘feedback’ factors following the event, failure or uncertainty of several witnesses in selecting defendant’s photograph from police displays, and, particularly important, apparent cross-racial identification discrepancies.  Further doubts could have arisen from the dramatic declaration in open court by a prosecution eyewitness that defendant was not the perpetrator, and from the testimony of six witnesses that defendant was not in the state on the day the crime was committed.”); BUT SEE People v. Jones, 30 Cal.4th 1084, 1112 (2003) [expert testimony not needed in death penalty case where prosecution had other evidence substantially corroborating eyewitness testimony]  (“Exclusion of the expert testimony is justified only if there is other evidence that substantially corroborates the eyewitness identification and gives it independent reliability.  The corroborating evidence here meets McDonald’s standard.  Kane’s identification of defendant was corroborated by testimony of Muslim, Cruz, Luna, Hunt, and Burton.  It does not matter, for this purpose, that Muslim, Cruz, and Luna may have been accomplices whose testimony would require corroboration to support a conviction.  Neither does it matter that all five witnesses could be impeached by proof of bias or prior inconsistent statements.  The cumulative corroborative effect of the testimony of defendant’s admissions is sufficient to give independent reliability to the eyewitness identification.”); People v. Goodwillie, 147 Cal.App.4th 695, 729 (2007) [no due process violation in not allowing expert testimony where there were multiple unequivocal identifications and inculpatory statement by defendant] (“If there is substantial evidence showing that the eyewitness testimony is reliable, the trial court may conclude that the probative value of expert testimony would not outweigh any prejudicial effect caused by potential confusion of the issues and/or the amount of time that would be consumed by such testimony.”); People v. Sanders, 11 Cal.4th 475, 509 (1995) [death penalty case arising out of shooting at Los Angeles Bob’s Big Boy restaurant] (“Although eyewitness testimony was a key element of the prosecution’s case, here, unlike McDonald, eye-witness testimony was not the only evidence linking the defendant to the crime.  The eyewitness identification was corroborated by other independent evidence of the crime and the conspiracy leading to it.”)

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