The Federal Evidence Blog gauges the impact of last-week’s decision relegating “happenstance” but suggestive ID procedure to jury (rather than due process) determination. Pointing out that Perry highlights 5 “protections” against unreliable IDs, the post keys on appropriate jury instructions (and promises to “review some of these [other] key protections in upcoming posts”; might therefore be worth your while to check that site for updates).
The Wisconsin practitioner will need no instruction to learn that our pattern Wis JI – 141 (“Where Identification of Defendant Is in Issue”) just doesn’t say a whole lot. As the 2005 Comment to 141 indicates, the Committee rejected the “most-cited eyewitness identification instruction,” United States v. Telfaire, 469 F.2d 552 (D.C.Cir.1972), apparently concluding that its “long list of factors … was not an effective approach.” Note, however, the following passage from Perry:
… Eyewitness-specific jury instructions, which many federal and state courts have adopted,7 likewise warn the jury to take care in appraising identification evidence. See, e.g., United States v. Telfaire, 469 F. 2d 552, 558–559 (CADC 1972) (per curiam) (D. C. Circuit Model Jury Instructions) (“If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to him for identification, you should scrutinize the identification with great care.”). See also Ventris, 556 U. S., at 594, n. (citing jury instructions that informed jurors about the unreliability of uncorroborated jailhouse-informant testimony as a reason to resist a ban on such testimony); Dowling, 493 U. S., at 352–353. The constitutional requirement that the government prove the defendant’s guilt beyond a reasonable doubt also impedes convictions based on dubious identification evidence.
Several of the cases cited with seeming approval at footnote 7 explicitly adopt Telfaire; others appear to provide more detailed instruction than our 141. (The Evidence blog usefully collects those cases in a table at the end of the post.) Obviously, this doesn’t mean that a Telfaire-type is now required. At the same time, there’s no reason a 141 instruction can’t be modified, especially in light of what appears to be the favorable passage quoted above – unless, that is, the judge’s discretion isn’t triggered by such a request.